On 19 June 2013, the British overseas territory of Bermuda came one step closer to extending protection from discrimination when its Senate approved all bar one of the significant amendments to the Human Rights Act 1981 (HRA 1981) contained in the proposed Human Rights Amendment Act 2013 (HRAA 2013). The HRAA 2013, which will now go back to the House of Assembly for final consideration before it becomes law, extends the protection from discrimination afforded by the HRA 1981 in a number of ways. Of particular note, “sexual orientation” and “family status” are added to the list of prohibited grounds of discrimination so that discrimination on those grounds in all areas of life covered by the HRA 1981 is prohibited. Further, “age discrimination” is prohibited in relation to some areas of life covered by the HRA 1981, namely the disposal of premises and the supply of goods, facilities and services. The proposed legislation also provides for the Human Rights Commission to mediate discrimination complaints and updates the HRA 1981 with more appropriate language.
Section 2 of the HRA 1981 defines direct and indirect discrimination for the purpose of the Act and sets out a list of prohibited grounds of discrimination. The proposed HRAA 2013 makes the following amendments to Section 2:
- “Sexual orientation” is added to the prohibited grounds of direct and indirect discrimination (Sections 2(b),(d)(i) and (e)(i) HRAA 2013)
- “Family status” is added to the prohibited grounds of direct and indirect discrimination (sections 2(c),(d)(ii) and (e)(ii)) HRAA 2013) – this replaces the limited protection under the HRA 1981 for children born out of wedlock or women who may give birth or have given birth to children out of wedlock; and
- Less favourable treatment on grounds of sex explicitly includes “discrimination because a woman is, or may become, pregnant” (section 2(f) HRAA 2013).
Section 4(1) of the HRA 1981 prohibits discrimination in relation to disposal of premises and section 5(1) prohibits discrimination in relation to goods, facilities and services, on any of the prohibited grounds. Sections 3 and 4(a) of the HRAA 2013 extend the protection in these sections of the HRA 1981 to include the prohibition of discrimination due to age.
Section 6(6) of the HRA 1981 prohibits discrimination by employers including, amongst other things, discrimination on grounds of “likelihood of childbirth”. Section 5 of the HRAA 2013 replaces this language with the broader wording of “family status”.
Section 14 of the HRA 1981 relates to the functions of the Human Rights Commission. A new section 14J is inserted by the HRAA 2013 (section 9) to enable the Human Rights Commission to offer parties mediation or conciliation in appropriate circumstances.
In considering the proposed HRAA 2013, the Senate removed a section of the Act intended to widen the protection against harassment afforded under the HRA 1981, an amendment which had become controversial on the basis that it may inadvertently allow harassment by the police. It is anticipated that new legislation dealing specifically with harassment may be proposed in future. Some campaigners have criticised the removal of the entire section on harassment, stating that it would have been sufficient to deal with the inadequacies of the wording related to application to the police.
ERT welcomes the development as a positive step towards providing adequate protection from discrimination in Bermudian law. In particular it welcomes the widening of the grounds of discrimination so that protection is afforded to people both on grounds of their sexual orientation and their family status. ERT urges an extension both of the age discrimination protection and the harassment provisions such that they apply in all areas of the HRA 1981’s application.
The Human Rights Amendment Act 2013 as published in Bill form is available here. Please note that this version includes the section on harassment which has since been removed by the Senate.
To read the Human Rights Act 1981, click here.