Boss sexually harassing employee
Dear Mrs Macaulay,
My boss frequently makes inappropriate comments and has touched me in ways that make me uncomfortable. He says because I laugh and smile with him I “want it”. But I am just genuinely a pleasant person who tries to avoid conflict. I am afraid of losing my job if I speak up, because the last woman who complained to HR was mocked and jeered by all the men in the company afterwards, and was forced to resign. What are my legal rights, and how should I proceed? I otherwise love my job, and wouldn’t want to leave the company.
Your letter is timely and so fortuitously timed because sexual harassment in workplaces (and educational institutions and other organisations) now have the specific legislation in place for the protection and prevention from, and reparation to be made to those who suffer from acts which are unwelcome and make the person uncomfortable and upset.
These acts had long been recognised in international human rights law and practices as a form of violence against the recipient person, a violation of human rights, and as a bar to development because of the effect on the health and feeling of safety of the employee and her (as women a suffer the majority of acts of sexual harassment) welfare and productivity following such an offence, or as in your case, a series of such offences over a good period of time.
The relevant Act is the Sexual Harassment (Protection and Prevention) Act, 2021. It was passed by our Parliament on October 1 2021, and became effective on July 3, 2023. So any employee, like you, who has suffered acts of sexual harassment now has the law in place to seek redress, and also protection from any adverse action from making a complaint.
Your complaint would also force the company to do as the Act requires to prepare and establish a Sexual Harassment Policy and Procedures and ensure its contents are known by all persons within the company, and that they abide by its provisions, and which it must submit to the Bureau of Gender Affairs in the Ministry of Culture, Gender, Entertainment & Sport. If this is not done, the company commits an offence and could be heavily penalised.
From what you have said, I do believe that you had been and are subjected to a series of sexual harassment offences inflicted on you by your boss. You have said that he says that because you smile that “you want it” — this comment of his clearly tells me that you have sought to communicate to him that his actions are unwelcome and uncomfortable for you. You say that this is because you smile and laugh; and this is unfortunate, as one of the points when I have, both nationally and internationally, done sexual harassment training, is that an employee in such a position should make her lack of approval of such actions plain to the actor. You should try to curb your usual pleasant persona and be clear of your dislike of your boss’s comments and touchings to him, or complain to others in your workplace or other trustworthy persons.
In any event, it seems to me that you have a clear case of which you ought to make a complaint to the Sexual Harassment Tribunal, which an authorised officer will investigate and submit a report to the tribunal, which will decide whether there are sufficient grounds for it to conduct a hearing of your complaint.
Because of the provisions of the Act, you have no grounds to fear that you would lose your job, because if that happens, the employee being charged with the offence in the relevant Parish Court, if convicted, can be fined up to one million dollars or to imprisonment for a maximum term of twelve months.
I must also point out that your complaint and the hearings are confidential, though the tribunal’s decisions can be published as they direct, but your names or those of any witnesses you may have, or the details of your complaint, would not be published without a written consent of the tribunal and in such circumstances, you or your legal representative can address the tribunal as to why some matter ought to be or ought not to be published, and the tribunal would consider and decide and direct what cannot or can be done.
I do not wish to be too legalistic about this new law, but you have so much to gain apart from compensation. You would also in fact assist to ensure that your workplace becomes a safe and comfortable work environment, by it being forced to put its Policy and Procedures in place, and ensuring that everyone there knows the contents fully. You should decide to make your complaint and prepare it and talk with and obtain the consent of any witnesses you have to give evidence in support of your complaint and evidence, and get it to the Bureau of Gender Affairs. If you are still unsure after reading this, you can go to the Bureau and speak with the appropriate officer and they will explain the process to you and you can then put in your complaint. You should do so within one year after the latest sexual harassment occurrence by your boss.
Before I end, let me just state the definition of sexual harassment as provided in the Act. It is “any conduct or behaviour that constitutes unwanted and unwelcome conduct of a sexual nature by one person toward another”. From your letter, I feel your vibes of discomfort and upset over what is happening, and the fact that you love your work and are afraid of losing it. So please be sure that you go and make your complaint to the Bureau of Gender Affairs. Because of the Act, this cannot result in you losing your job, as this would be a further offence by your employer, which is punishable under the Act and can carry a very heavy penalty, in addition to the fact that compensation could be due to you. When you detail the various times and actions and comments of your boss for the tribunal to consider and decide, they can tell you definitely about the strength or weakness of your complaint better than me as your letter has no details of his actual acts of touching and of his comments. I am however urging you to proceed with your complaint. There are many people like you who laugh when someone does or says something to them which they do not like, and which makes them upset, uncomfortable, and feel humiliated and powerless.
Please take action, others did even before the specific law was passed when they did not have the protection of this Act. So you are in a much better and secure position than they were. Please take the steps this Act gives to protect your mental and physical self, and to make sure that your workplace is a healthy and comfortable environment for you and others there.
I wish you the very best.
Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
