ANTI-HARASSMENT LAWS FOR THE
Harassment at workplace is categorically defined under section 2(h) of ‘The Protection against Harassment of Women at the Workplace Act, 2010’ as under:
“Harassment means 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 intimidation, 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.”
The above definition can be analyzed from different aspects: firstly, from the aspect of forms of sexual harassment provided therein; secondly, from the aspect of non-sexual form of harassment, i.e. demeaning attitude; and thirdly, from the aspect of modes of harassment. In this article, an effort shall be made to explain each element of this definition.
‘Unwelcome Sexual Advance’
In this definition, the phrase ‘unwelcome sexual advance’ is of critical importance. Unwelcome does not mean “involuntary” only; a victim may agree to certain conduct even though it is offensive. Sexual advance is ‘unwelcome’ whenever the person subject to it considers it unwelcome. Furthermore, sexual advance is not limited only to physical contact with the victim. Even a gesture made with an aim of gaining some sort of sexual favour or for sexual gratification constitutes harassment. However, this must be clear that an act/behaviour which is deliberate, inappropriate and extremely offensive may be illegal after just one occurrence while others might need repetition to constitute harassment.
‘Request for Sexual Favors’
It constitutes actionable harassment. Sexual favour, according to Merriam-Webster dictionary, means sex acts done in exchange for something (such as money). In the context of the above definition, ‘Request for Sexual Favors’ is not limited to the request for sex but it also includes a request for date or for having a relationship, etc. Any sort of request of this nature is harassment.
‘Verbal or Written Communication of Sexual Nature’
This clause suggests more of a mode of harassment rather than a form of it. Verbal communication, in this context, is not limited and it may include unwanted sexual teasing, jokes, remarks and questions, turning work discussions into sexual topics, asking about sexual fantasies or preferences, asking personal questions about social or sexual life, etc. It may be direct communication with the victim or an indirect one like spreading sexual rumours about a person. Written communication of sexual nature may include the following: sharing dirty jokes, obscene material, sexual innuendos, and sex-based stories, etc. through personal messages or via social media. It also includes flirting comments passed on the pictures and thoughts shared on the social media platforms like Facebook, Twitter, etc.
‘Physical Conduct of Sexual Nature’
It can also be categorized as a mode of that. It ranges from unwanted deliberate touching to actual or attempted rape. Some instances are: unwanted telephone calls, butt-slapping, ogling, hugging, cat calls, smacking lips, etc., and anything that is triggered by a sexual desire or with a purpose of sexual nature.
‘Sexually Demeaning Attitudes’
Such attitudes are harassment when they cause interference with the work performance of the victim or when they create an intimidating, hostile or offensive work environment for the victim. Discriminating a woman at workplace just because of her sex is, by all means, a sexually-demeaning attitude. Furthermore, calling a female employee less intelligent and incompetent in comparison to men is also an example of a sexually demeaning attitude. This form of harassment may also be construed as a non-sexual form of harassment within the above definition.
Quid Pro Quo Harassment
The expression “quid pro quo” literally means something for something. It is a form of sexual harassment in which submission to sexual advance or consent to request for sexual favours is made an explicit or implicit condition for giving a new job, for retaining an existing job or for promotion to a higher grade.
Following is the modus operandi under the Protection against Harassment of Women at the Workplace Act, 2010 (hereinafter referred to as “the Act”):
i. Every organization (defined u/s 2(l) and includes educational and health institute, etc.) is required to constitute an inquiry committee to enquire into complaints under the Act.
ii. However, aggrieved/victim of harassment is given an option, under section 8 of the Act, to prefer a complaint either to the Ombudsman (federal or provincial as the case may be) or the inquiry committee.
iii. On conclusion of the inquiry, the ombudsman or the inquiry committee, as the case may be, may impose on the harasser minor or major penalties, including fine, as provided u/s 4(4) of the Act.
Remedy against Harassment under Pakistan Penal Code
Section 12 of the Protection against Harassment of Women at the Workplace Act, 2010, clearly provides that the provisions of the Act are in addition to — and not in derogation of — any other law in the country. Therefore, anti-harassment provision provided u/s 509 of the Pakistan Penal Code (PPC) can also be invoked in relevant cases. The said provision reads as follows:
“509. Insulting modesty or causing sexual harassment:
i. intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman;
ii. conducts sexual advances, or demands sexual favours or uses verbal or non-verbal communication or physical conduct of a sexual nature which intends to annoy, insult, intimidate or threaten the other person or commits such acts at the premises of workplace, or makes submission to such conduct either explicitly or implicitly a term or condition of an individual’s employment, or makes submission to or rejection of such conduct by an individual a basis for employment decision affecting such individual, or retaliates because of rejection of such behaviour, or conducts such behaviour with the intention of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment;
shall be punished with imprisonment which may extend to three years or with fine up to five hundred thousand rupees or with both.”
Insofar as the context is concerned, the above provision of PPC provides the same forms and modes of harassment under General Criminal Law as are provided by the special legislation mentioned above. Dual remedies exist. Therefore, the absence of law is not the core problem, but the non-implementation of the law is responsible for the disgusting ranking of our country in the international comity. To achieve a better position, persistent, rigorous and across-the-board enforcement of the law is pressingly needed.
The writer is a former Civil Judge-cum-Judicial Magistrate and holds an LL.M (Criminology) degree.