Gender bias also constitutes harassment, rules SC

Justice Ayesha Malik authors 14-page land mark judgment on sexual coercion at workplace

ISLAMABAD:

In a unanimous landmark judgment, the Supreme Court has ruled that sexual harassment at workplace was not only about physical intimacy but also included discrimination on account of gender.

"The purpose of harassment laws is to address gender-based discrimination at the workplace and not to limit it to sexual forms of harassment,” says 14-page judgment authored by Justice Ayesha Malik while allowing review petitions against its July 5, 2021 judgment.

The judgment read: “It includes a broad range of conduct and behaviour which results in workplace problems with serious consequences, one of the main being gender inequality.

“Being an issue grounded in equal opportunity and equal treatment of men and women in matters of employment, sexual harassment in any form violates the dignity of a person as it is a demeaning practice that aims to reduce the dignity of an employee who has been forced to endure such conduct.

“Sexual harassment as gender-based discrimination is gender-based hostility, which creates a hostile work environment. It is a reflection of the unequal power relations between men and women which translates into a form of abuse exploitation and intimidation at the workplace which makes it a violation of a basic human right."

The judgment passed by the court dated 11.10.2019 and the order passed by the president dated 05.01.2018 are also set aside and the matter is remanded to the president to decide the representation against the Ombudsperson’s order dated 16.10.2017.

In 2021, the apex court had held that sexual intention must be proven in the cases that were proceeded under the Protection against Harassment of Women at Workplace Act, 2010 (PAHWWA).

Justice Mushir Alam was presiding over a three-judge bench, which had dismissed a case filed by a woman employee of the Pakistan Television (PTV) against her male colleagues.

However, the latest judgment by a three-judge special bench, led by Justice Yahya Afridi and comprising Justice Muhammad Ali Mazhar and Justice Ayesha Malik, ruled that “there appears to be an error in the judgment owing to the interpretation of harassment displayed by the court, [the definition of which] is patently against the Act and its Statement of Objects."

“Both the president [of the country] and the Islamabad High Court decided the case of [complainant] 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,” read the verdict.

The court observed that in cases of harassment, the victim’s perspective was 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,” it added.

The court noted that in doing so, the order of the president and the judgment of the high court had failed to give due emphasis on the injury claimed and the harmful nature of the events to Naz.

“Under the circumstances, since harassment was understood in a limited context, both the order as well as the judgment decided the cases on a mistaken understanding of the law,” the verdict stated.

Therefore, the apex court set aside the previous orders.

Notably, the SC expanded the scope of sexual harassment to include discrimination on account of gender.

It also took 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.

“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,” the judgment noted.

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The court further observed that such behaviour in law became harassment at the workplace when it caused interference with work performance or created an intimidating, hostile or offensive environment for the employee.

“[It] has the effect of punishing the complainant for refusal to comply with a request or was made a condition for employment,” the judgment added.

In his concurring note, Justice Afridi stated that he was remanding the matter to the president for deciding afresh the representation of the petitioner.

[The matter] shall be deemed as pending before him, and be decided in accordance with the law, in view of the meaning and scope of ‘harassment’,” he added.

Justice Afridi said that harassment in the form of ‘sexually demeaning attitudes’, as very rightly observed by my learned colleague, is motivated to degrade and demean a person by exploitation, humiliation and hostility on the basis of his or her gender, and such harassment is rooted in genderbased discrimination.
"‘Sexually demeaning attitude’ becomes harassment at the workplace, as it causes interference with work performance or creates an intimidating, hostile or offensive work environment for the victim of such attitude."

In the 2021 verdict, the SC ruled that the aggrieved person under the provisions of the PAHWWA had the responsibility to prove that the perpetrator truly had an accompanying sexual intention or overture with his act, demeanour, behaviour, or conduct.

It added that the PAHWWA itself limited the protection it offered to the victims of sexual harassment and the court was shackled to interpret it in line with its express charging clause (h) of section 2 of the law.
Then attorney general for Pakistan (AGP) Khalid Javed Khan had expressed serious apprehensions at the time over the ruling, stating that while interpreting the PAHWWA, the court should have given a notice to his office for legal assistance.

Later a review petition was filed with the apex court that contended the IHC 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.

Nida Usman Chaudhry advocate has welcomed the judgement. "The review judgement authored by Justice Ayesha A Malik with additional note by Justice Yahya Afridi, now sets the record straight as far as the interpretation of the 2010 act is concerned.”

“This means that even prior to the amendments in the federal law, the term sexual harassment covered gender-based discrimination at work that made the work environment hostile,” she added.

“This is very encouraging because now the complaints from 2010-2022 can be revisited in light of this review by the Supreme Court and will apply across the board as they won’t be limited to federal as the amendments were. This is a huge step forward for justice for complainants that the courts have emphasized could be both male or female."

She also said that another important aspect of the judgement is that it centers the victim’s perspective and brings forth the standard of reasonable woman to be applied in case of female victims and that it takes a purposive approach towards statutory interpretation in a bid to uphold the intention of the parliament in passing the law and focusing on the mischief that the law aimed to address when it was first promulgated.

“This is significant as the erroneous narrow understanding of sexual harassment prior to review of this case had the effect of frustrating the purpose of the law which was untenable with its objects. To those who may think this will be abused, rest assured, the case for sexual harassment still has to be made and argued before the relevant forums including the inquiry committees and/or ombudspersons who decide the cases based on all evidence, circumstantial or otherwise.”

“The law within itself also has provisions to deal with fake allegations and a male complainant can use this law just as much as a female complainant can. I don’t see how this can be abused any more than any other law for the time being in force and in that case, safeguards and provisions are already built into the law and practice of the justice sector,” she adds.

Barrister Aneesa Agha said that the judgment gives women hope that they can partake in the constitutional project as equal citizens and that finally, their lived experiences will inform the ‘reasonable woman’ standard in the interpretation and application of the law.