Systemic discrimination and racial inequality in Bermuda
About Allan Doughty
Jeremy’s practice focuses on tort law including negligence and personal injury cases, contractual disputes, human rights and antidiscrimination law, constitutional law, public law and judicial review, medical law including clinical negligence, coroners’ inquests, privacy law, and professional disciplinary law.
Allan Doughty’s full profile on mjm.bm.
On June 1, David Burt, the Premier, addressed Bermuda in the wake of the death of George Floyd. At that time he also paid tribute to the late Eva Hodgson. In that speech, the Premier confronted the issue of institutional racism in Bermuda and said that further initiatives will be soon made by the Government to “build a more equitable society”.
While the Premier should be commended for his timely remarks, the Government of Bermuda created a powerful means for fighting systemic discrimination nearly 40 years ago, through the Human Rights Act.
Since being passed in 1981, the Human Rights Act has been Bermuda’s primary legislation, which forbids unlawful discrimination. Essentially, the Human Rights Act is an anti-discrimination statute that makes it illegal for the Government, organisations, businesses or private individuals to discriminate against others on the basis of their race within the context of notices, denying residential accommodation, refusing to sell real estate, the provision of goods and services, employment — within organisations as well as within contracts or through hate speech.
While the Human Rights Act outlaws such discrimination, in that it may form the basis of a criminal charge, the statute also allows for an aggrieved individual to sue a person who has engaged in unlawful discrimination either before a human rights tribunal or through a writ or originating summons before the Supreme Court of Bermuda.
If the adjudicating body hearing the complaint agrees that the person aggrieved is a victim of unlawful discrimination, that tribunal or court then has the power to order compensation and also has the power to make an order that will cause the offending behaviour to cease.
The Human Rights Act, with few notable exceptions, is supreme to nearly all other legislation and regulations in Bermuda and may be used as a means to have the Supreme Court declare other acts of Parliament or government regulations to be unlawful.
The Act has also proven itself to be flexible while having the “teeth” required to provide the victims of unlawful discrimination with justice through criminal, sanction, monetary compensation and court orders.
So why, then, does systemic racism continue to exist nearly four decades after the passage of such powerful legislation?
The answer seems to lie with a lack of public awareness of what is required by the Human Rights Act and what can be achieved through its mechanisms. The Act is legislation that must be used by complainants if it is to have effect; otherwise, it will be ignored. Unless the statute is invoked, it will be impotent.
While a copy of the Human Rights Act is readily available online, we also have a Human Rights Commission that is able to provide free advice both to potential complainants and to employers.
If an individual wishes to lay a human rights complaint with the HRC, it will offer free and confidential mediation services that may allow for a quiet but meaningful resolution of the dispute.
Alternatively, if a complaint does not settle, the HRC may fund representation of a complainant, by a lawyer, who will then argue the complaint’s case before a human rights tribunal.
In light of what is required by the Human Rights Act, businesses may also wish to take formal legal advice concerning the scope of their duties, which arise pursuant to the Act.
Given that employers can be held strictly liable for the actions of their employees under the Human Rights Act, businesses would be well advised to seek such guidance as to the defences that are expressly afforded by the statute. In taking such advice, businesses and employers may be able to avoid future financial penalties and the surrounding publicity that may be otherwise imposed under the Act.
Furthermore, by ensuring their own demonstrable compliance with the Human Rights Act, business and employers can show that they are determined to uphold the rights and dignities of all residents of Bermuda.
While Bermuda still has a long way to go before it can realise an equitable society, some progress has been made over the past few years through the mechanisms of the Human Rights Act. That said, if the different races in Bermuda are to achieve the dream of true equality, further action must be taken.
Individuals can do their part by familiarising themselves with the Human Rights Act and, where they have grounds for complaint, bring those complaints forward. Businesses can also take advice to learn what the law requires of them and implement changes where necessary without being the subject of a complaint.
The Government, in turn, can also strengthen the existing framework by providing regular legislative updates and maintenance to the Human Rights Act. The Government can also take meaningful action by providing further funding to the Human Rights Commission to make access to justice more readily accessible.
Since the first African slaves were forcibly taken from their homelands and brought to Bermuda in the early 1600s, racial injustice has been a wound that has festered near the heart of this country.
While many bandages have been applied to the surface of this problem for years, inequality remains. Fortunately, we do have a statutory means of addressing this issue through the Human Rights Act.
If progress is to be made, though, individuals, employers and Government must all be willing to take action through the legislative mechanism that we have had since 1981.
The more that Bermuda’s human rights framework is used, the faster true equality will be achieved.