Gender equality poses new legal ground

Under the new Gender Equality Law, employers will not be able to ask female job candidates about their pregnancy status or future family plans, and employees will have legal recourse in case they are sexually harassed or otherwise discriminated against on the basis of gender. 

While the legislation, which took effect 1 February, clearly addresses those issues and other scenarios, there are untested areas of the law that will be borne out via the new Gender Equality Tribunal, speakers at the Cayman Islands Chamber of Commerce said Monday. 

 

UK driving 

The driving force behind the law is the United Kingdom’s push for its Overseas Territories to conform to the international Convention on the Elimination of All Forms of Discrimination Against Women, said Tammy Ebanks, who is senior policy adviser for Gender Affairs in the Ministry of Community Affairs, Gender and Housing, and a member of the tribunal. 

The practical effect of the new law, though, will be to make Cayman a more attractive place to do business, she said. 

Ms Ebanks said traditional gender roles “tend to perpetuate unequal power balances in society and life”, for instance regarding expectations that men are better suited for higher-paying professional careers, and women are better suited for domestic roles. 

She said, “Just like blue is for boys and pink is for girls, we have ideas that men do this and women do that.” 

 

Provides protection 

The new law provides protection from discrimination in employment, training and hiring for both men and women; stipulates men and women should receive equal pay for work of equal value; prohibits sexual harassment in the workplace; and calls for equal treatment in the provision of goods, services and facilities. 

Complainants under the law may take their grievances to the newly formed tribunal, which has the power to award damages up to $20,000. People who bring complaints unsuccessfully will have to pay expenses incurred by the tribunal and the defendant. 

A person or company who does not cooperate with the tribunal or comply with its decision will have committed an offense carrying a penalty of $5,000. 

 

Tribunal 

Legislative counsel Karen Stephen-Dalton, who helped draft the legislation, said even though the monetary penalty may be less, violators of the law will be motivated to comply with the tribunal’s decision rather than commit a criminal offense and incur the associated repercussions, including bad publicity. 

Where the new law is in conflict with existing laws, such as the Labour Law, the existing laws will trump the Gender Equality Law. For example, even though the Gender Equality Law states men and women should have equal employment benefits, that doesn’t mean that men are automatically entitled to three months of paternity leave, as women are given for maternity leave under the Labour Law. 

The Gender Equality Law does not concern itself with biological ‘sex’, but rather with ‘gender’, defined in the law as “the cultural, economic, social, and political characteristics, roles and opportunities through which women and men are socially constructed and valued”. 

When asked if the new law may give protections to transgender individuals (who, for example, are fired because their expressed gender identity does not correspond to their biological sex), Senior Crown Counsel Reshma Sharma, who also helped draft the legislation, said, “It is indeed arguable the wording could catch a situation like that”. 

She said Cayman has “very creative lawyers”, and if such a situation arose, she “would not be surprised” if transgender rights were advocated under the Gender Equality Law.

On the other hand, the Gender Equality Law does not contain protections for sexuality. Additionally, the upcoming Bill of Rights does not offer explicit protections for sexuality or gender identity. 

Tammy Ebanks

Ms Ebanks
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