Understanding Workplace Harassment More Than Just Inappropriate Touch

Understanding Workplace Harassment: More Than Just Inappropriate Touch

By Miss Insia Fatima Jessani

Many, when confronted with the term harassment, immediately deem it as an act constituting inappropriate touch. Research shows that, in the lay public, the majority consider sexual harassment to be either sexual coercion or unwanted sexual attention, such as physical touch. However, harassment, particularly workplace harassment, encompasses a wide range of actions. In fact, the most common type—discrimination on the basis of gender—is often downplayed in organizations due to a lack of awareness. This unawareness is why many incidents go unnoticed, as people fail to recognize that the behavior adversely affecting them may constitute workplace harassment.

To address this issue, the following article discusses the nuances of workplace harassment in Pakistan and the types of incidents for which a victim can seek redress.

The Scope of Workplace Harassment in Pakistan

Being the second worst country in terms of ‘gender parity,’ harassment is rampant in Pakistan. A survey by the Alliance Against Sexual Harassment (AASHA) concluded that over 90% of women working in various fields—ranging from offices to domestic services—have been subjected to sexual harassment. While this dire issue persists, Pakistan has implemented legal redress through Section 509 of the Pakistan Penal Code and, more importantly, the Protection Against Harassment at the Workplace Act, 2010.

An Overview of Key Legislation

The 2010 Act’s Statement of Objects was introduced to protect the right of both men and women to earn a livelihood without fear of discrimination, as outlined in Articles 25 and 37 of the Constitution of Pakistan, 1973. To address gaps in this statute, an amendment was introduced in 2022, which expanded the definitions of “employee,” “employer,” and “workplace” and included gender-based discrimination under the term “harassment.”

Gender-Based Discrimination as Harassment

To clarify the inclusion of gender-based discrimination under harassment, reference can be made to the 2021 landmark judgment of Nadia Naz v. President of Islamic Republic of Pakistan. Initially, the judgment limited sexual harassment to acts of a sexual nature. However, in 2023, Justice Ayesha Malik reviewed this judgment and broadened the interpretation. She asserted that “sexual” includes matters relating to gender-based power dynamics, not solely acts of sexual desire or activity. The review petition stated, “Sex-based discrimination does not have to be limited to sexual activity; rather, it is behavior promoted on account of gender-based power dynamics, which is harmful.”

This interpretation aligns with the 2010 Act’s goal of protecting inherent dignity by eradicating discrimination that hinders individuals from earning a livelihood. The Supreme Court further reiterated this in Raja Tanveer Safdar v. Mrs. Tehmina Yasmeen and others. This new definition applies retrospectively to complaints from 2010 to 2022.

The Reasonable Woman Standard: A New Perspective

The review petition also introduced the “standard of a reasonable woman,” a litmus test to determine harassment by considering the victim’s perspective. This test recognizes that women’s experiences cannot be reduced to a straightforward definition. It has been widely adopted, starting with the 1991 case of Ellison v. Brady in the Ninth Circuit, where the court acknowledged that behaviors men might consider harmless could be offensive to women.

In Pakistan, the test was applied in Misbah Iqtidar v. Imran Ullah, where actions such as summoning the complainant persistently, sending irrelevant texts, and paying for her accommodation on a work trip were deemed harassment. These actions, analyzed from a reasonable woman’s perspective, fell under harassment.

Distinguishing Harassment from Service and Disciplinary Matters

It is crucial to distinguish harassment from service and disciplinary issues, as clarified in Muhammad Rizwan Dalia v. Ombudsman. Harassment involves conduct creating a hostile workplace due to discriminatory mindsets, while disciplinary matters pertain to organizational policies addressing employee performance, such as transfers or dismissals.

However, when disciplinary actions are retaliatory—for instance, taken against someone for refusing a sexual favor or filing a harassment complaint—they can constitute harassment. An example is Irum Shahzadi v. The Governor of Punjab, where the complainant’s suspension following her harassment complaint was deemed retaliation.

Understanding Abuse of Power in Harassment Cases

“Abuse of authority,” as defined in the 2010 Act’s Code of Conduct, includes demands for sexual favors in exchange for benefits such as promotions or wage increases. Relationships involving power imbalances—such as between a teacher and student—also fall under harassment, as seen in Asif Saleem v. Chairman BOG University of Lahore. The court emphasized the importance of protecting individuals in educational and professional settings.

Core Elements of Harassment in Workplace Law

According to Section 2 of the 2010 Act, harassment includes any action, communication, or conduct of a sexual nature. In the digital age, cyberstalking and unwelcome text messages also constitute harassment. For instance, in Uzma Naveed Chaudhary v. Federation of Pakistan, unwelcome love messages were deemed harassment, and in Dr. Sajid Iqbal v. University of Sargodha, sending obscene videos was similarly regarded.

The Need for Awareness, Enforcement, and Evolving Jurisprudence

Workplace harassment extends far beyond inappropriate touch. Pakistan’s legal framework, particularly the 2022 amendment to the 2010 Act, provides critical protections against various prejudicial behaviors. However, significant work remains to raise awareness, enforce the law, and expand jurisprudence, as harassment is inherently subjective and cannot be reduced to a singular statutory definition.