Sexual harassment and its effects continue to be an issue for many in the workplace, yet legislation making this a criminal offence in Cayman remains in draft format after eight years.
Cayman’s Business and Professional Women’s Club has been highlighting the issue for years.
Club president Andrea Williams said the group supports the efforts of members of the Sexual Harassment and Stalking Taskforce, which was led by Young BPW president Joannah Bodden-Small, who worked on the creation of the proposed law.
Results of a survey published by the taskforce in 2008 found that two in five people had experienced sexual harassment.
“This legislation will make sexual harassment itself an offence,” Williams said. “It sends a very strong message to the community that this type of bad behaviour will not be tolerated from anyone.”
Family attorney Louise Desrosiers defined sexual harassment as unwelcome actions of a sexual nature by the harasser intended to put him or her in a position of power over the person being harassed. She said it can take many different forms.
“Staring inappropriately, making sexually suggestive comments, telling or emailing inappropriate ‘jokes’, or subjecting someone to unwelcome physical contact, are all examples of sexual harassment,” she said.
Desrosiers said that while legislation like the Gender Equality Law (2011 Revision) and the Public Service Management Law (2013 Revision) and Personnel Regulations (2013 Revision) provide some measure of protection for employees, “notably absent are laws for private sector employees and for discrimination outside of the workplace/occupational contexts”.
She added, “A person’s ability to be free from sexual harassment should be considered a basic human right and the proposed law helps to support that proposition. Without the proposed law, gaps remain in the type of legal protection that can be provided against sexual harassment.”
In 2018, the Penal Code was amended to make stalking an offence, and a Stalking Law was enacted, but no such legislation for sexual harassment has been gazetted.
Law of intent
The Young BPW taskforce began its work on the issue in 2006 and in 2009 submitted recommendations to government to inform the drafting of a law. The taskforce was disbanded in 2009. Three years later, the Law Reform Commission published a draft law for public consultation which was submitted for legislative action.
Law Reform Commission Director Jose Griffith, responding to queries from the Cayman Compass on the status of the law, said it forwarded to the attorney general in May 2013 its final report on supporting the Sexual Harassment Bill.
“The AG in turn forwarded the report and bill to the Ministry of Community Affairs, which is the ministry responsible for the subject matter. At this stage, the commission … no longer has any involvement in the matter,” he said.
The Compass reached out to Premier Alden McLaughlin, who is the community affairs minister, and his ministry for an update on the status of the proposed legislation, but no response was received by press time.
The absence of the law was highlighted by Justice Margaret Ramsay-Hale when she addressed the BPW annual candlelight dinner in September, but she stressed the importance of reporting incidents of harassment.
“Although a sexual harassment law does not exist, many other existing laws can be used to address conduct in the workplace which amounts to a criminal offence. It’s still an offence to indecently assault someone, to use an ICT network to harass by sending sexually explicit texts or to publish pornography, and to engage in conduct that causes the victim to suffer psychiatric harm,” she said.
Sexual harassment thrives in a culture of silence, Ramsay-Hale said.
“The real question is why, even though these laws exist, such behaviour is not being reported. And the answer is a lack of education and support,” she said in her speech.
The draft law carries penalties of fines and jail time for sexual harassment incidents, and would also made it an offence for an employer to take retaliatory action against someone who makes a sexual harassment complaint.
Call to action
Ramsay-Hale said hostile workplaces are bad for business and it is common sense that, since half the workforce is female, “it is in everybody’s interest to root [sexual harassment] out… There is a lack of understanding among business owners, even where sexual harassment laws do exist, of how to provide effective remedies for victims of sexual harassment in the workplace, so your charge would be to educate them.”
The draft law mandates every company have a sexual harassment policy.
In 2016, government released its own policy for the civil service. The 12-page document sets out how complaints of workplace harassment are to be made, who should handle them, and the potential outcomes of those investigations. Punishment, including dismissal from work, for sexual harassers and those who falsely report sexual harassment, are covered in the document.
For Ramsay-Hale, the matter is one of advocacy at this point.
“You don’t have to wait for a law to be passed to lobby businesses to introduce sexual harassment policies. So, while you wait for the law to catch up with your concerns, you should be advocating in our workplaces for sexual harassment policies to be introduced,” she told the Business and Professional Women’s Club.
Williams said it is impossible to know how prevalent sexual harassment is among BPW members or in the community because “often it is not reported because the victims feel that there is no recourse available to them unless a criminal offence has been committed, such as assault or battery”.
However, she said, the club has encouraged victims who have come forward to use the recourse available under the law to protect themselves as much as possible, including using old-fashioned charges under the Penal Code, such as offending the modesty of a woman.
“It is not ideal, but BPW and the legal community have done what they could to try to protect victims from such abuse. The enactment of the sexual-harassment legislation will go a long way to assist victims in getting the legal support that they need,” she added.
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