In 2003, the Equality for Men and Women Act [Act 1 of 2003, Cap 456] was passed and the subsequent setting up of the National Commission for the Promotion of Equality for Men and Women [NCPE] in January 2004 provided a body responsible for monitoring the implementation of the provisions of the said Act and take action in the case of discrimination suffered by either women or men.
Other than act as a monitoring body to see that no discrimination occurs between women and men in the various sectors, the commission also works to promote a society where women and men have the same opportunities to enjoy a work-life balance. For example, whereas a lot of emphasis is placed on women’s opportunities for career advancement, emphasis is now also being made on opportunities for men to enjoy a fuller, more active role in family life, such as fatherhood.
However, it may be of more interest to indicate the specific areas that the Act covers. It is also relevant at this stage to know the definition of discrimination as stated in the Act: “discrimination means discrimination based on sex or family responsibilities and includes the treatment of a person in a less favourable manner” – directly or indirectly.
Generally speaking, the law protects against discrimination in these areas:
· Discrimination in employment
· Banks and financial institutions
· Participation of spouses in the activities of a self-employed partner
· Educational and vocational guidance
· Sexual harassment
· Discriminatory advertising
Discrimination in employment
· Employers shall also be deemed to have discriminated against a person if they: “Manage the work, give promotions, distribute tasks, offer training opportunities or otherwise arrange the working conditions in a manner that employees are assigned a less favourable status than others on the basis of sex or because of family responsibilities”.
“Alter the working conditions, or the terms of employment of employees to the detriment of such employees after such employees have invoked any right accorded to him/her under this act or claimed the performance in his/her favour of any obligation or duty under this act.”
Banks and financial institutions
· “No bank or financial institution or insurance company shall discriminate against any person in the grant of any facility in respect of the establishment, equipment or in the launching or extension of any business or the launching or extension of any form of self-employment or the insurance of that business or the person in self-employment.”
NCPE has come to know of cases where clients requesting loans from banking institutions find that the criteria used changes with gender. It is the NCPE’s business to see that such practices are curtailed.
Participation of spouses in the activities of a self-employed partner
· “Spouses of self-employed workers not being employees or partners, who participate in the activities of the self-employed workers and perform the same or ancillary tasks as their spouse shall be entitled to receive from their spouse a fair compensation for their activity commensurate to the value of their contribution.”
Previous commissions have been very much aware of this situation and have, on various occasions suggested a clause on such a matter.
Sexual harassment
· “It shall be unlawful for any person to sexually harass other persons; to subject other persons to an act of physical intimacy; to request sexual favours from other persons; to subject other persons to any act or conduct with sexual connotations, including spoken words, gestures or the production, display or circulation of any written words, pictures or other material, where the act, words or conduct is unwelcome to the persons to whom they are directed and could reasonably be regarded as offensive, humiliating or intimidating to the persons to whom they are directed; or the persons so subjected or requested are treated less favourably by reason of such persons’ rejection.”
Sexual harassment is a serious offence and it is stated clearly in this Act that “Persons who sexually harass other persons shall be guilty of an offence against this article and shall be liable on conviction to a fine (multa) of not more than Lm1,000 or to imprisonment of not more than six months or to both such fine and imprisonment”.
Employers cannot “neglect” their obligation to suppress sexual harassment as provided under sub-article (2) of article 9 of this act.
It must be made clear that employers have a crucial role to play in curtailing sexual harassment. In fact the law puts emphasis on this aspect and it can be well understood that without the proper structure and support sexual harassment will remain an issue. Furthermore, the law states that, “Upon the request of any person claiming to have been sexually harassed or discriminated against, the employer is to provide within ten working days of such a request with a report on the allegation made”.
The law continues, “It shall be a defence for employers to prove that they took such steps as are reasonably practicable to prevent such sexual harassment”. To this end, the NCPE is currently working on a policy including guidelines for employers to ensure that the necessary structures are in place and for the employees to know who they should turn to in case of such a situation. However, policies and guidelines alone may NOT be enough; people need to be trained!
A crucial point which merits emphasis is the point that as soon as a complaint is received the facts have to be established. So while the onus of proof lies with the perpetrator, the victim also has her/his responsibilities.
Educational and vocational guidance
· “It shall be unlawful for any educational establishment or for any other entity providing vocational training or guidance to discriminate against any person in: the access to any course, vocational training or guidance; the award of educational support for students or trainees; in the selection and implementation of the curricula and in the assessment of the skills or knowledge of the students or trainees.”
“It shall be the duty of educational establishments and entities providing vocational training, within the limits of their competence to ensure that curricula and textbooks do not propagate discrimination.”
Discriminatory advertising
· [Sub-article 1] “It shall be unlawful for persons to publish or display or cause to be published or displayed any advertisement, or, otherwise to advertise a vacancy for employment which discriminates between job seekers or to request from job seekers information concerning their private life or family plans.” Discussion on this matter was initiated and a clear explanation offered to the local written media where most advertising in this regard takes place and major changes have been noted. Furthermore, websites for gender neutral, non-sexist terminology have been listed for ease of reference:
http://ucc.ie/ucc/equalcom/language.html
http://owl.english.purdue.edu/handouts/general/gl nonsex.html
http://www.apa.udel.edu/apa/publications/texts/nonsexist.html
· [Sub-article 2] “It shall be unlawful for persons to publish or display or cause to be published or displayed any advertisement which promotes discrimination or otherwise discriminates.” The definition has been made amply clear by the Act, it is up to the NCPE to ensure that everyone adheres to it.
According to the same law, the main remit of the National Commission for the Promotion of Equality includes:
· To investigate complaints and to determine whether the provisions of this Act are being contravened and, where deemed appropriate, to mediate with regard to such complaints and to inquire into and advise on any matter relating to equality between men and women;
· To provide assistance, where and as appropriate, to persons suffering from discrimination in enforcing their rights under this Act;
· To keep under review the working of this Act and, where required, submit proposals for its amendment or substitution.
Sina Bugeja MSc[Wales]; FRSH; MIM is the executive director of the National Commission for the Promotion of Equality for Men and Women