“I know that when I am entering my branch everyone is looking at me. It is really embarrassing… it was necessary for them to sing a song or, to make some odd joke or some comments… How can you work with concentration when you are continuously being observed from head –to-toe?”[1]
This is the voice of one of the 78 percent working women standing on the receiving end of a plethora of demoralizing and heart wrenching instances of workplace harassment[2]. Women are the makers and carriers of generations, individuals capable of securing and determining destinies of societies and nations. As highlighted by Quaid-e-Azam Muhammad Ali Jinnah (1994);
“No nation can rise to the height of glory unless your women are side by side with you”
Nevertheless, the deep rooted issue of harassment was never a foreign concept to countries like Pakistan. What makes this already barbaric reality even more jeopardizing is its interconnected nature and prevalence in workplace settings, consequently making the maintenance of economic viability of women nothing less than an insurmountable task. With only 21 percent female labour force participation rate in 2010[3] and workplace harassment finally being accepted as a non-fictional threat, an enactment passed to specifically deal with the issue was considered to be no less than a magnum-opus. Unfortunately, the Protection Against Harassment of Women at Workplace Act (PAHWWA) 2010 is just another piece of legislation which was welcomed warmly and commendably, however, not too long after its enactment, the cracks started to appear and the improper implementation methodologies were no longer hiding behind their façade. However, the question to be asked here is whether these cracks really are strong enough to declare the legislation a failure?
In its preamble, the 2010 enactment confidently claims to safeguard women from workplace harassment while giving utmost importance to their dignity. However, some of the drawbacks of the Act that are being highlighted are apparent at first glance in its definitions. The Act defines harassment under Section 2(h) as “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 intimidating, 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 concerns raised are inherent to the fact that harassment has been caged in a boundary of words that only caters to victims of sexual harassment, consequently, excluding other types of physical or verbal harassment. Despite these concerns, when looked at in terms of sexual harassment alone, the definition commendably reflects compatibility with the one encapsulated in General Recommendation no. 19 of Convention on the Elimination of all forms of Discrimination Against Women (CEDAW)[4].
Even the definition of workplace under the Enactment is subject to criticism. Section 2(n) encapsulates that workplace is “the place of work or the premises where an organization or employer operates and includes building, factory, open area or a larger geographical area where the activities of the organization or of employer are carried out and including any situation that is linked to official work or official activity outside the office”. Many have raised voices that the definition is again creating a boundary by not including domestic workers or people who are victims of harassment on transportation for the purposes of traveling to and from workplaces[5]. What is worth noting here is the fact that there are no recorded cases of covering such situations. Additionally, it seems quite likely that via the interpretative authorities of courts, the words “including any situation that is linked to official work or official activity outside the office” will welcome transportation for the purposes of work within its ambit as well.
The recent judgement given by the Supreme Court in Nadia Naz v. The President of Islamic Republic of Pakistan, President House, Islamabad and others, has been one of the driving forces of controversy. Mushir Alam, J, while commenting on the definition of harassment, emphasized that the 2010 Enactment covers only a “minute faction of harassment”. Hence, the definition was incapable of being altered to bring the petitioner, Nadia Naz’s, experience, within the realm of harassment pursuant to the 2010 enactment.
Interestingly, the 2021 judgement was not the first one highlighting this flaw. In 2013, the Federal Ombudsmen while inquiring a case[6] highlighted that the respondent being repeatedly called “jahil” (illiterate) and “badtameez aurat” (ill-mannered woman) in the presence of colleagues does not fall within the definition of harassment as per the 2010 Act.
The question to be asked here is whether widening the scope of the definition really is the optimum solution? There remains a possibility that the inclusion of all species of harassment would dilute the definition itself. Moreover, there are other Pakistani legislations dealing with issues inherent in harassment including Section 294, Section 354(A), Section 366(A), Section 509, and Section 510 of the Pakistan Penal Code (PPC) and also Section 21 of the Prevention of Electronic Crimes Act (PECA) 2016.
Notably, it is not only Pakistan where the issue prevails despite legislative action. According to a 2020 World Bank Group report[7], workplace harassment legislations have been welcomed by almost 155 states, but their compliance with international standards and their implementation methodologies are inadequately poor. What makes the situation in Pakistan more vulnerable is the taboo that comes attached with harassment. Women are discouraged and even threatened in cases of moving forward with a harassment complaint. Additionally, the consistent fear of losing employment is an additional obstacle in the path of women complaining about workplace harassment.
“The woman who fails to do so (complain about harassment) is mainly because of the consequences of raising voice. Usually the conclusion of such situation is resignation from current work place”[8]
Evidently, it may be incorrect to call the implementation of the enactment a strong suit. For instance, the very first ombudsperson of the provinces of Balochistan and Khyber Pakhtunkhwa were given the appointment in 2019. The delay in implementation and the non-serious attitude of authorities is apparent. Another dilemma is that victims of harassment are not aware of what constitutes as harassment. Lack of awareness is increasingly leading to the commission of workplace harassment. This is further evidenced by the results of a survey conducted by DAWN News[9] according to which 46.1 per cent women were unaware of the fact that sexual harassment is a punishable offence pursuant to the Protection Against Harassment of Women at Workplace Act 2010. Additionally, 48 per cent women responded that employees were never informed about the 2010 enactment and the consequences of harassment. Hence, the general awareness of the enactment and the remedies available is something capable of being improved. Not surprisingly, the female labour force participation is yet to experience a considerable climb as even in the latest data collected by ILO in 2019[10], the rate remains at 22 per cent only.
What this tells us is that the spotlight needs to be shifted on strengthening and maintaining the implementation methodologies. Undeniably, the enactment possesses strong aspects such as making it mandatory for every organization to establish an inquiry committee specifically looking into workplace harassment complaints while laying out the major and minor penalties. Similarly, ombudsmen are to be appointed at both national and provincial levels. Both of these authorities hold the potential to ensure proper implementation of the enactment. It cannot be ignored that the act is a right step forward combating workplace harassment.
One cannot help but notice that the act is filled with potential if proper implementation is ensured. Proper checks should be made to ensure that every organization has their own inquiry committee. Employers will only be able to eliminate harassment from workplaces if they themselves are trained and have adequate knowledge pertaining to the matter, hence, special training programmes should be made mandatory for employers for better implementation of an employer’s duties under the 2010 Act.
PAHWWA 2010 has completed 11 years of its journey. Even though the path that it has been travelling on has not been an easy one, it has majorly contributed in the construction of a basic framework to deal with the issues of workplace harassment. But, the taboo of harassment remains and the story continues as the stereotypical discouragement of women in workplaces remains with them majorly being placed in the victimized standing of harassment. However, it is worth noting that while trying to seek a perfect process, the authorities should not abandon a good process dealing with sexual harassment such as PAHWWA 2010.
“we need to turn the question around to look at the harasser, not the target. We need to be sure that we can go out and look anyone who is a victim of harassment in the eye and say, ‘You do not have to remain silent anymore’” (Anita Hill, 1956).
References
[1]Sadruddin, Munir Moosa. “Sexual Harassment at Workplace in Pakistan – Issues and Remedies About the Global Issue at Managerial Sector.” Journal of Managerial Sciences VII (January 2013). https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2949467
[2]“Alarming Rise in Crimes against Women: HRCP: Pakistan Press Foundation (PPF),” Pakistan Press Foundation, accessed July 25, 2021, https://www.pakistanpressfoundation.org/alarming-rise-in-crimes-against-women-hrcp/
[3] ILO, “Labour Force Participation Rate, female – ILO Modelled Estimates, June 2021 (%)”, ILOSTAT database, accessed 12 July 2021 https://www.un.org/womenwatch/uncoordination/antiharassment.html
[4] “unwelcome sexually determined behavior as physical contact and advances, sexually coloured remarks, showing pornography and sexual demand, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruitment or promotion, or when it creates a hostile working environment”
[5] Khan, Maria, and Ayesha Ahmed. “The Protection against Harassment of Women at the Workplace Act 2010: A Legislative Review.” LUMS Law Journal; III, (2016): 91–99.
[6] 2013 MLD 198
[7] World Bank Group, “Women, Business and The Law 2021” (repr., Washington, DC: World Bank, 2021), https://wbl.worldbank.org/en/wbl.
[8] Sadruddin, Munir Moosa. “Sexual Harassment at Workplace in Pakistan – Issues and Remedies About the Global Issue at Managerial Sector.” Journal of Managerial Sciences VII (January 2013). https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2949467
[9] Dawn News, “Special Report: Sexual Harassment in Workplaces In Pakistan” (repr., Dawn Media Group, 2018), https://www.dawn.com/news/1395215.
[10] Ibid 3
