SEXUAL harassment encompasses many behaviours — assault and battery, stalking, unwanted physical contact or attention, undesired comments on a person’s dress or body, jokes and innuendoes about women or gender nonconforming persons, exposing and sharing sexual material, or using blackmail, threats, or offering benefits in exchange for sexual favours. Much of this array of offending behaviour is penalised by criminal, civil rights and tort law. But it was the #MeToo movement across the globe and in Pakistan that exposed the magnitude and ubiquitous nature of the problem. It was cathartic for some survivors, who felt silenced or let down by the justice system, to share their stories.
In Pakistan, the National Commission on the Status of Women found that 50 per cent of women they interviewed from the public sector had faced sexual harassment. To protect women in the workplace against this harm, and to enhance their safe participation in the workforce, parliament enacted the Protection against Harassment of Women at the Workplace Act in 2010, which made it mandatory for all employers to form inquiry committees to investigate claims of sexual harassment.
In order to constitute sexual harassment under the act, the conduct must meet a two-pronged test. It must be unwelcome behaviour of one or more of the following kinds: sexual advances, requests for sexual favours, oral or written sexual communication, sexual contact or touching, and sexually demeaning attitudes; second, this behaviour must interfere with the employee’s work, or create an intimidating, hostile or offensive work environment, or be made a condition for employment.
A recent LHC decision interprets the law to cover all kinds of workplaces and work arrangements.
The definition of sexual harassment in Pakistani law almost mirrors the legal standard prescribed for the same by the US Equal Employment Opportunity Commission. In the 1970s and 1980s, American courts interpreted the law on sexual harassment, and framed it as a form of discrimination on the basis of sex and a violation of Title VII of the Civil Rights Act, 1964 — an anti-discrimination employment statute.
A study that analysed 650 cases in US federal courts found judges adjudicated favourably in cases where the offending behaviour was against one person rather than women, involved physical contact, or where the communication was overtly sexual as opposed to non-sexual but sexist, demeaning or discriminatory. Two typical forms of sexual harassment accepted in American courts include quid pro quo harassment where an explicit request for sexual favours is made in return for economic or job-related benefits, and a pervasively hostile work environment claim where an employee must endure verbal or physical abuse as part of their employment.
The Pakistani statute defines sexual harassment to include both quid pro quo and hostile work claims. A recent Lahore High Court decision (Asif Saleem, 2019) outlines sexual harassment law in a few countries and interprets the act to cover all kinds of workplaces and work arrangements. This is positive and shows that our courts, emboldened by media coverage and advocacy, are willing to direct the evolution of this law in our own context.
The court discusses how the 2010 law is a manifestation of constitutional guarantees to women — equality (Article 25), full participation in national life (Article 34) and dignity (Article 14). It deliberates on how sexual harassment discourages women from employment and hinders their contribution. It dismisses the claim that women file such claims to ‘trap’ men.
To assess whether harassing behaviour constitutes an abusive or hostile work environment, the court cites the practice in some American courts that opt for a ‘reasonable woman’ benchmark. Women’s sensibilities about what constitutes a corrosive work environment may differ from men. It’s a fairer indicator and should be applied in Pakistan. In interpreting harassment as discrimination, courts could find that “sexually demeaning attitude” includes sexist comments, efforts to undermine women’s role in the workplace, belittle their work, or prevent their advancement and leadership.
Since sexual harassment is a form of discrimination against women, Pakistani institutions must eventually address the informal sector. The act was conceived for formal workplaces with standard employer-employee relationships. But most women in Pakistan work in non-traditional work settings such as agricultural, domestic and home-based work. They may approach the ombudsperson directly or file a criminal case. But both are impractical remedies due to socioeconomic constraints. Hence, the harm they suffer is double — traditionally, they’ve had no protection from labour laws, and sexual harassment laws provide only a tenuous coverage.
Feminist theorists have played a critical role in developing the concept of workplace sexual harassment. Catherine MacKinnon authored the groundbreaking Sexual Harassment of Working Women in 1979, recounting stories of sexually charged behaviour women had to put up with at work for decades. In the gendered workplace, it works as a tool to maintain female subordination and their status as outsiders, and to enforce masculine norms. Studies show even women in supervisory positions face sexual harassment, sometimes from those inferior or equal to them. The abuser weaponises harassment to ‘level’ the playing field. Gender nonconforming persons are also targeted, and sexual harassment becomes a way of policing gender.
Some feminists alert us to the moral symbolism in the requirement that the sexual words or acts be ‘unwelcome’. This connotes that some sexual behaviour at the workplace is not ‘unwelcome’, thereby allowing courts to scrutinise a victim’s character, past or otherwise, and shift blame away from the harasser. The requirement that the sexual conduct be ‘unwelcome’ is unfortunately part of the Pakistani statute as well.
In Pakistan, conversations around #MeToo have encouraged many to come forward with their stories. Women’s rights activists have to constantly recalibrate the debate — that harassment is not a rite of passage one must patiently tolerate in order to progress in one’s career; that the focus should be on the overwhelming harassment working women face, and not the few cases that may be frivolous; that sexual jokes and comments are not ‘men being men’ (tharak as normal) but indeed harmful and vindictive male gossip.
The writer teaches law and works with human rights organisations.
Published in Dawn, June 8th, 2019