Disagrees with SC; says misconduct not harassment unless it has sexual dimensions
ISLAMABAD:
The Federal Constitutional Court (FCC) has narrowed the scope of actionable workplace harassment under the Protection against Harassment of Women at the Workplace Act, 2010, holding that misconduct or other objectionable behaviour does not fall within the ombudsperson’s jurisdiction unless the conduct has a sexual dimension.
A three-member FCC bench headed by Chief Justice Amin-ud-Din Khan, in a judgment authored by Justice Ali Baqar Najafi, held that workplace behaviour could generally be described as harassment, but it would not constitute an actionable offence under the Act unless it was inherently sexual in nature.
The ruling marks a departure from the Supreme Court’s recent interpretation of the law. In a 2025 judgment, the Supreme Court held that workplace harassment could include gender-based discrimination and the creation of a hostile work environment, emphasising that such conduct could stem from power and domination rather than sexual desire.
The FCC disagreed with that interpretation, holding that the statutory definition in Section 2(h) required the element of sexual harassment for conduct to become actionable before the ombudsperson.
The court observed that any misconduct or behaviour unbecoming of an employee towards another employee or an employer could generically be classified as harassment, but would not, by itself, be actionable under the 2010 Act unless the conduct was demonstrated to be sexual in nature.
It held that grave or otherwise actionable misconduct could have serious consequences but did not fall within the statutory definition of harassment unless it had a sexual origin.
The bench noted that the Act was enacted to protect both working women and men, but specifically against harassment having a sexual dimension at the workplace.
“Undoubtedly, the Harassment Act, 2010 was legislated to protect not only working women but also working men but only against harassment having a sexual dimension at the workplace,” it said.
The court further held that conduct amounting to harassment could have a distasteful effect or injurious consequences but would not become cognizable before the ombudsperson unless it was characterised as sexual.
The judgment noted that although the preamble of the 2010 Act uses the word “harassment”, Section 2(h), which defines harassment for the purposes of the law, provides sexual harassment as the basis for actionable conduct.
The FCC also distinguished between gender-based sexual discrimination and ordinary misconduct.
It observed that gender-based sexual discrimination resulting from a prejudicial mindset and leading to discriminatory behaviour could be actionable under the Act. In the absence of the key element of sexual conduct, however, departmental disciplinary proceedings could be attracted instead.
