A victim’s perspective…. Rida Hosain
Was it an act of a sexual nature? is a central question in any workplace harassment claim. If the answer was no, it previously did not constitute harassment under the Protection against Harassment of Women at the Workplace Act 2010.
Not only did victims have to establish harassment, but they also had to face the added burden of proving that the actions had a sexual intent or overture which was evident from the behaviour of the accused.
In a judgment authored by Justice Mushir Alam, it was held that the 2010 Act protected only against harassment having sexual nature at workplace, and, therefore, any conduct amounting to harassment of any other kind and nature…howsoever distasteful and injurious, is not made cognisable. Conduct which amounted to harassment (but had no sexual intent or overture) was excluded from the scope of the workplace harassment law. This interpretation was overly restrictive and far too many victims were denied the benefit of a law intended to protect them.
Quid pro quo harassment occurs when submission to sexual conduct is made a prerequisite to an employment benefit. The glaring problem however was that harassment on account of gender which created a hostile and abusive work environment but did not have sexual overtones was completely excluded from Justice Alams interpretation. Intimidation and hostility towards women because they are women can obviously result from conduct other than explicit sexual advances, per a court of appeal in the US.
Justice Ayesha A Malik, in review jurisdiction, has overturned and revisited this definition of harassment. According to Justice Malik, the error in the original decision is significant and can not be ignored. The review judgment has a meaningful impact for victims of workplace harassment.
Justice Malik adopts an expansive definition of harassment. She states that sexual harassment is not limited to sexual activity and includes discrimination on account of gender. This can include behaviour which is intended to degrade and demean a person by exploitation, humiliation and hostility on the basis of their gender.
Essentially, harassment can be based on sex if the victim can show that they were the object of harassment because of their gender. This constitutes harassment at the workplace when it interferes with work performance and/or creates an intimidating or hostile work environment. Consider the case of a male employer that repeatedly uses abusive and gendered language with female employees, or the case of a male employee who physically grabs female employees to try and intimidate them. These behaviours may not have sexual overtones but can clearly create a hostile work environment.
Victims of such harassment were left unprotected under the previous interpretation of harassment under the 2010 Act. The inclusive interpretation by Justice Malik gives them protection.
Second, the definition of harassment in the 2010 Act was amended by parliament to expressly include discrimination on the basis of gender, which may or may not be sexual in nature. This amendment to the federal law took place in 2022 and applies prospectively. This means victims of harassment from 2010 till 2022 are still subject to the pre-amendment definition of harassment.
Justice Alam states the 2010 Act was a myopic piece of legislation and focused only on a minute fraction of harassment ie sexual forms. Justice Alam has held that the fault was in the law. Justice Malik does not agree. She has held that the cardinal rule of statutory interpretation is to look at the object and purpose of the law.
Justice Malik finds the intent and purpose behind the enactment of the Act was to address harassment at the workplace which is prompted on account of gender and was not limited to a sexual form of harassment.
The willingness to harmonise the text with the purpose of the legislation is important. It gives effect to the reason for introducing the law, instead of confining it in a manner which is at variance with the purpose of the law.
Debates in parliament reveal that this is a law introduced to create a safe working environment free of sexual harassment, abuse, intimidation. The purpose was to build on principles of equal opportunity for men and women in the workplace. It was never intended to protect only against unwelcome conduct of a sexual nature.
It is a fallacy to believe that sexual harassment is always about sexual interest. It is frequently more about reinforcing existing power dynamics according to the International Labour Organisation. It often involves men asserting power and dominance over women to preserve the inequalities at the heart of our deeply patriarchal society.
Justice Malik states that the standard of a reasonable woman should be considered to determine whether there was harassment. A reasonable woman standard differs from a reasonable person standard. It acknowledges that in matters of harassment, women and men may have different conceptions of what constitutes objectionable behaviour. Justice Maliks judgment centralizes the perspective of the victim in decision-making.
In France, Sandra Muller, on appeal, won a defamation case filed against her by the man she accused of harassment. After the decision, Ms Muller said, Before the ruling, I thought there were stirrings. Now I have the impression that theres been a leap forward. Decisions which focus on the victims perspective matter. Not just for the victim, but for all the victims of harassment.
In a society like ours, victims are silenced and told to suck it up. Women are told it is the price they must pay for the privilege of working. So, when a woman judge fights back, it matters. It is encouraging that our courts are putting the victim at the centre of decision-making and willing to interpret legislation in accordance with its legislative intent.
Time is up.
The writer is a lawyer. She tweets @RidaHosain
Courtesy The News