“I could understand if the claim was dismissed because Mr [Rishi Persad] Maharaj listed the wrong entity as his employer. I could understand if the claim was dismissed because sexual harassment is not currently illegal based on our current legislation. I could even understand if it was dismissed once the trade issue was resolved. But I do not understand why Mr Maharaj’s claim stood no chance based on his sexual orientation, which seems irrelevant to the claim.”
The following Letter to the Editor about a recent Equal Opportunity Tribunal ruling was submitted to Wired868 by S Maharaj:
I am confused about the recent ruling of the Equal Opportunity Tribunal (EOT) in the claim brought by Rishi Persad Maharaj, an openly gay man, against Cascadia Hotel, regarding ‘discrimination in employment on the basis of sex, by way of sexual harassment and victimization’. The proceedings were dismissed (including claims for damages), and Maharaj has been ordered to pay the legal costs of Cascadia Hotel.
Mr Maharaj claimed his director of operations used inappropriate words such as ‘sexy’, ‘baby’, ‘hot’ and ‘bae’. She even slapped him on the buttocks and pinched his waist, according to Maharaj.
Lay assessor of the EOT, Leela Ramdeen, spoke with the media, and she provided some interesting insight on this matter.
Ramdeen said because Maharaj is openly gay, the Equal Opportunity Act (EOA) does not define what sex means, so the Tribunal could not interpret it to include homosexuals. In her opinion, Maharaj’s claim ‘did not stand a chance based on that’.
She said: “We, the tribunal, cannot stretch ‘sex’ to go beyond male and female.”
She called for legislation to define what ‘sex’ means.
According to the Equal Opportunity Act, sex is defined in terms of ‘man’ and ‘woman’. I quote from the Act itself: ‘Man means a male person of any age’ and ‘Woman means a female person of any age’. The Act goes on to say that ‘sex does not include sexual preference or orientation’. This information is also provided on the EOC website.
Can someone explain how the definition of sex could be ‘stretched beyond man and woman’ in this situation? Is Ms Ramdeen suggesting that Mr Maharaj is ‘beyond’ a man nor a woman because of his sexual orientation? Did she imply that homosexuals could not be defined as men or women as per the EOA?
I suspect she is conflating sex and sexual orientation. Mr Maharaj is an openly gay man. By the definitions in the Act, his sexual preference or orientation is not included in his sex. By these same definitions (and I presume by Mr Maharaj’s personal identity), I would understand, he is defined as a man.
Mr Maharaj has not claimed discrimination based on sexual orientation (his homosexuality), which is not covered under the EOA, he has claimed discrimination based on sex.
The EOA states that a person discriminates against another person on the grounds of status if ‘the discriminator treats the aggrieved person, in circumstances that are the same or are not materially different, less favourable than the discriminator treats another person of a different status.’ Here, status can mean sex, race, ethnicity, origin, religion, marital status or disability of a person.
The EOC website simplifies this for us: “Discrimination on the grounds of a person’s sex occurs where a person of one sex is treated less favourable than another person of the opposite sex, in circumstances that are the same or not materially different.”
Maharaj has claimed, therefore, that he has been treated less favourably than a woman would have been treated, all other things being equal.
The EOT’s ruling implies that either the woman did not behave in the way Mr Maharaj described; she behaved as described, but this is not considered sexual harassment by the law; or the woman did, in fact, behave as Mr Maharaj described but directs such behaviour to both men and women indiscriminately.
Ms Ramdeen also said that the EOA did not cover sexual harassment and, without specific sexual harassment legislation, ‘no one was protected’.
“If there was legislation, that gentleman would have come and have his day in court,” she said. “Parliament alone has that power to make laws. If we are to give citizens the opportunity to bring an action for sexual harassment, then parliament has to pass legislation.”
Does this mean that all current cases of sexual harassment should or will be dismissed by the EOT? I also wonder how past cases have been dealt with. Has this always been the position of the EOT?
Is it true that ‘no one is protected’? Or, as Ms Ramdeen has implied, do the definitions of sex in the EOA not apply to gay people? In her opinion, ‘Maharaj did not stand a chance with his claims based on that.’
According to media reports, Maharaj was employed by Banquet and Conference Centre Ltd on property owned by Cascadia Hotel; the two are separate legal entities. Since his suit was filed against Cascadia hotel, he submitted the wrong entity before the tribunal.
Also, on 15 December, month after he filed his claim with the Equal Opportunity Commission, he reported a trade dispute through his union to the labour ministry.
Ramdeen said: “In law, you cannot deal with the issue and try to get money twice. He settled the dispute—then he comes here.”
I could understand if the claim was dismissed because Mr Maharaj listed the wrong entity as his employer. I could understand if the claim was dismissed because sexual harassment is not currently illegal based on our current legislation. I could even understand if it was dismissed once the trade issue was resolved. But I do not understand why Mr Maharaj’s claim stood no chance based on his sexual orientation, which seems irrelevant to the claim.
What would happen if a straight man brought a case of discrimination in employment on the basis of sex, by way of sexual harassment and victimization? Or a gay woman? Or a straight woman?
It is not my intention to attack Ms Ramdeen or the Equal Opportunity Tribunal. Nor do I wish to disrespect anyone or any entity. I only wish to ask certain questions concerning my understanding of the ruling. If I have misunderstood or misinterpreted anything, I am open correction. Thank you for reading.