SEXUAL harassment can fall within the provisions of the Equal Opportunity Act and can be considered by the Equal Opportunity Tribunal (EOT) in any complaint before it, the Court of Appeal ruled on Friday.
In a unanimous decision, the court reversed a decision of the EOT which held that it could not consider a complaint of sexual harassment brought by a homosexual ex-worker of the Banquet and Conference Centre Ltd (BCCL) at the Cascadia Hotel, who claimed he was sexually harassed by the company’s head of operations.
Justices of Appeal Alice Yorke-Soo Hon, Nolan Bereaux and Prakash Moosai held the EOT did have the jurisdiction to hear the complaint of the hotel’s former quality manager Rishi Persad-Maharaj and sent his complaint back to the EOT for consideration.
“The tribunal misdirected itself on the law and took into account considerations which were irrelevant or not within its preserve,” Bereaux said in the unanimous decision.
Persad-Maharaj was hired in September 2014 and was made redundant 13 months.
He claimed that before he was terminated, his relationship with the manager was strained as he had to avoid contact after she repeatedly called him names including “sexy”, “baby”, “hot”, and “bae.” She also allegedly slapped his buttocks and pinched his waist.
He filed a trade dispute before the Ministry of Labour after he was fired and the matter was settled with the hotel being ordered to pay $46,000. He also filed a complaint of sexual harassment before the Equal Opportunities Commission (EOC) which investigated and referred it to the EOT.
The tribunal dismissed his claim of discrimination by sexual harassment, struck it out and ordered him to pay costs. It also held that Cascadia Hotel was the wrong party to the complaint as it should have been the Banquet and Conference Center Ltd at the Cascadia Hotel, and it was an abuse because he had settled the trade dispute.
Before the Court of Appeal were the EOC’s appeal of the tribunal’s decision that it lacked jurisdiction to consider the complaints, and Persad-Maharaj's appeal of the decision to throw it out.
In the ruling, Bereaux said the proper question the tribunal should have asked were if Persad-Maharaj was treated less than favourably by the company’s head of operations than she would have a female employee, and if her conduct subjected him to a detriment.
The main issue for the court to determine was if provisions of sections 4, 5 and 9 of the Equal Opportunity Act were relevant in Persad-Maharaj’s complaint.
Before answering those questions, the judge referred to the discussion at the tribunal relating to Persad-Maharaj’s sexual orientation. He said Persad-Maharaj’s orientation was irrelevant since the complaint involved a female/male.
He said the reasoning that sexual orientation was excluded from the definition of sex, and any question of sexual harassment must refer to heterosexual conduct, “would offend the constitutionally guaranteed rights to equality of treatment and equity” and trespass on TT’s treaty obligations.
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