CARIBBEAN EXAMINATION COUNCIL

CARIBBEAN ADVANCED PROFICIENCY

EXAMINATION

(LAW INTERNAL ASSESSMENT- UNIT 1)

Title of Research Paper

Offences against the Person and the protection under law: Sexual
Harassment of women in the workplace

Statement of Problem/Issue of Law

Whether the laws of Guyana adequately protect women from sexual harassment in the
workplace?

Candidate Number: 0900700114

Center Number: 090070

Subject: Law

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Unit: One

Date: 10th June,2020

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 Table of Contents

PAGE NAME PAGE NUMBER

Description of Research Problem 3

Aims and Objectives 5

Description of Method Employed 6

Presentation of Findings 8

Discussion of Findings 9

Conclusion and Recommendations 11

References 12

3
 Title

Offences against the Person and the protection under law: Sexual
Harassment of women in the workplace

4
 Statement of Problem/Issue of Law

Whether the laws of Guyana adequately protect women from sexual harassment in the
workplace?

Description of Research Problem

This research paper aims to investigate and determine the adequacy of the law when it comes

to the Guyanese women being protected from sexual harassment in the workplace.

In the context of this research, the following key terms are hereby distinguished and explain

in defining the problem or legal issue:

1. Laws of Guyana

Kantorowicz defined law as “a body of rules prescribing external conduct and considered

justiciable.”1 In the context of Guyana’s legal system, this would comprise the Constitution,

1
Kantorowicz, Hermann, and A.H Campbell. The Definition of Law. University Press,
1958. p. 21
5
the common law which informs the doctrine of Judicial Precedent, legislation and by

extension treaties and customs.

Professor Bell Antoine referred these as the sources of law in her work Commonwealth

Caribbean Law and Legal Systems.2

2. Adequately protect

The terms ‘adequately protect’ is a control mechanism that will enable the research to answer

the legal question. It is a measurement of the extent to which the laws that will be examined

are enforceable; and where enforceable, the extent to which such enforcement ensures the

upholding of the fundamental rights of women.

3. Sexual harassment

The International Labour Organisation (ILO) defined sexual harassment as a sex-based

behaviour that is unwelcome and offensive to the recipient. It may be in one or more forms

such as physical which may include violence, touching, unnecessary close proximity, verbal

including comments and questions about appearance, life-style, sexual orientation, offensive

phone calls or even non-verbal which may include whistling, sexually-suggestive gestures,

display of sexual materials inter alia.3

From a young age many women are societally conditioned to accept acts of sexual

harassment. Basically, giving an excuse to the predatory behavior and classifying them as

2
Antoine, Rose-Marie Belle. Commonwealth Caribbean Law and Legal Systems.
CaribGlobal Publications Ltd., 2005. p. 95
3
International Labour Organisation . Declaration of Fundamental Principles and Rights at
Work - Sexual Harassment in the Workplace , International Labour Organisation, 2007.
6
jokes, compliments and harmless fun according to The Minority Report by Akola

Thompson4.

The Australian Human Rights Commission states that sexual harassment is an unwelcome

sexual advance, an unwelcome request for sexual favors or other unwelcome conduct of a

sexual nature that makes a person feel offended, humiliated and/or intimidated, where a

reasonable person would anticipate that reaction in the circumstances. Unwanted conduct is

defined as any behavior that is not requested or wanted by the victim and that he/she was

sexually harassed would depend on the context in which it occurred.’’5

4. Workplace

In the context of this research, the terminology ‘workplace’ is extended beyond the physical

space of the employee to include their workplace wellbeing including all aspects of working

life, from the quality and safety of the physical environment, to how workers feel about their

work, their working environment, the climate at work and work organization in accordance

with the ILO definition.6

Reggae artist Christopher Martin in his song “Stop the Violence Against Women” sang, that

“…We losing too many woman, Stop the violence against women, We need to love our

women and Take care of the women,”7 and on March 8, 2008 in recognition of International

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Guidelines on Sexual Harrasment in the workplace.
5
Sexual Harassment in the Workplace –the Legal Definition of Sexual Harassment
https://www.humrights.gov.au/publications/sexual-harassment-workplace-legal-definition-
sexual-harassment
6
Workplace Well-Being, 15 June 2009, www.ilo.org/global/topics/safety-and-health-at-
work/areasofwork/workplace-health-promotion-and-well-being/WCMS_118396/lang--
en/index.htm.
7
Stop the Violence Against Women, Seanizzle Records.
https://www.youtube.com/watch?v=LxDq91MTrwA
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Women’s Day, artists from China to Costa Rica in Unisom sang these words hoping to end

the scourge of issues such as sexual harassment of women in society:

We are One Woman,

Your courage keeps me strong.
We are One Woman,
You sing, I sing along.
We are One Woman,
Your dreams are mine.
And we shall shine.
We shall shine.

And one man, he hears her voice.

And one man, he fights her fight.
Day by day, he lets go the old ways,
One Woman at a time.
Though she’s half a world away,
Something in me wants to say.8

Yet, the scourge of sexual harassment of women in the workplace continues across Guyana.

For instance, “Senior officer accused [of] sexually harassing journalist,” 9 “Sexual harassment

allegation at CJIA… Female employee files police complaint,” 10 and “Ex-waitress accuses

Princess Hotel official of sexual harassment.”11

In Guyana, many women are scared to make reports of sexual harassment since the matter is

often brushed under the carpet. It is argued by Akola Thompson that:

8
One Woman United Nations , Jerry Boys, Beth Blatt and Graham Lyle, Livingston
Studio, London, United Kingdom, 8 Mar. 2008.
9
Guyana Chronicle. “Senior Officer Accused Sexually Harassing Journalist .” Guyana
Chronicle, 11 Jan. 2020, p. 1.
10
G. Lall, Publisher. “ Sexual Harassment Allegation at CJIA… Female Employee Files
Police Complaint.” Kaieteur Newspaper , 18 June 2019, p. 1.
11
Stabroek News. Ex-Waitress Accuses Princess Hotel Official of Sexual Harassment, 4 Feb.
2014, p. 1.
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 ”If you do not seem sufficiently distressed or vulnerable enough to those who ae

tasked in the judicial fraternity, you might just be simply seeking attention, money or

whatever inane excuse they come up with.’’12

Women who are victims of sexual harassment may suffer an aftermath. The impact of sexual

harassment has several effects on women, which may cause some women to not perform at

their full potential in the workplace etc. according to the American Psychological

Association. Recognizing such adverse consequences, the Parliament of Guyana enacted the

Prevention of Discrimination Act, Chapter 99:09B; an Act intended to:

“provide for the elimination of discrimination in employment, training,

recruitment and membership of professional bodies and the promotion and equal

remuneration to men and women who perform work of equal value, and for

matters connected therewith”

However, the Act according to long women rights and gender equality activists, is deficient

in some regards.

Joel Simpson, a LGBT rights activist commenting in the Guyana Chronicle noted that “…

lesbian and bisexual women are particularly at risk since their sexual identities are often

fetishised by perpetrators…though, that while Guyana generally has good laws on sexual

offences generally, gaps exist in relation to sexual harassment.”13

12
Thompson, Akola. Sexual Harassment Does Not Have a Perfect Victim, Stabroek
Newspaper, Georgetown, 28 June 2019, p. 28.

https://www.stabroeknews.com/2019/06/28/features/sexual-harassment-does-not-have-a-
perfect-victim/
13
Pepperpot Magazine, Guyana Chronicle. Addressing Sexual Harassment in Guyana, 29
Oct. 2017, p. 23.
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Simpson is not alone, Akola Thompson in her weekly Newspaper Column, ‘The Minority

Report’ observed that “…under Guyana’s … Act …sexual harassment is a criminal offence.

However, coverage under the law…only specifies the workplace. This points to one of the

many gaps that exist in tackling the very prevalent issue.”14

14
Thompson, Akola. “Sexual Harassment Does Not Have a Perfect Victim.” Stabroek
Newspaper The Minority Report, 28 June 2019, p. 20.

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 Aims and Objectives:

Aims

1. To examine the laws of Guyana relating to sexual harassment in the workplace.

2. To review the laws of Guyana relating to the rights of women.

3. To examine the laws of Guyana relating to the protection of the rights of women

against sexual harassment.

Objectives

1. To determine whether the laws of Guyana clearly defines sexual harassment.

2. To determine whether sexual harassment is a violation of the rights of women.

3. To identify what protections are in the law for women who have been sexually

harassed.

4. To determine what amendments should be made to the laws of Guyana to adequately

protect women against sexual harassment.

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 DESCRIPTION OF METHOD
EMPLOYED

This research paper aims to investigate whether Guyanese women are adequately protected

from sexual harassment in the workplace. The qualitative type of methodology will be used.

This type of research will be carried out by a face to face interview.

As a primary source of data, the researcher will conduct an interview using questions from a

prepared questionnaire with mainly open-ended questions. The interviewee, Ms. Stacy

Goodings, is an Attorney-at-Law by profession.

Ms. Goodings is employed in the Chamber of Director of Public Prosecutions of Guyana and

holds the position of a Senior State Counsel. In this capacity, Prosecutor Goodings is one of

the leading women in the Judicial system of Guyana, who is actively engaged in sexual

offences matters including those relating to assault and harassment.

The Researcher will also rely on the following sources of law: The Constitution of Guyana,

legislation, treaties, and conventions. The Researcher will review these laws with the aim of

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determining whether they are adequate in protecting women from sexual harassment in the

workplace.

In addition, the Researcher will rely on secondary sources, including books, videos,

newspaper editorials and articles, and internet publications based on the sexual harassment

headline.

FINDINGS

The right of women to work in Guyana in environments free from sexual harassment is

fundamental guarantee pursuant to article 147F of the Constitution of the Cooperative

Republic of Guyana.

This article protects the civic, economic, social, and political life of women across Guyana,

so that they can live and work in an environment free from all forms of discrimination.

However, these protections, despite provided for under the highest law of the land, was found

not to be adequate to protect women from sexual harassment.

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This research revealed that gender based violence in the form of sexual harassment in the

workplace is quiet prevalent in Guyana. It was also found that violence against woman and

girls is rooted in unequal power structures based on gender in the workplace despite bold

commitments in the Constitution and Parliament to ensure gender equality by offering

protections against violence and discrimination.

It was also revealed that sexual harassment is the most common form of non- partner Sexual

Violence Against women and girls or NPSV. This represented seventeen (17) per cent of

participants based on a 2018 survey focused on Women Health and Life Experience in

Guyana.

This research also revealed that more cases of sexual harassment are reported in the news as

compared to files reaching the Chambers of the DPP.

Sexual harassment is inadequately defined under the Prevention of Discrimination Act of

Guyana as compared to the wide and liberal definition under the International Labour

Organisation. This restrictive definition of sexual harassment is a main cause contributing to

the inadequate protection of women.

Finally, this research revealed that the penalty imposed where a person is found guilty of

sexual harassment is alarmingly low.

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Discussion of Findings

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This research revealed that the fundamental rights and freedoms of persons living in Guyana

are enshrined in the Constitution.

Pursuant to article 8 of the Constitution, the Constitution is the supreme law15 and offers the

highest standards of protection to the citizens. The Constitution is parent law by which all

other laws are measured, or the supreme law of the land16.

Article 149F of the Constitution of Guyana, guarantees gender equality, the main intent being

an assurance that Guyanese women and girls obtain a quality life that is free from both

structural and overt violence.

It was also found that the said provision of the Constitution protects women’s civic,

economic, social and political life and makes it unlawful and unconstitutional to discriminate

against women.

The definition of Gender Based Violence or GBV is any violence directed at an individual

based on his or her biological sex or gender identity. It includes physical, sexual, verbal,

emotional, and psychological abuse, threats, coercion, and economic or educational

deprivation whether occurring in public or private life.17

This research revealed that while there are bold commitments in the Constitution and Acts of

Parliament to ensure gender equality by offering protections against violence and

discrimination, the prevalence of this social scorn remains alarming.

15
Collymore v AG (1967) 12 WIR 5
16
Jaundoo v AG of Guyana (1968) 12 WIR 221
17
These definitions were obtained from the United Nations Declaration on the Elimination of
Violence against women
https://www.ohchr.org/Documents/ProfesionalInterest/eliminationvaw.pdf
16
A 2018 survey focused on Women Health and Life Experience in Guyana found that sexual

harassment is the most common form of Non- Partner Sexual Violence Against women and

girls or NPSV. This represented seventeen (17) per cent of participants in the study.

Young women (15-24 years old), suburban women and women with an education beyond

secondary reported statistically higher rates of sexual harassment and only two (2) per cent

reported being asked for sex in exchange for advantages or avoiding disadvantages at school

or work.

The interview of Ms. Goodings further revealed that more cases of sexual harassment are

reported in the news as compared to files reaching the Chambers of the DPP. For instance,

the first half of 2020 saw two (2) files coming to the attention of Ms. Goodings office.

However, Ms. Goodings noted that many cases of sexual harassment are reported to the

Police and treated as sexual assault; mainly due to the fact that the Sexual Offences Act

which deals with sexual offences does not provide for sexual harassment as a crime.

This research revealed that while the International Labour Organisation recognized sexual

harassment as any sex-based behaviour that is unwelcome and offensive to its recipient and

may be in one or more forms such as physical which may include violence, touching,

unnecessary close proximity, verbal including comments and questions about appearance,

life-style, sexual orientation, offensive phone calls or even non-verbal which may include

whistling, sexually-suggestive gestures, display of sexual materials inter alia.

This definition is much wider than that contained in the Prevention of Discrimination Act of

Guyana. Sec. 2 of the Prevention of Discrimination Act provides that sexual harassment:

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 “means unwanted conduct of a sexual nature in the workplace or in connection with

the performance or work which is threatened or imposed as a condition of

employment on the employee or which creates a hostile working environment for the

employee”

Based on this definition, certain key actus reus ingredients must be satisfied for a prosecution

to be under this section. These includes:

1. Workplace or in connection with the performance of work

2. Threaten conditions or imposed conditions; or

3. Conduct of a sexual nature which creates a hostile environment.

These requirements to satisfy there was sexual harassment, does not provide for situations

where the conduct occurs away from the workplace, on social media or by electronic means

and thus does not meet the minimum threshold of adequate protection for women rights.

The Act clearly envisage a case where the perpetrator can threaten or impose work sanctions.

This might not always be the case since the perpetrator may very well be a co-worker on the

same level or on a junior level. In addition, Sexual harassment may simply be consistent

pressure by a co-worker to be in a sexual relationship, without any considering as to

consequences where there is a refusal. The woman may feel uncomfortable and distracted at

work, especially in male dominated environment.

This research revealed any person who contravenes the provisions of the Prevention of

Discrimination Act shall, unless a penalty is otherwise specifically provided, be guilty of an

offence and shall be liable to a fine not exceeding twenty thousand dollars.

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It is submitted, that a fine of $20,000 without more, is insufficient to safeguard the

Constitutional right of women not to be discriminated against and to live in a society free

from harassment.

Roscoe Pound, in his jurisprudential understanding of law noted in his social engineering

theory that ‘law is social engineering which means a balance between the competing interests

in society in which applied science are used for resolving individual and social problems.18

In the context of penalty and protection of interest, it is quite clear that there is no balance

engineered by the legislature to ensure that the penalty to be imposed for the crime matches

the psycho-social effects of the crime of sexual harassment in the workplace.

While there seems not be any reported case out of Guyana, persuasive precedent from the

Equal Opportunity Tribunal of Trinidad is considered.

In the case of Persad Maharaj v Cascadia Hotel Lay assessor Leela Ramdeen who sat along

with Prowell-Raphael .J. to hear the case noted that “the tribunal, cannot stretch 'sex' to go

beyond male and female…[and that] Parliament alone has that power to make laws. If we are

to give citizens the opportunity to bring an action for sexual harassment, then Parliament has

to pass legislation.”

While this case involves a man, it demonstrates the difficulties in enforcing protection of

citizens when it comes to the issue of sexual harsmment. Specifically, the need to establish

certain key ingredients such as employment relationship, course of employment inter alia.

Where the act is perpetrated by a person who is a vistor of the employer on the employer’s

premises, this would not fit into the definition under the Prevention of Discimination Act
18
McManaman, Linus J. Social Engineering: the Legal Philosophy of Roscoe Pound.
1958.

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 CONCLUSIONS AND RECOMMENDATIONS

In closing, Sexual Harassment is not clearly defined in the legislation act nor does it

adequately protect Guyanese women from sexual harassment.

Hence, it is recommended that the Prevention of Discrimination Act be expounded.

Also it is recommended the penalty should be more than paying a fine because it is

insufficient to safeguard the Constitutional right of women to not be discriminated against

and to live in a society free from harassment.

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 BIBLIOGRAPHY

The Guyana Constitution

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Prevention of Discrimination Act, Chapter 99:09

Kantorowicz, Hermann, and A.H Campbell. The Definition of Law. University Press, 1958.

Antoine, Rose-Marie Belle. Commonwealth Caribbean Law and Legal Systems. CaribGlobal
Publications Ltd., 2005.

McManaman, Linus J. Social Engineering: the Legal Philosophy of Roscoe Pound. 1958.

One Woman United Nations , Jerry Boys, Beth Blatt and Graham Lyle, Livingston Studio,
London, United Kingdom, 8 Mar. 2008.

Collymore v AG (1967) 12 WIR 5

Jaundoo v AG of Guyana (1968) 12 WIR 221

Sexual Harassment in the Workplace –the Legal Definition of Sexual Harassment

International Labour Organisation . Declaration of Fundamental Principles and Rights at

Work - Sexual Harassment in the Workplace , International Labour Organisation, 2007.

Workplace Well-Being, 15 June 2009.

Stop the Violence Against Women, Seanizzle Records.

“Senior Officer Accused Sexually Harassing Journalist.” Guyana Chronicle, 11 Jan. 2020.

Pepperpot Magazine, Guyana Chronicle. Addressing Sexual Harassment in Guyana, 29 Oct.

2017.

Thompson, Akola. “Sexual Harassment Does Not Have a Perfect Victim.” Stabroek
Newspaper The Minority Report, 28 June 2019.

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 APPENDIX

Research Instrument

INTERVIEW QUESTIONS

1. Name

2. Place of Employment?

3. What is your position?

4. Can you give a description of your job?

5. Length of time working in the field?

6. Number of matters prosecuted relating to sexual offences?

7. What constitutes a sexual offence?

8. Is sexual harassment in the workplace a sexual offence?

9. Is sexual harassment defined under the Sexual Offences Act?

10. I have observed that sexual harassment is defined under the Prevention of
Discrimination Act. Do you think this definition is adequate?

11. What are the weaknesses in this definition?

12. What else can be included in this definition to make it more adequate?

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13. Are complaints of sexual harassment in the workplace frequently brought to the
chambers?

14. Is it defined under any other law of Guyana?

15. Is sexual harassment a crime?

16. Is sexual harassment a violation of the constitutional rights of women?

17. The Constitution guarantee freedom from discrimination. Would you say that
workplace policies which facilitates sexual harassment leads to a violation of the
constitutional right of woment not to be discriminated?

18. If a woman is sexually harassed, what kind of protection is there for her in the private
sector and public sector?

19. What changes to the laws of Guyana would you suggest to adequately protect women
against sexual harassment?

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