Employment Law Discrimination in Trinidad and Tobago
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Page | 1 Despite ratifying core international and regional labour standards, Trinidad and Tobago s labour legislation is deficient in dealing with employment discrimination. What reform is necessary? Jamille Broome October 2011 A dissertation submitted for the Employment Law LL.M. at Middlesex University
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Despite ratifying core international and regional labour standards, Trinidad and Tobago s labour legislation is deficient in dealing with employment discrimination. What reform is necessary?
Transcript of Employment Law Discrimination in Trinidad and Tobago
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Despite ratifying core international and regional labour standards, Trinidad and
Tobago s labour legislation is deficient in dealing with employment
discrimination. What reform is necessary?
Jamille Broome
October 2011
A dissertation submitted for the
Employment Law LL.M. at Middlesex University
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Abstract
Discrimination in employment has become an accepted practice in Trinidad and Tobago.1
Although Trinidad and Tobago has ratified the core labour standards,2 the legislation to
implement these conventions are inadequate and archaic. The laws regarding equal
opportunity in employment are barely provided for, and rarely practised.3 In most cases,
discrimination is palpable, due to a combination of employers' ignorance of the relevant
legislation, and employees' ignorance of their respective rights. As a result of this, there are
increasing indications of discrimination, especially racial and ethnic discrimination in both
the public and the private sectors.
The aims of this paper are to (1) highlight the significant problem of employment
discrimination on different aspects of society in Trinidad and Tobago, (2) illustrate that the
laws regarding employment discrimination are inadequate and antiquated and give
recommendations and suggestions to encourage the government of Trinidad and Tobago to
make drastic steps to reform the laws, in order to rectify an increasingly disturbing trend in
employment practices, and (3) show that the government (past and present) and its agencies
have chosen to ignore the issue of discrimination in the country. The research will be
conducted with the use of employee surveys and an analysis of legislation and policies from
three countries with the most progressive anti-discrimination regulations in employment, i.e.,
the United Kingdom ( UK ), Australia and the United States of America ( US ).
The majority of people interviewed replied with nonchalance, stating, That s Trinidad!
ILO policy review
Internationally-Recognised Core Labour Standards In Trinidad And Tobago. Report For the WTO General
Council Review Of The Trade Policies Of Trinidad And Tobago. (Geneva, 12-13 November 1998)
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Acknowledgments
After God, I am grateful for all the support I received from...
My Lecturers who prepared me mentally to undertake and complete this research
Michelle Benjamin, Legal Officer II at the Equal Opportunities Commission
Gertrude James, Research Officer at the Parliament library
Librarians at the Hall of Justice
Head Librarian at the Industrial Court of Trinidad and Tobago
Michael Quamina Attorney-at-Law
Company/organisation representatives who answered my questions and provided me
with the information I requested
All the members of the general public who kindly took the time to participate in my
surveys
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Table of Contents
1 - Introduction ------------------------------------------------------------------------------------ Page 6
2.1 - Employment Discrimination -------------------------------------------------------------- Page 7
2.2 - Effects of Employment Discrimination -------------------------------------------------- Page 8
2.3 - Equal Opportunity -------------------------------------------------------------------------- Page 8
3 Current Labour Laws ----------------------------------------------------------------------- Page 11
4 - Ethnic Background -------------------------------------------------------------------------- Page 13
5 - Social Stratification ------------------------------------------------------------------------- Page 16
6.1 - International -------------------------------------------------------------------------------- Page 17
6.2 Regional ------------------------------------------------------------------------------------ Page 18
6.2.1 - Legal status of CariCom Model Law and ILO Conventions ------------- Page 20
6.3 Local ---------------------------------------------------------------------------------------- Page 21
7 -The EOA on Employment Discrimination ------------------------------------------------ Page 22
7.1 - Discrimination against applicants ------------------------------------------------------- Page 22
7.2 - Discrimination against employees ------------------------------------------------------ Page 22
7.3 - Vocational training ------------------------------------------------------------------------ Page 23
7.4 - Exception: Genuine occupational qualification --------------------------------------- Page 23
7.5 - Exception: Religious shop --------------------------------------------------------------- Page 24
7.6 - Exception: Domestic services and family business ----------------------------------- Page 24
7.7 - Exception: Inherent requirements, unjustifiable hardship, risk --------------------- Page 25
8 - EOA Implementation Problems ----------------------------------------------------------- Page 26
9 - The Equal Opportunities Commission ---------------------------------------------------- Page 28
10.1 - Deficiencies with initiating discrimination claims ---------------------------------- Page 31
10.2 - Report to the Ministry of Labour ------------------------------------------------------ Page 32
10.3 - The Office of the Ombudsman --------------------------------------------------------- Page 34
11 - Discrimination Cases ---------------------------------------------------------------------- Page 36
12 - Discrimination: Hidden in Plain Sight -------------------------------------------------- Page 37
13 - Racial Employment Discrimination in T&T ------------------------------------------- Page 40
14 - Sex Employment Discrimination -------------------------------------------------------- Page 42
15.1 - Pre-Employment Inquiries and Requirements --------------------------------------- Page 43
16 Segregation and Classification of Employees ----------------------------------------- Page 44
17 The Law Commission --------------------------------------------------------------------- Page 45
18 - The Tribunal -------------------------------------------------------------------------------- Page 47
19.1 - Regulation of Companies --------------------------------------------------------------- Page 49
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19.2 - Avoiding Discriminatory Advertisements -------------------------------------------- Page 49
19.3 - Avoiding sexual discrimination -------------------------------------------------------- Page 50
19.4 - Avoiding racial discrimination --------------------------------------------------------- Page 51
19.5 - Avoiding age discrimination ----------------------------------------------------------- Page 51
19.6 - Avoiding disability discrimination ---------------------------------------------------- Page 52
19.7 - Compliance v The Business Case ----------------------------------------------------- Page 52
20.1 The UK Model ----------------------------------------------------------------------------- Page 54
20.1.1 - Equality Act ------------------------------------------------------------------- Page 54
20.1.2 - Statutory Code of Practice on Racial Equality in Employment -------- Page 54
20.1.3 - Effectiveness of the UK Employment Anti-Discrimination Model --- Page 55
20.2 Australia ---------------------------------------------------------------------------------- Page 57
20.3 - The US Model ---------------------------------------------------------------------------- Page 59
21 - EOA, EOC and Policies ------------------------------------------------------------------- Page 60
Conclusion ---------------------------------------------------------------------------------------- Page 70
Bibliography -------------------------------------------------------------------------------------- Page 71
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1 - Introduction
Discrimination is a disease that permeates every aspect of society. As Nelson Mandela once
said, Discrimination is the greatest blight that could have happened to mankind. Religious
beliefs, peer pressure, cultural views, family views, past experiences, fears, laws, ignorance,
physical differences, etc. all contribute to a person s opinion of another individual or group of
people. These opinions that have been formed of others who are different can be converted
into discrimination, which will subsequently lead to decisions being made based on those
opinions. It is important to distinguish discrimination from prejudice, which is defined as
irrational suspicion or hatred of a particular group, race, or religion .4 The two terms are
clearly related in cause, but differ in practice; it is only when prejudice manifests itself in an
action that it changes to being discrimination, which causes a difference in outcome for a
member of the discriminated group.
Discrimination is the the unjust or prejudicial treatment of different categories of people,
especially on the grounds of race, age, or sex .5 There are two types of discrimination; direct
or indirect. Direct discrimination exists when laws, rules, policies or practices explicitly cite a
particular protected ground, such as sex, race, etc. to deny equal opportunities.6 Indirect
discrimination occurs where rules or practices appear on the surface to be neutral, but in
actuality, leads to exclusions. In any environment where discrimination is likely, effective
mechanisms are needed to address the obstacles of discrimination when they occur.
Discrimination can only be eliminated by dismantling barriers that contribute to inequality
and ensuring equality in access to education, training and employment opportunities.
4The American Heritage Dictionary: Fourth Edition. Houghton Mifflin Company. 5 Oxford Advanced Leaner s Dictionary 6 Alex Davies (ed). Workplace Law Handbook 2011 - Employment Law and Human Resources Handbook (Workplace Law Group) 204. Also see s.1 RRA 1976, replaced by s 13 Equality Act 2010
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2.1 - Employment Discrimination
Although discrimination is mostly covert, it can precede to more overtly damaging forms of
treatment, such as denial of employment.7 Discrimination can occur in many areas of society,
but the most important aspect is in employment, because it can and has created poverty and
social exclusion,8 which are prerequisites for many societal ills. Proving this type of
discrimination is usually very difficult because to prove unlawful discrimination, applicants
and employees must be able to show that an action affecting employment was based on the
fact that the employee belongs to a protected class rather than an occupational requirement.
To illustrate how difficult proving discrimination can be: an interviewer s bias will likely be
communicated nonverbally to the interviewee by such behaviours as cutting the interview
short or sitting so far away from the interviewee as to communicate immediate dislike. 9
Such nonverbal hostility will undermine the possibility of hiring the right employee to
perform the tasks in the job description. It is important to remember that, unlike unfair
dismissal, discrimination can happen at any stage of the employment relationship; i.e.,
recruitment; treatment at work, transfer, promotion, training, pay, benefits, disciplinary
action, work allocation, dismissal and post dismissal (deliberately negative reference). It
should go without saying that merit, qualifications, and the ability to do a job are the only
factors that should be considered for choosing the right candidate. Progress in combating
employment discrimination has been patchy and inconsistent, even for areas of discrimination
that were recognised a long time ago, such as sex and race.
7Dovidio et al., 2002; Fiske, 1998; Talaska et al., 2003. 4Dominic Abrams, Michael A. Hogg, Jos Mendes Marques. The social psychology of inclusion and exclusion (Psychology Press; 1 edition) 119. 9Darley and Fazio, 1980; Word et al., 1974
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2.2 - Effects of Employment Discrimination
Discrimination in employment has severe implications for the victims because it often traps
people in low-paid jobs. The people who are discriminated against, usually end up with the
worst jobs available, as most of them get no opportunity for promotion or training to refine
their skills. This failure to eradicate employment discrimination helps perpetuate poverty as
most of the lowest paid employees remain in those positions throughout their lives. Even with
quotas, reverse discrimination (UK) or affirmative action (US), only a few disadvantaged
employees are able to overcome the discrimination barrier. An International Labour
Organisation ( ILO ) report confirms this point by stating, eliminating discrimination is
indispensable to any viable strategy for poverty reduction and sustainable economic
development. 10
2.3 - Equal Opportunity
In the early twentieth century, the Women s Equal Opportunity League prominently pushed
for fair treatment by US employers. During this time was when Mrs. Terryberry, one of the
group s members stated the group s belief: I am not asking for sympathy, but for an equal
right with men to earn my own living in the best way open and under the most favourable
conditions that I could choose for myself. 11 This is a quote that perfectly summarises the
concept of equal opportunity.
The aforementioned ILO reports also states that employment discrimination remains a
persistent global problem, with new, more subtle forms emerging.12 Equal opportunity is a
10ILO, Workplace discrimination, a picture of hope and concern (23 May 2003) <.http://www.ilo.org/global/about-the-ilo/press-and-media-centre/insight/WCMS_075613/lang--en/index.htm> accessed July 10 2011 11The New York Times, Women s work limited by law; Equal Opportunity League Fighting Legislation Which Restricts Their Hours of Labor[sic] A Case In Point (New York, 18 January 1920) Accessed 9 August 2011 12ILO, Workplace discrimination, a picture of hope and concern (23 May 2003) <.http://www.ilo.org/global/about-the-ilo/press-and-media-centre/insight/WCMS_075613/lang--en/index.htm> accessed July 10 2011
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stipulation that all people should be treated similarly, unhampered by artificial and arbitrary
barriers or prejudices, except when those distinctions can be explicitly justified. 13 Equal
opportunity is closely aligned with the concept of equality before the law and the ideas of
meritocracy, which focuses on individual intelligence, experience, education, morality, or
other criteria believed to confer merit.14 The main idea of equal opportunity in employment is
to remove arbitrariness from all stages of the employment relationship and base decisions on
a pre-agreed basis of fairness, with the assessment process being related to the type of
position. 15
The report of the Law Commission of Trinidad and Tobago in its working paper on equal
opportunity legislation dated January 17, 1996 states:
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 s society in
varying degrees.
This was the Law Commission in 1996 reporting on why the country should create and
implement equal opportunity legislation. While many countries had figured out this problem
of discrimination and already implemented legislation to deal with it, Trinidad and Tobago
was many years behind with the discussion just beginning. The Law Commission continued,
We on this side submit that discrimination constitutes a virtual crime against
humanity... It is in this context and against national, regional and global
experiences that it has become necessary to adopt measures and to take steps to
manage our diversity, since the danger always lurks that our society could 13 Cary L.Cooper (ed.), The Blackwell Encyclopaedia of Management (2nd edn, Wiley-Blackwell 2005) 14 Michael Young The Rise of the Meritocracy (Transaction Publishers 1958) 15Richard Arneson . Equality of Opportunity (Stanford Encyclopedia of Philosophy Fall 2008 Edition)
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degenerate to the levels of conflict that have occurred in other parts of the world.
It was the former Prime Minister and the current Leader of the Opposition, Hon.
Basdeo Panday, who reminded us: 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.
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3 Current Labour Laws
Employment/Labour legislation in Trinidad and Tobago are few, incomplete and antiquated:
Industrial Relations Act, 1972
The Maternity Protection Act, 1998
Minimum Wages Act, 1976
Occupational Safety and Health Act, 2004
Occupational Safety and Health (Amendment) Act, 2006
Retrenchment and Severance Benefits Act, 1985
Trade Unions Act, 1933
Many of the Acts are irrelevant to the current contemporary climate, yet there is absolutely no
attempt to make the necessary updates to the legislation, in order to better serve the citizens
of the country.
Unfortunately, the only legal mechanism dealing with discrimination is the Equal
Opportunity Act 2000 ( EOA ), as amended by the Equal Opportunity (Amendment) Act,
2001. The Equal Opportunity (Amendment) Bill, 1999 led to the EOA. 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 and assented in June 2001. The EOA is an Act to prohibit certain
kinds of discrimination, to promote equality of opportunity between persons of different
status, to establish an Equal Opportunity Commission ( EOC ) and an Equal Opportunity
Tribunal ( Tribunal ).16 The status mentioned in the Act s preamble refers to
discrimination on the grounds of sex, race, ethnicity, origin (including geographical),
religion, marital status and any disability.17
The EOA s inspirationwas largely based on Australian, UK and Canadian laws i.e.:
16 EOA 2000, Preamble 17 EOA 2000, Part 1: s 3
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Australia
The Racial Discrimination Act 1975
Sex Discrimination Act 1984
The Disability Discrimination Act 1992
The Human Rights and Equal Opportunity Act 1986
Victoria Equal Opportunity Act 1984
Canada
The Ontario Human Rights Code 1962
UK
Sex Discrimination Act 1975
Race Relations Act 1976
Equal Pay Act 1970
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4 - Ethnic Background
In order to fully understand the importance for reform of the EOA, one must first understand
the historical reasons for the ethnic and racial composition of Trinidad and Tobago. There are
many explanations and versions of why this problem developed, but this is not the forum for
it to be discussed. While the problems associated with discrimination in society still persist,
the government has made conscious efforts to recognise the multi-ethnicity and
multiculturalism of the country by the accession of certain legislation such as the separate
Acts for Hindu and Muslim marriages. Also, Indian Arrival Day, Divali (Hindu celebration)
and Eid-ul-Fitr (Muslim celebration) are all recognised as public holidays.
Sociologists use the concept of ethnicity rather than race because the validity of race as
a classification concept has been rejected by Scientists. As a matter of fact, there is little
consensus on what race actually means.18 According to Scientists, the concept of race is a
socially-constructed one.19 Ethnicity , therefore, refers to the cultural identity of different
groups (values, norms, traditions, languages, etc.), while race relates to a person's
appearance (skin colour, etc.).
The population of Trinidad and Tobago has a lot of racial, ethnic, religious and cultural
diversity. However, although this diversity enriches and strengthens the national life, it has
created many problems, one being discrimination. In Trinidad and Tobago, the majority of
the discrimination experienced in employment is created by racial and ethnic differences; or
political affiliation, which is in itself extremely racially polarised. Even with the National
Anthem repeating the line, here every creed and race finds an equal place , we still allow the
divisiveness of race to pervade society.
Due to its colonial past, Trinidad and Tobago now has large numbers of both African and
Indian descendants. According to the latest statistics, Trinidad and Tobago s population is as 18Richard Alba, Ethnic Identity the Transformation of White America (Yale University Press 1992) 19Ann Morning, Keyword; Race (NYU 2005) <http://as.nyu.edu/docs/IO/1043/Morning2005KeywordsRacein.pdf> accessed May 2011
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follows:20 40% Indo-Trinidadians, 37.5% Afro-Trinidadians, 20.5% mixed, 1.2% other and
0.8% unspecified. A recent report has also suggested that the number of people with mixed
origin will be dominant in the future;21 an effect on employment discrimination that will be
interesting to observe. In addition to the large number of interracial relationships, this
significant mixture of the population is often used by many in society to promulgate a false
notion of national unity, something also done in the UK, which has one of the fastest-growing
mixed-race populations.22 With the two major ethnicities in Trinidad and Tobago being
almost even in numbers, one would expect a similar representation in the workplace.
Africans were the first to arrive in Trinidad and Tobago, brought to the Caribbean through the
slave trade. Following the demand for labour after the abolition of slavery, over half a million
Indians from the former British Raj or British India, were taken to thirteen mainland and
island nations in the Caribbean as Indentured workers during the period from 1838 to 1917,
with Trinidad being the most important receiver, taking about 40,000 by 1870.23
Most of the indentured labourers were from a lower caste and saw indentured labour as a
form of social mobility and a route to opportunity. The caste system played an important role
on the psyche of many darker-skinned Indians and created a self-loathing mentality.24 Due to
the fact that they hated their own skin colour, in their quest to be fairer, they transferred this
hatred to others with darker skin, i.e. the Africans.
Although both ethnic groups mix fairly well in daily life, racism exists at every level of
society. Tension existed between the two ethnic groups from the day African slaves achieved
emancipation and Indians arrived to work on the sugar plantations. Africans accused the
Indians of stealing their jobs because Indians worked for lower wages. Most Africans
20Trinidad and Tobago Central Statistical Office. (Figures estimated as of 2010) 21 Trinidad Express Newspaper. Fewer Trinis in the future, but more of mixed race (6 November 2011) 22 Geraldine Bedell, Between two worlds The Guardian (6April 2003) <http://www.guardian.co.uk/world/2003/apr/06/race.uk> accessed 15 June 2011 23 B. W. Higman, A Concise History of the Caribbean (1st edn. Cambridge University Press 2010) 163-164 24
Peter Childs. Paul Scott's Raj quartet: history and division (issue 77 English Literary Studies, University of
Victoria, 1998)
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migrated to the urban areas, notably Port-of-Spain, and to villages surrounding industrial
areas, whereas the Indians usually remained in the areas surrounding the sugar cane
plantations. These events set the stage for the inevitable clash of cultures between people
from Africa, Europe and Asia, and gave birth to racism and racial exploitation in Trinidad
and Tobago.
In recent times, the Government has attempted to propagate a society without discrimination.
However, the ILO conducted research in Trinidad and Tobago, and upon compilation of
statistics, the Committee on the Elimination of Racial Discrimination did not accept the
Government's assertion that there was no racial discrimination in Trinidad and Tobago. The
Special Rapporteur found the issue of race relations in Trinidad and Tobago to be quite
complex.25 The report indicated that Indo-Trinidadians are dominant in positions of economic
power while Afro-Trinidadians tend to be more represented in politics and administration,
and that [t]he Special Rapporteur heard allegations of discrimination in schools. 26 It is
important to note that there was a large Afro-Trinidadian representation in politics at that
time because the largely Afro-Trinidadian party was in power, illustrating the racial division
that has infiltrated the political arena. The same practice has continued with the largely Indo-
Trinidadian party where 17 out of 26 Members of Parliament representing Trinidad are Indo-
Trinidadians.27
25ILO Research compiled on 8 Jan. 2004. Para. 47 26Immigration and Refugee Board of Canada. Trinidad and Tobago: New government policies regarding racial
discrimination and tension between the Afro-Trinidadian and Indo-Trinidadian communities; levels of ethnic or racial strife currently being experienced; whether protection is available in cases of racially-motivated attacks
(January 2003 - November 2005) 27
Current Members of Parliament, as at October 2011 <http://www.ttparliament.org/members.php?mid=54>
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5 - Social Stratification
Given the ethnic diversity and ethnic politics in Trinidad and Tobago, the salience of class is
often overlooked or even actively denied. However, in fact, ethnicity and class work in
tandem. Although, Afro and Indo-Trinidadians make up the majority of the population and
the workforce, they have lagged behind other racial groups in earning power. Even so, the
single lowest earners are Afro-Trinidadians, who are also more susceptible to
discrimination.28 In 2001, the United States Bureau of Democracy, Human Rights, and
Labour made an observation that remains true more than 10 years later: The private sector is
dominated by Indo-Trinidadians and people of European, Middle Eastern, or Asian descent.
Indo-Trinidadians also predominate in agriculture. Afro-Trinidadians tend to find
employment in disproportionate numbers in the civil service, police, and military. 29
Therefore, it is farcical for the Central Statistical Office to produce statistics showing that
Afro-Trinidadians earn more than Trinidadians of other races.30
28Addington Coppin and Reed Neil Olsen, Earnings and ethnicity in Trinidad and Tobago (Volume 34, Issue 3 Journal of Development Studies, 1998) 116-134 -- See also: empirical research conducted using survey in index 29 Country Reports on Human Rights Practices, Bureau of Democracy, Human Rights, and Labour (2000) 30
Appendix #1
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6 - Relevant Legislative and Regulatory Framework on Employment Discrimination
6.1 - International
The Governing Body of the ILO has identified eight Conventions as fundamental to the rights
of human beings at work, regardless of the developmental level of individual Member States.
These rights are a precondition for all the others, in that they provide a necessary framework
from which to strive freely for the improvement of individual and collective conditions of
work. The ILO Declaration on Fundamental Principles and Rights at Work, adopted in June
1998, highlights this set of core labour principles endorsed by the international community.
The Declaration covers four main areas for the establishment of a social floor in the world
of work:
1. freedom of association and the effective recognition of the right to collective
bargaining
2. the elimination of all forms of forced or compulsory labour
3. the effective abolition of child labour
4. the elimination of discrimination in respect of employment and occupation
The Discrimination (Employment and Occupation) Convention ( Convention )31 follows the
Declaration of Philadelphia32 affirming the right to equal opportunity and that discrimination
is a violation of the rights enunciated by the Universal Declaration of Human Rights. Article
1, Section 1 of the Convention defines discrimination as:
(a) Any distinction, exclusion or preference made on the basis of race, colour,
sex, religion, political opinion, national extraction or social origin, which has
31(No. 111) Adopted: 25 June 1958.Entered into force: 15 June 1960. Ratified for T&T in 1970 32(10 May 1944) restated the traditional objectives of the International Labour Organisation
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the effect of nullifying or impairing equality ofopportunity or treatment in
employment or occupation.
Articles 2 and 3 explicitly instructs all Member States to implement laws to prevent
discrimination in employment, yet all previous governments33 of Trinidad and Tobago chose
to disregard the Convention.
Article XIX of the Charter of Civil Society provides for the right and protection of every
worker to:
freely belong to and participate in trade union activities;
negotiate and bargain collectively;
be treated fairly at the workplace, and to enjoy a safe, hygienic
6.2 - Regional
The Caribbean Community (CariCom) Standing Committee of Ministers is responsible for
adopting laws, which are based on the core labour standards of the following relevant ILO
Conventions:
Termination of Employment Convention, 1982 (No. 158);
Freedom of Association Convention, 1948 (No. 87);
Right to Organise and Collective Bargaining Convention, 1949 (No. 98);
Equal Remuneration Convention, 1951 (No. 100);
Discrimination (Employment and Occupation) Convention, 1958 (No. 111);
Occupational Safety and Health Convention, 1981 (No. 155)
33Until 1996 when the working paper was published.
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Trinidad and Tobago has a legal obligation under international law and ILO jurisdiction to
comply with the aforementioned ILO Conventions that it has ratified or acceded to.
The Model Harmonisation Act regarding Equality of Opportunity and Treatment in
Employment and Occupation ("the Model Equality Act'") is the CariCom s way of taking the
initiative to encourage Member States to adopt laws and policies that will assist in the
minimising and possible eradication of discrimination in the region. Its stated objectives are:
(a) to give effect to the provisions of the National Constitution; to the ILO Convention
concerning Equal Remuneration, No. 100 (1951); to the ILO Convention concerning
Discrimination In Employment and Occupation, No. 111 (1958); and to certain provisions in
the UN Convention on the Elimination of All Forms of Discrimination Against Women;
(b) to eliminate, as far as possible, discrimination in employment and occupation against
persons on the grounds of race, sex, religion, colour, ethnic origin, national extraction, social
origin, political opinion, disability, family responsibilities, pregnancy or marital status;
(c) to promote recognition and acceptance of the principle of equal opportunity and treatment
on the above grounds in employment, occupation and other related activities including
education, vocational training, employment services, provision of goods and services,
partnerships and professional trade organisations.
Despite this legislation being progressive in the Caribbean community, it is still deficient in
excluding the very important issue of age, and a contemporary emergence, sexual orientation.
Trinidad and Tobago has also ratified the CariCom Declaration Of Labour And Industrial
Relations Principles where Article 11 states: the Member States [should] undertake to
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adopt and pursue national policies 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 on the basis of race, colour, sex,
religion, political opinion, national extraction or social origin.
Article 73 on Industrial Relations of the Revised Treaty of Chaguaramas Establishing the
Caribbean Community requires the Council on Human and Social Development,
inconsultation with the Council for Trade and Economic Development to promote the
objectives of: full employment, adequate social security, cross-border mobility of labour, and
non-discrimination in the pursuit of employment.
6.2.1 - Legal status of CariCom Model Law and ILO Conventions
While Member States are expected to implement the model laws as an important requirement
of the CariCom SingleMarket and Economy, there is no legal obligation to ensure
compliance. The CariCom laws mentioned above will not have any effect unless and until the
Member States decide to create local laws to implement them in their respective countries.
CariCom laws are precatory and non-binding; and non-compliance does not invite any
sanctions. The non-binding nature of the CariCom Model Law contrasts with the binding
nature of a ratified ILO Convention. One fundamental principle of international law is that
treaties are binding upon the countries that have signed up to them and therefore must be
performed in accordance with the pacta sunt servanda principle. Despite this same principle
not applying to CariCom laws, the international laws should be enough to prompt the
implementation of the relevant laws to combat discrimination in employment.
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6.3 - Local
The Constitution of Trinidad and Tobago recognises and guarantees its citizens certain basic
human rights and freedoms without discrimination by reason of race, origin, colour, religion
or sex . One of those rights is the right of the individual to equality before the law and the
protection of the law. 34 However, this equality is rarely seen in employment practices.
In Trinidad and Tobago, although the right to equality of treatment is expressly stated as a
fundamental right in the Constitution, it only applies to violations by the State or public
authorities, therefore, it was necessary to make the enjoyment of the right a reality as well as
extend the violation of discrimination to the private sector. Along with the many international
and regional conventions, laws and guidelines complemented by countries who had already
implemented numerous laws against discrimination in employment, Trinidad and Tobago
followed with the only, and still deficient, piece of legislation in the country, the EOA.
34 Trinidad and Tobago Constitution s 4(b)
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7 -The EOA on Employment Discrimination
A survey of one-hundred random students at the University of the West Indies in St.
Augustine, Trinidad on September 6, 2011 revealed that less than one-quarter of the student
population had an idea of what discrimination in employment entailed and where it might
show up, with 5 students having slightly more in-depth knowledge. This goes to show that
even the next batch of people to enter the workforce in Trinidad and Tobago are susceptible
to blatant discrimination without knowing what form it may come in and what to do about it,
if it does occur. So what does the law really say? Part III of the EOA, is the only piece of
legislation dealing directly with discrimination in regards to employment in the private
sector. Sections 8 14 states:
7.1 - Discrimination against applicants
8. An employer or a prospective employer shall not discriminate against a person
(a) in the arrangements he makes for the purpose of determining who should be offered
employment;
(b) in the terms or conditions on which employment is offered; or
(c) by refusing or deliberately omitting to offer employment.
7.2 - Discrimination against employees
9. An employer shall not discriminate against a person employed by him
(a) in the terms or conditions of employment that the employer affords the person;
(b) in the way the employer affords the person access to opportunities for promotion,
transfer or training or to any other benefit, facility or service associated with
employment, or by refusing or deliberately omitting to afford the person access to
them; or
(c) by dismissing the person or subjecting the person to any other detriment.
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7.3 - Vocational training
10. A person shall not discriminate against another person where that other person is seeking
or undergoing training for any employment
(a) in the terms or conditions on which that other person is afforded access to any training
course or other facilities concerned with such training; or
(b) by terminating that other person s training or subjecting that other person to any
detriment during the course of training.
7.4 - Exception: Genuine occupational qualification
11. (1) Sections 8 to 9 shall not apply in respect of discrimination on the grounds of sex in a
case where being of a particular sex is a genuine occupational qualification for employment,
promotion, transfer or training.
11. (2) Without limiting the generality of subsection (1), being of a particular sex is a genuine
occupational qualification if
(a) the duties relating to the employment can be performed only by a person having
physical attributes (excluding physical strength or stamina) which only a person of a
particular sex possesses;
(b) the duties relating to the employment or training involve participation in a dramatic
performance or other entertainment in a capacity for which a person of a particular
sex is required for reasons of authenticity;
(c) the duties relating to the employment or training involve participation as an artist s
photographic or exhibition model in the production of a work of art, visual image or
sequence of visual images for which a person of a particular sex is required for
reasons of authenticity;
P a g e | 24
(d) the duties relating to the employment or training need to be performed by a person of
a particular sex to preserve decency or privacy;
(e) the nature of the establishment, or the part of it within which the work is done,
requires the employment to be held by a person of a particular sex; or
(f) the person employed or being trained provides or is to provide persons of a particular
sex with personal services concerning their welfare, education or health or similar
personal services, and those services can most effectively be provided by a person of
that particular sex.
11. (3) Sections 8 to 10 shall not apply in a case where
(a) the duties relating to the employment or training involve participation in a dramatic
performance or other entertainment in a capacity for which a person of a particular
race is required for reasons of authenticity;
(b) the duties relating to the employment or training involve participation as an artist s
photographic or exhibition model in the production of a work or art, visual image or
sequence of visual images for which a person of a particular race is required for
reasons of authenticity.
7.5 - Exception: Religious shop
12. Sections 8 to 10 shall not apply in respect of discrimination on the ground of religion in a
case where being of a particular religion is a necessary qualification for employment in a
religious shop.
7.6 - Exception: Domestic services and family business
13. (1) Sections 8 to 10 shall not apply to the employment of not more than three persons in
domestic or personal services in or in relation to the home of the employer.
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13. (2) notwithstanding sections 8 to 10, a family business may employ relatives in favour of
non-relatives.
7.7 - Exception: Inherent requirements, unjustifiable hardship, risk
14. Sections 8 to 10 shall not apply to the employment of a person with a disability if--
(a) taking into account the person s past training, qualifications and experience relevant
to the particular employment and, if the person is already employed by the employer,
the person s performance as an employee, and all other relevant factors that it is
reasonable to take into account, the person because of disability
(i) would be unable to carry out the inherent requirements of the particular
employment; or
(ii) would, in order to carry out those requirements, require services or facilities
that are not required by persons without a disability and the provision of which
would impose an unjustifiable hardship on the employer;
(b) because of the nature of the disability and the environment in which the person works
or is to work or the nature of the work performed or to be performed, there is or likely
to be
(i) a risk that the person will injure others, and it is not reasonable in all the
circumstances to take that risk; or
(ii) a substantial risk that the person will injure himself
The most important and commendable aspect of this Act is the fact that applicants and
prospective employees have legal grounds against discrimination.
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8 - EOA Implementation Problems
When the EOA was passed, it was challenged on the grounds that it was inconsistent with
Part I, Sections 4 and 5 of the Constitution. A group of twenty-one individuals initiated
litigation against the then Attorney General of Trinidad and Tobago for depriving their rights
to equal opportunity under the EOA by not implementing all the aspects of the legislation
required for its efficient functioning. The appellants, all persons claiming to be victims of
discriminatory treatment prohibited by the EOA, brought these proceedings by way of a
constitutional motion in May 2003, complaining that the government s failure to implement
the Act was a flagrant denial of their fundamental right to the protection of the law in
accordance with Section 4(b) of the Constitution. As a result, in 2004, Justice Gregory Smith
ruled that the EOA was unconstitutional in several respects.35 The decision was subsequently
upheld by the Court of Appeal, which was comprised of the then Chief Justice Sat Sharma,
Justice Ivor Archie, and Justice Allan Mendonca.
Although the Act was passed in 2000, the EOC did not become functional until April 2008.
The reason for the Act s continuing non-implementation was because the government had
been advised that the Act was unconstitutional, a conclusion reached also in the course of the
ensuing constitutional challenge by Smith J in the High Court on 10 May 2004 and by the
Court of Appeal36 on 26 January 2006.
Even before the implementation of the EOA, the Equal Opportunity Bill, 2007 was sent to the
Joint Select Committee of Parliament, but lapsed upon the dissolution of the 8th Parliament
on 28 September 2007. The next month, on October 15, 2007, the Lords of the judicial
committee of the Privy Council made a judgement in the case in which they highlighted the
fact that much still remained to be done in the way of establishing the EOC and the Tribunal
35Joseph Francois. Equal Opportunity Act unlawful The Newsday (11 May 2004) <http://www.newsday.co.tt/news/0,18025.html> accessed 20 Sept. 2011 36Sharma CJ, Archie and Mendonca JJA 37Suratt & Ors v. The Attorney General of Trinidad & Tobago (Trinidad and Tobago)Privy Council Appeal No 84 of 2006; [2008] UKPC 38 (21 July 2008)
P a g e | 27
before the Act would take effect.38 Following this ruling, the former Attorney General gave
the government at the time, seven days to establish the EOC or risk being reported to the
Privy Council,39 declaring that if your Government does not immediately appoint an Equal
Opportunity Commission and does not show that it is complying with the order of the Privy
Council for the Equal Opportunity Act to be implemented without further delay, we reserve
the right to bring to the attention of their Lordships the failure by you and your Government to
comply with the order of the Privy Council, which is the final Court of Appeal for Trinidad
and Tobago.
When the case40 went back to the Privy Council, Lady Hale in the majority decision said:
It cannot be the case that every Act of Parliament which impinges in any way
upon the rights protected in sections 4 and 5 of the Constitution is for that reason
alone unconstitutional. Legislation frequently affects rights such as freedom of
thought and expression and the enjoyment of property. These are both qualified
rights which may be limited, either by general legislation or in the particular case,
provided that the limitation pursues a legitimate aim and is proportionate to it.
However, since this ruling bringing finality to the matter, the EOA is still not fully
functional because there is no Tribunal to which the EOA can refer cases.
38 ibid. paragraph 3 39Joseph Francois, Seven days or else The Newsday (19 October 2007) <.http://www.newsday.co.tt/news/0,66277.html> accessed 21 Sept. 2011 40Surratt v Attorney General of Trinidad and Tobago [2008] AC 655, para 58
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9 - The Equal Opportunities Commission
The EOC has the power to investigate complaints of unequal treatment under the EOA, and
the power to mediate in an effort to resolve the differences between the aggrieved person and
the wrongdoer, or in this context, employee and employer. This is similar to the Equality and
Human Rights Commission in the UK, the Equal Employment Opportunity Commission in the
US and the Australian Human Rights Commission, previously known as the Human Rights
and Equal Opportunity Commission, which are all independent statutory bodies to deal with
discrimination.
The EOA, from which the EOC gets its authority, has been the most progressive legal
development in relation to labour and employment law practices because it makes it possible
for an individual to get redress for unequal treatment against him/her, even if the wrongdoer
is within the private sector. Prior to this, only the State could have attracted litigation
concerning discrimination, but there were still no provisions under which a person could use
to claim redress from a discriminatory practice or policy. The right to equality of treatment in
the Trinidad and Tobago Constitution has, therefore, become more meaningful because the
ordinary individual in Trinidad and Tobago now has access to institutions to complain about
any inequalities, and the institutions have the power to investigate and redress the wrongs.
If a matter cannot be amicably resolved, the EOC has the power to refer it to the Tribunal,41
which has the powers of the High Court to grant redress. Under the provisions of the EOA, an
individual does not have to pay for any legal services before the EOC or the Tribunal and the
EOC s Legal Officers undertake all legal responsibility. The process is that after the report,
an Investigator ascertains the validity of the claim and then the Legal Officers determine the
legal grounds for whether or not discrimination has occurred and what remedies, if any,
should be sought.
41 The tribunal up to this date has not yet been established, so no cases have been referred.
P a g e | 29
However, to highlight the government s nonchalance on this issue, the EOC only became
functional in 2008. Considering the fact that the EOA s efficiency and effectiveness
completely relied on the EOC and the Tribunal being in place, Trinidad and Tobago had
important legislation that remained in abeyance for many years. Also, despite the EOC s very
informative website,42 its purpose and powers remains unpopular to the general public,43 and
therefore, quite ineffective.
Since the EOC s inception in 2008, as at May 19, 2011, it received 400 complaints of
discrimination in employment:
380 - Race
10 - Origin (including geographical origin)
7 - Disability
2 - Religion
1 - Gender
This vividly emphasizes a need for more robust laws on discrimination in Trinidad and
Tobago. Some may view those statistics as a small number of complaints in comparison to
other countries, such as the UK, which had over 38,000 accepted claims of discrimination in
the 2009/2010 fiscal year. For Trinidad and Tobago, this may appear, prima facie, to be a
positive sign; however, surveys and public discourse highlight the stark reality that the
majority of citizens resident in Trinidad and Tobago are unaware of the rights offered to them
by the Constitution and the EOA.44
Unfortunately for the people who have brought claims to the EOC, no cases can be referred
to the Tribunal because it is not yet functioning, which means that there has not been a
determination on any matter of employment discrimination brought since the EOC s
42Equal Opportunity Commission. http://www.equalopportunity.gov.tt/eoc/ 43 Appendix #2 - 97% of the respondents did not know anything about the EOC 44ibid.
P a g e | 30
inception in 2008. This is after eleven years of the EOA becoming law, four years after the
Privy Council instructed the Government of Trinidad and Tobago to establish the EOC to
monitor and defend the equality of its citizens, and three years since the EOC became fully
functional.
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10.1 - Deficiencies with initiating discrimination claims
With the EOC unable to refer cases to a Tribunal for adjudication, employees who have been
discriminated against must still rely on the rules set out in the Industrial Relations Act
( IRA ) for bringing a claim to the Industrial Court, which are extremely antiquated. Anyone
who desires to bring a claim of discrimination before the Courts must meet the strict
definition of a worker.45 This means that the person must already be employed, but as
mentioned before, most of the discrimination in employment occurs at the initial stages, i.e.,
the selection and recruitment process. The current process for bringing such a claim is:
1. Within six months, a matter can be referred to the court by
a. the Union
b. the Employer
c. the Minister of Labour
2. Matters are assigned to either the General Services Division (GSD) or the Essential
Services Division (ESD) and are categorized by the Court as follows
(GSD or ESD) TD-Trade Dispute
(GSD or ESD) IRO-Industrial Relations Offence
(GSD or ESD) ICA- Interpretation of a Collective Agreement
(GSD) RSBD-Retrenchment and Severance Benefits Dispute
(GSD or ESD) A- Application
(GSD) MWD-Minimum Wages Dispute
(GSD) MPD- Maternity Protection Dispute
45Definition of worker found in the Preliminary of the Industrial Relations Act, 1972, as amended
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(ESD) ST-Special Tribunal46
3. For Trade Disputes, a certificate of unresolved dispute should be submitted by the
Ministry of Labour to the Court to initiate proceedings.
4. The first stage of the proceedings is directions .
5. The parties are notified to appear in Court for the purpose of expressing their views as
to the periods which are reasonably necessary for the fair and adequate presentation of
their case and for the parties to receive such directions as the Court might give for the
hearing and determination of the matter.
6. At directions specific dates are given for
o the filing of Evidence and Arguments
o the Exchange of Evidence and Arguments
o the replies (if necessary)
o the Hearing of the matter.
The Court may, with the consent of the parties, decide at directions to refer the matter for
conciliation before a Member of the Court. In such a case the parties are notified at a later
stage of the date for conciliation.47 This process can take years, especially with the other
types of cases the Industrial Court deals with. This is why a Tribunal should be appointed
immediately.
10.2 - Report to the Ministry of Labour
After parties have undergone the disputes procedure set out in their collective agreements, if
the dispute remains unresolved, the matter may be reported to the Minister of Labour as a
trade dispute under the Disputes Procedure set out in Part V of the IRA.48 This Dispute
46 This is where current discrimination claims are placed 47 Information gathered from: http://industrialcourt.org.tt/IndustrialRelations/InitiatingaMatter.aspx 48 Industrial Relations Act. s 51(1)
P a g e | 33
Procedure establishes a system that allows parties to deal with their dispute in a structured
framework of conciliation, which may culminate in arbitration before the Industrial Court if
conciliation does not result in resolution.
An individual is incapable of being a party to a trade dispute under the IRA. Therefore, an
individual worker has no locus standi before the Industrial Court. This type of law is astern to
what the local contemporary climate requires. Initially the legislation was structured so as to
encourage and support trade union membership and development. It is without doubt that it
would be in the interest of both employer and union to restrict an individual worker s right to
come before the Industrial Court, but it is the duty of the Legislature to safeguard the rights of
workers. This need to recognise individual workers rights encouraged the passing of the
Retrenchment and Severance Benefits Act49 and the Maternity Protection Act
50, giving
individual workers an avenue for bringing grievances before the Industrial Court. Both Acts
allow the worker to report his or her grievance to the Minister as a trade dispute to be dealt
with according to the provisions of the IRA.
Once a trade dispute is reported to the Minister of Labour he or she has 14 days (which
usually takes longer) to either;
remit the dispute back to the parties where appropriate settlement procedures were not
observed;
proceed to have the matter conciliated before a conciliator appointed by the Ministry
of Labour; or
refer the matter directly to the Industrial Court.
Unrepresented workers cannot report a dispute to the Minister, which means they have no
assistance from the law if they were discriminated against. While the EOA should be able to
49No. 32 of 1985 50No. 4 of 1998
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remedy the situation by giving protection to individuals from discrimination, the Tribunal
still has not become functional.
10.3 - The Office of the Ombudsman
In a telephone interview, a representative of the Office of the Ombudsman indicated that it
does not take complaints regarding racial discrimination.51 However, in further
correspondence, the Office of the Ombudsman indicated that it had received complaints
about discrimination in employment practices, some of which appear to have a racial
connotation .52 According to its website,53 the Office of the Ombudsman of Trinidad and
Tobago is committed to ensuring the protection of the individual against bureaucratic
injustice. In addition; its mission is as follows:
1. To investigate complaints against Government departments, agencies and authorities.
2. To provide an impartial, informal and expeditious service to the public.
3. To educate the public as to their rights and duties in a free and democratic society vis- -vis
the responsibility and accountability of public officers.
4. To promote an effective and efficient public service that is responsive to the needs of the
citizenry
Unfortunately for many people, the Office of the Ombudsman only deals with complaints
against public bodies (except the police service and telecommunication companies as they
both have their own complaints procedures) and are unable to quantify how many cases deal
specifically with employment discrimination. The Office of the Ombudsman is also very
inefficient with many complaints not being resolved.54 Furthermore, when asked where
51Telephone interview. 16 Sept. 2011 52ibid 53Office of the Ombudsman. Vision and Mission <http://www.ombudsman.gov.tt/applicationloader.asp?app=articles&id=944> accessed 31 June 2011 54Office of the Ombudsman. Annual Report 2007. Areas of Concern
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citizens who bring employment discrimination claims about private companies are referred,
the response was, Ministry of Labour .55
55Telephone interview. 16 Sept. 2011
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11 - Discrimination Cases
With over four-hundred employment discrimination complaints going to the EOC in just over
two years, one would expect a lot of employment discrimination claims to also reach the
High Court, with the absence of the Tribunal. However, as highlighted in the previous
sections, the current process for bringing a claim is inefficient and does more to promote
discrimination than to discourage it. While it is possible that there may be more, a thorough
search of the Court s database only produced one case on employment discrimination, which
never mentioned or made any reference to the EOA. The case involved a man who was told
by the San Fernando Corporation that he would not be considered for the job because of his
geographical location, which was the policy in place. It is astonishing to see a branch of the
government implementing such a blatantly discriminatory policy after the EOA was declared
and this type of discrimination was explicitly prohibited.
However, this lack of cases in the High Court could possibly be explained by the standing
case-law in Seamen and Waterfront Workers Trade Union,56 where the Court s position was
refined; I must emphasise that it is not the function of the Court to deprive an employer of
his right to choose his own employees. It is not within the province of this Court to take over
functions of the employer in relation to the selection of employees.
It also goes on to say that it will intervene only in exceptional circumstances where the
treatment is unjust or unfair ... in accordance with the principles of good industrial
relations practice; this is not objective, but clearly subjective. It also means that such a
system would not have uniformed decisions, because different Magistrates arrive at different
conclusions.
56TD: 236/86
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12 - Discrimination: Hidden in Plain Sight
Many sources illustrate the fact that racial tension between Afro-Trinidadians and Indo-
Trinidadians is still a problem in Trinidad and Tobago.57 However, other sources indicate that
racial discrimination is perhaps not such a problem in the country.58 Regardless,
discrimination, especially in employment, is common knowledge to the population, but the
Government, inefficient as always, has continued to turn a blind eye to discrimination, and in
some cases allowing blatant employment discrimination to go unaddressed.59 It is impossible
to solve this problem by ignoring or trivialising it, because this discriminatory behaviour is
entrenched in employment practices, in both the public and private sectors.
Despite the very clear legislation prohibiting employment discrimination, every day the three
major newspapers in the country, the Trinidad Express, the Guardian and the Newsday
publish blatantly discriminatory job vacancy advertisements in their Classifieds section. It is
especially disturbing for the Trinidad Express because they have a Compliance Unit. How
does a Compliance Manager/Officer allow discrimination to be printed? It is clear that the
Compliance Unit has not been informed of its responsibility under the Constitution and the
EOA to avoid discrimination in any form, which further solidifies the point that the country is
in a state collective ignorance. Similar discriminatory advertisements can also be seen on
CaribbeanJobs.com and CaribbeaJobsOnline.com, the two most popular job websites in the
Caribbean, widely used in Trinidad and Tobago. The majority of discriminatory ads are about
sex, with some others about race, religion, geographical location and age, which is not yet
law, but it is included in the recent EOA amendment Bill. Some examples of the
discrimination in the employment advertisements in these newspapers and on the websites
include employers looking for Indian workers only to work in a jewellery store, female
57Country Reports 2004 28 Feb. 2005, Sec. 5; Caribbean Net News 7 Sept. 2004; Trinidad and Tobago Express 30 Aug. 2004; The Trinidad Guardian 22 Mar. 2004; CNN 2 Nov. 2005; CMC 10 Sept. 2004. 58The Trinidad Guardian 30 Sept. 2004; Trinidad and Tobago Express 6 Oct. 2004; ibid. 7 Oct. 2004 59http://www.trinidadexpress.com/news/SAT_BLOCKED_BLACK_CHILDREN-133665408.html
P a g e | 38
receptionists and male only grocery workers. Is race an occupational requirement for working
in a jewellery store? Some may argue that secretarial or reception jobs are mostly done by
females, but is that a reason to discriminate against a man who may have chosen that career
path? Also, is it fair to associate women with those types of jobs ?
It is also baffling to see the EOC trying to convince society that T&T s employment
practices [are] not race based ,60 yet, for example, the Trinidad and Tobago Police Service is
mostly comprised of Afro-Trinidadians. This issue was brought to the spotlight on March 24,
201161 when former Chairman of the Police Service Commission ( PSC ), Nizam
Mohammed said that out of ten Assistant Commissioners of Police, you don t have a single
one of Indian origin. Out of three Deputy Commissioners, none of Indian origin. Well we
have one Commissioner of Police. Senior Superintendent, you have fifteen all of African
origin, none of Indian origin. This is in contrast to an official of the Police Complaints
Authority stating that they had never received complaints of racial discrimination.62
Other examples of this openly practiced discrimination can be seen in many government
agencies and other state run companies. For example, after the May 2010 elections and
subsequent change in government, the entire board of directors63 of the Public Service
Transport Corporation ( PTSC ) was fired and replaced with a board consisting of mostly
Indo-Trinidadians. Freedom of Information requests during this research process for statistics
of the managerial staff hired since May 2010 were ignored by the HR Manager. Every
attempt to speak to him always generated excuses by the office assistants, being turned away
on 3 occasions from his office. Also, interviews with three Accounts personnel at PTSC
60Camille Bethel, T&T's employment practices not race based, says EOC Trinidad Express <http://www.trinidadexpress.com/news/T_T_s_employment_practices_not_race_based__says_EOC-119130804.html> (2 April 2011) accessed 2 April 2011 61Akile Simon, NIZAM CRIES RACE. 'Too many Africans in Police Service' <http://www.trinidadexpress.com/news/NIZAM_CRIES_RACE-118693474.html> (Mar 25, 2011) accessed 1 June 2011 62Telephone interview on September 12, 2011 63 The Board consisted mostly Afro-Trinis, suggesting that the same discrimination was practiced by the previous government
P a g e | 39
revealed numerous incidents of corruption in the purchasing of equipment and parts for the
buses, due to this discriminatory practice.
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13 - Racial Employment Discrimination in T&T
Out of all the types of employment discrimination in Trinidad and Tobago, race is by far the
most prominent, hence the reason for it being the focus of this paper. Racial employment
discrimination has been a problem for many years, since independence in 1962. For example,
the Trinidad Express newspaper reported on October 22, 1970, that of the 100 employees of
the Central Bank of Trinidad and Tobago, 84 were Afro-Trinidadians, 10 were Indo-
Trinidadians, 3 were of Chinese descent, 2 were of Portuguese descent, and 1 was white. This
employment discrimination in the public sector was still palpable nineteen years later when
on June 25,1989, the Trinidad Express again published statistics showing that the total
number of persons employed in the entire public sector comprised a mere 29% Indo-
Trinidadians. Specifically, in the Trinidad and Tobago protective services, i.e., the Police,
Army and Coast Guard it was 25%, 5% and 16% respectively. The statistics are important to
note because at the time the data was compiled, Indo-Trinidadians made up 40.3% of the
country's population, while Afro-Trinidadians made up 39.6%.64
In 1992, the University of the West Indies , Centre for Ethnic Studies conducted research65
into race and ethnicity in employment and concluded that, Indo-Trinidadians were heavily
under-represented in the higher reaches of the public sector , but adequately represented in
the professional sectors and the judiciary. The study found that there were serious
imbalances in areas like the Health Services, where 54% of the Health Professionals were
Indo-Trinidadians, while the lower positions, such as Nurses were mainly Afro-Trinidadians.
The report also highlighted the hostile environment that was created as a result of this
discrimination.
The second part of the report addressed issues in the private sector. The study found that 50%
of the firms were owned by Indo, and the other minorities. Most owners justified their hiring 64 Central Statistical Office Census data for 1989 65University of the West Indies, Centre for Ethnic Studies, Ethnicity and employment practices in the public and private sectors in Trinidad and Tobago (UWI 1994)
P a g e | 41
decisions on the basis of myths and stereotypes about certain races being more reliable,
productive, loyal, conscientious, or trustworthy. Many also claimed that their businesses were
family businesses and so they only hired family, but that exception only applies to companies
with no more than three employees,66 which was not the case in many businesses examined.
Many had a consciousness of kind, and saw their recruitment practice as being part of a group
struggle. Many believed that in choosing to recruit people of the same race and ethnicity, they
enhanced the prestige and status of that racial group as a whole in relation to others. A clear
desire for group pride and hegemony was the main motivation for discriminatory recruitment
decisions.
Most of what is mentioned above applied to business owners from all ethnic groups, but it
was truer for Indo-Trinidadian business owners. In many of the Indo-Trinidadian owned
establishments, there were no persons of Afro-Trinidadian descent, especially at the
managerial and professional level. No one of Afro-Trinidadian descent was employed at the
managerial level in 88.2% of the Indian-owned companies, 92.5% of Chinese-owned
companiesand 76% of the White-owned companies. Discriminatory employment practices
were also evident in businesses owned by Afro-Trinidadians where only 21.3%of the firms
had hired Indo-Trinidadians. Interestingly, some owners argued that since Indo-Trinidadians
were discriminated against in the public sector, they felt obliged to compensate by
discriminating in the private sector where they had more control. Also, at least two
companies preferred to hire Indians from India over Afro-Trinidadians.
66EOA Section 13(1)
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14 - Sex Employment Discrimination
Despite being common knowledge and evidenced by examination results, the Ministry of
Education s Summary of Report on Gender Issues in Education and Intervention Studies to
Increase Participation of Boys offered its confirmation, There is much research published
on the gender gap in educational achievement in which girls seem to be out-performing
boys. However, despite girls excelling significantly more than boys and more girls attend
university, they continue to make much less than boys later in life when they enter the
workforce. The Household Budgetary Survey for 2008/200967 showed that more women
earned between TT$1000 TT$2,999 than men, but when the salaries ranged between
TT$21,000 24,999, the amount of women who earned that amount dropped to
approximately 6% of the population on average.
It can be safely surmised that the pay differences illustrate discrimination in other areas of the
employment relationship such as promotions and benefits; the proverbial glass ceiling .
On a similar note, The Employment of Women (night work) Act prohibits the employment of
women to work at night in industrial undertakings except for certain limited exceptions. This
blatantly discriminatory Act is definitely no longer valid and should be repealed.
67Appendix #3 68Chapter 88:12 Act 3 or 1939
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15.1 - Pre-Employment Inquiries and Requirements
It is illegal for a job advertisement to specify that the applicant must be of a particular race,
sex, or any other protected characteristic, unless being of that protected characteristic is an
occupational requirement.69 It is an undeniable fact that the majority of discrimination in
employment occurs at the selection and recruitment stage. Names, geographical location, and
schools attended are used to discriminate against applicants. For example, in the UK, the
Equal Opportunity Monitoring Form/Questionnaire that most organisations use to
determine whether they are in compliance with UK law can be, and most likely is used to
screen and discriminate against prospective candidates for employment. This is despite the
reassuring notes and elaborate equal opportunity policies alleged by many companies, stating
that these forms will be kept separately from the applications .70 Solicitation of such pre-
employment information is presumed to be used as a basis for making selection decisions.
Therefore, if members of minority groups are excluded from employment, the request for
such pre-employment information would likely constitute evidence of discrimination.
Specific pre-employment information requests that tend to lead to discrimination are requests
for applicants date of birth, place of birth or nationality. However, in Trinidad and Tobago,
the attempt at deception does not go that far, discrimination occurs as soon as the names on
resumes are seen, and no one has done or even plans on doing anything about it.
69 EOA s 6(4) 70Appendix #4
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16 Segregation and Classification of Employees
Another type of discrimination occurring in Trinidad and Tobago is the segregation and
classification of employees, where some companies physically isolate employees from other
employees or from customer contact. This should be made illegal to avoid racially motivated
decisions driven by business concerns for example, concerns about the effect on employee
relations, or the negative reaction of clients or customers. For instance, most of the
supermarkets in downtown Chaguanas (a largely Indo-Trinidadian pollution) have, if they do
hire any, the Afro-Trinidadian employees working in the stockroom, away from customers.
P a g e | 45
Reform and Recommendations
17 The Law Commission
Trinidad and Tobago has a Law Reform Commission ( Commission ) that falls under the
Ministry of the Attorney General, to which a copy of this dissertation will be sent. The
Commission has proven to be very inefficient in regards to the lack of updates to numerous
antiquated legislations in the country. Although its vision is to redefine and enhance the
legal culture of Trinidad and Tobago, and to maintain a reputation for excellence in law
reform and the mission is to create laws to keep up with the perpetual development of
society, it continues to be unimpressive in attaining these standards, especially with so many
other developed countries legislative frameworks to be used as guidelines.
The Commission is legally mandated under the Law Reform Act to initiate material and
major changes or innovation to the corpus of the law. This usually becomes necessary
when there are changed circumstances and the law is no longer relevant to the needs of
society. The duty of the Commission is to:
4(1) keep under review all the laws applicable to Trinidad and Tobago with a view to its
systematic development and reform, including in particular the codification of such law,
the elimination of anomalies, the repeal of obsolete and unnecessary enactments, the
reduction of the number of specific enactments and generally the simplification and
modernization of the law...
In addition to its duty, the Commission also has other roles and functions:72
To receive and consider suggestions for the reform of the law which may be
forwarded to it (either on the invitation of the Commission or otherwise) by
711969 as amended 72Law Reform Commission http://www.ag.gov.tt/AboutUs/Departments/LawReformCommission/tabid/99/Default.aspx
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Judges, public officials, lawyers and members of the public generally;
To receive and consider proposals for changes in the law referred to it by the
Minister or recommended by any Law Reform Committee, Association of
Lawyers or other learned bodies;
Prepare and submit to the Minister from time to time specific programmes for the
examination of different branches of the law with a view to reform including
recommendations as to whether such examination should be carried out by the
Commission or some other body;
To undertake, in pursuance of any recommendations of the Minister, the
formulation of draft Bills relating to the proposals for reform contained in such
recommendations;
To undertake, pursuant to any recommendations approved by the Minister, the
examination of particular branches of the law and the formulation, by means of
draft Bills or otherwise, of proposals for reform therein;
Provide at the instance of the Minister advice and information to Ministries and
Departments of Government and Statutory Authorities concerned with proposals
for the amendment or reform of the law;
To obtain such information, with regards to, the laws and legal systems of the
other countries as in the opinion of the Commission is likely to facilitate the
performance of any of its functions.
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18 - The Tribunal
Despite a 1994 report entitled Ethnicity and Employment Practices in Trinidad and Tobago
Volume I (The Public Sector)73
recommending that a Tribunal be established, this was not
established until 4 February 2009.74 While progress was made with the EOA, 12 years has
since passed without a functioning Tribunal. In February 2011, the Head of the Legal
department of the EOC, Narendra Lalbeharry, said that the Tribunal would be fully
functional within the next two months ,75 once the necessary staff had been appointed. As at
January 2012, the Tribunal is still not functional. However, this delay can be beneficial as it
could enable careful planning to implement a fully functional and efficient Tribunal.
In the UK, the Employment Tribunal, first called the Industrial Tribunal was established to
consider appeals by employers against training levies, 76 but after its powers changed, it was
renamed and its jurisdiction expanded to cover all employment law disputes.77 The
Employment Tribunal deals with all employment law claims at no cost to the parties, unless
they prefer to solicit the advice or representation of private legal practitioners.
The importance of a Tribunal in Trinidad and Tobago means that the EOC can refer cases, so
employees who have been subjected to unlawful discriminatory behaviour can have an
avenue to be compensated accordingly and employers penalised. Many Tribunal cases will be
brought by working class people who may not be able to easily procure the services of an
Attorney, therefore, the following are recommendations to encourage efficiency:
73Compiled by the Centre for Ethnic Studies 74
Government of Trinidad and Tobago News website. Chairman of Equal Opportunity Tribunal takes oath of
office (5 Feb. 2009) <http://www.news.gov.tt/index.php?news=937> 75 EOC continues towards equal opportunity in the workplace <http://www.guardian.co.tt/news/2011/02/16/eoc-continues-towards-equal-opportunity-workplace> (17 February 2011) 76 Industrial Training Act 1964, s 12 77 House of Commons Research Paper 03/87. Employment Tribunals p.5
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The Tribunal is being established in a modern era and should reflect that. Everything
concerning it should be computerised and easily accessible to the public, including
decisions and reports, which must be kept updated.
Strict time frames for dealing with claims and for the presentation of information by
the parties
In addition to the EOA s requirement,78 the Tribunal panel should have a mixture of
3-5 panel members to ensure independent and impartial decisions. The panel should
include at least 1 Magistrate with experience in Employment/Labour Law, 1 non-legal
person with experience in Labour Law (e.g., an HR manager) and 1 person who is
qualified in Employment/Labour Law (i.e. Degree or Diploma). Experience is
unnecessary.
Sound guidance by the EOC to minimise frivolous claims
Precedent setting decisions that will seriously impact and reduce future discriminatory
hiring practices by employers.
Consistency in the decision making, remembering that the Tribunal should not take
sides.
78
EOA s 42(3)
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19.1 - Regulation of Companies
While little could be done in small family-owned companies, a more stern approach should
be taken with larger public companies. Human Resource ( HR ) personnel in public
companies should be made aware of what constitutes employment discrimination, the laws
that make such practices illegal and the consequences for non-compliance.
The government should encourage programmes to sensitise HR personnel about diversity
management and the need to measure diversity in their recruitment policies. Many local
companies depend on the State for contracts to supply goods and services and on the general
public for patronage; therefore, with this amount of control, the government can be very
effective in convincing companies to move away from discriminatory recruitment practices.
In this regard, self-interest should warrant a concern for diversity.
Also, every company should implement and adhere to an Equal Opportunity Policy because
this will illustrate the companies commitment to steadfastly abiding by all relevant
legislation, guidelines and initiatives combating discrimination in employment. A very good
and detailed Policy sample has been developed and attached as an appendix.79
19.2 - Avoiding Discriminatory Advertisements
Job advertisements include the use of the internet, radio, television, newspapers, magazines,
internal notices, job centres, employment/recruitment agencies and emails. No job
advertisement should discriminate on the basis of any of the protected characteristics, unless
there is objective evidence that the discrimination is lawful, or as the EOA puts it, an
occupational requirement . Many people have a fair idea of what discrimination is and that
it is illegal, therefore it is unlikely that any employer will attempt to publish anintentionally
discriminatory advertisement, but discriminatory advertising still occurs, often inadvertently.
79Appendix #5
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There are many rules regarding the writing of advertisements to attract the best candidates for
a position, but there are also laws regulating the content that can be included in the
advertisements. It is generally unlawful for an employer to publish a discriminatory
advertisement, or to cause one to be published. Although there is no guidance on the content
that can be included in job advertisements, case law and thorough evaluation of the laws on
discrimination provide sufficient assistance to avoiding discrimination. There are numerous
words, phrases and requests that cannot be used; otherwise they will be deemed
discriminatory, which is illegal. Obviously, some may think that certain advertisements are
not discriminatory, at first glance, but on examination, they are. The commonly accepted test
of what might be understood as indicating an intention to discriminate is whether an ordinary,
reasonable person with no special knowledge would believe that the advertisement is
discriminatory. The following is advice on what employers should consider when creating a
job advertisement:
19.3 - Avoiding sexual discrimination
Throughout the years, society has assigned certain jobs to certain sexes; women to be
Secretaries and Nurses and men to be everything else. However, in the 21st century, a lot has
changed, in that no job is sex specific anymore, so it is strictly forbidden to make such a
request in a job advert. Still important is the requirement to keep in mind that there are certain
jobs where there may be an occupational requirement , such as within single sex institutions
like hospitals and prisons. Despite this exception, an employer is never allowed to consider
that hiring one sex may provide a benefit in terms of physical performance, unless that
performance is of a thematic nature (such as the need for a male to play Santa Claus). The job
title used should therefore never be gender specific, e.g. waitress or salesman .
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19.4 - Avoiding racial discrimination
Many of the same principles outlined above, apply to race discrimination. There are also
some situations where being of a certain race can be seen as an occupational requirement ,
especially where a company sees the need to take positive action to encourage people from a
certain ethnic group to apply for a job or training because they are underrepresented in the
company, profession or at certain job levels. This is regularly seen within Police Force
recruitment campaigns where attempts are made to match the ethnicity of recruits with local
populations. Even where language is an important requirement for a position, stating that the
applicant must be able to speak English rather than the person must be a Trinidad and
Tobago national, unless, of course, it relates to governmental roles, is illegal.
19.5 - Avoiding age discrimination
Age discrimination is a relatively new addition to the list of things to consider when writing
job adverts, and it is one of the biggest changes in process that most employers will have to
go through in order to comply with all discrimination regulations, especially when the
amendments to the EOA become law. It is also the type of discrimination in advertisements
that happens the most, albeit mostly inadvertently and unintentionally. The rules not only
cover stipulating upper or lower age limits for job applicants, but also implied terms such as
youthful , dynamic' or mature . All these terms could be seen as excluding someone from
applying for a role based on their age. Even asking for a certain level of experience from
candidates could be deemed as discriminating against someone who has not had the
opportunity to gain the experience because they are too young.
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19.6 - Avoiding disability discrimination
As mentioned before, discrimination based on disability in Trinidad and Tobago is widely
expected and accepted. Regardless of this, it is important for all businesses to provide
disabled candidates with the same opportunities to join their companies as someone without a
disability. The elimination of this type of discrimination will have to start with the processes
succeeding the job advertisement because a company cannot be inclusive of and advertise to
disabledpeople without first making the premises accessible and conducive for them to work.
19.7 - Compliance v The Business Case
A diverse group of employees with varied backgrounds and experiences bring a more
nuanced understanding of different circumstances and of different environments. When these
differences are fused, it leads to better analysis and more innovative problem-solving.
Although the legislation in Trinidad and Tobago is deficient in addressing discrimination in
employment, employers have a legal responsibility to ensure that no unlawful discrimination
occurs at any stage of the employment relationship on any grounds mentioned in the EOA.
The benefits for practicing non-discriminatory recruitment are numerous, but most
importantly, everyone gains from eliminating discrimination at work. Fairness and justice at
the workplace boosts the self-esteem and morale of workers.80 A more motivated and
productive workforce enhances the productivity and competitiveness of businesses.81
In many developed countries, such as the US and UK, many companies see this process as a
tick-box exercise because they are forced by legislation to comply. Many employers
continue to take a compliance-only approach to the issue of discrimination. However,
unfortunately for them, this only means that they will be missing out on business benefits,
80John J. Donohue, Foundations of employment discrimination law (New York : Oxford University Press, 1997) 81Laura Beth Nielsen, Robert L. Nelson, Handbook of employment discrimination research: rights and realities (1st edn. Springer; 28 Nov 2005) 289
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such as improved creativity, innovation and customer service that arise from a more
wholehearted approach to diversity, rooted in the business case.
An equal and fair workplace and work relationships create a healthy work environment where
people can flourish. A diverse group of people with varied backgrounds and experiences
bring a more nuanced understanding of different circumstances and of different
environments. When working together, this leads to better analysis and more innovative
problem-solving.
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20 - Employment Discrimination Models
20.1 The UK Model
20.1.1 - Equality Act
The UK has been the most proactive government for its implementation of legislation against
discrimination, possibly because racism is such an intricate part of the society.82 Immigration
has caused many problems regarding discrimination in employment, but many people believe
that out of all the minorities in the UK, racists are the unwanted ones.83 Regardless of the
issues, the UK s laws and policies are the paragon of what Trinidad and Tobago s
employment discrimination laws should be like.
In the UK, the first legislations to prevent discrimination came via the Race Relations Act
(1976), as amended by the Race Relations (Amendment) Act 2000 to fight racism; the Sex
Discrimination Act (1975) to fight sexism; and the Disability Discrimination Act (2005) to
fight discrimination against the disabled. These have all now been repealed, consolidated and
incorporated into the Equality Act 2010, which had many important changes and additions to
make the legislative framework more efficientand effective in combating discrimination. The
constant reviewing of the legislative framework concerning employment discrimination
illustrates the government s commitment to fostering a society that is more equal, albeit the
changes came as a result of European Union ( EU ) treaties and directives.
20.1.2 - Statutory Code of Practice on Racial Equality in Employment
Due to the fact that the legislation is not specific to employment discrimination, the Statutory
Code of Practice on Racial Equality in Employment was produced.
The purpose of this code is to: 82 Donna Bowater David Cameron: Britain still has a problem with racism (9 Jan 2012) <http://www.telegraph.co.uk/news/uknews/law-and-order/9002758/David-Cameron-Britain-still-has-a-problem-with-racism.html> accessed 15 Oct. 011 83BBC UK, Is Britain a racist country? ( 21 November, 2002) <http://news.bbc.co.uk/2/hi/in_depth/uk/2002/race/1998159.stm> accessed 15 Oct. 011
P a g e | 55
1. give employers and principals practical guidance on how to prevent unlawful racial
discrimination, and achieve equality of opportunity in the field of employment;
2. help employers and others who have duties under the employment provisions of the
RRA to understand their responsibilities and rights;
3. help lawyers and other advisers to advise their clients;
4. give employment tribunals and courts clear guidelines on good equal opportunities
practice in employment
The Code is very detailed, with definitions, references to the relevant legislation (although
still has not been updated for the EA 2010) and numerous leading cases on different issues.
20.1.3 - Effectiveness of the UK Employment Anti-Discrimination Model
Despite the legislation, discriminatory practices still continue, but now at a more furtive level.
This is evidenced by the levels of economic activity remaining very different among different
racial groups. According to a 2004 study,84 white employment stood at 79.4% for men and
71.6% for women, when compared to black or black British employment of 65.8% for men
and 54.9% for women. The size of the gap here would suggest that there is still a large
amount of room for improvement in the employment process.
Despite the elaborateness of the UK model, it is not efficacious because the government has
not put any measures in place for companies to report their levels of racial representation
and/or to provide reasons for rejection of candidates. This means that monitoring equality is
difficult and almost impossible.
Similarly, women still face major problems. It is unlawful to deny someone employment
because of their sex, however, more than thirty years later, women employed full time are
84 Lindley, J., A. Dale and S. Dex, Ethnic Differences in Women s Demographic, Family Characteristics and
Economic Activity Profiles, 1992-2002 (Labour Market Trends, April 2004) 155
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still earning just 87.4% as much as men.85 Women are also less likely to be employed in the
highest paying jobs, with a report from the Equal Opportunities Commission stating that only
10% of FTSE100 companies have women employed as boardroom directors, with more than
a quarter of boards having no women directors at all.86 Furthermore, 44% of women are
employed part-time, with women making up 78% of the part time labour market.87 Part-time
employees not only earn less due to working fewer hours, they also miss out on promotions,
bonuses and pay rises.88
The UK model is in no way perfect, but is the best model to adopt. Similar to Trinidad and
Tobago, the UK s discriminatory exceptions include one where a religious place may
discriminate based on that person s religion. However, the UK has an exception that allows
churches to discriminate against homosexuals. In a recent, case, a potential candidate for a
position at a church, brought proceedings after allegations of discrimination, but the UK
Courts were unable to resolve.89 When the matter was referred to the European Commission
( EC ) in 2009, a reasoned opinion was sent to the UK for incorrectly implementing EU rules
prohibiting discrimination based on religion or belief, disability, age or sexual orientation in
employment and occupation.90 Tackling all forms of discrimination especially at work
has been a priority for the EC and legal action has led to better protection against
discrimination in workplaces across the European Union.
In the reasoned opinion sent to the UK, the EC pointed out that:
85Women and Equality Unit, 2006 86Joel Stonington, Boys only Boards Business Week (23 June 2011) <http://www.businessweek.com/managing/content/jun2011/ca20110620_788661.htm> accessed 1 Sept. 2011 87D. Darton. and K. Hurrell, People Working Part-Time Below their Potential, (Equal Opportunities Commission 2005), <www.eoc.org.uk/cseng/research/below_their_potential.pdf>accessed 23 Jul. 2011 88 Giovanni Russo and Wolter H.J. Hassink, And The Part-Time Wage Penalty: A Career Perspective (VU University Amsterdam; Institute for the Study of Labor 2005) 89Jamie Doward, Brussels says churches must lift ban on employing homosexuals (22 Nov. 2009) <http://www.guardian.co.uk/world/2009/nov/22/churches-lift-ban-homosexual-staff> accessed 10 Oct. 2011 90Directive 2000/78/EC
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there is no clear ban on instruction to discriminate in national law and no
clear appeals procedure in the case of disabled people;
exceptions to the principle of non-discrimination on the basis of sexual
orientation for religious employers are broader than that permitted by the
directive.
20.2 - Australia
Trinidad and Tobago s Equal Opportunity Act is mostly based on Australian laws because of
the many similarities. Australia has many pieces of legislation designed specifically for
dealing with employment discrimination. To cover all areas of the employment relationship,
there are about 14 anti-discrimination and equal opportunity laws that have been
implemented throughout the country. However, the Acts that are directly applicable to
employment discrimination at the Federal Level are the Racial Discrimination Act 1975,
Disability Discrimination Act 1992, Sex Discrimination Act 1984, Age Discrimination Act
2004, and the Equal Opportunity for Women in the Workplace Act 1999.
Australian anti-discrimination laws reflect an individual complaints-based model of anti-
discrimination laws, which Trinidad and Tobago has now adopted. This model seeks to
address discrimination and inequality by providing individuals with the right to take legal
action against their employers. The main problem with the Australian model is that while
there is a system in place for recourse against employment discrimination, there are no
policies in place to encourage or require employers to practice equal opportunity recruitment
or to promote inequality in any way. Therefore, employment discrimination can go
unpunished as long as the employee does not complain.
Despite Trinidad and Tobago basing its employment anti-discrimination laws on the
Australian model, the EOA is not as far reaching as the Australian laws because of the total
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inclusion of all protected characteristics. Section 351(1) of the Fair Work Act 2009 ( FWA )
states that an employer must not take adverse action against an employee, or a prospective
employee on the grounds of the person s:
race
colour
sex
sexual preference
age
physical or mental disability
family or carer s responsibility
pregnancy
religion
political opinion
national extraction
social origin.
In addition to the FWA, the Fair Work Ombudsman also has the investigative and
prosecutorial powers to initiate civil penalties against employers who breach any of the anti-
discrimination provisions in the Act.
Even thoughthere is a large number of anti-discrimination Acts in Australia, there is a general
approach as to how the Acts operate in order to prevent employment discrimination. Most
importantly about Australian anti-discrimination legislation, is that an employer can be held
liable for discriminatory behaviour committed by an employee, if the behaviour was done in
connection with the employment of the employee. In order for an employer to prove
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otherwise, the employer must show that it took all reasonable steps to prevent the employee
from committing the discriminatory conduct, such as proper diversity training.
20.3 - The US Model
The US is very elaborate in its employment discrimination laws, with more sources of law
than any of the other jurisdictions mentioned in this paper. While there are general laws,91
there are separate regulations for different sectors of the labour market. The Equal
Employment Opportunity Commission ( EEOC ) is an independent federal agency that
applies the relevant laws to promote equal employment opportunities for most employees.
Despite its best efforts, the US has been hindered in its ability to deal with employment
discrimination because of the vast amount of illegal immigrants in the country, which causes
xenophobia.
However, Title VII of the Civil Rights Act 1964 ( Title VII ), remains the primary federal
law that prohibits employment discrimination and is generally very effective.
In the US, employers are required to post notices to all employees advising them of their
rights concerning employment discrimination under Title VII, which the EEOC enforces
along with the right to be free from retaliation. The notices must also be made available and
accessible to employees who may have a disability affecting their ability to read properly.
91Some mentioned earlier in the paper
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21 - EOA, EOC and Policies
The most important question is, What can be done, if anything, to effect a greater degree of
equality of opportunity?
There are many things wrong with the EOA, the EOC and the way the government has
ignored the importance of employment anti-discrimination legislation. Therefore, in order to
meet the standards we strive for in first world/developed countries, urgent reform and an
implementation of new policies are important.
The EOA is the most progressive piece of legislation in employment law in Trinidad and
Tobago within the last ten years. Despite this fact, the EOA remained inactive for eight years
until the Commission was established, and continues to remain ineffective because of the
non-existence of a fully-functional Tribunal. As a result, it has been impossible for the
government to monitor the effectiveness and efficiency of the entire process of combating
discrimination, especially in employment. The following are recommendations for EOA
amendments, EOC changes and policy implementations:
1. The EOA is an Act to officially make discrimination illegal, yet there is no definition of
the term or the main types, i.e., direct and indirect discrimination. Section 13 of the UK s
Equality Act 2010 is an excellent archetype for Trinidad and Tobago to follow because it
is detailed, yet clear and defined:
a. Direct discrimination
1) A person (A) discriminates against another (B) if, because of a
protected characteristic, A treats B less favourably than A treats or
would treat others.
2) If the protected characteristic is age, A does not discriminate against B
if A can show A s treatment of B to be a proportionate means of
achieving a legitimate aim.
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3) If the protected characteristic is disability, and B is not a disabled
person, A does not discriminate against B only because A treats or
would treat disabled persons more favourably than A treats B.
4) If the protected characteristic is marriage and civil partnership, this
section applies... only if the treatment is because it is B who is married
or a civil partner.
5) If the protected characteristic is race, less favourable treatment
includes segregating B from others.
6) If the protected characteristic is sex
(a) less favourable treatment of a woman includes less favourable
treatment of her because she is breast-feeding;
(b) in a case where B is a man, no account is to be taken of special
treatment afforded to a woman in connection with pregnancy or
childbirth.
b. Indirect Discrimination
1) A person (A) discriminates against another (B) if A applies to B a
provision, criterion or practice which is discriminatory in relation to a
relevant protected characteristic of B s.
2) For the purposes of subsection (1), a provision, criterion or practice is
discriminatory in relation to a relevant protected characteristic of B s
if
(a) A applies, or would apply, it to persons with whom B does not share
the characteristic,
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(b) it puts, or would put, persons with whom B shares the characteristic
at a particular disadvantage when compared with persons with
whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a
legitimate aim.
2. Perceptive discrimination deals with discrimination caused by a person s perceived
(rather than actual) characteristic(s). For instance, if an employer discriminates against
an applicant on the mistaken assumption that based on the person s surname, he/she may
be of a particular race or sex, when the person may be the opposite of the perception; this
would definitely be perceptive discrimination. It should be included in the Act.
3. With the lack of legislation and case law in Trinidad and Tobago, policies should be
implemented to eradicate discrimination based on a person s affiliation with someone
from a protected characteristic, although this does not apply to marriage or pregnancy.
Associative discrimination, introduced to offer recourse to third party individuals
affected by the direct discrimination of people who have a protected characteristic, is a
sub-category of direct discrimination. UK case law has also shown that it is not
necessary to have an actual association between the claimant and a person with a
protected characteristic; it is sufficient for the protected characteristic to be the reason for
the treatment. The courts have developed this principle since it was first recognised in
race discrimination cases, to cover many other areas of unlawful discrimination, and
while it can still be considered to be a novelty concept, it has been accepted to be
imperative to the court s inclination to fairness.
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4. Affirmative action has to be among one of the most contentious, controversial, and
misunderstood social policies. Affirmative Action (US) and reverse discrimination,
recently changed to positive action (UK) is a policy and program adopted in many regions
of the world to encourage employers and educational institutions to consider the history
of discrimination against certain classes of people when it comes to admission and hiring
decisions. Such policies usually only cover race, sex and disability discrimination. The
goal of affirmative action is to counteract the effects of centuries of discrimination in
order to create more opportunities for oppressed groups of people, acknowledging that
prejudices are often deeply internalised.
It is very important to recognise that these policies should only be used when there is
equality among applicants and not when the accepted applicants are not qualified for the
position. Discrimination either way is immoral and illegal. The U.S. case of Ricci v.
DeStefano was a case against the city of New Haven, Connecticut taken to the US
Supreme Court, which was initiated by twenty city fire-fighters when they were victims
of racial discrimination with regard to promotions. The fire-fighters, nineteen white and
one Hispanic, had all passed the test for promotions to management. The City of New
Haven officials invalidated the test results because none of the black fire-fighters who
passed the exam had scored high enough to be considered for the positions and they
feared a lawsuit over the test s adverse impact on a protected minority. The Court held 5-
4 that the city s decision was discriminatory and was a serious misinterpretation of the
law on affirmative action.
A quota system should also be considered in the public sector to represent the population
that the government represents. With the electorate clearly divided along the lines of race,
92129 S. Ct. 2658, 2671, 174 L. Ed. 2d 490 (2009).The Supreme Court heard the case on April 22, 2009, and issued its decision on June 29, 2009.
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governments will always attempt to hire their own and without strict regulations, it cannot
be curbed.
5. The EOA must be amended to include people who suffer discrimination on grounds of
age, sexual orientation, pregnancy and infection with HIV/AIDS. While compiling the
information for this dissertation, there has been the presentation of the Equal Opportunity
(Amendment) (No. 2) Bill, 2011 in November, which plans on adding age and HIV/AIDS
status to the list of protected characteristics.
6. The EOA makes victimisation illegal and also discusses offensive behaviour , which by
the definition given is considered bullying as it is called in the employment anti-
discrimination laws of the other countries mentioned. The EOA, however, neglects to
mention harassment , which is also vital to combating discrimination, and is also an
important part of all the anti-discriminatory legislation that Trinidad and Tobago
emulates. This must be included in the next amendment to the EOA.
According to the Federal Law Enforcement Training Center[sic],discriminatory
harassment is usually verbal, but can also be physical conduct that demeans or shows
hostility, or aversion, toward an individual based on a protected characteristic and that it:
has the purpose of violating a person s dignity or creating an intimidating,
hostile, degrading, humiliating or offensive environment for that person;
is reasonably considered by that person to have the effect of violating his or
her dignity or of creating an intimidating, hostile, degrading, humiliating or
offensive environment for him or her, even if this effect was not intended by
the person responsible for the conduct.
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The U.S. is especially strict on this topic with the Equal Employment Opportunity
Commission ( EEOC ) regulation 29 CFR, Part 1614, Section 102(a)(3) instructing
companies to eliminate discrimination from personnel policies, practices and working
conditions. The Supreme Court also set standards regarding harassment in Burlington
Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton.94 In these decisions, the
Supreme Court made clear that employers can be held vicariously liable for unlawful
harassment by supervisors or other employees.
Harassment can include behaviour such as:
telling insulting jokes about particular racial groups
sending explicit or sexually suggestive emails
displaying offensive or pornographic posters or screen savers
making derogatory comments or taunts about someone s race or religion
asking intrusive questions about someone s personal life, including their sex life
Employers have a duty to take these matters seriously; otherwise the result could be very
costly.
7. The EOC also needs to change some of their policies on dealing with investigations.
Currently, Investigators do not go out to the employee s workplace, which speaks
volumes of the quality of the investigation being carried out. Also, an investigation
should take three days to complete, but currently, Investigators rarely bring a report
within that time frame.
93118 S. Ct. 2257 (1998) 94118 S. Ct. 2275 (1998)
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8. While the EOA has tried to cover most aspects of discrimination, it is closely associated
with misogyny, legalising discrimination through its own sexist perceptions of women as
the inferior species. Section 11(a) assumes that some work can be performed only by a
person having physical attributes (excluding physical strength or stamina) which only a
person of a particular sex possesses. It is very disheartening to see that in the 21st
century, with women doing all types of jobs; many people, including the legislative arm
of the government of Trinidad and Tobago, still believe that women are unable to perform
certain tasks. This section must be deleted with the next amendment because it contradicts
the core purpose of the EOA.
9. Disability discrimination is rampant in every aspect of society. The laws concerning
discrimination in Trinidad and Tobago are inadequate, denying the rights of the disabled
to obtain employment. Someone in a wheelchair would never be able to work in Trinidad
and Tobago because of Section 14(a)(ii) permitting discrimination on the grounds that
after consideration of all factors, a disabled person can be discriminated against if he/she
requires services or facilities that are not required by persons without a disability and the
provision of which would impose an unjustifiable hardship on the employer, in order to
carry out work requirements. Unjustifiable95 hardship should be replaced with
undue96 hardship because the definition of unjustifiable suggests that the discrimination
is right, whereas the definition of undue suggests that it is excessive, still acknowledging
that employment disability discrimination is wrong. Without this distinction, efforts
would never be made to accommodate and the discrimination would freely continue. The
factors that an employer may consider in determining undue hardship include:
Nature, cost impact of the accommodation;
95can be defended as being right 96Unwarranted or inappropriate because excessive
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Financial resources of the business or facility that would require the
accommodation;
The number of workers at the business or facility;
Employer s overall size, nature and resources;
Type of operations impacted by the accommodation
10. It should be explicitly illegal to request or ask for any personal information from
aapplicants and prospective candidates, such as photographs, age, family status (e.g.,
questions about pregnancy, children, marriage, etc.), political affiliation, religion or
birthplace. Many employers in Trinidad and Tobago ask any and every question at
interviews, encouraging interviewees to divulge personal, irrelevant information instead
of discussing their abilities to effectively perform the duties in the job description. An
employer s interpretation of a candidate s personal life in relation to being able to
perform the duties of a position will lead to premature decisions, which can result in the
subsequent denial of an equal opportunity.
11. Employment/Recruitment agencies must be regulated because these companies, whether
private or public, can either promote equal opportunities and improve transparency in the
labour market or perpetuate discriminatory practices. Through fear of losing existing or
potential clients, many employment agencies discriminate against potential candidates for
employment at the employers requests. Employment Agencies should establish and fully
implement measures to promote equal opportunity, such as a service for workers alleging
discrimination to make a report, as well as the obligation of staff not to accept
discriminatory job requirements by employers, using threat of disciplinary action or
dismissal for non-compliance.
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In telephone interviews conducted with ten Trinidad and Tobago recruitment agencies in
September 2011, it was revealed that many employment agencies are willing to
discriminate without hesitation, if that s what the employer wants ,97 even after being
made aware of the relevant legislation. Other agencies attempt to discourage , but if the
employer is adamant, they succumb to the pressure.98 Only one agency99 had a zero
tolerance for discrimination. Out of the ten agencies contacted, 7 were willing to
discriminate without hesitation, 2 would discriminate after trying to discourage it and one
would outright refuse.
Despite not being the conventional Recruitment Agency, CaribbeanJobs.com is
responsible for most of the job advertisements in Trinidad and Tobago. In a telephone
interview with them, they admitted that there was no system in place to avoid
discriminatory ads because companies have access to the website and place the ads
themselves without CaribbeanJobs.com vetting them first. However, the company is more
than willing to comply and put a system in place to prevent discriminatory advertisements
from being posted.
The discriminatory advertisements on CaribbeanJobs.com are not as blatant as the
newspaper Classifieds because CaribbeanJobs.com deals mainly with companies and
Employment Agencies, so as professionals, they have a greater knowledge of what
language is illegal. As a result, discriminatory advertisements regarding race or religion
would probably never be posted, but sex and age still feature in many advertisements.
12. There is a collective ignorance in Trinidad and Tobago in relation to employment
discrimination. Therefore, the government should implement public awareness initiatives
to educate the public; employers about the law and employees about their rights. 97 Telephone interview with AW&W Employment Agency 98 Telephone interview with Anderson Eve Associates 99 Telephone interview with Jo-Anne Mouttet & Associates
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13. To achieve equal opportunity in employment in Trinidad and Tobago, three things are
needed: transparency, accountability, and objectivity. In respect to the first, persons
who are interviewed for jobs or promotions must, if they request it, be given a written
response if their application is not accepted. Not only will this ensure that employers
are more careful in how they process applications, but it will enable the persons
applying to better themselves for the job. In respect to accountability, the government
should implement a compliance committee for at least 12 months after EOA
amendments to ensure compliance. Statistical analyses of employees can possibly
uncover prejudices. Thirdly, regarding objectivity, there should be a racial and sex
balance on interview panels and in the HR decision making processes.
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Conclusion
The people of Trinidad and Tobago seem to be locked in a state of perpetual analysis, always
talking, but never any progress on issues. This is just one area of Employment/Labour Law
that requires significant reform, guidance and associated policies to assist with the fostering
of a fair work environment for everyone involved in an employment relationship. The only
way forward is to have more robust laws to protect and promote equality in employment in
Trinidad and Tobago.
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