The Protection against Harassment of women at the Workplace Act, 2010 (hereinafter referred to as “Act”) is a landmark piece of legislation which protects persons (men, women and transgenders) from workplace harassment. The objective of the Act as evident from its preamble is to especially protect women from workplace harassment, which is rooted in the Constitution of Pakistan under the fundamental right to dignity[1], an inviolable right. Furthermore, the Act also provides multi-dimensional complaint and protection framework which provides a statutory mechanism for effectuating and protecting the fundamental rights to equality and non-discrimination on the basis of sex[2], the right to enter any lawful profession or occupation[3], and the right of women to fully participate in national life[4]. Overall, it provides a well thought out mechanism for protecting workplace harassment by providing an expansive interpretation of the word employer, the establishment and procedure of inquiry committee and the competent authority, and the establishment of ombudsperson, appellate forums, and so on.
Presently, the Act places sexual harassment which involves acts or behaviour of sexual nature and gender based discrimination under the definition of harassment in section 2(h)[5]. The subject matter of this article is to explore whether the two should be amalgamated under the umbrella of harassment, or should they be addressed separately under separate legal regimes (statutes) or at least under separate provisions which provides commensurate penalties for its commission?
Statutory Background: The definition of Harassment
Initially, the definition was more focused on overt sexual conduct for establishing harassment. However, a 2022 amendment, provided a second limb to the definition of harassment explicitly incorporating gender based discrimination, which may or may not have element of sexual conduct, under the definition of harassment[6]. There have been conflicting views regarding the above. The Supreme Court of Pakistan has issued a vacatur of its own judgment which adopted a restrictive interpretation of the pre-2022 amendment definition of harassment under the Act. The said diversion is not the direct subject matter of the article but assessment of the jurisprudence is essential for clarity regarding the scope of definition of harassment.
The Nadia Naz Litigation
It is imperative to trace and gloss over the different stages of the landmark Nadia Naz case in a chronological order to establish the context. The focus will be on the legal principles surrounding what constitutes harassment without addressing the factual matrix of the cases.
The federal ombudsperson ruled that discrimination leading to a hostile work environment and subsequent retaliatory steps (orders of suspension and transfer without justification) taken by the department against Nadia Naz amounted to harassment under the Act. The ombudsperson held that a pattern of continuing harassment existed to which Nadia Naz (the appellant) was subjected to. The respondents were penalized under section 4(4)(i)(b) of the act.[7]
The respondents appealed to the President who ordered against Nadia Naz stating that the matter revolved around the component of discipline/ administrative issue in a service matter which is not covered under sexual harassment. Following which Nadia Naz petitioned to the High Court, which upheld the order of the President. Finally, the matter landed in the Supreme Court wherein Nadia Naz petitioned for reversal of the order of the President and the decision of the High Court.[8]
The Supreme Court, in Nadia Naz v. The President (2021), adopted a restrictive interpretation of actionable harassment under section 2(h) making the element of ‘sexual nature’ necessary for classifying a behaviour or conduct as harassment under the Act. Any conduct, behaviour or attitude which may be demeaning or discriminatory, qualifying as harassment in lato sensu, without the explicit or implicit sexual intention or nature, would not be actionable harassment under the statutory regime of the Act. No matter how devastating and irksome it may be for the victim.
The bench regretted the restrictive definition of harassment in 2(h) and enunciated that it was antithetical to the very object and purpose of the Act. The consequence of this narrow interpretation of harassment is that the victim is under the onus of proving that the perpetrator had an accompanying sexual intention or overture with his act, conduct or behaviour at the workplace. The court held that since the Act provides a narrow interpretation of harassment limited to purely sexual conduct, the court has no latitude to exceed the aforementioned scope of 2(h). Therefore, the order of the President and subsequent decision of the High Court was upheld.[9]
The 2022 Amendment
The 2022 amendment inter alia added the second limb to section 2(h) explicitly recognizing gender based discrimination which may or may not be sexual in nature. The constituent element for invoking 2(h)(ii) is discrimination on the basis of gender which may be accompanied by a discriminatory or prejudicial mindset that results in discriminatory behaviour against the complainant.[10]
Review Judgment of SC
The Petitioner (Nadia Naz) and the Attorney General of Pakistan filed civil review petitions challenging the previous decision of Supreme Court in the Nadia Naz case and sought relief under the review jurisdiction of the apex court. The principal reason for review was the erroneous interpretation of harassment under 2(h).[11]
Justice Ayesha A. Malik, authoring the majority opinion held that the impugned judgment made a blatant error by interpreting the term harassment in a very restrictive manner which is not in sync with the object and purpose of the Act. Her ladyship went on to state that the cardinal principle of purposive interpretation had been contravened by the impugned judgment (original Nadia Naz Judgment). The reason behind the erroneous interpretation of harassment was non-consideration of the two different meanings of the word “sexual” by the bench. The impugned decision remained oblivious to the second meaning of ‘sexual” which served as the root cause for the restrictive interpretation of harassment, something which was not intended by the legislature as evident from the statement of object and purpose, preamble and review of the parliamentary debates.[12]
Considering the definition of the word sexual in Oxford dictionary, Collins English Dictionary and Merriam Webster Online dictionary, the term ‘sexual’ can be understood as having two distinct meanings[13]. One referring to the act of sex or sexual nature (physical attraction and intimacy) and the other refers to gender.[14] The judgment under consideration (original Supreme Court Nadia Naz judgment) did not take into account the second meaning of sexual due to which the space for interpretation of the term harassment was restricted. Sexual, as used in the section 2(h), even before the 2022 amendment was not confined to coital relations and advances but covered sex (gender) based discrimination, making mere discrimination actionable absent any demonstrable sexual act or conduct.
Furthermore, the judgment articulates that the definition of harassment is inclusive of gender based discrimination which adversely affects the workplace environment interfering with the work and performance of the victim. It terms sexual harassment more about reinforcing existing power dynamics rather than purely sexual interests[15].
It was necessary to rectify the mistake in the impugned judgment because of two reasons: Prospective application of the amendment, and the fact the amendment was made to the federal statute only. Therefore, it was necessary to provide an extensive definition to the pre-amendment section 2(h) for effective grievance redressal in the context of this judgment for all those who have suffered harassment between 2010-2022.
It is clear from the jurisprudence that the Act envisioned and incorporates gender based discrimination in the definition of harassment. Any ambiguity in this regard is further clarified by the 2022 amendment. The author concurs with the ruling of the court in the review judgment to the extent of accepting the legal position that 2(h) in its current shape and form encompasses gender based discrimination. The word sexual used in the pre-2022 amendment definition of harassment has also been employed in the second meaning of the term sexual i.e., gender, when it includes “sexually demeaning attitudes” within the definition of actionable harassment. The term “sexually demeaning attitudes” only makes sense when interpreted by assigning the meaning of ‘gender’ to the word ‘sexual’. Otherwise, if the word sexual therein is interpreted as the act of physical intimacy, then the phrase “sexually demeaning attitudes” does not produce any rational meaning.[16]
Now, the question arises about the relationship between sexual harassment as involving sex and gender based discrimination. Whether they are interchangeable or not?
Disentangling Harassment from Discrimination
The meaning and scope of harassment under the Act is clear from the discussion above.
As per the Black’s law dictionary harassment in employment context means “A type of employment discrimination consisting in verbal or physical abuse of a sexual nature.”[17] According to the law dictionary harassment means “the act of systematic and/or continued unwanted and annoying actions of one party or a group, including threats and demands, for purposes that may include racial prejudice, personal malice, or an attempt to force someone to quit a job or grant sexual favours.”[18]
Discrimination according to the Law Dictionary means “to deny someone the equal protection of the laws and to treat all people the same” (i.e., the failure to do so).”[19] Other legal sources define it as “the act or practice of unfairly treating a person or group differently from others on a class or categorical basis (such as race, gender, religion or sexual orientation).”[20]
Relationship between the Two
Sexual[21] harassment is widely considered a form of sex discrimination. The Nadia Naz review judgment after a holistic assessment of international legal instruments concludes that “sexual harassment means and includes sex-based discrimination”.[22]
Conventionally, sexual harassment is incorporated into and established under the gender based discrimination. But a closer analysis of 2(h) reveals the Act has got it upside down by subsuming discrimination within harassment; placing gender based discrimination under the framework of harassment. The point is that harassment involving sexual conduct may be a result of gender based discrimination but they are not synonymous.
Why Harassment of sexual nature must be treated separately?
It is evident from the discussion above that the two namely, sexual harassment involving acts or conduct of sexual nature and gender based discrimination have certain aspects in common, and are related. No doubt, both affect the dignity, right to economic participation, liberty and the fundamental human right of every person to live as a productive member of the society. Notwithstanding that, they still are relatively different wrongs and produce substantially different consequences for the victim.
Placing the two in the same section under the same term ‘harassment’ is neither rational nor logically consistent. There could not be more difference in the severity, consequences and seriousness (level of heinousness) of both these wrongs.
Consider the following illustration: Contrasting Employee A, subjected to repeated physical (sexual) advances by a supervisor with Employee B, who is passed over for promotion due to the prejudicial mindset of a supervisor who believes women are less committed to their careers. Both cases are currently governed under the same definition of harassment, identical procedures and penalty menu under the Act.
A person who demands favours of sexual nature or coerces or implicitly forces another for the same in a workplace cannot be rationally placed in the same category as a person who discriminates against a particular gender due to a prejudicial mindset. Both are wrongs and must be penalized. However, the first category is clearly a far more serious offence and must be dealt with in a sterner and more stringent manner than the latter. Placing both under the same tag or title of ‘harassment’ is unreasonable. If a person has discriminated against someone due to their gender, no doubt, it qualifies as workplace harassment but it is necessary to keep it separate from harassment involving conduct of a sexual nature.
The current statutory framework also flouts the Fair Labelling Principle which mandates distinction between offences should reflect distinction between the nature and seriousness of the wrongdoing.[23]
Another acute problem arises in the incumbent legal regime; the different legal standard of proof. For mere gender based discrimination the proof required for establishing liability is low, whereas for sexual harassment involving sexual conduct, the threshold of proof is heightened. Further, a similar pool of penalties is used to penalize both gender based discrimination and sexual harassment involving acts or behaviour of sexual nature.
Sexual harassment, involving sexual intentions or conduct, being a serious workplace issue, must be dealt with separately, not under the wide definition of harassment which entails gender-based discrimination. The current legal framework also risks diluting and even trivializing sexual harassment which will be cataclysmic to providing protection against the most heinous form of harassment involving the dimension of sex or physical favours.
There seems to be no logical answer as to what warrants the amalgamation of non-sexual discrimination with harassment involving element of physical contact or sex under the same legal definition of harassment.
Theft, Extortion, Robbery and Dacoity all have certain overlapping elements and primarily involve deprivation of property through unlawful means. However, they are treated under separate provisions with unique penalty regimes in the Pakistan Penal Code (PPC)[24]. Same should be the case for gender based discrimination and harassment which entails sexual motives/acts.
Comparative Perspective
India, a comparable legal jurisdiction, has a separate statute to deal with sexual harassment (involving sexual nature or conduct). The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) which was enacted against the backdrop of the Vishaka guidelines formulated by the Indian Supreme Court[25]. The objective of the said guidelines was to prevent sexual harassment and provide redressal for it.
India resisted amalgamating sexual harassment (concerning sexual conduct) with other forms of harassment including gender based discrimination. Although Indian Courts accept the doctrinal position that sexual harassment is gender based discrimination and creates a hostile work environment. But, India nonetheless resisted combining the two, by choosing to keep harassment related to sexual conduct under a specialized regime (POSH Act) leaving the statutory cause of action narrow and sexual conduct specific.[26]
The U.K Equality Act[27] covers both harassment and discrimination but under separate provisions. Unlike the Pakistani Workplace Harassment Act, Britain did not treat discrimination as an instance of harassment.
This shows comprehensive protection does not require conflating different concepts — a choice Pakistan’s lawmakers ignored.
Recommendations
Since Pakistan does not have an express equality statute or other instruments for protection against workplace harassment, it should modify the existing statute. The Act should deal separately with the sexual harassment involving sexual acts or behaviour and gender based discrimination in workplace by stipulating separate definition and penalty provisions (sections) for the two. Distinct penalty regimes must be in consonance with the gravity of each wrong and impact on the victims.
This will ensure that both sexual harassment (of sexual nature) and discrimination work horizontally, side by side, not as one under the definition of the other. It will provide a legally distinct recognition of harassment which is of sexual nature, and treat it accordingly. This will be fairer to the perpetrator who is to be charged with and tagged under the specific and appropriate wrong which has been committed.
Until this distinction is drawn, the Act risks doing justice to neither wrong it purports to address.
[1] Constitution of the Islamic Republic of Pakistan, Art. 14
[2] Ibid. Art. 25
[3] Ibid. Art. 18
[4] Ibid. Art. 34
[5] The Protection against Harassment of Women at the Workplace Act, 2010, Sec. 2(h)
[6] The Protection against Harassment of Women at the Workplace (Amendment) Act, 2022
[7] Mst. Nadia Naz v. Usama Azhar and others, Appeal Number 1(369) / 2017-FOS (Reg), Federal Ombudsperson for Protection against Harassment of Women at Workplace, Islamabad
[8] Nadia Naz v. The President of Islamic Republic of Pakistan and others (PLD 2021 SC 784), para. 5
[9] Nadia Naz v. The President of Islamic Republic of Pakistan and others (PLD 2021 SC 784)
[10] The Protection against Harassment of Women at the Workplace (Amendment) Act, 2022
[11] Nadia Naz and another v. The President of Islamic Republic of Pakistan, Islamabad and others (PLD 2023 SC 588), para. 1
[12] Nadia Naz and another v. The President of Islamic Republic of Pakistan, Islamabad and others (PLD 2023 SC 588), para. 5
[13] In terms of the Concise Oxford English Dictionary, Twelfth Edition1 the word sexual is an adjective, which has two meanings:”1. relating to the instincts, physiological processes, and activities connected with physical attraction or intimate physical contact between individuals.2. relating to the two sexes or to gender.”
Collins English Dictionary also gives two meanings to the word sexual:”1. feelings or activities are connected with the act of sex or with people’s desire for sex.2. Relating to the differences between male and female people.”
As per Merriam-Webster Online Dictionary, sexual means:”1. relating to, or associated with sex or the sexes 2. having or involving sex”
[14] Sexual, Concise Oxford English Dictionary (12th Ed. 2011).
Sexual, Collins Online English Dictionary, Collins, https://www. collinsdictionary.com/dictionary/english/sexual
Sexual, Merriam-Webster.com Dictionary, Merriam-Webster, https://www. merriamwebster.com/dictionary/sexual
[15] Nadia Naz and another v. The President of Islamic Republic of Pakistan, Islamabad and others (PLD 2023 SC 588), para. 4
[16] Nadia Naz and another v. The President of Islamic Republic of Pakistan, Islamabad and others (PLD 2023 SC 588), Concurring note of J. Yahya Afridi, para. 2
[17] Black’s Law Dictionary (11th ed. 2019), s.v. “sexual harassment,” Bryan A. Garner, Black’s Law Dictionary (11th ed., Thomson Reuters, St. Paul, MN, 2019).
[18] The Law Dictionary, Featuring Black’s Law Dictionary Free Online Legal Dictionary, 2nd Ed., s.v. “harassment,” https://thelawdictionary.org/harassment/
[19] The Law Dictionary, Featuring Black’s Law Dictionary Free Online Legal Dictionary, 2nd Ed., s.v. “discrimination,” https://thelawdictionary.org/discrimination/
[20] Merriam-Webster.com Dictionary, s.v. “discrimination,” https://www.merriam-webster.com/dictionary/discrimination
[21] The word sexual here means ‘feelings or activities that are connected with the act of sex or with people’s desire for sex’.
[22] See Discrimination (Employment and Occupation) Convention (No. 111), 1958 (ratified by Pakistan, 24 January 1961), as interpreted by the ILO Committee of Experts; CEDAW; Vienna Declaration and Programme of Action, Art. 18 (1993); Beijing Declaration and Platform for Action, Art. 113 (1995); Catharine A. MacKinnon, Sexual Harassment of Working Women (Yale University Press, 1979), pp. 183, 185–186; Vishaka v. State of Rajasthan, (1997) 6 SCC 241; Janzen v. Platy Enterprises Ltd., [1989] 1 SCR 1252 (SCC).
[23] Andrew Ashworth, Principles of Criminal Law (Oxford University Press), on the “fair labelling” principle, The Journal of Criminal Law 2019, Vol. 83(3) 205–216
https://vlex.co.uk/vid/robbery-and-the-principle-874305457
[24] Pakistan Penal Code, 1860, ss. 378, 379, 383, 384, 390-392, 395
[25] Vishaka Guidelines formulated after the seminal decision in Vishaka v. State of Rajasthan by the Supreme Court of India, concerning the gangrape of Bhanwari Devi, a Dalit woman, in 1992.
[26] “Section 2(n) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 reads as follows:
(n) “sexual harassment” includes any one or more of the following unwelcome acts or behavior
(whether directly or by implication) namely:
(i) physical contact and advances; or
(ii) a demand or request for sexual favours; or
(iii) making sexually coloured remarks; or
(iv) showing pornography; or
(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature; “
[27] Equality Act 2010 (UK), c.15, ss.13, 19, 26 — https://www.legislation.gov.uk/ukpga/2010/15/contents