FCC Judgement on Workplace Harassment
The Federal Constitutional Court (FCC) recently dismissed a harassment claim filed by an employee of the National Bank of Pakistan (NBP). Some reports suggest the court has limited the workplace harassment law to only sexual incidents. This is not correct.
The correct position of the law is this: allegations of workplace harassment before 2022 must involve conduct of an overtly sexual nature. Actions after the 2022 amendment are covered if they are overtly sexual or rooted in gender-based discrimination.
Definition of Harassment Before 2022
Prior to January 2022, harassment was defined to cover “any unwelcome sexual advance, request for sexual favours 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”.
Definition of Harassment After 2022
The definition was amended in January 2022 by adding: “discrimination on basis of gender, which may or may not be sexual in nature, but which may embody a discriminatory and prejudicial mindset or notion, resulting in discriminatory behaviour on basis of gender against the complainant” (Section 2[h][ii] of the Act).
The court interpreted the original definition restrictively, following the reasoning of the first Nadia Naz judgement.
Why the Law Was Amended
The amendment was made after the 2021 Supreme Court decision in Nadia Naz vs President of Pakistan. That case analysed the original definition and concluded that the law only covers harassment of an overtly sexual nature.
The 2022 amendment fixed this limitation. It explicitly includes gender-based discrimination within the meaning of harassment.
The amended definition does not apply retrospectively. It only covers actions that take place after the amendment.
Supreme Court Review in 2023
In 2023, the Supreme Court reviewed the Nadia Naz judgement. It held that the original definition was broad enough to include gender-based discrimination. The court said harassment should include conduct that is not overtly sexual but amounts to gender-based discrimination. It declared that the earlier interpretation was too restrictive.
However, this does not make the 2022 amendment redundant. When the legislature amended the definition in 2022 to cover gender-based discrimination, it implied the earlier definition was restrictive.
What the FCC Decided
The FCC interpreted the original definition restrictively, following the first Nadia Naz judgement. It did not refer to the 2022 amendment because the incidents in the case happened before the amendment. The amended definition does not apply to those facts.
The harassment in this case was overtly sexual in nature. Evidence from the Islamabad High Court and the ombudsperson showed that the complainant faced unambiguously sexual harassment. The FCC did not consider this conduct to fall within the scope of the original definition.
The FCC has not overruled the 2022 amendment. The expanded definition (Section 2(h)(ii)) still stands. It applies only to incidents that took place or are alleged to have taken place after the amendment. Prior incidents are covered by the original definition, interpreted restrictively.
What This Means for Workers
After the FCC ruling, many people believe gender-based discrimination at work is not covered by the law. This is not true. People on workplace harassment committees have said their mandate is now restricted to only sexual incidents. They must be reminded that it is not.
The writer is a lawyer and the author of Progressive Laws In Patriarchal Societies.
Published in Dawn, November 8th, 2026
Source: dawn