This report is part of AGHS Legal Aid Cell’s campaign ‘Report SGBV – Break the Silence’.
Have you or someone you know been harassed or are being harassed at work? Do you want to do something about it, but are afraid or don’t know how?
AGHS Legal Aid Cell wants you to know that you are protected by law, specifically the Protection Against Harassment of Women at the Workplace Act of 2010.
In the past 23 years, the law has gone through some changes, as have the avenues by which you can seek justice and protection.
But what is ‘workplace harassment’?
The Anti-Workplace Harassment Act defines it as any sort of unwelcome behavior which creates a hostile, abusive or offensive work environment.
In the July 5, 2021 judgment in Nadia Naz v. President of Islamic Republic of Pakistan, a three-member Supreme Court bench headed by Justice Mushir Alam held that the definition of “sexual harassment” under the Act anly covers harassment of a sexual nature.
However, on hearing a review petition of this judgement, Justice Ayesha Malik held that under the Act discrimination on account of one’s sex also comes under the purview of “sexual harassment”.
Although the Act’s title makes it appear that it is gender-specific, the law also extends protection to men and transgender people who face or are facing sexual harassment and gender-based discrimination. Furthermore, the applicability of this definition of harassment as per Nadia Naz v. President of Islamic Republic of Pakistan extends to complaints received from 2010 to 2022.
‘The standard of a reasonable woman’
In the Supreme Court case of Nadia Naz v. President of Pakistan, it was established that the victim’s perspective and the standard of a reasonable woman should be considered to determine whether harassment took place, and all relevant factors should be viewed objectively and subjectively.
This means that the standard for determining whether an incident constitutes harassment is how a reasonable woman would perceive it. This approach acknowledges that women may have different experiences and perceptions of objectionable behavior.
Where does the law apply and to whom?
The law is applicable where there is an employee-employer relation, or if the harassment occurred at a workplace.
The key terms here are “employee”, “employer” and “workplace”, as without comprehensive definitions, there can be some unwanted loopholes in the applicability of the Act.
An employee can include a regular, contractual, part-time or freelance worker, as well as anyone employed in any other capacity. Interns, performers, artists, athletes, domestic workers, and apprentices, regardless of whether they are working for remuneration or on a voluntary basis, are also defined as employees under the Act,
An employer on the other hand is an individual or a body of persons who employ workers. This can include the director, administrator, manager, office bearer, proprietor, contractor, freelance employer, online or remote business owner, and home-based work employer, among others.
The Act is not limited to just traditional workplaces like offices, factories, and businesses. It also counts places where services are rendered or where professionals can perform, such as educational institutions, gigs, concerts, studios, and sports facilities.
How to file a civil complaint
Some people are under the impression that the only way to lodge a formal complaint against an incident of sexual harassment is to go to the police to file an FIR. However, under the law, a person can approach their workplace’s Inquiry Committee or the Federal or Provincial Ombudsperson for Sexual Harassment to lodge a civil complaint.
Why is this distinction important? Civil complaints by an Inquiry Committee or Ombudsperson are usually confidentially heard under the anti-workplace harassment act, whereas criminal complaints under the Pakistan Penal Code are tried in public court hearings.
Any aggrieved person can file a civil complaint. If the victim is a minor, as is sometimes the case in internships and domestic work, then the minor’s parents or guardians can lodge the complaint on their behalf.
- Step 1: Record what happened and keep your evidence safe
Keep a written record of the incident. Make notes of when and where it happened, how it made you feel, who was present, what was said or done, and if there were any witnesses. If you have any documentary, audio, video or any other form of evidence, keep it safe with you. It’s also a good idea to tell a trusted colleague about what happened.
- Step 2: Review your workplace’s harassment policy
Under the law, organizations, institutions, businesses and other workplaces are required are required to have a sexual harassment policy in place and to establish an inquiry committee. Find out if your organization has a sexual harassment policy. If so, follow the complaints procedure specified in the policy.
- Step 3-A: Send a complaint to the Inquiry Committee
Report the incident, either verbally or in writing (but preferably in writing so you can keep a record), to your supervisor or to your workplace’s Inquiry Committee immediately. The sooner you file a complaint once the incident has occurred, the better.
If you feel uncomfortable in doing this yourself, you can always ask a trusted co-worker to report the incident on your behalf and submit a complaint.
Your workplace’s Inquiry Committee is expected to conduct an informal investigation. During this phase, the Committee may also approach your harasser in order to mediate a resolution in a confidential manner.
The Inquiry Committee is legally required to decide cases within 30 days of receiving a written complaint.
- Step 3-B: Send a complaint to the Ombudsperson
If
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your workplace does not have a sexual harassment policy or an Inquiry Committee; or
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you are not satisfied with the decision of the Inquiry Committee; or
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you continue to face harassment at work despite submitting a complaint
then you can submit your complaint directly to the Federal or Provincial Ombudsperson for Sexual Harassment.
Either party, that is the accused and the victim, can appeal for a review to the Ombudsperson. However, it’s important to note that the review appeal should be filed within 30 days of the Inquiry Committee’s decision.
Alternatively, you can also directly file a formal complaint with the Ombudsperson through the Federal Ombudsperson Secretariat for Protection Against Harassment (FOSPAH).
The Ombudsperson provides an independent avenue for addressing workplace harassment. They may request more details, information and documents from you, from relevant offices and departments, as well as other employees of your workplace.
Once the investigation is complete, the Ombudsman records their decision and informs both parties, while your workplace’s management or administrative body is responsible for implementing the Ombudsman’s orders.
- Step 4: Submit an appeal to the Governor or President
If you are not satisfied with the decision of the Ombudsperson, you can appeal to the President or Provincial Governor. They will decide your case within 90 days on receiving the appeal.
The President or Governor’s verdict is final.
How to file a criminal complaint
If you have experienced severe harassment and wish to pursue criminal charges, you can file a First Information Report (FIR) under Section 509 of the Pakistan Penal Code (PPC), 1860.
Complaints filed under the Workplace Act 2010 are handled with complete confidentiality by the Inquiry Committee or the Ombudsperson. However, complaints under Section 509 of the PPC are tried in a court during a public hearing.
Filing a complaint under Section 509 of the PPC establishes criminal liability, imposes harsher punishments, and has no requirement for an employee-employer relationship or workplace harassment. Moreover, the section has a broader definition of harassment.
What are the penalties for sexual harassment?
The punishments for an individual or group found guilty of sexual harassment can range from minor penalties to strict actions.
Minor penalties can include censure, withholding promotion or increments, compensation.
Major penalties may include demotion, forced retirement, dismissal, suspension or cancellation of a professional license, or even a hefty fine.
It is up to you to report workplace harassment.
Having learned how to report harassment, the choice of your next step is up to you. However, please be aware that support is available to assist you, including at AGHS Legal Aid Cell.
