In a significant judgment, the Supreme Court unanimously ruled that workplace sexual harassment encompasses more than just physical intimacy, extending to gender-based discrimination. The ruling, a marked departure from earlier views, represents a significant shift in the interpretation of harassment laws.
Justice Ayesha Malik authored the 14-page judgment, stating, “Harassment laws are intended to counter gender-based discrimination in the workplace, not exclusively sexual harassment.” The judgment, which addresses numerous review petitions against the court’s earlier decision in July 2021, expands the scope of conduct and behavior considered problematic in the workplace, with gender inequality being a primary concern.
“Sexual harassment, in essence, is gender-based hostility that creates an unwelcoming work environment. Rooted in unequal power dynamics between genders, it can result in intimidation, exploitation, and abuse, thereby violating basic human rights,” Justice Malik wrote.
The ruling set aside the Supreme Court’s 11.10.2019 judgment and the president’s 05.01.2018 order, remanding the case to the president to reconsider the Ombudsperson’s order of 16.10.2017.
In 2021, the court had stipulated that in cases under the Protection against Harassment of Women at Workplace Act, 2010 (PAHWWA), evidence of sexual intent was necessary. This was decided during the dismissal of a harassment case brought by a female Pakistan Television employee against her male colleagues.
However, the recent ruling by a special three-judge bench led by Justice Yahya Afridi and including Justice Muhammad Ali Mazhar and Justice Ayesha Malik, revealed a potential misinterpretation in the previous ruling, concluding it contradicts the Act and its Statement of Objects.
The court asserted the necessity of considering the victim’s perspective, proposing the application of a “reasonable woman” standard to determine the existence of harassment. In this context, all relevant factors should be viewed both objectively and subjectively.
This comprehensive decision expanded the definition of sexual harassment to encompass gender-based discrimination, making the law gender inclusive, and acknowledging men as potential victims of workplace harassment.
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The judgment underscored that harassment extends beyond sexual desire or activity, being any behavior stemming from gender-based power dynamics, which serves to degrade and demean the individual. Such behavior is considered workplace harassment when it disrupts job performance or creates an intimidating, hostile, or offensive environment.
Justice Afridi concurred, stating that the issue would be remanded to the president for a fresh decision, considering the expanded understanding of ‘harassment.’
In light of the judgment, Nida Usman Chaudhry, an advocate, applauded the revised interpretation of the 2010 act, stating that the decision allows for the review of complaints from 2010 to 2022, which previously may not have been recognized under the narrower interpretation.
Barrister Aneesa Agha expressed optimism that the judgment offers women the promise of participating equally as citizens, their experiences informing the ‘reasonable woman’ standard in the application and interpretation of the law.
