Equality legislation a Trinidad and Tobago perspective Anthony S.

. Hall One cannot legislate love, nor justice, nor goodness, nor truth, nor equality, nor fairness, but certainly one can legislate against injustice, against unfairness, against inequality and make these practices sanctionable. Basdeo Panday, cited by Senator Wade Mark in his speech on EQUAL OPPORTUNITY LEGISLATION to the SENATE on Monday, June 23, 2008.

Trinidadian Society is perhaps the most culturally diverse in the region. The Nation has a population of about 1.3 million with notable ethnic, religious and cultural diversity. There is in the population of Trinidad and Tobago a degree of racial, religious and cultural diversity, which, while enriching and strengthening the national life, has also been recognized as giving rise to problems of discrimination.1 Customs and traditions of ancestors hailing from India, Africa, Asia and Europe have all been brought to the melting pot, which was highly influenced by French, Spanish and English colonials.2 We must now add to all of this the equally thorny issues of Gender. It is this multifaceted diversity issue and the inequality that existed in the society at the time that provided the impetus for the Law Commission of Trinidad and Tobagos inquiry into the need for equal opportunity legislation in the country. The Law Commissions Report articulated the view that: In a society rich in diversity such as ours, it is important to safeguard the integrity of different races, social groups and men and women from unjust and unequal treatment and the denial of equal opportunity. Equally important is the need to arrest institutionalized and historically entrenched patterns of discrimination all of which are evident in Trinidad and Tobago society in varying degrees.3 The Trinidadian concern is not just a national problem. It is a regional and global issue. The segregation of men and women into different occupations continues to be one of the most enduring aspects of labour markets in both developed and developing countries alike. Importantly such occupational segregation has substantial consequences for gender discrimination since female type jobs are generally characterized by lower pay and worse working conditions.4 An appropriate place to begin the discussion with respect to the legal landscape surrounding equality in the Trinidad labour market may be to point out that attempts to address segregation in employment have had a long history in policymaking5 by international organizations and institutions.
1

Lord Bingham of Cornhill, In Privy Council Appeal No 84 of 2006

2 http://www.internationalreports.net/theamericas/trinidad/2005/culture.html 3 Law Commission of Trinidad and Tobago in its working paper on equal opportunity legislation dated January 17, 1996 p. 1 4 Sandra Sookram, and Eric Strobl, The Role of Educational Choice in Occupational Gender Segregation: Evidence from Trinidad and Tobago. Discussion Paper No. 3549 June 2008. 5 See, the International Labor Organization (ILO) convention on Discrimination (Employment and Occupation, 1958, No. 111).

By Article 2 of the ILO Convention on Discrimination (Employment and Occupation, 1958, No. 111): Each Member for which this Convention is in force undertakes to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof.6 The Government of Trinidad and Tobago is a member with obligation to enforce (within its domestic law) the terms of the convention having ratified the convention on the 26th of November 1970.7 See the table labeled 6, below. In 1997 the Government ratified another ILO Convention (No. 100), which calls for equal remuneration for men and women for work of equal value,8 but did not introduce any national legislation to ensure the implementation of the guidelines given by the ILO. To the best of my knowledge this has not been done to date. However, in 1998, Trinidad and Tobago passed a Minimum Wage Act, which provides a minimum wage of universal application thereby eliminating the inherent discrimination in the old legislative order under which household assistants (women) were granted the lowest minimum wage.

6 ILO Convention concerning Discrimination in Respect of Employment and Occupation (Note: Date of coming into force: 15:06:1960.) Convention:C111 Place:Geneva Session of the Conference:42 Date of adoption:25:06:1958 Subject classification: Non-discrimination (Employment and Occupation) Subject classification: Women Subject: Equality of Opportunity and Treatment 7 http://www.ilo.org/ilolex/cgi-lex/pdconv.pl?host=status01&textbase=iloeng&document=4146&chapter=19&query=C111%40ref&highlight=&querytype=bool 8

http://www.ilo.org/ilolex/cgi-lex/pdconv.pl? host=status01&textbase=iloeng&document=11887&chapter=9&query=Trinidad %40ref&highlight=&querytype=bool&context=0

The prohibition of sex discrimination in the Universal Declaration of Human Rights9 and its two implementing covenants, The International Covenant on Civil and Political Rights (1966)10 and the International Covenant on Economic, Social and Cultural Rights (1966)11 represents other international norms affecting social policy in Trinidad and Tobago. These developments at the international level have been mirrored at the national level as many State Constitutions now prohibit discrimination on the basis of sex. I should point out here that the Trinidad Constitution12 has always clearly forbidden discrimination based on gender. The Republican Constitution, states: It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely (a) the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law; (b) the right of the individual to equality before the law and the protection of the law; (c) the right of the individual to respect for his private and family life; (d) the right of the individual to equality of treatment from any public authority in the exercise of any functions; (e) the right to join political parties and to express political views; (f) the right of a parent or guardian to provide a school of his own choice for the education of his child or ward; (g) freedom of movement; (h) freedom of conscience and religious belief and observance; (i) freedom of thought and expression; (j) freedom of association and assembly; and (k) freedom of the press.13 The Constitution however, only generally guarantees the rights as against public actors, i.e., the government. The Privy Council in the case of Maharaj v A.G. of Trinidad and Tobago reiterated this with respect to the same constitutional provisions: the protection afforded was against contravention of those rights or freedoms by the State or by some other public authority endowed by law with coercive powers. The chapter is concerned with public law, not private law14 All of the member countries of Economic Commission for Latin America and the Caribbean (ECLAC) including Trinidad and Tobago have signed and ratified the Convention on the
9

http://www.un.org/Overview/rights.html http://www.unhchr.ch/html/menu3/b/a_ccpr.htm 11 http://www.unhchr.ch/html/menu3/b/a_cescr.htm

10 12 Act 4 of 1976 13 14

Trinidad and Tobago Constitution, Section 4. Maharaj v AG of Trinidad and Tobago [1978] 2 All ER 670 at p.677

Elimination of all Forms of Discrimination against Women (CEDAW, the Womens Convention). According to Sookram, and Strobl15 The Womens Convention moves beyond the guarantees of equality before the law and equal protection under the law, that is formal equality and sets out measures aimed at achieving substantive equality between men and women. The Convention binds State parties to seek to modify cultural patterns of behaviour and attitudes regarding the sexes, and attempts to impose standards of equality and non-discrimination in private as well as public spheres. As a signatory to the CEDAW (Article 2, Vienna declaration), the Government is obliged: To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure through law and other appropriate means, the practical realisation of this principle of equality and nondiscrimination.16 In effect, the Convention calls on States to enact constitutional and legislative reforms and provisions that eradicate acts of discrimination or discriminatory results on the part of the State as well as non-State/private actors.17 In support of its obligations these international Conventions concerning Discrimination in Respect of women, employment and occupation, and the T&T parliament enacted specific legislation prohibiting discrimination in employment in the year 2000.18 A major significance of the 2000 Act is that whereas the Constitutional prohibitions against discriminatory treatment on the basis of sex like in most Caribbean Countries do not generally extend to the acts of non-State actors, the new legislation is the first real attempt on the part of the Government to level the playing field. The Equal Opportunity Act, No. 69 of 2000 has been the center of much controversy within the parliament and in the High Court of Trinidad and Tobago. The Act was discussed in a High Court Action (H.C.A.) 3133 of 2003 between Oswald Alleyne And Others (Applicants) and the Attorney General of Trinidad and Tobago (Respondent). In that case the applicants inter alia, alleged that they had suffered discrimination as defined by the Equal Opportunities Act No. 69 of 2000 but were unable to obtain relief because of the failure, refusal or neglect of the Government of the day to implement the Act. It was contended that this failure, refusal or neglect had deprived them of the due protection of the law and/or of
15 16

See note 4. http://www.womenrep.netspeed.com.au/preamresp.htm 17 note 4. 18 Equal Opportunity Act, 2000 (No. 69).

such procedural provisions as are necessary for the protection of their rights guaranteed in the Constitution of Trinidad and Tobago. In dismissing the motion Smith J held, inter alia, that the Act was clearly unconstitutional in several respects and there were serious doubts as to the constitutionality of some of its provisions. In those circumstances, the protection of the law does not and cannot include the right to enforce or to insist on enforcement of a law, which is itself inconsistent with the Constitution. The Local Courts ruling was based in part upon its application and understanding of Section 13 of the Constitution, which states: 13. (1) An Act to which this section applies may expressly declare that it shall have effect even though inconsistent with sections 4 and 5 (The EOA, 2000 did not) and if any such Act does so declare, it shall have effect accordingly unless the Act is shown not to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual. (2) An Act to which this section applies is one the Bill for which has been passed by both Houses of Parliament and at the final vote thereon in each House has been supported by the votes of not less than three-fifths of all the members of that House. (The EOA was passed by simple Majority.) The decision of the Court of Appeal that the Act was unconstitutional was again appealed and engaged the attention of the Law Lords in England at the Privy Council.19 The appeal raised the question of great difficulty and importance. It was whether the Equal Opportunity Act 2000 (the EOA or the Act) is inconsistent with the Constitution of Trinidad and Tobago, which by section 2 of the Constitution is the supreme law, and so void. The Law Lords went on to define the problem: 1.The EOA was passed by a simple majority of both Houses of Parliament and was assented to on 20 October 2000. Part VI of the Act was brought into force in November 2000 and the remainder of the Act in January 2001. It was amended in May 2001, in a way immaterial for present purposes, by an Act passed by both Houses, again by a simple majority, and assented to in June 2001. But the EOA has not been implemented. This, it appears, is because the government in power since December 2001 was advised that the Act was, or might be, unconstitutional. The appellants, all persons claiming to be victims of discriminatory treatment prohibited by the EOA, brought these proceedings by way of constitutional motion in May 2003, complaining of the governments failure to implement the Act. While counsel for the Attorney General, resisting the appellants challenge in these proceedings, insisted on the unconstitutionality of the EOA, he said nothing to disparage the objects of the Act. The new government is seeking to achieve very similar objects in

2.

19

Privy Council Appeal No 84 of 2006

its Equal Opportunity Bill 2007, for which it will seek an enhanced parliamentary majority. The Law Lords after much debate and for many detailed legal reasons (too detailed and unimportant to be discussed here) concluded, The EOA, is not inconsistent with the Constitution of Trinidad and Tobago and should be implemented without further delay.20 THE EOA, 2000 therefore, is good law in Trinidad and Tobago. A Bill, 2007 is currently before parliament to remedy the perceived flaws and put the issue beyond doubt. Now, we must ask ourselves the question what does this controversial Act say? AS it stands now the Act seeks to prohibit certain kinds of discrimination, to promote equality of opportunity between persons of different sex, colour, race, origin, including geographical origin, religion, marital status or ability and to establish an Equal Opportunity Commission and an Equal Opportunity Tribunal. In the Act there are certain preliminary provisions in Part I with respect to the definition of certain expressions used therein. Of note in clause 4 is the definition of "Minister" which means the Minister to whom responsibility for equal opportunity is assigned. Race is defined to cover colour, ethnic origin or mixed race. Sex expressly excludes sexual preference or orientation and the status of a person refers to his or her sex, race, origin, including geographical origin, religion, marital status or disability. Part II of the Act provides for the types of discrimination, which are prohibited under the proposed Act. According to clause 5, the proposed Act only applies to discrimination in relation to employment, education, the provision of goods and services and the provision of accommodation. Further, such discrimination must be either (a) discrimination on the ground of status; or (b) discrimination by victimisation, as defined in clauses 6 and 7 respectively. Part III of the Act makes special provisions with respect to discrimination in the field of employment. By clauses 8, 9, 10 and 11 respectively, discriminating against an applicant for a job, an employee or a trainee or prospective trainee is prohibited. In relation to an existing employment relationship, an employer may not discriminate on any of the bases established in the Act in relation to the following: Terms and conditions of employment; Conditions of work or occupational safety and health measures; Provision of facilities related or connected with employment; Denial of access or limiting access to opportunities for promotion, training or other services or benefits associated with employment; Dismissal or retrenchment or otherwise subjecting the person to a detriment or disadvantage.

20

The Judgment of the Privy Council was delivered the 15th of October 2007

Thus, it appears that the employment matters to which the legislation applies are not only to those in the employment relationship, i.e. employer and employee, but also to individuals and agencies which impact on the creation, formation and maintenance of the employment relationship: trade unions or other organizations of employees, organizations of employers; qualifying or licencing bodies; vocation training bodies; employment agencies and advertisements of employment. Under clause 11, the provisions of the Act shall not apply in a case where being of a particular Sex is a genuine occupational qualification. The legislation provides for specific situations in which sex discrimination in the employment field is allowed, where being of a particular sex is a genuine occupational qualification for employment, promotion, transfer or training for the following reasons: Physiology/Physical attributes or authenticity: The nature of the job may call for either a man or a woman for reasons of physiology (excluding strength or stamina) or authenticity e.g. a model or an actor. Decency or privacy: The job may involve physical contact, or there may be circumstances arising from the job where members of one sex might reasonably object to the presence of the other sex because they are in a state of undress or using sanitary facilities. Single sex accommodation: Residence may be necessary where privacy of sleeping accommodation is not available and it is not reasonable to expect the employer either to equip the premises or to work out a practicable solution of usage of premises for members of both sexes. Single sex establishments: The work may be related to only one sex and require special care, supervision or attention e.g. hospitals, prisons. Employment or training for the provision of personal services concerning welfare, education and health: Provision of a service may be most effectively provided by a member of a particular sex e.g. rape counseling. Similarly, under clause 12 the provisions of the section 8 to 10 shall not apply in a case where a person of a particular religion needs to be employed in a religious shop. Likewise, employment in the case of domestic services, family business and private companies, up to three persons, is excluded from the ambit of the Act, under clause 13. Under clause 14, the provisions of section 8 to 10 do not apply to an employer in relation to the employment of a disabled person where the latter is unable to carry out the requirements of the job; the employer would be subject to unjustifiable hardship; or the risk that injury would arise. By section 20 it is not a contravention of this Act for a person to grant to a woman rights or privileges in connection with pregnancy or childbirth. By section 25 the Act shall not apply to

(a) the ordination or appointment of priests, ministers of religion or members of a religious order; (b) the training or education of persons seeking ordination or appointment of priests, ministers of religion or members of a religious order; or (c) the employment of persons in any school, college or institution under the direction or control of such a body being employment of persons in a manner that conforms with the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion. Part VI of the Act provides for the establishment of the Equal Opportunity Commission. The Commission would comprise five Commissioners appointed by the President after consultation with the Prime Minister and the Leader of the Opposition. Commissioners would be qualified and have experience in law, industrial relations, sociology or administration and the membership would reflect a balance of race and gender. The Commission would, inter alia, work towards the elimination of discrimination, promote equality of opportunity and good relations between persons of different status generally, review the working of the proposed Act and receive, investigate and, as far as possible, conciliate allegations of discrimination. Clause 31 would make it an offence for a person to submit to the Commission a frivolous and vexatious complaint. Part VII of the Act provides for the lodging of complaints alleging discrimination with the Commission, the investigation of those complaints and conciliation of the parties to those complaints. By clause 40, where a complaint is settled by conciliation, the settlement would be embodied in a written agreement and registered with the Tribunal, which is established under Part VIII of the Act. Where the Commission is unable to settle a complaint by conciliation, the Commission would, under section 41, prepare and publish a report on the investigation for public inspection and, if the complaint is still not resolved, initiate proceedings before the Tribunal with the consent and on behalf of the complainant. Part VIII of the Act establishes the Equal Opportunity Tribunal comprising a Chairman and two lay-assessors. The Chairman would be equal in status to a judge of the High Court. The President will appoint the lay-assessors where they are suitably qualified. The Tribunal would be a superior court of record and would have the power to hear and determine complaints referred to it by the Commission and to make such declarations, orders and awards as it thinks fit and to summon persons to attend before it. Section 52 in particular, provides for the appeal from a decision of the Tribunal to the Court of Appeal on a point of law, and with leave on a point of fact. I have not been able to measure any social impact of the legislation on the Trinidadian society and in research I have been unable to find any statistics or opinions on the matter. It is not difficult to understand why? The law to begin with is a recent enactment- 2000. It has never really been fully implemented and there is limited case law on its provisions. In fact the case law on the subject has primarily been about its constitutionality, and securing its implementation. Once implemented time will tell its effectiveness in redressing the imbalances in this rich, diverse, multicultural society.

Thoughts on taking Action

(Attributed to Edmund Burke)

All that it takes for evil to triumph is for good men to do nothing. He has a right to criticise who has a heart to help.(Abraham Lincoln)
First they Came for the Jews
First they came for the Jews and I did not speak out because I was not a Jew. Then they came for the communists and I did not speak out - because I was not a communist. Then they came for the trade unionists and I did not speak out - because I was not a trade unionist. Then they came for me - and there was no one left to speak out for me.
Pastor Martin Niemoeller

Aims
To make participants aware of the Employment Equality and Equal Status Acts To inform them of the structures that can be accessed by people who feel they are being treated unequally To make them aware that legislation has an important role to play in promoting equality and inclusion, but that peoples attitudes must change if it is to be successful.