The Federal Constitutional Court has narrowed the workplace harassment law to conduct of a sexual nature. Parliament, and most of the Commonwealth, has already moved beyond that view.
What is harassment? For a working woman in Pakistan, the answer has shifted with unsettling frequency over the past five years. The latest shift comes from the Federal Constitutional Court which, in the Usman Shahid v. Nadia Sarwar, has held that the definition in section 2(h) of the Protection against Harassment of Women at the Workplace Act, 2010 is exhaustive, and that conduct must be sexual in nature before an ombudsperson can act upon it. Hostility, humiliation and discrimination directed at a woman, however grave, fall outside the Act unless they carry a sexual character. In the Court’s own aphorism, every sexual harassment is a harassment but not every harassment is sexual.
The judgment is significant for two reasons: First, it reinstates a narrow construction that the Supreme Court had itself abandoned when, on review in 2023, it recalled its restrictive ruling in the Nadia Naz case and held that the Act, purposively read, reached gender discrimination. Second, the Federal Constitutional Court expressly declined to follow two subsequent Supreme Court decisions to the same effect, asserting that its own view now prevails. Whatever one makes of that assertion, ombudspersons, tribunals and complainants must now reckon with the judgment.
The decision can be defended on its own facts. The complaint concerned events of 2012 and 2013, and the Court construed the definition as it then stood. But its reasoning is expressed in general terms, and read in isolation it describes a statute that no longer exists. In January 2022, Parliament restructured section 2(h) into two limbs. The first retains the familiar catalogue of unwelcome sexual advances, requests for sexual favours and sexually demeaning attitudes. The second reaches “discrimination on basis of gender, which may or may not be sexual in nature”. The judgment does not mention this amendment.
The omission matters, because the Federal Constitutional Court own method points towards the answer. It reasoned that, had the legislature intended harassment beyond the sexual to be actionable, that intention would have been manifest in the Act itself. It is. Parliament did precisely what the Court said would be required, and did so in unambiguous language. A textualist reading of the amended provision therefore compels, rather than forbids, the protection of women against gender-based hostility that has nothing to do with desire.
There is also a conceptual difficulty. The Court read “sexual” as relating to instinct, physical attraction and intimate contact. Apex courts elsewhere in the Commonwealth have declined so narrow a reading. English law treats conduct as sexual if a reasonable person would regard it so, whether by its nature or by its circumstances and purpose; gratification is neither necessary nor sufficient. The Supreme Court of Canada, in the R v. Chase, asks whether the sexual context of the conduct is visible to a reasonable observer, attending to the words and gestures that accompany it. Neither test asks whether the harasser was attracted to his victim.
Indeed, the reasoning the FCC adopted has been tried before, and rejected. In the Janzen v. Platy Enterprises (1989), a Canadian appellate court held that two waitresses harassed by their employer had not suffered sex discrimination, because they were targeted for their attractiveness rather than their sex. The Supreme Court of Canada reversed, holding that sexual harassment is a form of sex discrimination and, at bottom, an abuse of power. India’s Supreme Court, which defined sexual harassment in Vishaka (1997) as unwelcome “sexually determined behaviour”, warned two years later in Apparel Export Promotion Council v. A.K. Chopra that such questions must not be resolved by dictionary meaning.
None of this is merely semantic. In practice, much of what working women experience is not a proposition but a pattern: exclusion from decisions, ridicule of their competence, contempt for conditions peculiar to their bodies, retaliation when they complain. A test confined to sexual overtures risks leaving the commonest forms of workplace hostility beyond the only specialised forum the law provides.
How has the rest of the Commonwealth answered the question whether harassment can be non-sexual: almost uniformly, in the affirmative, through four distinct legislative models.
The first treats harassment related to sex as a wrong separate from sexual harassment. Britain’s Equality Act 2010 prohibits, in one subsection, unwanted conduct related to sex that violates dignity or creates a hostile environment, and, in the next, unwanted conduct of a sexual nature. Australia, after the Human Rights Commission’s landmark Respect at Work inquiry of 2020, added a prohibition on harassment on the ground of sex in 2021, first confined to “seriously demeaning” conduct and relaxed in 2022 to “demeaning” conduct, and imposed on employers a positive duty to prevent sexual harassment, sex-based harassment and hostile workplaces alike. Australia’s sequence, a sexual definition later supplemented by a sex-based one, is almost exactly the path Pakistan’s Parliament took in 2022.
The second treats harassment as a species of discrimination. South Africa’s Employment Equity Act declares harassment of an employee on any prohibited ground, sex and gender included, to be unfair discrimination.
The third, drawn from occupational health and safety law, protects workers from harassment whatever its basis. Canada’s Labour Code defines harassment as any action, conduct or comment, “including of a sexual nature”, that can reasonably be expected to cause offence, humiliation or psychological injury. Quebec prohibits “psychological harassment”; Similarly, Australia allows a worker subjected to repeated unreasonable behaviour to seek an order to stop the bullying. The Canadian formula inverts the FCC’s aphorism: sexual conduct is one instance of harassment, not its defining condition.
The fourth recognises harassment as a general legal wrong. Under Britain’s Protection from Harassment Act 1997, the House of Lords held in Majrowski (2006) that an employer may be liable for a manager who criticised an employee’s work, isolated him, abused him before colleagues, set unrealistic targets and threatened disciplinary action. Not one of those allegations was sexual; each is familiar to working women in Pakistan.
India is the notable exception: its 2013 statute remains confined to sexual conduct, leaving other hostility to service rules and constitutional guarantees. The international standards point firmly the other way. The CEDAW (Convention of the Elimination of All Forms of Discrimination Against Women) Committee has long treated sexual harassment as gender-specific violence that impairs equality at work, and ILO (International Labour Organization) Convention 190 of 2019 defines harassment by reference to physical, psychological, sexual or economic harm, of which sexual harassment is one form among several.
Pakistan’s 2022 amendment thus placed the country within the Commonwealth mainstream. Were the FCC’s general language applied to the amended Act, Pakistan would stand beside India as an outlier on a question that its own Parliament has already answered.
What, then, should follow? The first response lies with the ombudspersons, federal and provincial. The judgment interprets the unamended definition and should be read as authority on that text alone. Complaints concerning conduct after January 2022 fall to be decided under both limbs of the amended section, and ombudspersons would do well to say so explicitly, identifying in each decision whether a finding rests on sexual conduct or on gender discrimination. Clarity at the first instance matters all the more because the same judgment treats the President’s decision on representation as largely beyond routine judicial review, so that the record built before the ombudsperson may be the only record that counts.
The second response lies with Parliament. A short declaratory amendment confirming that the second limb operates independently of the first, and requires no sexual element, would remove any doubt. Parliament might also borrow from Australia and Britain a positive duty on employers to prevent harassment, and state the standard of proof before the ombudsperson as the balance of probabilities, lest the Court’s emphasis on independent corroboration be read as a quasi-criminal threshold in a field where harassment characteristically occurs without witnesses.
The third response is institutional. The questions the judgment raises, on the scope of the amended definition and on the relationship between the Federal Constitutional Court and the Supreme Court, are too important to be left to accident. An appropriate post-2022 case, or a reference under the court’s advisory jurisdiction, would allow the Federal Constitutional Court to address them directly, with the amendment and the comparative experience squarely before it.
The Act was born of a simple conviction that women are entitled to work with dignity. Dignity can be violated by a leer, but also by a sneer, by a pattern of exclusion, by contempt for a woman’s body or her competence. Parliament recognised as much in 2022; so has most of the Commonwealth. It would be regrettable if the new interpretation were read as taking the country back to a narrower vision that its own legislature has already left behind.
Copyright Business Recorder, 2026
The writer is a Karachi-based lawyer at ADL LAW CHAMBERS