THE parliamentary committee contemplating the proposed sexual harassment legislation on Wednesday found itself hung on the question of whether the tribunal which will be appointed to hear complaints brought by victims should be empowered to direct a prospective employer to still employ an individual who was promised a job in return for sexual favours.

The issue came up during discussion on clause 34 of the proposed law following concerns raised by the Ministry of Tourism in its submissions to the committee regarding the circumstances under which such a directive from the tribunal “would be appropriate”.

Government Senator Kavan Gayle was first to highlight the “concern”.

“I had a particular concern in terms of a directive that the respondent should employ or re-employ the complainant in the event that this would have been a recruitment process where individuals would have been invited as applicants for a job and in that regard there would have been an allegation of harassment. What this is suggesting is that the tribunal should direct for employment, but the concern that came to my mind is whether or not, in any case, that applicant would be the most suitable and you would now place it in the hand of the tribunal to make that determination. So it is a little grey area for me,” stated Gayle, who is one of the island’s foremost trade unionists.

Opposition Senator Donna Scott-Mottley, in supporting Gayle’s point, said “It would be going too far for the tribunal to recommend employing this person without an evaluation being done of whether or not this person was competent or suitable for the employment in the first place. I don’t think that should be an option.”

Added Scott-Mottley: “The other thing that came to my mind is that we would be encouraging the possibility of an intolerable working relationship if, in this instance, there would have been allegations against an employer and a tribunal was to force that employer to engage the prospective candidate. We are seeking, by way of this legislation, to promote an intolerable working relationship and that employee would be exposed to further risk and victimisation.”

Gayle argued that in such a situation he would be inclined to discourage the individual from taking the job offer at the end of the process and said he feared the “harm” that could result by keeping the provision as it is.

“Where the concern is, is not in the area of re-employment but employment where you would have applied for a job, participated in an interview process and there would have been enticement around sexual favours in order for you to get the job,” he noted.

Commenting on the impasse, Solicitor General Marlene Aldred, whose office has been providing guidance to the committee, said there were several issues at play.

“The problem we have is that we are not sure at what stage the person would have reached because when you are employing someone it is not just an interview and that is it…you can have different stages. For the tribunal to make this award it would have been a bit challenging…that is where I have been struggling with the provision,” she noted.

With no resolution on that issue the committee instructed the technical team, which has been directing it, to advise at its next meeting how to deal with the issue or whether it should be removed entirely.

The 2015 Sexual Harassment Bill is a civil liability statute and outlines the types of conduct that constitute sexual harassment, prohibits certain related conduct, and provides victims with an avenue to have their complaints heard. It addresses sexual harassment in the workplace and institutions such as schools, hospitals and prisons, as well as tenant and landlord arrangements. It regulates how cases of sexual harassment are to be handled and places several legal duties on companies, schools, hospitals and other institutions to take certain measures, actions, and steps regarding the issue of sexual harassment.

Last week committee chair and minister with responsibility for gender affairs, Olivia Grange said the committee intends to take the report to Parliament during the first quarter of this fiscal year.

“We know members of the public are eager for the finalisation…we are eager to deliver as well. We know that this Bill, when it becomes law, will deal a blow…and will hopefully act as a deterrent,” Grange said.

“Jamaica has been waiting on this Bill for a very long time. We are now coming to the end of the committee stage. We still have a lot of work left to do and I am happy we are moving at a very good pace,” she said.