NORMALLY, sizing up an employee is supposed to entail an objective assessment of the individual’s ability to perform satisfactorily at the workplace. The exercise takes into account factors such as the employee’s interest in the work assigned, his or her drive, work ethics and even demeanour.

However, if ability is determined mainly on the basis of gender, then the employers, knowingly or unknowingly, have entered the realm of sexual harassment. The question of legislative competence aside, Pakistan in recent years has attempted to arrest such forms of discrimination, as well as fulfil its international obligations, by enacting the Protection of Women against Sexual Harassment Act, 2010, and amending Section 509 of the Pakistan Penal Code.

The act deals with sexual harassment scenarios in formal workplaces and organisations, but does not appear to extend to informal work arrangements. However, in relation to such work arrangements, complainants may file a civil suit for damages, or initiate criminal proceedings under Section 509 of the PPC (which could also be used for harassment scenarios in formal workplaces).

In order to establish sexual harassment claims under the act, which requires organisations to adopt codes of conduct, victims must show the causal link between an ‘unwelcome’ sexual advance, and the resulting hostile environment or diminished performance.

Moreover, in order to show a hostile environment, a series of events are usually required to be shown, although a single, severe event may be sufficient to constitute a hostile environment.

Arguably, the act appears to only cater for individuals alleging sexual harassment in workplaces involving employers, employees or members of the management. Hence, if professors at a university take advantage of their status to make sexual advances towards female students, the case would appear to fall outside the act’s jurisdiction.

Another troubling aspect of the legislation is the lack of robust consequences for making false claims against an employer. So, although complainants may be encouraged to file complaints, the lack of adequate remedy for employers renders the latter vulnerable to malicious complaints.

Procedurally, an ‘employee’ may submit his or her complaint before the inquiry committee or directly to a federal or provincial ombudsman. It may be noted that the scheme of the statute also suggests that only an employee may submit such complaints. However, sporadic references to the empowerment of ‘complainants’, that is, any person aggrieved by an act of harassment, whether an employee or not, to file complaints before the inquiry committee has resulted in apparent contradictions in the statute itself.

The inquiry committee is to be constituted of three members, including one member from the senior management and a senior representative of the employees. And at least one member must be a woman.

This constitution of the inquiry committee itself raises certain issues in relation to functionality and effectiveness. For example, considering that such committees are to comprise senior officials susceptible to liability and censure in cases of sexual harassment in offices, there may remain an interest to discourage, disregard or discredit the filing of such complaints at the organisational level.

Even if claims are filed, senior officials may attempt to discourage victims from pursuing such claims in an effort to suppress the matter. And it cannot be discounted that the filing of such complaints may result in a backlash by way of defamatory or disparaging remarks from colleagues, social isolation or an increasingly unaccommodating work environment.

Alternatively, and without approaching the inquiry committee, the employee may directly approach the federal or provincial ombudsman, or the district court, as the case may be, for the filing of a complaint under the act.

However, although the option may allow greater transparency and accountability on account of the independent nature of the ombudsman, the designation of the president of Pakistan or the governor of the province in question as the appellate forum renders such recourse risky, cumbersome and difficult. This is a result of the political nature of the persons usually occupying such posts, as well as the inordinate delays which typically arise upon preferring representations to such authorities.

In a nutshell, although the legislative measures taken are a step in the right direction, there remain areas which require the immediate attention of the legislature. Some of the legislative provisions should have been better drafted for purposes of clarity, and practical aspects of the subject should have also been taken into account.

Sadly, the inability to address the above issues may ensure that legislative provisions remain mere tools for ‘handling’ sexual harassment in workplaces, as opposed to becoming a method of eliminating it from society.

The writer is an attorney-at-law.

basil.nabi@gmail.com