Employers, beware: Constitution bans colour prejudice

Natalie Douglas-Charles, Guest Columnist

Recent news articles have suggested that there may be positive discrimination in employment in favour of 'brownings', or people with brown skin colour, institutionalised in Jamaica. Those persons who have expressed this preference regarding their employees should be aware that such discrimination is unconstitutional in Jamaica and legal challenges may be mounted against their actions on this basis.

The Constitution of Jamaica was amended on April 7, 2011 by the addition of the Charter of Fundamental Rights and Freedoms, Chapter III, enacted by the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011.

This very important amendment, which had been sought by constitutional scholars, lawyers, and human rights bodies for many decades, has helped to bring the Constitution of Jamaica in line with the constitutions of many independent Caribbean states and closer in line with those of certain European states and the United States of America.

Uiversal respect

The rights and freedoms guaranteed by the Constitution include at Chapter 3(i) the rights to freedom from discrimination on the grounds of being male or female, and freedom from discrimination based on one's race, place of origin, social class, colour, religion or political opinions.

A critical feature of the amendment is that under Section 13, Chapter III, the State has an obligation to promote universal respect for, and observance of, human rights and freedoms, and all persons in Jamaica are entitled to preserve for themselves and future generations the fundamental rights and freedoms to which they are entitled by virtue of their inherent dignity as persons and as citizens of a free and democratic society. The 'free and democratic society' being referred to here is that of Jamaica.

All persons are under a responsibility to respect and uphold the rights of others. The rights and freedoms are guaranteed, and Parliament shall pass no law and no organ of the State shall take any action which infringes those rights.

Another very important feature is that the Constitution now guarantees the right to equality before the law and the right to equitable and humane treatment by any public authority in the exercise of any function.

It may be felt that the protections granted by our Constitution are not wide enough, and do not, for instance, provide protection from discrimination based on address or medical status.

However, the protections now afforded can and will make Jamaican society more just. For the first time in the history of Jamaica,
the right to equality before the law and the right to equitable and humane treatment by any public authority in the exercise of any function.

It may be felt that the protections granted by our Constitution are not wide enough, and do not, for instance, provide protection from discrimination based on address or medical status.

However, the protections now afforded can and will make Jamaican society more just. For the first time in the history of Jamaica, a constitutional challenge may be mounted against discrimination regarding one's gender or skin colour. We should not underestimate the importance of this fact. It is important to understand that these rights no longer need to be protected by contract. A person may apply to the court for the protection of her rights, whether she has a contractual relationship with the offending body. The State must also ensure that her rights are not offended by any government body.

CONSTITUTIONAL CHALLENGE

A constitutional challenge to an existing law or to an action by the State or a private body may be mounted by an application for judicial review or an application for an administrative law action heard by the Full Court of the Supreme Court of Jamaica. In Jamaica, the Full Court comprises three Supreme Court justices who are empowered to declare whether an action of a state body, a tribunal or another entity is unconstitutional.

In Jamaica, there have, historically, been few challenges to Jamaican laws and to governmental acts based on discrimination. With the passing of the constitutional amendment, it is hoped that more Jamaicans will be aware that discrimination they or others may suffer based on their race, place of origin, social class, colour, religion or political opinions is unconstitutional.

There are no modern statutes save for the Constitution that prohibit discrimination based on race or gender as there are in other countries such as the United Kingdom. The notable exceptions are the Married Women's Property Act of 1882, and the Universal Adult Suffrage Act Jamaica of 1944.

The United Kingdom of the 1950s and 1960s was a place of almost institutionalised and very common race and sex discrimination. The problems this caused led the United Kingdom Parliament to enact the Race Relations Act of 1965 and the many amending statutes that have followed.

There is currently a UK Equality Act 2010 which has sought to consolidate the many anti-discrimination laws in Britain which are currently enacted, including laws prohibiting discrimination based on race, religion, disabilities and sex or gender.

The effect of the legislation is to provide a cultural awareness that discrimination will not be tolerated and is actionable at law.

Many modern places of employment give their employees manuals setting out the code of conduct. A prudent idea for employers may be to include an anti-discrimination section in their employee manuals.

Natalie Douglas-Charles is an attorney-at-law and senior associate at the law firm Gordon|McGrath. Email feedback to columns@gleanerjm.com and ndouglas-charles@gordonmcgrath.com.