Evolution of workplace harassment laws in Pakistan: the Protection Against Harassment of Women at the Workplace Act 2010 and the 2022 Amendment
Partner, Akhund Forbes, Karachi, Pakistan
The Act, its scope and its drawbacks
In 2021, the Supreme Court of Pakistan issued a ruling on cases tried under the Protection Against Harassment of Women at the Workplace Act 2010 (the ‘Act’). The ruling stated that for the Act to apply, the behaviour, conduct or actions of the accused person towards the victim must be sexual in nature while demonstrating sexual intention. This ruling was issued in response to a case filed by a female employee of Pakistan Television (PTV) against her male colleagues.
However, the courts ruled that the Act was of a narrow scope and was limited only to instances of sexual harassment. The Act was designed to protect both men and women against sexual harassment in the workplace. The court noted that while harassment in any form is unacceptable and violates a person's dignity, the Act specifically focuses on harassment of a sexual nature, despite its title. The ruling stipulated that any kind of demeaning behaviour, conduct or attitude that may amount to harassment, regardless of its nature, is not actionable under the Act unless sexual nature is demonstrable. Therefore, any form of misdemeanor unbecoming of an employee or employer towards a fellow employee or employer may be classified as harassment but is not actionable under the Act, unless it demonstrates sexual intent.
The Supreme Court broadened the definition of ‘harassment’ in the workplace by stipulating that gender-based discrimination that creates an abusive and hostile working environment comes under the ambit of the law. The court’s decision further elaborated that ‘harassment’ may also include the denial of equal opportunities and criticism of abilities based on gender.
The definition of ‘workplace’ under section 2(n) of the Act had been criticised for being extremely limited. It only included physical locations such as offices, factories or open areas where organisations operate, leaving out domestic workers and individuals who may face harassment while commuting or during unofficial work meetings or whilst working virtually or remotely or off-site.
How the 2022 amendment changed the Act’s scope
Amendments1 were made to the Act in 2022 through a bill proposed in the Senate which was ratified by the National Assembly and passed into law. Primarily, the amendment focused on broadening the definitions of ‘workplace’ and ‘harassment’. The definition of ‘workplace’ now includes:
‘Any place where services are rendered or performed by professionals, including educational institutions, gigs, concerts, studios, performance facilities, courts, highways, sporting facilities and gymnasiums, and shall include any building, factory, open area or a larger geographical area where the activities of the organization or of employer are carried out and includes any situation that is linked to work or activity outside the office.’
The amendment seeks to give effect to Article 34 of the Principles of Policy under Pakistan’s Constitution, which ensures the full participation of women in all spheres of national life. The amendments extend the definition of an ‘employee’ to informal workers without contracts, freelancers, domestic workers, trainees, apprentices, students, performers, artists and sportspersons. The amendment also redefines ‘harassment’ to include discrimination based on gender, even if the discrimination is not sexual in nature, and any gesture or expression that causes interference with work performance or creates an intimidating, hostile or offensive work environment. The amendment has substituted the expression ‘a woman or man’ with ‘any person’ in the definition of ‘complainant’, making the protection of the Act available to transgender persons as well.
The court’s ruling was a commendable step towards ensuring the constitutional ideals and values of liberty, dignity, equality and social justice for all persons in Pakistan and the amendment has been updated to align with international commitments, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women, and the ILO Discrimination (Employment and Occupation) Convention. The Act further paves the way for women to participate more fully in the development of the country at all levels and ensures equal opportunity for them to earn their livelihood in a safe working environment.
The Act was a significant piece of legislation. However, it had its limitations as it only focused on sexual harassment and had a narrow definition of workplaces. The 2022 amendment, however, has introduced changes which have broadened its scope, addressing these limitations and making it easier for victims of workplace harassment to seek justice. Furthermore, the amendment expands the definition of ‘harassment’ to include gender-based discrimination that creates an abusive and hostile working environment. It also includes informal workers without contracts, freelancers, domestic workers, trainees, apprentices, students, performers, artists and sportspersons.
Despite the 2022 amendment, the Act still faces implementation challenges, as burdensome court processes, along with the social stigma attached to women filing cases, impede justice seeking for victims. Nevertheless, the court's decision in the PTV harassment case sets a positive precedent towards ensuring the constitutional ideals and values of liberty, dignity, equality and social justice for all persons in Pakistan.