Letter to the Editor
There is a human rights monster coming to Cayman with the potential to put both the government and most of the private sector out of business.
The monster has, or will shortly have, three heads:
The Human Rights Commission;
The Gender Equality Tribunal;
The Sexual Harassment Tribunal.
In most North American jurisdictions, the monster has only one head, called the Human Rights Commission, which does the work of the three heads proposed for Cayman. We are getting to the stage in Cayman that there are so many tribunals, boards and authorities that no one, including the government, can keep track of them, let alone staff them with qualified individuals.
The Human Rights Commission – The Commission is created by section 116 of The Constitution of the Cayman Islands. It has the powers enumerated in section 116(6) of the Constitution, including the powers to: (a) receive and investigate complaints of breaches or infringements of any right or freedom contained in the Bill of Rights (sections 1 to 28 of the Constitution, in force 06 November, 2012) or in international human rights treaties which have been extended to the Cayman Islands; and (b) investigate such possible breaches or infringements on its own initiative. The Commission does not have the power to make binding determinations as to whether any right or freedom contained in the Bill of Rights, or in any international treaty involving human rights, has been breached; however, any public official to whom the Commission addresses a recommendation must respond in writing within a reasonable time and, unless there is a good reason not to do so, the Commission has a duty to publish such responses. The remedy for the breach by the government of a right stated in the Bill of Rights is an application to the Grand Court for such relief as may be appropriate in the circumstances. The most interesting rights are the rights of every person, contained in section 19 of the Bill of Rights, which states that: (a) “All decisions and acts of public officials must be lawful, rational, proportionate and procedurally fair” and that: (b) “Every person whose interests have been adversely affected by such a decision or act has the right to request and be given written reasons for that decision or act”. These rights, when combined with the right to non-discrimination on the grounds stated in section 16 (sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, age, mental or physical disability, property, birth, or other status), should make the next few years interesting for public officials.
The Gender Equality Tribunal – (i) Introduction – The Tribunal was created by The Gender Equality Law, 2011 (“Law”) which came into force on 31 January 2012. The focus of the Law is the prohibition of any distinction, exclusion or preference the intent or effect of which is to nullify or impair equality of opportunity or treatment in any employment or occupation on the grounds of: (a) sex; (b) marital status; (c) pregnancy; or (d) any characteristic based on gender which appertains generally or is generally imputed to persons of a particular sex or marital status or pregnant state. This is quite a mouthful. When you add to the mouthful (1) the definition of gender as “the cultural, economic, social, and political characteristics, roles and opportunities through which men and women are socially constructed and valued”; and (2) the statement in section 3(3) of the Law that any act, practice or policy that directly or indirectly results in discrimination against a person on any ground stated above, regardless of whether the person responsible for the act, practice or policy intended to discriminate, you, as a private or public employer, should realise that you are not capable of understanding the Law and that you, if you haven’t already, will lose control of the workplace to human resources practitioners. Discrimination on the basis of “sex” includes discrimination called “sexual harassment”, the prohibition of which is currently in section 7 of the Law (more about this below). Specific prohibitions of discriminatory conduct are imposed by the Law (which binds the Government), on employers, firms of professionals, qualifying bodies, a person or education authority providing facilities for training for employment, employment agencies, providers of goods, services or facilities and persons who publish or display an advertisement or notice. (ii) Equal Pay for Work of Equal Value – One of the most interesting duties in the Law is the duty imposed in section 8 on an employer to pay equal remuneration to men and women “performing work of equal value for such employer”; this is not the same as “equal pay for equal work”. “Work of equal value” is defined as “work equal in value in terms of the demands it makes in relation to such matters as skill levels, duties, physical and mental effort, responsibility and conditions of work.” In the event of a complaint alleging breach of section 8, the onus is on the employer to establish that it has paid equal remuneration. Section 8 allows an employee to challenge the higher remuneration being received from the employer by another employee on the basis that the former’s work is of “equal value” to the employer. The employer cannot disprove this unless an analysis has been done of the work performed by the two persons in question; such analysis is done by organisations such as Hay Group, a worldwide consulting group. Past experience with “equal pay for work of equal value” in Canada led to sizeable awards in cases where the employer was held to have breached the obligation. Bell Canada was ordered to pay CAD 59 Million after a finding that Bell’s female operators had been paid less than Bell’s male technicians (telephone installers) for work or equal value. In 1999, an equal pay for work of equal value case cost the Government of Canada CAD 3.3 Billion; this involved 200,000 unionized employees who had launched their complaint in 1985.
The Proposed Sexual Harassment Law – As stated above, currently, under The Gender Equality Law, 2012, (“Law”) discrimination on the basis of sex includes a prohibition, in section 7 of the Law, against “sexual harassment”; this is defined as “unwanted conduct of a sexual nature against an employee by an employer or another employee (a) in the workplace; or (b) in connection with the performance of, or recruitment for work, which [unwanted conduct] is threatened or imposed as a condition of employment on the employee or which creates a hostile working environment for the employee, being conduct which has the purpose or effect of violating the dignity of the employee or intimidating, degrading, humiliating or offending the employee.” It is proposed to repeal section 7 of the Law and bring into force a new law to be called The Sexual Harassment Law, 2012, which would create the Sexual Harassment Tribunal. The proposed SHL would impose a duty on every person on the Islands, not just employers and fellow employees, to refrain from conduct which is intended to sexually harass another person, male or female, or has that effect, regardless of intention. In other jurisdictions, the paranoia over sexual harassment has resulted in public bodies and private companies having a sexual harassment coordinator for every department whose ever-expanding budget results in the turning out of copious training manuals followed by periodic mandatory training. I am not trying to make light of a serious issue; however, governments and organisations tend to go overboard and, today, political correctness has come to resemble a witch hunt.
Conclusion – Let us hope that, with respect to the application of these existing and coming laws, reason can prevail and we not lose sight of the forest for the trees. The forest is that both the Government and private enterprise need to survive and prosper in order for Cayman to survive and prosper; the human rights monster must be repelled.