The limitations of Pakistan’s workplace ‘harassment’ law
Presently, Pakistan has one workplace harassment law in place called ‘The Protection Against Harassment Of Women At The Workplace Act, 2010’. The Act leaves much to be desired, and a recent judgment by a three member bench of the Supreme court addressed another one of its shortcomings. The 12-page judgment authored by Justice Mushir Alam discussed the meaning of ‘harassment’ as envisioned by Section 2(h) of the Act. It was held by the Court that ‘harassment’ as defined in Section 2 (h) of the Act, 2010 could not be stretched to ‘other conduct being not of sexual orientation’, meaning that harassment envisioned under the Act was only that of a sexual nature or intent.
The Court, while it recognised the limitations of the Act, was bound to interpret ‘harassment’ in line with Section 2(h), as ‘any other interpretation advanced by the Court to enlarge the scope of the section would be violative of the rights guaranteed under Article 12 of the Constitution of Pakistan, 1973.’ The Act’s failure to address ‘harassment’ in a holistic manner, makes it ‘a myopic piece of legislation that focuses only on a minute fraction of harassment’ as per the judgment. This impact of the restrictive definition of ‘harassment’ under the Act is far-reaching.
Because of the restrictive definition of harassment, the burden is placed on the complainants to prove the sexual intent of the perpetrator. Ayesha, working at a reputable MNC in Karachi, recounts incidents where a male colleague would pull on her hair ‘jokingly.’ Instances such as these can easily be brushed aside as physical harassment or bullying that are not sexual in nature but for Ayesha, she knew the co-worker had feelings for her and would do this not just to tease her but because he gained some sexual gratification from it. To prove acts that may be classified as bullying, to actually be those with sexual intent is not a task Ayesha wishes to undertake in front of the Inquiry Committee.
Similarly, the Act also does not provide protection to those individuals who may face instances of physical or verbal harassment at work that are not of a sexual nature. For Karishma, working at a café in Lahore, countless instances of verbal abuse and name calling by her co-workers are a common occurrence. But instances such as these – while they may be incredibly distressing for her- are not covered under the Act. In a country where verbal and physical against women and other minority groups is prevalent, for workplace harassment laws to be so limited in their outlook and protections afforded, is a sad situation.
Surely, amendments are possible in the Act, so as to define harassment more holistically. The current definition of harassment is also against the very essence of the Act itself. The preamble states that the purpose of the Act is for the “protection of women against harassment at workplace.” It uses the term harassment which could mean harassment of any form i.e. physical, verbal or online or to just mean harassment that is of a sexual nature. As defined in the Black’s law dictionary harassment means:
“Words, conduct or action (usually repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose. Harassment is actionable in some circumstances, as when a creditor uses threatening or abusive tactics to collect a debt.”
If legislature wished to limit the scope of the Act to harassment of a sexual nature, perhaps a better way would have been to refer to harassment under Section 2(h) as ‘sexual harassment’ and to call the Act ‘The Protection of Women Against Sexual Harassment at the Workplace’ like India has done where their workplace harassment Act is called the ‘Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.’
In the #MeToo era where more and more individuals are coming forward with stories of harassment, to have such a myopic law is truly a sad state of affairs for Pakistan. While, countries in the world are moving towards progressive legislation to protect the rights of those at work, there is a dire need for Pakistan to amend its only workplace harassment law, to make it more inclusive and holistic.