MCGREGOR
THE AMERICAN media has tremendous influence over what the average Jamaican perceives to be the laws of our land. The issue of sexual harassment is no exception. The mention of the words probably evokes memories of the case involving former U.S. President Bill Clinton and Paula Jones, the extensive Senate Judiciary Committee hearings involving Anita Hill and Justice Clarence Thomas or even Demi Moore's challenges as a military officer in G.I. Jane.
WHAT IS SEXUAL HARASSMENT?
It is a form of sex discrimination that creates an intimidating, hostile or offensive work environment and interferes with an individual within the workplace. It may be characterised by unwelcome sexual advances, requests for sexual favours or other verbal or physical conduct of a sexual nature. It may occur in a variety of circumstances involving a fellow co-worker or a superior.
The victim or the harasser may be male or female. The victim does not have to be of the opposite sex. However, the harasser's conduct must be unwelcome, and it is always advisable that the victim inform the harasser that the conduct is unwelcome and insist that it must stop.
THE RESULTS OF TWO CASES
In 1991, Paula Jones had been employed to the State of Arkansas, when she alleged that Bill Clinton (then Governor) made sexual advances to her at a hotel. Three years after the alleged incident occurred, Jones filed a lawsuit against Clinton to recover damages on the ground of sexual harassment. The case went on for over four years before it was dismissed by a U.S. District Court Judge, who determined that there were "no genuine issues for trial". The case was settled for US$850,000 (J$55,029,000).
Anita Hill, an attorney-at-law, who was employed to the Equal Employment and Opportunities Commission, alleged that her boss (Clarence Thomas) asked her out on dates and spoke to her of pornography and lewd acts. This matter was not heard in Court. The issues were raised before the Senate Judiciary Committee while it considered Justice Thomas' nomination to sit on the Supreme Court Bench. After hearing four days of testimony, which sparked heated debates and raised international awareness of sexual harassment, Justice Thomas' appointment was confirmed by a vote of 52 to 48.
What redress is available to victims of sexual harassment in Jamaica?
While various forms of sexual discrimination are prohibited under Title VII of the United States Civil Rights Act of 1964, Jamaica still has no legislation which deals with sexual harassment. This situation remains unchanged despite the persistent lobbying efforts of groups such as the Bureau of Women's Affairs. Instead, victims of sexual harassment are left to lay charges of assault and/or battery against their harassers in order to obtain redress. As a result, unless sexual harassment takes on a violent form or results in injury, it is unlikely that the victim will recover compensation or that a penalty will be imposed on the harasser.
More recently, however, Jamaica ratified the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, Convention of Belem do Para, which has prompted further action in respect of measures to arrest sexual harassment. It is likely that under this Convention critical data will be available for assessing the extent and impact of sexual harassment. It is also intended that policies will be enacted so that victims will have other avenues for addressing their concerns.
It may still be necessary to enact specific legislation to tackle sexual harassment after appropriate policies and programmes are developed.
RESPONSE TO READER
At the time Chin v Chin was first heard in the Supreme Court by the Hon. Justice Seymour Panton, he invited counsel for the parties to cross-examine witnesses, but they declined to do so. In the end, the only independent evidence in respect of the relative shareholding of the parties in Lasco Foods Limited was an official certificate from the Registrar of Companies stating that Mrs. Chin was entitled to one share, only. It was on this basis, and the affidavit evidence, that it was ordered that Mrs. Chin owned one share as opposed to Mr. Chin's 249,999 shares in the company.
Sherry-Ann McGregor is an attorney-at-law and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions
to lawsofeve@yahoo.com.
