Sexual harassment offences in the workplace or within community organisations could lead to a one year prison sentence upon conviction, according to a draft bill made public this month.
The Sexual Harassment Bill, 2012 draft was released by the Cayman Islands Law Reform Commission for discussion. If accepted and passed by the Legislative Assembly, it would repeal and replace a section of the recently-approved Gender Equality Bill that deals in part with harassment. According to the bill, sexual harassment means making an unwelcome sexual advance, request for sexual favours, sexual comments, gestures or contact towards a person. In addition, providing a person with unwanted sexual images, graphics or audio to a person would be included in the definition of sexual harassment.
The bill also includes “engaging in conduct of a sexual nature knowing that there is a likelihood that the person to whom the conduct is intended to affect will become aware of the conduct” and “exposing parties to sexual harassment conduct” in the offensive behaviour.
Sexually harassing behaviour is defined as behaviour toward someone that was calculated to “offend, humiliate, disrespect or degrade that person” or to “intimidate, threaten or compel that person by putting him in fear of being placed at a disadvantage or prejudiced if he [or she] does not submit to the sexually harassing conduct”. Behaviour that creates a “hostile environment” or “violates the dignity of that person” is also included within the definition of sexually harassing conduct.
Even though some conduct might be viewed as “minor”, the bill requires authorities to take into account the entire situation including whether the offending conduct occurred more than once and what the relationship between the two parties involved was when the harassment allegedly occurred.
Employers who become aware of sexual harassment on the job are required to “take immediate and appropriate action” to prevent the conduct from continuing.
“An employer is liable for the sexual harassment conduct…only if it is proven that he knew, ought reasonably to have suspected or was informed of the commission of such conduct and on becoming aware, suspicious of informed, failed to take reasonable steps to prevent the continuation of the conduct.”
Somewhat surprisingly, the bill leaves it up to each individual employer to formulate their own policy with regard to sexual harassment in the workplace. The policy statement must fit within the legal definition of sexual harassment contained within the bill. The policy should state how employee complaints about sexual harassment will be dealt with.
Any retaliatory act taken by an employer against someone who makes a sexual harassment complaint is a criminal offence punishable by $5,000 fine and up to a year in prison upon conviction.
Sexually harassing conduct against prison inmates, staff, public education institutions and volunteer organisations is also prohibited within the draft bill. Sexual harassment that occurs between tenants and landlords is also prohibited in the draft bill.
In addition to sexual harassment being a criminal offence, similar penalties can also be assessed to people who make false reports or “frivolous complaints” of such activity.
Sexual Harassment Tribunal
A five-person appointed body that will hear and determine sexual harassment complaints, called the Sexual Harassment Tribunal, is formed by the draft bill.
The panel members are to be appointed by Cabinet members. They will include an attorney as the chairperson and four other people who have qualifications or experience in human rights, employment, gender relations or social development fields.
Any decision of the tribunal on a complaint will be by simple majority of the members.
Any complaints to the tribunal must be made within six months of the alleged behaviour occurring unless the panel determines a further delay of the complaint was “reasonable”.