WHAT CAN I DO IF I AM FACING DISCRIMINATION AT WORK?

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Imagine you have applied for or you are employed by a person, company or organisation and you have been experiencing unfair treatment from that potential or current employer. What solutions or remedies are available in Trinidad and Tobago when such a situation arises? Here are 7 things you should know if you believe you are facing discrimination in the workplace. 

1. First, what exactly is discrimination?

Discrimination, in simple terms, is the treatment of a person or a particular group of people differently, in a way that is worse than the way people are usually treated.

2. What laws protect us from discrimination?
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In Trinidad and Tobago, the Constitution guarantees citizens the general right to equality of treatment from any public authority in the exercise of any function. The Equal Opportunity Act, No. 69 of 2000 prohibits discrimination of persons on grounds of sex, race, ethnicity, origin, marital status, religion or disability. Part III of the Act deals specifically with employment discrimination. In respect of persons seeking employment, an employer is prohibited from refusing or omitting to offer employment to a person based on the above grounds of discrimination. Also, an employer shall not discriminate against an employee with regard to terms and conditions of employment, opportunities for promotion, transfer or training or any other benefit, facility or service associated with the employment. 

Section 4 of the Equal Opportunity Act states that the Act applies to discrimination in  relation to employment if the alleged discrimination is based on-

• Discrimination on the ground of status or
• Discrimination by victimisation.

3. What is discrimination on the ground of status?
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The Equal Opportunity Act defines “status” as:

• The sex
• The race
• The ethnicity
• The origin, including geographical origin
• The religion
• The marital status; or
• Any disability of a person

Section 5 of the Act states that a person discriminates against another person on the grounds of status if he treats the aggrieved person, in circumstances that are the same or are not materially different, less favorably than the discriminator treats a person of another status based on:

• The status of the aggrieved person
• A characteristic that appertains generally to persons of the status of the aggrieved person; or
• A characteristic that is generally imputed to persons of the status of the aggrieved person.

4. What is discrimination by victimisation?

The discriminator discriminates by victimisation against another person if he treats the person victimised, less favorably than in those circumstances  he treats or would treat other persons, and does so by reason that the person victimised has:

• Brought proceedings against the discriminator or any other person under the Act or any relevant law;
• Given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under the Act, or any relevant law;
• Otherwise done anything or by reference to the Act, or any relevant law, in relation to the discriminator; or
• Alleged that the discriminator or any other person has committed an act, which (whether or not the allegation so states) would amount to a contravention of the Act, or any relevant law.

In making an allegation of discrimination by victimisation, the Complainant must, as stated in EOT No. 0004 of 2016 Moriba Baker v The University of Trinidad and Tobago:
“show that the catalyst for the unfavourable treatment is that he (the Complainant) had either initiated action against him (the discriminator) under the Act or any relevant law or assisted some person in doing so.”

​Therefore the Complainant must prove that the basis for the treatment which he is receiving is due to any action which he may have initiated against the Discriminator under the Act, or some relevant law, or assisted some other person in doing so.

5. What is less favourable treatment?

In a discrimination claim based on victimisation or status, the complainant must show that he was treated less favourably than his comparator and the reason for this treatment was based on either victimisation or status.

In the case of EOT No. 002 of 2014 Kerwin Simmons v Trinidad and Tobago Water and Sewerage Authority it was stated that there are TWO grounds to bring a claim of discrimination:

• The identification of a comparator and
  
• the establishment that there was differential and less favourable treatment.
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A person alleging discrimination would first have to establish that there has been less than favourable treatment by his employer or potential employer. The person alleging discrimination must then prove that the reason for this treatment was either on his status, or as a result of victimisation as outlined above.

6. What can a person do if he or she believes he or she has been discriminated against in the workplace?

If a person believes he or she has been discriminated against, they can lodge a complaint at the Equal Opportunity Commission. The Equal Opportunity Commission was established under the Equal Opportunity Act and its mandate is to work towards the elimination of discrimination and the promotion of equality and good relations between persons of different statuses. A person who claims that he has been discriminated against can submit a written complaint setting out the details of the alleged act of discrimination to the Commission.

If the complaint after investigation cannot be or is not resolved, through conciliation by the Commission, the Commission is mandated with the consent and on behalf of the Complainant, to institute proceedings before the Equal Opportunity Tribunal. The Tribunal would then hear and determine the complaint and has the power to grant powerful remedies such as injunctions to restrain acts of discrimination, fines and orders for unlimited damages (compensation).

7. Are there exceptions to workplace discrimination?

Yes there are exceptions.
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Exception to Discrimination on grounds of sex
According to section 11 of the Equal Opportunity Act there may be 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. Being of a particular sex is a genuine occupational qualification if--

• 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;     
• 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;
• 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;
• the duties relating to the employment or training need to be performed by a person of a particular sex to preserve decency or privacy;
• 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
• 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. ​

Exception to Discrimination on grounds of race
According to section 11(3) of the Equal Opportunity Act, there may be discrimination on the grounds of race where 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 or 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.

Exception to Discrimination on grounds of religion
According to section 12 of the Equal Opportunity Act, there may be 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.

Exception to Discrimination in employment of persons for domestic or personal services
​According to section 13(1) of Equal Opportunity Act, there may be discrimination in the employment of persons in domestic or personal services in or in relation to the home of the employer - but this exception can apply to a maximum of three employees.

Exception to Discrimination in relation to favourable employment of relatives versus non-relatives.
According to section 13(2) of the Equal Opportunity Act, a family business may employ relatives in favour of non-relatives.

Exception to Discrimination in relation to the employment of a person with a disability
According to section 14 of the Equal Opportunity Act, there may be discrimination in relation to the employment of a person with a disability where:

• 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;

OR

• 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.

Important Notice: This post does not constitute legal advice. Always consult with an attorney on any legal problem or issue.

​This website is managed by AURORA Chambers; a law practice in Trinidad and Tobago.

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