The Gender Equality Law, 2011

The Gender Equality Law, 2011 is the final product of many years of consideration and work. After the acceptance of the Cayman Islands Policy on Gender Equity and Equality in the Legislative Assembly in 2004, the Government communicated to the Foreign and Commonwealth Office (FCO) that it wished for the Convention of the Elimination of All Forms of Discrimination Against Women (CEDAW) to be extended to the Cayman Islands through the United Kingdom. The FCO responded that the Cayman Islands would need to prepare local enabling legislation before CEDAW would be extended.

In November 2006, the issue of having CEDAW extended to the Cayman Islands was raised in the Legislative Assembly by way of a Parliamentary Question, and legislative research and development began in 2007. The process of drafting legislation that would address gender discrimination issues and uphold the principles of CEDAW took place between September 2008 and November 2009.

In 2009, Cabinet approved the release of a Discussion Draft of the Prevention of Gender Discrimination Bill, 2010 to be released for public consultation during the period of December 2009 - January 2010.

The Gender Equality Bill, 2011 was supported and passed unanimously in the Legislative Assembly on September 14, 2011 and took effect on January 31, 2012.

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Overview

 

The Gender Equality Law, 2011 provides protection against discrimination in employment and related areas on the grounds of:

  • sex,
  • marital status,
  • pregnancy, or
  • any characteristic based on gender which appertains generally or is generally imputed to persons of a particular sex or marital status or pregnant state.

Under the Law, a person discriminates against another person by reducing or removing his or her right to equal opportunity or treatment in the workplace because he or she is male or female, or because of his or her marital or pregnancy status or gender characteristics. With limited exceptions, any act that directly or indirectly results in discrimination will be regarded as such whether the person responsible intended to discriminate or not.

 

Recruitment and Employment

The Gender Equality Law, 2011 addresses many areas where discrimination may occur in recruitment and employment on the prohibited grounds of sex, marital status, pregnancy or gender characteristics.

Employers cannot discriminate against any person on the prohibited grounds in -

  • advertisements or notices;
  • interviews;
  • the selection process;
  • terms or conditions offered to employees;
  • the creation, classification or abolition of jobs;
  • work conditions, occupational safety, and health measures;
  • providing facilities related to the job;
  • denying or limiting access to opportunities for advancement, promotion, transfer or training, or any other benefits, facilities or services associated with employment;
  • retrenching or dismissing the employee; or
  • subjecting the employee to any other disadvantage.

Employers also may not ask employees for information that would not be asked of a person of the opposite sex, or of a different marital status or pregnant state, in a similar situation.

Under the Law, an employer is also liable for any act done by an individual employee whether or not it was done with the employer's knowledge or approval. However, if a complaint is made against an employer on this basis it is a defence for the employer to show that all reasonable steps were taken to prevent the individual employee from commiting a discriminatory act.

 

Equal Pay

The Law explicitly asserts that there equal pay for work of equal value performed by men and women.

If an employee files a discrimination complaint relating to his or her pay, the burden of proof to establish that equal remuneration has been paid rests on the employer.

 

Special Entities and Prohibited Acts

Professions where employment is primarily offered through a professional partnership or partnership firm may not take into account a person's sex, gender, marital status or state of pregnancy when determining who should be offered a position as a partner, or the terms and access to benefits which they offer that person. Furthermore, no one may be expelled from the firm or partnership or subjected to other detriment for such reasons.

Qualifying bodies that authorise and qualify professionals and tradespersons may not discriminate against anyone on the grounds of sex, gender, marital status or state of pregnancy by refusing or failing to confer, renew or extend the authorisation or qualification.

A person or authority that provides technical or vocational training may not refuse to train persons on the grounds of sex, gender, marital status or pregnancy. Nor may training be terminated for these reasons or persons restricted in their ability to access training courses, other facilities or services, such as vocational counselling or guidance.

Employment agencies may not refuse to provide a person with services on the grounds of sex, gender, marital status or pregnancy. They also cannot restrict the terms, manner or any means by which it facilitates the employment of such a person.

Persons who make available goods, services or facilities - whether for payment or not - may not refuse to provide these to persons on the grounds of sex, gender, marital status or pregnancy. Nor may they discriminate with regards to the terms and conditions on which these are made available.

No person may discriminate against anyone on the grounds of sex, gender, marital status or pregnancy by publishing or displaying any advertisement or notice.

A person cannot request or require that someone provide information by completing an application form or in any other way if that information would not be requested or required of a person of the opposite sex or of a different marital status or pregnant state in the same circumstances.

 

Exceptions and Special Measures

Private households are exempt from Section 4(1) of the Law, which deals with recruitment and selecting an employee for employment. However, once the employee is hired, private households shall not discriminate against the employee in the other areas of the Law. 

The protection against discrimination provided in Part 2 of the the Law does not affect the benefits granted by charities or the ordination, training, or selection of persons to be ordained or appointed by religious bodies and other necessary acts or practices of religious bodies. 

It is not considered discrimination on the grounds of sex, gender, marital status or pregnancy if a genuine occupational qualification exists for a particular job. The Law allows for preferences to be made in the following circumstances:

  • The essential nature of the job calls for a man or woman for reasons of physique (excluding strength or stamina) or for reasons for authenticity in dramatic performances or other entertainment.

  • To preserve the decency or privacy of a person because the job will likely involve physical contact or a persons may be in a state of undress and it would be reasonable to object to the job being carried out by persons of the opposite sex. 

  • In establishments with less than 25 persons are employed, the nature or location of the establishment makes it impracticable for the holder of the job to live elsewhere than in the premises provided by the employer and the premise is not equipped with sleeping accommodations or sanitary facilities for both sexes. 

  • The job requires a married couple. 

  • The nature of the establishment, or where the work is carried out, requires the job be held by a person of a particular sex because it is a hospital, prison or other establishment for persons requiring special care, supervision or attention, and all the persons are of the same sex and it is reasonable, having regard to the essential character of the establishment, that the job shouldn’t be held by a person of the opposite sex.

The Law also specifically does not affect a provision in any other law which permits discrimination on the grounds of sex, gender, marital status or pregnancy.

Finally, the Governor in Cabinet may prescribe special measures to promote equality of opportunity in employment for a specific period of time based on the grounds of sex, gender, marital status or pregnancy and such special measures shall not be considered discriminatory.  For example, if Government wanted to address increasing women’s access to decision-making at higher levels, a policy could be established that a certain percentage of women are appointed as members of government boards. This would be a special measure that would not be considered discriminatory under the Law.