Complaint Management

Statistical Analysis
Intakes and Preliminary Inquiries

When an intake is filed, the Executive Officer determines whether the intake is a complaint or a query. When a complaint is filed, the Executive Officer screens the intake to determine whether it appears to disclose a prima facie case of discrimination. See the Intake Screening Process for more information.

 

  • Intakes are comprised of complaints and queries.
  • A complaint is classified by the Office as any concern brought to the attention of the Commission by a member of the public who believes their rights have been contravened under the Human Rights Act.
  • A query is classified by the Office as a request for guidance or any question regarding the Act.

Figure 1 – Total Intakes for the Period, 2017 – 2021

In 2021, a total of one hundred seventy-four (174) intakes were reported to the Office of the Human Rights Commission by members of the public.

Figure 2 – Intakes by Type for the Period, 2017 – 2021

When considering queries and complaints in 2021, queries comprised the largest portion of intakes received by the Office. Of the total one hundred seventy-four (174) intakes received, one hundred and three (103) were classified as queries, while the remainder were classified as complaints (71) as illustrated in Figure 2. In the five years of data provided in Figure 2, this is the only occurrence where queries outnumbered complaints out of the total intakes brought to the attention of the Commission.

Figure 3 – Percentage Distribution of Intakes Received by
Method of Contact, 2021

Intakes received by Method of Contact, 2021. Members of the public may contact the Office of the Commission to log a complaint, query or request for information by telephone, mail, email, or walk-in. In 2021, the methods of contact with the office were as follows, fifty-three percent (53%) via email, forty-five percent (45%) via phone and a small proportion of persons visited the Office to log their intakes, two percent (2%).

Figure 4 – Annual Intakes by Month, 2021

As shown in Figure 4, of the total monthly intakes received in 2021, the highest number recorded was in May 2021, twenty-three (23) intakes representing thirteen percent (13%).  The mean average intakes were fourteen and a half (14.5) intakes per month.

Figure 5 – Percentage Distribution of Intakes by the Gender of the Complainant, 2021

In 2021, women approached the Office of the Commission more frequently than men. Women represented fifty-nine percent (59%) of all Complainants, while men represented thirty-eight percent (38%) of intakes. There were a small number of Complainants that identified their gender as other, at one percent (1%). Two percent (2%) of intakes did not provide details on their gender and were therefore recorded as not stated.

Figure 6 – Percentage Distribution of Intakes by the Bermuda Immigration Status of the Complainant, 2021

Note – the “not stated” category is larger than previous reporting years due to a combination of the Office implementing a new case management system in 2021 and members of the public not providing demographic statistics for their “status”. Demographic statistics are collected on a voluntary basis from members of the public when an intake is received.

Figure 6 illustrates the Bermuda Immigration Status of Complainants for intakes received by the Office in 2021. Bermudians represented forty-nine percent (49%) of the total number of Complainants. Complainants that indicated they were of non-Bermudian status represented six percent (6%), while the number of non-Bermudian, Spouses of Bermudians who contacted the Commission represented four percent (4%) of intakes. In 2021, one percent (1%) of Complainants were recorded as Permanent Resident Certificate holders. Forty percent (40%) of Complainants did not have a status identified on their intake record.

Table 7 – Intakes by Ground of Discrimination Cited – Section 2 (2)(a), 2021

Note 1 – *Protection afforded in section 4 and section 5.
Note 2 – Not all grounds as identified in the Human Rights Act, 1981, have been listed in the table above as that data was not received in 2021
Note 3 – Not included within the statistics for intakes are those where the Complainant did not state or identify a ground. The numbers provided merely reflect statistics for grounds as self-identified.

Figure 7 – Percentage Distribution of Intakes by Ground of Discrimination Cited, 2021

Note 1 – *Protection afforded in section 4 and section 5.
Note 2 – Not all grounds as identified in the Human Rights Act, 1981, have been listed in the table above as that data was not received in 2021
Note 3 – Not included within the statistics for intakes are those where the complainant did not state or identify a ground. The numbers provided merely reflect statistics for grounds as self-identified.

 

Table 7 and Figure 7 display that many complaints logged in 2021 cited claims of discrimination based on the protected grounds of place of origin, twenty-two percent (22%), disability, twenty percent (20%), sex, twelve percent (12%), race, eleven percent (11%) and Family Status, nine percent (9%).  The remaining grounds of discrimination represented a combined total of twenty-six percent (26%).

In 2021, thirty-five percent (35%) of the identified protected grounds, related to section 2(2)(a)(i) (race, place of origin, colour, ethnic or national origins) of the Human Rights Act, 1981. This was followed by the protected ground of disability at twenty percent (20%) and sex, which accounted for twelve percent (12%) of the identified protected grounds. Looking back to the reported statistics since 2018, this is now the fourth year in a row where the protected grounds of race, place of origin, colour, ethnic or national origins [2(2)(a)(i)], disability [2(2)(a)(iiiA)], and sex [2(2)(a)(ii)] have ranked amongst the top three in identified protected grounds.

A further analysis featuring cross tabulations, was carried out regarding the protected grounds of sex and disability. The data revealed through these cross tabulations that in 2021, for the protected ground of sex, eighty percent (80%) of those intakes were filed by persons who identified their gender as “woman” in comparison to the other gender categories. With respect to disability, sixty-two percent (62%) were filed by individuals who identified their gender as “woman” versus any other identified gender categories.

 

Table 8 – Intakes by Area of Discrimination Cited, 2021

Note 1 – Percentage totals may not equal 100% due to rounding.
Note 2 – Not all areas as identified in the Human Rights Act, 1981, have been listed in the table above as that data was not received in 2021.
Note 3 – Not included within the statistics for intakes are those where the Complainant did not state or identify an area of discrimination. The numbers provided merely reflect statistics for declared areas of discrimination.

Figure 8 – Percentage Distribution of Intakes by Area of Discrimination Cited, 2021

Note 1 – Percentage totals may not equal 100% due to rounding.
Note 2 – Not all areas as identified in the Human Rights Act, 1981, have been listed in the table above as that data was not received in 2021.
Note 3 – Not included within the statistics for intakes are those where the complainant did not state or identify an area of discrimination. The numbers provided merely reflect statistics for declared areas of discrimination.

 

Table 8 and Figure 8 illustrates that most Complainants cited either complaints of discrimination in employment or had questions regarding their employment status in the protected area of employment, in 2021. It is worth noting that the Office of the Human Rights Commission received several complaints and queries, which broadly alleged unfair practices in employment. In 2021, of the one hundred and seventy-four (174) intakes received, there were thirty-six (36) matters logged as being “employment-related.” This would often entail individuals alleging that they were being treated unfairly in the workplace, however, they did not attribute this to discriminatory practices. This number had in the year preceding been merged with the data under Section 6(1) of the Act, which prohibits discrimination by employers. It should be noted that intake data is comprised of allegations from the perspective of a Complainant.

In 2021, fifty-nine percent (59%) of the intakes received related to employment, this figure combines complaints that fall under section 6(1) of the Human Rights Act, 1981, twenty-six percent (26%) in addition to those that were employment related (33%). Of the areas comprising the remaining forty-one (41%), sexual harassment was cited by complainants representing nine percent (9%) of that total, while housing (sec. 4) and harassment within the workplace (sec. 6B) accounted for eight percent (8%), respectively. Looking back to the reported statistics in 2019 and 2020, this is now the third year in a row where employment featured as the number one area identified by members of the public when approaching the Commission with complaints and/or seeking assistance with enquiries. Having the benefit of closely examining the demographic data obtained throughout 2021, it was revealed that two-thirds of the intakes, which concerned employment were filed by persons who identified their gender as “woman”.

COVID –19 STATISTICS

In 2021, of the one hundred and seventy-four (174) intakes received, approximately forty-five (45) related to the Covid-19 global pandemic. While the intakes were filed by different members of the public, they often covered similar areas of concern. Examples of the intakes received (both complaints and queries), were as follows:

  • Members of the public enquiring into the legality of the Bermuda Government’s policy with respect to children being tested to participate in sports.
  • Members of the public who were expatriate workers and reported being terminated throughout the pandemic, sought assistance relating to employers failing to cover costs associated with their repatriation and payment related issues.
  • Members of the public enquired into the Bermuda Government’s testing policies.
  • Members of the public reported concerns with regards to losing their employment for failing to be vaccinated.
  • Members of the public highlighted their concerns regarding the Bermuda Government’s position on laws, policies, and mandates, which included mandatory face coverings, vaccination requirements and a general concern of differential treatment between individuals who are vaccinated and those who are not.
  • Members of the public sought assistance with understanding the Bermuda Government’s regulations and mandates relating to vaccinations and mask wearing and whether it violated their individual human rights.
  • Various employers sought assistance with managing their employees return to work after testing positive, drafting Covid-19 policies, face coverings, appropriate exemptions, and accommodations.

A global challenge throughout the pandemic has been balancing and upholding individual rights while trying to collectively protect the public. Throughout the screening process of Covid-related intakes, the Commission reiterated that with any mandatory practice or policy applied to the public, the potential for discriminatory impacts exists and must be carefully assessed to ensure that violations do not occur. There is a risk of unlawful discrimination taking place where practices and policies fail to account for individual circumstances and characteristics, as this failure may result in a person or groups of people being unfairly disadvantaged, excluded and further marginalised.

The Commission continues to encourage those developing and implementing policies and procedures to adopt a human rights-based approach when doing so, specifically those built around the ever-changing landscape of the global pandemic. An example of this need may include factoring in accommodations for those individuals that may be unable to receive a vaccination due to a disability. Another example of the need for exemptions and accommodation can be found with those who face the potential for exclusion as a result of being unable to wear a face covering due to a disability.

The Commission’s position regarding the decision as to whether an individual chooses to receive a COVID-19 vaccine is that it is a voluntary decision. During 2021, an individual filed a complaint with the Commission alleging that they experienced discriminatory behaviour when they were terminated from their employment for not being vaccinated. The Human Rights Act, 1981 was discussed and specific probing went into whether the decision to not receive the Covid-19 vaccination was connected to a protected ground. The individual, being satisfied that their decision was not connected to a protected ground listed within section 2(2) of the Act, withdrew their complaint.

Also, during 2021, multiple complainants alleged that employers discriminated against them by insisting that they undergo more frequent COVID-19 testing due to their unvaccinated status, thus applying differential treatment between individuals who were vaccinated and those who were not. Those individuals did not identify a protected ground under the Act but believed that the differential treatment was against their “human rights” or their “personal beliefs” generally speaking. Personal preferences and singular beliefs may not be protected under the Act. Where an individual who has elected not to be vaccinated, adhere to COVID-19 testing policies, or to protective measures put in place by the Government, employers, etc., based on a personal preference, such a decision may not be afforded protection under the Act. In the circumstances, such individuals may not have the right to modifications to the circumstances of their employment or within the area of goods, facilities, and services. In such instances, the Commission would request that the individual provide a clear description of the specific religion(s) or belief(s) or political opinion(s) that were held by them and offer guidelines for criteria to receive protection under the Act.

Investigations

In 2021, nineteen (19) investigations were being managed by the Office of the Human Rights Commission in various stages of the investigations process. 

Table 9 – Active Investigations by Ground of Discrimination – Section 2 (2)(a), 2021

Note 1 – Percentage totals may not equal 100% due to rounding.
Note 2 – Complainants may identify multiple grounds of discrimination or no grounds and thus, the total may be greater or less than the total number of investigations.

Figure 9 – Percentage Distribution of Active Investigations by Ground of Discrimination – Section 2 (2)(a), 2021

Note 1 – Percentage totals may not equal 100% due to rounding.
Note 2 – Complainants may identify multiple grounds of discrimination or no grounds and thus, the investigation total, if computed for figure 9, may be greater or less than the total number of investigations.

 

Table 9 and Figure 9 illustrate that disability and race were identified as the ground of discrimination in nine (9) matters representing thirty-three percent (33%) and sixteen percent (16%), respectively. Eleven percent (11%) or two (2) investigations identified discrimination based on the protected ground of family status and additionally, two (2) other matters were investigated under the protected ground of sex at eleven percent (11%). Place of Origin, Colour, National Origins, Pregnancy and Political Opinion were identified in separate investigations, representing six percent (6%) respectively. 

Table 10 – Active Investigations by Area of Discrimination, 2021

Note – Complainants may identify multiple areas of discrimination and thus, the total may be greater than the total number of investigations.

Figure 10 – Percentage Distribution of Active Investigations by Area of Discrimination, 2021

Note – Complainants may identify multiple areas of discrimination and thus, the investigation total, if computed for Figure 10, may be greater than the total number of investigations.

 

Table 10 and Figure 10 display that most allegations of discrimination were identified as occurring in the area of employment. At twenty-three percent (23%), allegations of unfair employment practices such as dismissal dominated the complaints at the investigations stage of the complaints handling process. At seventeen percent (17%) each, allegations of harassment in the workplace and reprisal comprised the next largest share of complaints under the areas of protection afforded by the Human Rights Act, 1981. The publication of discriminatory racial material and allegations of racial incitement, thirteen percent (13%); sexual harassment, thirteen percent (13%); goods, facilities, and services, ten percent (10%); and Organisations, seven percent (7%) completed the list of areas.

Investigations

Where the Executive Officer is satisfied that a complaint appears to be genuine or that there appears to be reasonable grounds to believe that a contravention has occurred, in accordance with section 15(1) of the Act, the Executive Officer will investigate the complaint. When a matter is referred for investigation, the Executive Officer notifies all parties of the decision and sets out the terms of reference for the investigation. In accordance with section 14J of the Act, the Executive Officer offers all parties to the complaint an opportunity to participate in the Commission’s Voluntary Mediation Program. Where parties to a complaint are unable to reach a resolution through the Commission’s Voluntary Mediation Program, or decline to participate, the investigation into the complaint commences. The Executive Officer assigns the matter to an Investigations Officer, who conducts the investigation, which involves exploring the issues identified by all parties, interviewing witnesses identified by the parties and reviewing any relevant details or documentation provided.

All parties to the complaint are provided with an opportunity to supply any relevant documents, witnesses and set forth their respective perspectives related to the complaint. Once the investigation concludes, the Investigations Officer provides the details obtained throughout the investigation to the Executive Officer for a decision to either refer the matter to the Human Rights Tribunal or dismiss the complaint.

Disposition of Investigations

In 2021, there were nineteen (19) investigations assigned to Investigations Officers, of which, two (2) were approved for investigation in 2021 and seventeen (17) were approved previously and remained ongoing into 2021. One (1) matter was resolved via mediation. Two (2) matters were dismissed by the Executive Officer and determined to be without merit, while two (2) other matters were deemed meritorious and progressed to the Tribunal hearing stage of the complaints handling process.

 

Complaint Summaries

 

Harassment based on Age
An individual attended the Commission to file a complaint of age discrimination. They indicated that they were harassed on numerous occasions by their colleagues at work. They provided examples of incidents that they described as harassing behavior and asserted that this was occurring because they were the oldest member on the team, (many years older than their colleagues). The Human Rights Act, 1981 was discussed and section 6B was highlighted for their review. We communicated to the individual that age discrimination is only protected by way of the Human Rights Act, 1981 within the following areas – section 4 (the disposal of premises) and section 5 (goods, facilities and services). They were provided with a referral to raise their complaint with a manager and to seek guidance from the Labour Relations Office. The Commission is of the view that the protection from discrimination and harassment due to age ought to be afforded to members of our Community in the same manner as the grounds set out within section 2(2) of the Act. Policy recommendations will be put forth built around expanding protection in the area of “age” to the appropriate areas of discrimination set out within Part II of the Act.

Age Discrimination – Forced Retirement
Several individuals approached the Commission in 2021, alleging discrimination in their respective workplaces when they were forced to retire after attaining the age of sixty-five. The Human Rights Act, 1981 was discussed with the individuals and it was noted that age discrimination is protected within the following areas – section 4 (the disposal of premises) and section 5 (goods, facilities and services). They were provided with a referral to raise their complaint with a manager and to the Labour Relations Office. The Commission is of the view that protection from discrimination and harassment due to age ought to be afforded to members of our Community in the same manner as the grounds set out within section 2(2) of the Act. Policy recommendations will be put forth built around expanding protection in the area of “age” to the appropriate areas of discrimination set out within Part II of the Act.

Criminal Record – Discrimination
A member of the public alleged that they were discriminated against when they were terminated from their employment due to ‘criminal charges’ filed against them in the Magistrates’ Court of Bermuda. The Human Rights Act, 1981 was discussed with them and it was noted that section 2(2)(a)(vii) – criminal record, protects members of the public from being treated less favourably than others due to their criminal record, except where there are valid reasons relevant to the nature of the particular offence for which they were convicted that would justify the difference in treatment. The individual that filed the complaint did not have a criminal record, as they were acquitted, and their complaint was structured around allegations of discriminatory conduct due to them being charged with a criminal offence. The complaint was dismissed, however, this is an area currently under review by the Commission with a view to submitting policy recommendations. The purpose of this is to ensure that individuals are protected in circumstances where criminal charges are filed against them, similarly to how protections exist where an individual has a criminal record.

Criminal Record – Consultation
The Commission was contacted by an organisation seeking guidance with respect to whether it would violate the Human Rights Act, 1981, if they withheld the supply of goods, facilities and services to individuals convicted of a criminal offence. The Human Rights Act, 1981 was discussed with the organisation to assist in their understanding of the Act, which included a review of section 5 (goods, facilities and services) and section 7 (organisations not to discriminate) of the Act alongside section 2(2)(a)(vii) – criminal record. The organisation was informed that section 2(2)(a)(vii) protects individuals with a criminal record from being treated less favourably than others due to their criminal record. The organisation was also informed of an exception applied to section 2(2)(a)(vii), which states – “except where there are valid reasons relevant to the nature of the particular offence for which they are convicted that would justify the difference in treatment.” A recommendation was also made for the organisation to obtain independent legal advice with respect to their decision making and the intake was closed.

Referral to Labour Relations Office
Each year individuals approach the Commission with employment related issues and in need of guidance on the Employment Act, 2000. Some of the queries this past year concerned vacation leave entitlement, pay discrepancies and repatriation rights of employees on work permits. The Human Rights Act, 1981 was discussed with the individuals and once it was understood that they were not alleging a contravention under the Act (noting that an allegation could involve a contravention of both the Human Rights Act, 1981 and the Employment Act, 2000), a referral was made to the Labour Relations Office and a recommendation was provided for them to obtain independent legal advice.

Social and Economic Status
An individual approached the Commission seeking assistance after they believed that they were unfairly questioned throughout the recruitment process for a job about their credit history. The Human Rights Act, 1981 was discussed with them, however, it was noted that the Act does not currently protect individuals from discrimination based on their social and economic status. This is an area that is currently under review by the Commission with a view to submitting policy recommendations seeking for the inclusion of social and economic status in addition to source of income, as protected grounds, where appropriate, into the Human Rights Act, 1981.

Asylum Seeker
An individual contacted the Commission shortly following the ongoing crisis in the Tigray Region[1] seeking to obtain asylum. Using the contact details provided, the Commission sought to assist the individual by way of connecting them to a more appropriate body to facilitate their request, however, we were unable to contact the individual using the contact details provided.

Covid Related Matters
Members of the public approached the Commission seeking guidance on several matters, which related to the COVID-19 global pandemic. The Commission received intakes around (i.) whether mandatory mask wearing violated human rights, (ii.) whether an individual’s rights were violated by vaccination mandates and (iii.) individuals asserting that they were terminated for not being vaccinated. Throughout our engagements with members of the public around the global pandemic, we were reminded of the need for the Government of Bermuda, employers, organisations and individuals to adopt a human rights based approach when handling the ongoing global pandemic. The Commission addressed the individual needs of the members of the public, discussed the Human Rights Act, 1981 with a view to determining whether any grounds and areas of discrimination could be identified and provided appropriate referrals. Furthermore, the Commission used the engagements to reinforce that where mandatory practices or policies are applied in a general manner, the potential for discriminatory impacts exist and must be carefully assessed to ensure that violations do not occur. There is a risk of unlawful discrimination occurring where practices and policies fail to account for individual circumstances and characteristics, which may result in persons being unfairly disadvantaged.

[1] The northernmost regional state in Ethiopia.

Human Rights Tribunal

The Executive Officer reviews the material obtained throughout the course of the investigation and provides all parties with a decision with respect to whether the complaint will be referred to the Human Rights Tribunal in accordance with section 18(1) of the Act. When deciding to either refer or dismiss a complaint following an investigation, the Executive Officer considers whether the complaint appears to have merit. Where a complaint is deemed to appear to have merit, it is referred to the Human Rights Tribunal for adjudication, however, where a complaint is dismissed, the Executive Officer provides the complainant with their decision and invites the complainant to make further representations prior to dismissing the complaint.

The Human Rights Tribunal is established by section 17A of the Act, and this body is comprised of individuals independent of the Human Rights Commission and is responsible for hearing matters referred by the Executive Officer.