Supreme Court issues ground-breaking ruling on sexual harassment in the workplace
Analyzes prior ruling and concludes that gender-based discrimination in the workplace constitutes sexual harassment.
The SC of Pakistan unanimously decided that “sexual harassment at the workplace is not only about physical intimacy or sexual form but also includes discrimination on account of gender” in a case heard in ISLAMABAD.
The Supreme Court ruled in 2021 that sexual intent must be proven in instances brought under the Protection from Harassment of Women in the Workplace Act.
A 12-page judgment written by Justice Mushir Alam stated, “The aggrieved person under the provisions of the Act, 2010 has the responsibility to prove that the perpetrator truly had an accompanying sexual intention or overture with his act, demeanor, behavior, and/or conduct.”
Justice Alam presided over a three-judge panel that ruled in favor of the defendants in a case brought by a female PTV employee against her male coworkers. Agha Muhammad Ali Advocate defended one of the accused.
Specifically, the order stated that the court must interpret the Protection against Harassment of Women in the Workplace Act, 2010 (PAHWWA) in accordance with its clear charge clause (h) of section 2.
Further, “any other interpretation advanced by this court to enlarge the scope of the charging section will violate the rights guaranteed under Article 12 of Constitution,” it had said.
At the time, Pakistan’s then-attorney general, Khalid Javed Khan, voiced grave concern about the verdict, arguing that the AGP office should have been consulted before interpreting PAHWWA.
The Islamabad High Court and the SC were challenged in a later review petition filed with the top court, with arguments including that neither court had properly served notice on the AGP as required by Order XXVIIA of the Code of Civil Procedure, 1908.
The proceedings were presided over by a three-judge special bench comprised of Justice Yahya Afridi, Justice Muhammad Ali Mazhar, and Justice Ayesha Malik.
For the court, “there appears to be an error in the judgment owing to the interpretation of harassment displayed by the Court, which definition is patently against the Act and its Statement of Objects.”
It went on to say that “both the President and the Islamabad High Court decided the case of Nadia Naz on the understanding that harassment means sexual harassment having a sexual nature and form and did not examine the facts in the context of Nadia Naz’s perspective and her understanding of the injury caused.”
When considering whether or not a given act of harassment is acceptable, it is important to consider the victim’s point of view.
All relevant aspects should be examined both objectively and subjectively, and “the standard of a reasonable woman should be considered to determine whether there was harassment, which rendered the workplace hostile.”
“In doing so, both the President’s order and the High Court’s judgment failed to place sufficient focus on the injury asserted and the damaging nature of the events as they related to Nadia Naz. As a result of the narrow interpretation of harassment used in both the order and the decision, both were based on an incorrect interpretation of the law.
Therefore, the highest court vacated the prior rulings.
The Supreme Court has recently broadened the definition of sexual harassment to encompass discrimination based on gender, and it has also made an effort to ensure that the law is interpreted in a way that does not exclude males as potential victims of workplace harassment.
“The judgment under review […] never considered and entirely excluded gender-based discrimination and harassment faced in the workplace,” the court ruled.
The words “sexual” and “sexually” are important in this definition of harassment because they clarify that it is sex-based discrimination rather than simply “sexual” or “sexually” suggestive behavior.
According to a deeper reading of the definition of harassment, sex-based discrimination need not be limited to sexual activity; rather, it is behavior that is promoted on account of the gender as a result of gender-based power dynamics, which behavior is harmful and is not necessarily the result of sexual desire or sexual activity. Harassment on the basis of gender can take many forms, including unwelcome sexual relief or coercion, and is motivated by a desire to degrade and humiliate the target.
When it has the effect of punishing the complainant for refusing to comply with a request or is made a condition of employment, “such behavior in law becomes harassment at the workplace when it causes interference with work performance or creates an intimidating, hostile, or offensive work environment.”
It continued, saying, “the impugned judgment overlooked the inclusion of men in the definition of complainant which is relevant when seen in the context of the protection given to employees under the Act.”
As Justice Afridi wrote in his concurring opinion, “in view of the meaning and scope of ‘harassment,’ I am remanding the matter to the worthy President of Pakistan for deciding afresh the representation of the petitioner, Nadia Naz, which shall be deemed as pending before him, and be decided in accordance with the law.”
