In a groundbreaking decision, the Supreme Court (SC) of Pakistan has unanimously ruled that workplace sexual harassment encompasses not only physical intimacy or sexual actions but also discrimination based on gender.
The apex court had previously maintained in 2021 that cases falling under the Protection against Harassment of Women at Workplace Act, 2010 must establish sexual intent. However, the recent judgment has overturned this interpretation, highlighting the responsibility of the aggrieved person to prove that the perpetrator’s actions, behavior, and conduct were accompanied by a sexual intention or overture.
Justice Mushir Alam, the author of the 12-page judgment, presided over a three-judge bench that dismissed a case involving a female employee of Pakistan Television (PTV) who had accused her male colleagues of harassment. The court stated that the protection provided by the Act itself is limited and should be interpreted in line with its explicit charging clause (h) of section 2 of the Act.
The previous ruling had raised concerns, with the then attorney general of Pakistan, Khalid Javed Khan, expressing serious apprehension. He argued that the interpretation of the law should have involved legal assistance from the attorney general’s office.
Following a review petition, a special bench comprising Justice Yahya Afridi, Justice Muhammad Ali Mazhar, and Justice Ayesha Malik examined the case. The bench found that there was an error in the previous judgment concerning the definition of harassment as per the Act and its Statement of Objects.
The court emphasized the relevance of the victim’s perspective and the consideration of a reasonable woman’s standard in determining harassment, making the workplace hostile. It emphasized that gender-based harassment, motivated by power dynamics and promoting harmful behavior, should not be limited to sexual activity but should also include unwanted sexual alleviation and coercion.
The judgment also recognized the need for gender inclusivity and the inclusion of men as possible aggrieved parties in cases of workplace harassment. It concluded that the previous judgment had overlooked the existence of gender-based discrimination and harassment at the workplace.
Consequently, the Supreme Court set aside the previous orders, expanding the scope of sexual harassment to include discrimination based on gender. It stressed that sexual and sexually relevant behavior, driven by gender-based power dynamics, should be considered harassment when it interferes with work performance or creates an intimidating, hostile, or offensive work environment.
Justice Afridi, in his concurring note, remanded the matter to the President of Pakistan for a fresh decision on the petitioner’s representation, Nadia Naz, with a focus on the meaning and scope of harassment.
This landmark judgment by the Supreme Court aims to provide enhanced protection against workplace sexual harassment, acknowledging the broader spectrum of discriminatory behavior and its impact on individuals.