In the recent case of CA No. P407 and P408 of 2019 EOC and Maharaj v Cascadia Hotel Limited the Trinidad and Tobago Court of Appeal ruled that sexual harassment can amount to actionable discrimination on the grounds of sex within the meaning of the Equal Opportunity Act. This ruling means that victims of workplace sexual harassment can now seek recourse against their employers at the Equal Opportunity Tribunal.
The case was brought by a male Complainant who alleged that his female manager had sexually harassed him. The conduct complained of included inappropriate language (referring to the Complainant as ‘sexy’ and ‘bae’) as well as unwanted touching.
When the complaint initially came before the Equal Opportunity Tribunal, it took the view that sexual harassment did not fall within the scope of the Act. However, this decision was appealed.
The Act prohibits discrimination on the grounds of certain protected ‘statuses’, namely sex, race, ethnicity, origin, religion, marital status and disability. The case concerned discrimination on the grounds of sex.
Under the Act, a person (the discriminator) discriminates against another (the aggrieved person) on the grounds of sex if, by reason of the sex of the aggrieved person, the discriminator treats them less favourably than another person of a different sex.
The Court of Appeal found that, in deciding whether or not sexual harassment fell within the scope of sex based discrimination under the Act, the central issue was whether the Complainant had been treated less favourably than a person of a different sex would have been treated.
The Court of Appeal adopted the following definition of workplace sexual harassment:
“…any unwelcome sexual advance, request for sexual favour, verbal or physical conduct or gesture or a sexual nature, or any other behaviour of a sexual nature that might reasonably be expected to be or perceived to cause offence or humiliation to another, when such conduct interferes with work, is made a condition of employment or creates an intimidating, hostile or offensive work environment. While typically involving a pattern of behaviour, it can take the form of a single incident. Sexual harassment may occur between persons of the opposite or same sex. Both males and females can be either the victims or the offenders.”
In the Court of Appeal’s view, any conduct falling within this definition of sexual harassment would amount to ‘less favourable’ treatment within the meaning of the Act and in turn would amount to sex based discrimination if an employee of a different sex would not have been subjected to the same treatment.
In this case, the Court found that a female employee would not have been treated in the same way as the male Complainant allegedly had been. This was enough to amount to amount to sex based discrimination under the Act and entitle the Complainant to pursue his claim at the Equal Opportunity Tribunal.
Notably, the Court of Appeal indicated that complainants who are victims of sexual harassment in circumstances which offer no comparator – in other words where they cannot show that an employee of a different sex would have been treated differently – would be barred from accessing the Act.
It is clear that the Court of Appeal’s ruling applies to opposite sex (male/female and female/male) harassment. While sexual orientation is not a protected status under the Act, in theory it could also apply to same sex harassment if a complainant can show that an employee of the opposite sex would not have been subjected to the same treatment.
It should be noted that there need not be a sex-related motive or objective in order for conduct to qualify as sexual harassment. For example, if a supervisor or co-worker engages in sexually harassing conduct against an employee as part of campaign to force them to quit their job, this could qualify as actionable sexual harassment under the Act.
Prior to the Court of Appeal’s ruling, sexual harassment allegations generally found their way before the Industrial Court as part of broader unfair or constructive dismissal claims. However, the Court of Appeal’s ruling is significant, in that sexual harassment can now ground standalone sex based discrimination claims at the Equal Opportunity Tribunal.
For employers seeking to better understand their obligations when it comes to preventing and resolving workplace sexual harassment, the Equal Opportunity Commission has helpfully published Guidelines on Sexual Harassment in the Workplace, available on its website.
Disclaimer: This Document Provides General Guidance Only And Nothing In This Document Constitutes Legal Advice. Should You Require Specific Assistance, Please Contact Your Attorney-At-Law.
Catherine Ramnarine is a Partner at M. Hamel-Smith & Co. She can be reached at catherine@trinidadlaw.com
