Sexual Harassment

2020-02-09

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Sexual Harassment

Sexual harassment involves unwanted or unwelcome behavior, which can offend, humiliate, and intimidate a person while creating a hostile working environment.

Sexual harassment includes but is not limited to:

  • Making unwelcome sexual advances.
  • Verbal harassment or abuse, verbal or written communication (it includes narration of sexual incidents, emailing or messaging or showing explicit sexual content in print or electronic form (SMS, Email, Screensavers, Posters, CDs etc).
  • Request for sexual favors (invitations for sex, requests for going out on dates)
    Physical conduct (like touching, kissing, patting, pinching, physical assault like rape etc).
  • Sexually demeaning attitude (leering or staring at a person’s body.

Any of the above-mentioned acts are included in harassment, if it is unwelcome and is causing interference in work performance or creating a hostile working environment or the harasser attempts to punish the complainant for refusal to comply with his/her requests and makes sexual favors a condition of employment.

  Laws relating to sexual harassment in Pakistan.

Pakistan has enacted a new law namely “The Protection Against Harassment of Women at Workplace Act, 2010” since last year. This is the first time that sexual harassment has been defined in Pakistan through a legislative instrument. Before this enactment, there was no clear definition of harassment, whether in public, private, or workplaces. Section 509 of Pakistan Penal Code 1860, talked about “insulting the modesty” of a woman but there was no clear definition of “modesty”. Moreover, there was no law to prohibit harassment in the workplace.

Last year (2010), the Government of Pakistan not only enacted a special law for preventing sexual harassment at the workplace but also amended section 509 of the Pakistan Penal Code. Now it clearly defines harassment and includes harassment at the workplace as well. It has also raised the maximum punishment for perpetrators from one to three years. Now under section 509 of Pakistan Penal Code, insulting the modesty of women or sexually harassing them, is a crime. The perpetrator of this crime may be punished with imprisonment, which may extend to 3 years or fine up to PKR 500,000 (5 lakh) or with both. However, this crime is still bailable and compoundable (parties can settle the case between themselves even when matter is in the court, after permission of the court).

 sexual harassment  at workplaces

According to the 2010 law, sexual harassment manifests itself at a workplace in the following three forms

“Abuse of authority” or Quid Pro Quo harassment …..demand of sexual favors by a person in authority; a supervisor, a person in higher management, employer, and making it a condition of obtaining certain job benefits which may include
Wage increase
Promotion (to a higher grade)
Training opportunity (within or outside the country)
Transfer (to another place, department, etc)
Job itself
“Creation of Hostile Working Environment”
any unwelcome advances,
request for sexual favor,
other verbal or physical conduct,
Which interferes with an individual’s work performance or creates a hostile and intimidating work environment

Retaliation….If the victim refuses to grant sexual favors, the perpetrator can retaliate in following ways:
Limiting an employee’s options for training, future promotions
Distorting the evaluation (annual confidential reports)
Generating gossip against the employee
Limiting access to his/her rights (right to complain, right to work with dignity, right to promotions, wage increases etc)

If I become a victim of sexual harassment, what should I do according to this law?

It is recommended that you should follow these steps whenever you encounter sexual harassment.

First Step…..You need to make it clear to the harasser that you don’t like his/her advances (his advances are unwelcome/unwarranted),
Second Step…..Even if you don’t want to make a formal complaint, do inform some trustworthy colleague in your organization,
Third Step….If you want to lodge a complaint in an informal way, you or your designated person can informally report this incident to your supervisor or inquiry committee,
Fourth Step…..You can also launch a formal complaint to your supervisor or inquiry committee through your supervisor, CBA (union) nominee or worker representative (in case of absence of union),
Fifth Step….For filing a formal complaint, you have three options:
Either report the incident to the Inquiry Committee constituted within your organization (Section 4)
Report directly to Federal/Provincial Ombudsman, appointed under this act (Section 8)
Report directly to Police (under Section 509 of PPC)
It is better to initiate a complaint inside your organization.

Sixth Step…. If you are not satisfied with the decision of inquiry committee and competent authority (of your organization), you can appeal to Ombudsman or a District Court (in case, Ombudsmen are not appointed)
Seventh Step….If you are still aggrieved by the decision of Ombudsman/District Court, you can make a representation to the President or Governor for justice.
If must be reminded that appeal option is available to all parties i.e., both accused and the victim can appeal against decisions.

Is any unwelcome act occurring at the workplace only to be considered as sexual harassment?

Not necessarily. Section 2 of this act says that it can include “any situation that is linked to official work or official activity outside the office”. So, it can occur outside the office when a colleague is harassing other workers outside the office or while commuting on employer-provided transport, in a social event like employer organized dinners, lunches, training events, or dealing with clients outside one’s office. And the workplace for a marketing employee is not a building; rather the whole marketing area is her workplace.

Can an employer discriminate against witnesses or complainants for lodging complaints?

According to law, no adverse action can be taken against complainants or witnesses (of any side) for lodging complaints of harassment. This is also required of the inquiry committee to make sure that the complainant is not pressurized by the employer or accused to withdraw your complaint. Moreover, some parts of the fine that convict is required to pay, will be given to complainant as compensation.

What types of punishments are provided under this law?

If you lodged complaint within your organization i.e. to the inquiry committee, following two types of punishments can be given to the guilty person. The Competent Authority can impose one or more of the following penalties on recommendations of the inquiry committee.

Minor Penalties

Censure
Withholding increment or promotion, for a specific period of time
Stopping at an efficiency bar in timescale, for a specific period of time
Recovering compensation from pay or any other source of guilty person (this compensation has to be paid to victim)
Major Penalties

Reduction to a lower post or lower time-scale
Compulsory retirement
Dismissal from service (it disqualifies for re-employment)
Removal from service
Fine
While, if you have lodged your complaint directly to Police, the convict can be imprisoned for a maximum term of 3 years, or fined with a maximum sum of PKR 5 Lakh or with both.

I am an employer. What do I need to do to comply with this law?

You are required under this law to constitute an Inquiry Committee, which will enquire into all complaints of harassment. The Committee should have 3 members; at least one of them must be a woman, one person from senior management, and the other a workers’ representative or a CBA representative (where a union exists). You can also take members from outside the organization, like some respectable members of the community.

It is your responsibility to ensure compliance with this act and incorporate the Code of Conduct for protection against harassment at workplaces as part of your management policy. You are also supposed to display copies of this code in English and other languages understood by the majority of employees (be it Urdu, Balochi, Pashto, Punjabi, or Sindhi) at some prominent place (like notice board) and educate your workers about it.

Moreover, if a victim of sexual harassment is in trauma, you are required to arrange for him/her psychosocial counseling or medical treatment, besides granting additional medical leave, if required. You are also required not to discriminate against a complainant.

If you are found not complying with the law, you can be liable to fine, which may extend to PKR 100,000 (one lakh) but shall not be less than 25 thousand rupees.

What if I am accused of harassment by an alleged victim with mala fide intentions?

The Inquiry Committee can recommend to Ombudsman for appropriate action against the complainant if it is found that allegations leveled against you are false and with mala fide intentions.