Gender-based discrimination falls within ambit of sexual harassment at workplace: SC

ISLAMABAD – The Supreme Court (SC) on Tuesday ruled that "sexual harassment at the workplace is not only about physical intimacy or sexual form but also includes discrimination on account of gender".

The Supreme Court had said in 2021 that sexual intention must be proved in the cases that are proceeded under the Protection against Harassment of Women at Workplace Act, 2010.

"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," read a 12-page judgement authored by Justice Mushir Alam.

Justice Alam had been presiding over a three-judge bench that had dismissed a case filed by a woman employee of the Pakistan Television (PTV) against her male colleagues. One of the accused was represented by Agha Muhammad Ali Advocate.

The order had said the Protection against Harassment of Women at Workplace Act, 2010 (PAHWWA) limits the protection it offers to victims of sexual harassment and the court is shackled to interpret it in line with its express charging clause (h) of section 2 of the Act, 2010.

“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 added.

Then attorney general of Pakistan Khalid Javed Khan had expressed serious apprehension at the time over the ruling, stating that while interpreting PAHWWA the law should have given notice to the AGP office for legal assistance.

Later a review petition was filled with the apex court that contended the Islamabad High Court as well as the SC, while considering and interpreting the provisions of the law, had not issued a notice to the AGP under Order XXVIIA of the Code of Civil Procedure, 1908.

A three-judge special bench, led by Justice Yahya Afridi and comprising Justice Muhammad Ali Mazhar and Justice Ayesha Malik presided over the proceedings.

The court ruled that "there appears to be an error in the judgement owing to the interpretation of harassment displayed by the Court, which definition is patently against the Act and its Statement of Objects."

It stated 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.

"In cases of harassment, the victim’s perspective is relevant as against the notion of acceptable behaviour.

"The standard of a reasonable woman should be considered to determine whether there was harassment, which rendered the workplace hostile and all relevant factors should be viewed objectively and subjectively.

"In doing so, the order of the President and the judgement of the High Court failed to give due emphasis on the injury claimed and the harmful nature of the events to Nadia Naz. Under the circumstances, since harassment was understood in a limited context, both the order as well as the judgement decided the cases on a mistaken understanding of the law." 

The apex court, therefore, set aside the previous orders.

Notably, the SC has expanded the scope of sexual harassment to include discrimination on account of gender and also taken note to make the interpretation of the law gender inclusive allowing for men to also be considered as possible aggrieved parties in cases of workplace harassment.

"The judgment under review [...] never considered and entirely excluded gender-based discrimination and harassment faced at the workplace," the court held.

"Un the context of harassment, the word sexual and sexually are relevant and give meaning to the word harassment, which in this context becomes actionable when it relates to the gender, being sex-based discrimination as opposed to only meaning coital relations and advances.

"Reading further into the definition of harassment, it appears sex-based discrimination does not have to be limited to sexual activity, rather it is behaviour which is promoted on account of the gender as a result of gender-based power dynamics, which behaviour is harmful and not necessarily a product of sexual
desire or sexual activity. Such harassment is motivated to degrade and demean a person by exploitation, humiliation and hostility which amounts to gender-based harassment and can include unwanted sexual alleviation and sexual coercion.

"Such behaviour in law becomes harassment at the workplace when it causes interference with work performance or creates an intimidating, hostile or offensive work environment and has the effect of punishing the complainant for refusal to comply with a request or is made a condition for employment."

It added that "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."

In his concurring note, Justice Afridi stated that he is "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, in view of the meaning and scope of ‘harassment’."