Image source: Kate Lopaze ‘What are the different types of workplace harassment?’ [image] (TheJobNetwork)< https://www.thejobnetwork.com/what-are-the-different-types-of-workplace-harassment/ > accessed 16 March 2022.
“Mobbing”, “sending offensive words or images”, “making sarcastic or snide remarks”, “unwanted physical contact”, “abusing a position of power”:[1] these are some examples of harassment definitions from around the world.
Manifestations of workplace harassment are changing over time and what is seen as “unacceptable” behavior differs between cultures and contexts. Despite this, countries around the world have recognized the gravity of workplace harassment and censured it as a human rights violation.
Pakistan adopted “The Protection Against Harassment of Women at The Work Place Act” in 2010 and recently amended it by introducing several changes. [2] This Act protects against women’s workplace harassment and aims to guarantee their right to work with dignity through defining the terms “employer”, “employee”, “harassment”, and “workplace” and appointing an “inquiry committee” in each organization to enquire into complaints. The 2022 Amendment has expanded the definitions of these four concepts, that served as a solution for the numerous harassment cases that did not fall within the narrow confines of the original Act.[3] By briefly reviewing three harassment case laws, we will prove that; had Pakistan amended this law earlier and more comprehensively, several complainants would not have been ignored.
The Definitions
Nadia Naz v. The President of Islamic Republic of Pakistan, President House, Islamabad and others the narrow
The narrow definition of “harassment”, meant that Nadia’s harassment experience was disregarded because there was no proof of any “sexual intention”.[4]
According to the 2010 Act, the definition of “harassment” only considered it as an unwelcome sexual request.[5] Thus if the act was not “sexual”, it was not considered as harassment. Hence Nadia’s experience.
However, the 2022 Amendment, has complemented the previous definition by including that harassment is an inappropriate act, including gender discrimination (not necessarily sexual), that is offensive to the employee and makes the work environment a hostile one.[6]
This “fresh” definition resembles the one provided by the International Labor Organization (‘ILO’) through the ILO Convention on Violence and Harassment 2019 (No. 190) and Recommendation (No. 206). [7] [8] It depicts itself as flexible, able to cover multiple expressions of harassment that might not have emerged yet. It is noticeable that the law does not allude to the intent of the harasser. This means that even if someone did not intent to harass someone, he/she is still considered a harasser under the new law. This way the harasser won’t be able to use the excuse of “I did not intend to harass” or “I didn’t know this was harassment”. Additionally, when defining “harassment”, the law does not refer to the harasser, portraying itself as a victim-centered law. Also, it is not necessary for the act to occur repeatedly; a single incidence suffices for it to be considered as harassment.[9]
Meera Shafi v. Office of the Governor Punjab
The narrow definition of “employer” and “employee” meant that Meera’s experience was also overlooked as there was no “employment relationship” between her and the alleged harasser, it was an agreement for one time job that lasted 10 days.[10]
According to the 2010 Act, the harasser is limited to the person or body of persons, “who or which employs workers in an organization under a contract of employment or in any other manner” (i.e., an employer).[11] Consequently, if the harassed was not an employee in the strict definition of the term, he/she cannot complain. Hence, Meera’s experience.
Nevertheless, the 2022 definition of “employer” includes middlepersons, persons and households who employ home-based and domestic workers and those who benefit from their employment such as any family member, relative or guest and those who manage remote businesses and the “complainant” can be any employee comprising home-based and domestic workers regardless of their contract type (daily wage, regular, full time, part time…etc.), volunteer, intern, probationer, apprentice, former employee, a parent of a minor, freelance employee whether employed on daily/weekly/monthly/hourly basis and even a performer or an artist (such as Meera).[12] Additionally, the 2022 Amendment expands the meaning of workplace to include informal workplace, academic institutes, studios, sports facilities, and courts.
This expansion of scope extends the protection that this law brings to include a wide range of people that might become victims of such inappropriate acts and demands accountability on realistic grounds considering the high number of freelancers, people working in the informal sector and the onset of remote working after the COVID19 pandemic. This resonates with definitions of many ILO member states, such as Canada, who apply harassment laws on unpaid interns, Japan who protects employees (whether permanent or contractual), and Gabon who sanctions harassment against trainees and civil servants.[13]
How could it be strengthened?
Firstly, the law should consider the inadequate acts of one’s peers or third parties (i.e., clients, customers, patients) also punishable as harassment and to not limit it to when it is performed by someone with authority. The Philippines, for example, prohibits harassment in the workplace between peers.[14] Secondly, this law should protect all job applicants and jobseekers, akin to the Latvian law that protects individuals in search of employment.[15] Thirdly, in addition to the formal and informal workplaces, the Pakistani law should extend to the place where the employee takes a meal or a break, toilets, work-related trips, trainings or events, and through work-related communications such as emails. Australia has considered phone conversations, emails and social media platforms as places where workplace harassment can also occur.[16]
The Inquiry Committee
Tanzeela Mazhar v. PTV
Mazhar, an anchorperson and co-founder of Women in Media Alliance Pakistan, shared her own experience of sexual harassment from her boss at PTV (‘Pakistan Television’).[17] She alleged that the harassment started in 2009 and lasted for seven years until she decided to take action. The first stumbling block arose when Mazhar officially lodged her complaint according to the original 2010 Act. The Inquiry Committee was constituted completely of organization’s administrators, with ostensibly conflicting interests and a bias in favor of the boss. Moreover, this brought about the next obstacle, namely that after three years, Tanzeela’s request for the inquiry report was granted only after a court order. As a result, Mazhar, like hundreds of others, became a victim of a miscarriage of justice, just because she was the subordinate.[18]
Sections 3 to 5 of the 2010 Act stipulate the composition, role and powers of the Inquiry Committee, as well as the procedural path of lodging a complaint of a harassment case. Surprisingly, the newly amended law does not take any initiative to review these sections in accordance with the difficulties and irregularities existing in practice.
Notably, research reveals that, not all women journalists who face harassment at their workplace submit a complaint because they believe the Inquiry Committee would not provide them with justice.[19] For example, a female reporter at an English newspaper in Pakistan who reported that one of her male coworkers stood in such close proximity to her that she had to push him back. This is obviously an act of harassment, however, according to the respondent the Inquiry Committee does not handle such concerns and discourages complainants from bringing up such “trivial matters”.[20] A smaller majority of 40 % of female journalists, however, said that their organization did not even have an Inquiry Committee, therefore depriving them of their legal right to complain.[21]
What needs to be reformed?
Bearing in mind these concerns and the practical irregularities pertaining to the Inquiry Committees, two overarching issues deserve the utmost attention.
First, the composition of the Committee, that under the current provisions, must comprise of at least one woman, one senior management representative, and one senior employee.[22] It is generally recognized that one of the primary causes for underreporting of harassment cases, particularly sexual harassment instances, is a sense of judgment, humiliation, or shame.[23] Therefore, any argument between the victim and the accused should be avoided, even if members of the Committee are present. A female sub-committee should interrogate the female victim, while a male sub-committee should question the male accused, and vice versa.[24] Female victims would feel more at ease expressing their experiences with a female expert than a male one due to the special cultural and religious understanding and paradigm of (sexual) harassment. As a consequence, the Committee could make a fair, unbiased, and objective recommendation based on the statements of each party, who would be less likely to feel forced or fearful to reveal the truth than if both were physically confronted. This, in turn, would cause the Competent Authority (the authority appointed by management) to reach a legally justified and fairly reasonable conclusion after receiving the Committee’s recommendation report.[25]
Second, Mazhar brings her attention to the fact that the Committee’s report is presented to the same powerful authority that is interested in defending himself and so benefiting his organization.[26] This clearly implies that if the harassment happens within a hierarchical organization, obtaining justice will be substantially more difficult, if not impossible, in some cases. Hence, there is still a disagreement over the Committee’s stance, particularly when a subordinate files a claim against their immediate superior, as is the situation in the vast majority of cases.
Furthermore, Pakistan might put in place some procedures to break the taboo of freely disclosing one’s experience with sexual harassment and to provide speedier remedies. Pakistan can consider establishing anonymous reporting mechanisms, as in the United Kingdom, or developing an online complaints system, such as India’s Sexual Harassment Electronic Box (‘SHe-Box,’) which includes a guidebook and a training guide.[27]
Conclusion
Pakistan has made great progress by revising some of the provisions of the 2010 Act in order to provide a more responsive legal framework for workplace harassment victims. Such a step reflects Pakistan’s prospective commitment to maintaining a workplace free of discrimination, harassment, and violence. However, as previously stated, the 2022 Amendment is still a work in progress. There are still lacunae that need to be addressed immediately by legislators, who can simply use ILO Convention 190 to address all existing ambiguities and fill gaps. To that aim, Pakistan clearly has the potential to do more after taking such a groundbreaking step in revising its laws in conformity with well-established international standards. It may make history by ratifying ILO Convention 190, the most comprehensive international instrument addressing all aspects of gender-based violence and harassment in the workplace. As a result, it is critical that Pakistan evaluate its present legislation and, if possible, ratify the ILO Convention 190 in order to put a stop to the endemic violence and harassment in the workplace.
[1] International Labor Office – Geneva: ILO, Violence and harassment in the world of work: A guide on Convention No. 190 and Recommendation No. 206 (2021).
[2] The Protection Against Harassment of Women at The Work Place Act, 2010 ACT NO. IV OF 2010.
[3] The Protection Against Harassment of Women at The Work Place (Amendment) Act, 2022.
[4] Nadia Naz v The President of Islamic Republic of Pakistan, President House, Islamabad and others [2019] SC PLD 4570.
[5] Act, 2010 (n 2).
[6] Amendment Act, 2022 (n 3).
[7] ILO Convention No. 190 (n 1).
[8] Recommendation No. 206 (n 1).
[9] Amendment Act, 2022 (n 3).
[10] Meera Shafi v. Office of the Governor Punjab [2020] LHC PLD 54.
[11] Act, 2010 (n 2).
[12] Ibid.
[13] Standards for Work-Integrated Learning Activities Regulations (SOR/2020-145); Power Harassement Prevention Act, 2020; Loi nº 10-216 du 5 septembre 2016 portant sur la lutte contre le harcèlement professionnel.
[14] Republic Act 11313: Safe Spaces Act, 2018.
[15] Law on Support for Unemployed Persons and Persons Seeking Employment, 2002.
[16] Safe Work Australia, Preventing Workplace Sexual Harassment: National Guidance Material (2021).
[17] Asra Haque and Xari Jalil, ‘Problems In 2010 Anti-Harassment Act Unaddressed In 2022 Amendment’ (Voicepk.net, 20 February 2022) < https://voicepk.net/2022/02/problems-in-2010-anti-harassment-act-unaddressed-in-2022-amendment/ > accessed 10 March 2022.
[18] Ifrah Salman, ‘Tanzeela Mazhar resigns following PTV harassment case’ (HIP in Pakistan, 2 March 2017) < https://www.hipinpakistan.com/news/1151980 > accessed 14 March 2022.
[19] Noreen Bilal and Syeda Maliha Begum ‘The cases of Harassment and the performance of anti-harassment inquiry committee in news outlets: A survey of Karachi based news media’ (2017) 16 JMCD 85, 102.
[20] Ibid 97-98.
[21] Ibid 100.
[22] Act 2010 (n 2), s 3 sub-s 2.
[23] Abdul Hadi, ‘Workplace Sexual Harassment and its Underreporting in Pakistan’ (2018) 10 EJIS 148, 152.
[24] Parvez Rahim, ‘Anti–harassment law’ (The News International, 4 March 2022) < https://www.thenews.com.pk/print/938465-anti-harassment-law > accessed 10 March 2022.
[25] Act 2010 (n 2), s 2 (d); (j) “management” means a person or body of persons responsible for the management of the affairs of an organization and includes an employer.
[26] Haque (n 22).
[27] Equality and Human Rights Commission, and Harassment at Work, ‘Technical Guidance’ (2020, United Kingdom); Ministry of Women and Child Development, ‘She-Box Online Complain System’ (India) < http://shebox.nic.in > accessed 13 March 2022.
Bibliography
Bilal, N and Begum, S, ‘The cases of Harassment and the performance of anti-harassment inquiry committee in news outlets: A survey of Karachi based news media’ (2017) 16 JMCD 85.
Equality and Human Rights Commission, and Harassment at Work, ‘Technical Guidance’ (2020, United Kingdom).
Hadi, A, ‘Workplace Sexual Harassment and its Underreporting in Pakistan’ (2018) 10 EJIS 148.
Haque, A and Jalil, X, ‘Problems In 2010 Anti-Harassment Act Unaddressed In 2022 Amendment’ (Voicepk.net, 20 February 2022) < https://voicepk.net/2022/02/problems-in-2010-anti-harassment-act-unaddressed-in-2022-amendment/ > accessed 10 March 2022.
Industrial Relations Act 1990, S.I. No. 674/2020.
International Labor Office – Geneva: ILO, Violence and harassment in the world of work: A guide on Convention No. 190 and Recommendation No. 206 (2021).
Law on Support for Unemployed Persons and Persons Seeking Employment, 2002.
Loi nº 10-216 du 5 septembre 2016 portant sur la lutte contre le harcèlement professionnel.
Lopaze, K, ‘What are the different types of workplace harassment?’ [image] (TheJobNetwork) < https://www.thejobnetwork.com/what-are-the-different-types-of-workplace-harassment/ > accessed 16 March 2022.
Ministry of Women and Child Development, ‘She-Box Online Complain System’ (India) < http://shebox.nic.in > accessed 13 March 2022.
Meera Shafi v. Office of the Governor Punjab [2020] LHC PLD 54
Nadia Naz v The President of Islamic Republic of Pakistan, President House, Islamabad and others [2019] SC PLD 4570
Power Harassement Prevention Act, 2020
Rahim, P, ‘Anti–harassment law’ (The News International, 4 March 2022) < https://www.thenews.com.pk/print/938465-anti-harassment-law > accessed 10 March 2022.
Republic Act 11313: Safe Spaces Act, 2018.
Safe Work Australia, Preventing Workplace Sexual Harassment: National Guidance Material (2021)
Salman, I, ‘Tanzeela Mazhar resigns following PTV harassment case’ (HIP in Pakistan, 2 March 2017) < https://www.hipinpakistan.com/news/1151980 > accessed 14 March 2022.
Standards for Work-Integrated Learning Activities Regulations (SOR/2020-145)
The Protection Against Harassment of Women at The Work Place (Amendment) Act, 2022.
The Protection Against Harassment of Women at The Work Place Act, 2010 ACT NO. IV OF 2010.
Authors
Research Assistant
Firdes.schwkt98@gmail.com
Research Assistant
Leilamaria.faddoul@gmail.com