Derek Achong
The Court of Appeal has been asked to decide whether sexual harassment is covered under the Equal Opportunity Act (EOA).
The issue was the center of an appeal over a decision of the Equal Opportunity Tribunal (EOT) to dismiss a complaint brought by a homosexual former employee of Cascadia Hotel and Conference Centre, who claimed that he was sexually harassed by the company’s Head of Operations.
Presenting submissions on behalf of former quality manager Rishi Persad-Maharaj before Appellate Judges Alice Yorke-Soo Hon, Nolan Bereaux and Prakash Moosai yesterday, Senior Counsel Douglas Mendes suggested that his client should have been allowed to pursue the case.
He noted that Persad-Maharaj’s discrimination case was not over his sexual orientation, which is not covered by the legislation, but rather that he was harassed by the senior manager when female employees were not.
Mendes also admitted that his client would not have a case under the legislation if the manager had sexually harassed female employees as was done with him as there would have been equality of treatment.
Mendes suggested that the tribunal sought to characterise sexual harassment instead of considering whether there was a breach of the legislation based on the evidence in the case.
“You assess the facts and determine whether there is detriment,” Mendes said.
In his submissions, Senior Counsel Fyard Hosein, who led the legal team for the Equal Opportunity Commission (EOC) also suggested that the tribunal may have gotten it wrong.
Hosein referred to the hansard when the legislation was debated in Parliament in 2000, and noted that the then attorney general had stated that sexual harassment could be covered by legislation until specific legislation for sexual harassment is introduced.
Attorney Shankar Bidaisee, who represented the hotel, noted that the tribunal’s decision was not solely based on the legislation’s coverage of sexual harassment.
He noted that it was because he filed it against the wrong corporate entity and also because he had a separate trade dispute over his dismissal, which the hotel settled before the Ministry of Labour.
Mendes suggested that the hotel was being overly technical as it still responded to the claim and never raised the issue. Justice Bereaux and his colleagues agreed.
Mendes also stated that his client was not seeking to claim additional compensation to the already executed settlement but rather a declaration that he had been discriminated against and victimised.
According to the evidence in the case, Persad-Maharaj was hired in September 2014 and was made redundant one year and a month later.
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.
In its response before the tribunal, the hotel denied any wrongdoing and claimed that the married woman, who has three children, had a zero tolerance approach to discrimination.
The Court of Appeal is expected to deliver its judgement in the case on a date to be set
