ONE of the suggestions being made to improve the Sexual Harassment Bill is widening the scope of people who have a duty of care to address complaints of sexual harassment, including the crew of public transportation such as the State-run Jamaica Urban Transit Company (JUTC).
The discussion arose at Thursday’s meeting of the joint select committee of Parliament, which is reviewing the Bill and taking submissions from interest groups, organisations, and individuals.
In his submission to the committee, Douglas Seeratan, a private citizen, said he was concerned about the wording of the clause in the Bill that deals with ensuring an environment free of sexual harassment. He said it limits the people who can bring a sexual harassment suit or charge against those responsible for an organization.
Seeratan pointed out that based on the specifications in the Bill, this would exclude a passenger on a bus who is sexually harassed by another passenger, as these victims would have no one to hold accountable for providing an environment that is free of sexual harassment.
He argued that the provision also does not speak to a situation where a customer who is sexually harassed by another customer at an organization, or an employee of the said organization, is able to lodge a complaint with the manager or proprietor as the person with a duty of care to that customer or employee.
“It is not for the JUTC to go and find this person, but it is for the JUTC to be accountable for this passenger who is harassed, so if a female comes and says this man did this to me they [JUTC] may be able to review cameras, circulate a picture of the man, and say this man is not supposed to take the JUTC. We need to put the duty of care on the JUTC to act,” Seeratan explained.
Senators and Members of Parliament on the committee said while Seeratan raised a real and valid concern, the Bill could not in the first instance encompass issues such as these, as its focus is on the protection of individuals in the workplace.
Opposition Senator Donna Scott Mottley explained that while recognizing that many women are violated and abused in the public space, for now there had to be focus on the specific objective of the legislation. “My concern is that our first step in this matter of sexual harassment has to be to present legislation which is workable, and which is enforceable…at this point in time its focus on the workplace and institutions. It’s important that we have legislation that starts out as being effective and enforceable; if we try to address every one of the feelings that we have which are hurt, we might never really achieve the objective that we have set out to do, so you have to be patient with the process. Your intervention is very important, but we have to follow a process. Right now the urgency that confronts us is dealing with it in the workplace and in institutions; I don’t think in the context of what we are doing now, that we can address all the violations,” she said.
Committee chairman, and minister in charge of gender affairs, Olivia “Babsy” Grange, while recounting her own experience with sexual harassment on public transportation said, “I don’t think we can have this legislation treating with something like that, but it is a reality; it is real.”
Justice Minister Delroy Chuck argued that the tentacles of the legislation could only go so far. “We have to use some common sense in limiting how far a person can go to enforce any regulation. Within the workplace, I can understand, if an employer knows that an employee is regularly harassing another employee or customers who come in, the employer has a duty to take care. The same with a school, anywhere where there is some authority on the person who has a duty of care and can take responsibility and can act, but when it comes to a bus, to say that a bus driver or conductor must take responsibility for a passenger, it’s a difficult one. How far do you go to say that the owner of an establishment [or] a motor vehicle has a responsibility and if he fails he could be taken to the tribunal. There has to be some line,” he said.
He pointed out also that there are other pieces of legislation dealing with offences where people physically impose themselves on others in a sexual manner, or what has been known over the decades in the Jamaican context as perpetrators “rubbing up” on female passengers.
Meanwhile, the Jamaica Network of Seropositives (JN+), in its submission to the committee, argued that street harassment must be included in the legislation.
“It is paramount that the Sexual Harassment Act pays attention to the startling reality of street harassment outside of the workplace, and particularly on the street where it is faced most,” policy and advocacy officer for JN+ Tajna-Lee Shields stated in her presentation.
She noted that street harassment refers to unwanted comments, gestures, and actions forced on a stranger in a public place without their consent, and is directed at them because of their actual or perceived sex, gender, gender expression, or sexual orientation. “It includes unwanted whistling, leering, sexist, homophobic, or transphobic slurs, persistent requests for someone’s name, number, or destination after they’ve said no, sexual names, comments, and demands, following, flashing, public masturbation, and groping,” she pointed out. She said that the group understands the difficulty that could come with trying to outlaw an Act so deeply ingrained in the society and therefore suggests that lawmakers examine legislation such as South Africa’s Protection from Harassment Act (2010) and the United Kingdom’s “offense of causing intentional harassment, alarm or distress”.
The group also wants the definition of ‘sexual advance’ to be expanded to allow for a clearer understanding of what is considered sexual harassment. “We recommend that asking a person intrusive questions that are of a sexual nature that pertain to that person’s private life, transmitting sexually offensive writing or material of any kind, making sexually offensive telephone calls to a person, or any other sexually suggestive conduct of an offensive nature in circumstances where a reasonable person would consider the conduct to be offensive,” Shields said, pointing to the Employment Sexual Harassment (Prevention) Act, 2017 of Barbados.