About 93 per cent of working women in Pakistan acknowledge facing workplace harassment. In 2023, Pakistan ranked 142 out of 146 countries in the World Economic Forum’s (WEF) Global Gender Gap Report. Women’s access to employment opportunities is restricted in Pakistan, particularly due to the high levels of harassment faced by women in the workplace.
In 2010, the Parliament of Pakistan enacted the Protection against Harassment of Women at the Workplace Act 2010 (‘2010 Act’) to provide legal protection to women against harassment at the workplace. It included section 2(h), which defines ‘’harassment’’ as : ‘’any unwelcome sexual advance, request for sexual favors or other verbal or written communication or physical conduct of a sexual nature or sexually demeaning attitudes, causing interference with work performance or creating an intimidating, hostile or offensive work environment, or the attempt to punish the complainant for refusal to comply to such a request or is made a condition for employment”.
On 5 July 2021, the Supreme Court of Pakistan (‘SC’) delivered a judgment in Nadia Naz v. President of Islamic Republic of Pakistan and interpreted the word ‘harassment’, as defined in S. 2(h) of the 2010 Act, for the first time. This judgment held that the 2010 Act only covered harassment of a ‘sexual nature’, and any other demeaning attitude, behaviour, or conduct which may amount to harassment in the generic sense of the word – however devastating it may be to the victim (to use the Supreme Court’s term) – was held not to be actionable under S. 2(h).
Following this judgment, in January 2022, the Parliament of Pakistan amended the definition of ‘harassment’ in the 2010 Act and inserted Section 2(h)(ii) which specifically includes ‘’discrimination on the basis of gender’’ in the definition of harassment.
Even though the 2022 amendment widened the scope of the definition of harassment, complaints from 2010 to 2022 would have been decided as per the SC judgment in Nadia Naz’s case of 2021. This is because the applicability of the definition amended in 2022 is not retrospective in nature. Therefore, many victims of gender-based workplace harassment were left without legal protection.
The Attorney General for Pakistan applied for a review of the SC judgment in the 2021 Nadia Naz case. It was contented that the word ‘harassment’ as contained in Section 2(h) of the 2010 Act had been interpreted in too restrictive a manner.
On 14 March 2023, under its review jurisdiction, the SC held in Nadia Naz and others v. the President of Islamic Republic of Pakistan and others that the definition of ‘harassment’ in the 2010 Act (prior to its amendment in 2022) already included ‘discrimination on basis of gender’.
While interpreting the 2010 Act, the SC took a purposive approach. This approach consists of looking at the object and purpose of the legislation when interpreting it. The SC was of the view that the 2020 Amendment ‘…changed the definition of harassment to clarify that harassment can be physical, sexual or gender discrimination, which may not be sexual but is discriminatory behaviour against the gender’.
To understand the purpose of the 2010 Act, the SC also examined the Report of the National Assembly Standing Committee on Women Development dated 29 September 2009, as well as the debates of the National Assembly and the Senate. The SC was of the view that these documents show that the intent and purpose behind the 2010 Act was to address diverse forms of harassment at the workplace prompted on account of gender, and was not limited to a sexual form of harassment. The SC considered that the debates in Parliament showed that the intent was to give effect to Pakistan’s international obligations including the Convention Against the Elimination of Discrimination Against Women and International Labour Organization (ILO) Convention Nos. 100 and 111 on Worker’s Rights. The SC noted that the purpose of the 2010 Act was to eliminate all forms of discrimination in the workplace, including gender-based discrimination and sexual harassment.
Finally, the SC held that in cases of harassment, the victim’s perspective is relevant. Therefore, the standard of a reasonable woman should be considered to determine whether there was harassment at the workplace. The reasonable woman standard assesses the validity of sexual harassment claims from the victim’s viewpoint. A reasonable woman might perceive behaviour that is discriminatory but not sexual as harassment.
The judgment by the SC has been widely celebrated in Pakistan. In my opinion, this is a positive development. The judgment will now provide legal protection to victims who have faced workplace harassment on the basis of their gender prior to the 2022 Amendment.
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