In this instalment of Ask A Lawyer, two of Titan Chambers’ Attorneys, Jonathan Bhagan and Saelese Haynes, share their perspectives on redress for victims of sexual harassment. You can find an excerpt below and read the full article at loopnews.com.
What legal steps can I take if I’ve been a victim of sexual harassment in the workplace/school? For the sake of this conversation, let’s say I reported it to my direct supervisor or a member of the administrative staff and I was discouraged from escalating it and basically told it is not worth pursuing.
While there is no specific legislation covering sexual harassment in Trinidad and Tobago to date, persons who have experienced sexual harassment in either the workplace or school still have legal remedies to seek justice.
At present, in Trinidad and Tobago, aspects of sexual harassment are addressed in general civil and criminal legislation and, depending on the circumstances, may also be covered under the laws prohibiting discrimination on the grounds of sex in Trinidad and Tobago (Equal Opportunities Act, Chap. 22:03).
According to the Equal Opportunities Commission’s Guidelines on Sexual Harassment (May 2018), ‘Sexual Harassment’ may include any of the following:
“(i) Misuse of sexual behaviour and request for sexual favours – when it is made a condition of employment or promotion;
(ii) Physical sexual harassment – sexual violence or unwelcome physical contact;
(iii) Verbal sexual harassment – offensive and sexually suggestive jokes and comments;
(iv) Non-verbal sexual harassment – suggestive gestures of a sexual nature and sexually suggestive body language;
(v) Written or graphic sexual harassment – displays of sexually explicit photographs and pornographic materials; and/or
(vi) Psychological sexual harassment – repeated unwanted proposals and taunts of a sexual nature.”
In a recent (2019) Court of Appeal decision on the subject matter, the court accepted and affirmed this definition as applicable in Trinidad & Tobago.
For persons who have experienced acts of sexual harassment in their place of employment or education, it is advisable that they document all related circumstances and facts contemporaneous (as close as possible in time) with the acts experienced. Perspectives should be recorded from a subjective (how the acts made you feel) as well as (as far as possible) from an objective perspective.
While it is important to make detailed reports to seniors or supervisors, it is at least equally as important, if not more so that the person experiencing the unwelcome or untoward behaviour keep their own records, including copies of reports submitted to the institution. Further, where they are actively encouraged to bury the matter, they should also keep records of who they spoke to on the topic and when as well as what was said and/or done.
Many otherwise actionable legal claims are compromised when there isn’t sufficient evidence to prove what transpired. In addition, while keeping one form of record is great, keeping records in multiple forms/formats is even better. A phone or device can malfunction and the person loses all of their evidence, but if it was emailed to themselves, then there would still be proof available.
In some instances, based on the nature of the incident/s, police reports may be warranted and are encouraged. The difference between a fairly satisfactory outcome arising out of the incident where the offender is held accountable as compared to a wholly unsatisfactory outcome where only the victim suffers may depend on what can be proven by independently verifiable or contemporary sources.
Local courts have also noted that survivors of sexual harassment face an erosion in their dignity and well-being. In the opinion of the court:
“It is demeaning of the dignity of the person and corrosive of an individual’s self-esteem…”
While there is no specific legislation dealing with sexual harassment as stated above, it is possible to bring legal action against someone who is committing sexual harassment under other aspects of the law.
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