Overarching Responsibility of Businesses to Curb Sexual Harassment Against Women in Workplaces in Pakistan

Introduction

Sexual harassment is, unfortunately, one of the most prevalent[1] and also one of the most silenced gender-based violence in Pakistan. While sexual harassment is censured legally, ethically and morally by all, at present there is a lacuna in work-place policy making against sexual harassment.

Although a very broad area of concern, this article will briefly identify the enactment of laws in Pakistan to protect women against sexual harassment, assess their viability and build a case for recognizing the importance of the set of responsibilities under the United Nations Guiding Principles on Business and Human Rights.[2] The business and human rights regime has a great potential to mandate businesses to adopt a human-rights based policy in order to fulfill their obligations under soft as well as hard law.

In light of the UN Guiding Principles, this article will espouse the important role that businesses can play in building a culture of respecting human rights, especially in the context of sexual harassment against women in workplaces in Pakistan. The success of such an approach by businesses will be manifested by adopting redressal mechanisms in an attempt to implement their rights-based internal operational policies.

An overview of Pakistani law on sexual harassment against women in workplaces

Although Pakistan Penal Code (1860) criminalizes misconduct towards women and there are several provisions within the Pakistan Penal Code (1860)[3] that may deter sexual harassment, but a more specific law against sexual harassment is found under the Protection Against Harassment of Women at Workplace Act, 2010. This Act was a much-needed piece of legislation as it recognized the seriousness of sexual harassment against women. Section 3 of the Act requires each organization to set up an inquiry committee to enquire into complaints under this Act. Section 3(2)[4] also mandates that at least one member of the inquiry committee must be a female. The Act further provides procedure to swiftly handle the complaint.[5] Broadly, the legislative instrument holds an ambition to curb sexual harassment in the workplace by facilitating an active management of harassment-related issues.

However, there are many shortcomings within the Act which obstruct and limit its overall reach. For example, section 2 defines “organization” in a restricted manner. Within the District Government, the Act covers education institutes and medical facilities only. In the private sector, the Act does not include unregistered establishments. This places a large number of unorganized businesses outside the scope of the Act. Women as students of schools, colleges, and university are also outside the scope of this law.[6] The recently reported allegations against a drama teacher in Lahore Grammar School are a manifest example of incidence of such human-rights breaches in our everyday lives;[7] it is an infringement without a proper remedy in most cases. If true, students in this case were certainly not protected by the harassment law regime as has been enacted in Pakistan.

Irrespective of the availability of legal guarantees in Pakistan, the aim of this article is to highlight the importance of building a self-evaluative culture and a self-regulatory mechanism within businesses in order to create safe working environments. Without doubt, a state is the primary guardian of its citizens’ rights, however, a large-scale implementation of the legal standards by the state in every case is almost impossible. The realm of social discourse and adoption of soft law by enterprises can therefore play a pivotal role in upholding human rights especially with regards to sexual harassment in work places.

UN Guiding Principles on Business and Human Rights in the Context of Pakistan

The UN Guiding Principles on Business and Human Rights offer a comprehensive set of responsibilities on states and businesses to ensure respect of human rights in various contexts. These principles emerge from the treaty-based rights which form part of the corpus of international human rights law. Pakistan is a party to many international human rights treaties and has also enacted several human rights based laws.[8] Although international human rights treaties do not impose direct legal obligations on companies, in this respect, national laws may nonetheless be weak or lacking in scope or effect. Thus, the UNGP provide that where national laws fall below the standard of internationally recognized human rights; the companies should respect the higher standard.[9] In the context of sexual harassment, this would require businesses and even judiciary to uphold internationally recognized standards of human-rights practices.

It is notable that in 2019 Pakistan launched a nation-wide agenda to adopt the UN Guiding Principles on Business and Human Rights. The aim of the program is to develop a National Action Plan to ensure that businesses operating in Pakistan are Business and Human Rights compliant (BHR complaint). In pursuance of this National Action Plan, it was noted that UNGP adopts a 3 Pillar approach of “Protect, Respect and Remedy” framework. This places upon the state, a duty to protect; upon business enterprises, a duty to respect; and upon judicial and non-judicial bodies, a duty to provide effective remedy. The ideal situation is however far from reality.

As far as protection of women against sexual harassment at workplaces is concerned, there is an increasingly disturbing and unsettling working environment which is aggravated by inadequate policy implementation in workplaces. It is even more troubling that many work place harassment acts often go either unreported or un-heard. This contributes towards the overall gender-based discrimination in work-places. An environment which is distressing for a female worker automatically discourages women from becoming part of a business-setting. It is imperative that corporations take the initiative to promote respect for human rights as their primary undertaking.

Corporate Respect for Business and Human Rights

Despite the fact that they do not create new international law obligations, the UNGP are a milestone achievement in international law. They allow corporations to especially focus on existing human rights in the corporate perspective as they are attributed a special duty to respect human rights, under the BHR regime.^[10] This duty to respect is the foundation of any legal or ethical enforcement of human rights against corporate enterprises. Therefore, protection from sexual harassment falls within the scope of corporate governance and social responsibility.^[11]

According to Principles 11-14, UN Guiding Principles on BHR, business enterprises should avoid and mitigate the adverse impacts of any human rights infringement,^[12] regardless of the size of a business or its sector of operation. In the context of sexual harassment, this requires businesses to be active in internally enforcing their policy on the issue of sexual harassment at senior-level of a company. This entails that a proper system of accountability must be in operation across the multitude of businesses across the country. All kinds of harassment at workplace are thus within the purview of active duties of a company. This active role in respecting human rights has been enhanced through Principle 17, which prescribes a duty to account for how the businessesaddress adverse human rights impacts; by requiring human rights due diligence in their corporate practice. In the opinion of John Ruggie, according to Jonathan Bonnitcha, ‘human rights due diligence’ is at the heart of the UN Guiding Principles on BHR.^[13] Such due diligence is maintained by engaging in consultation with internal and external expertise on the subject of interest. Therefore, to develop a positive human rights compliant corporate culture, businesses should actively engage with the stakeholders on that area of human rights. In the context of harassment in workplace, only consultation with women in the workplace, and experts on this subject, can be a genuine attempt to resolve any issues related to this problem. It is essential to note that mere consultation without implementation has been a key drawback and challenge in Pakistan’s reformative legal background. Therefore, enterprises are required to verify the effectiveness of their response to adverse human rights impacts. This is possible through use of appropriate qualitative and quantitative indicators (reports on nature and intensity of complaints can be such indicators) and feedbacks.

The policy and practices of Adidas are a manifest realization of these Business and Human Rights measures. In 2014, Adidas set up an independent, third party, complaint mechanism[14] to account for any adverse human right impacts present in its corporate practices or workplace. The company also created a detailed policy for guidelines in relation to human rights practices of its business. In fact, all of the actions pursued by any stakeholder with a grievance were published in detail by Adidas on an online platform along with their report on its resolution. This practice can be seen as an example of fully respecting Business and Human Rights in its spirit. The corporate culture in Pakistan is prone to abiding by human rights obligations so far as it is necessary for legal compliance. It is also the case that many a time there is no transparency in proper maintenance of effective due diligence. Reports and audits of policies on sexual harassment are limited to the statutory minimum that is required. Undoubtedly, on the one hand, protection of human rights is the duty of the State, as the Leviathan. On the other hand, and more importantly, it is the duty of corporations and businesses to facilitate a medium of respect for positive practices in the workplace. Complete elimination of practices of sexual harassment can only come from within the corporate culture of Pakistan rather than from the externally present sanction of state. It is in the best interest of any business and any society that it resorts to good practices of corporate governance, assume social responsibility and respect human right with due diligence, in its true form.^[15]

Providing Access to Remedy in Pakistan

Legislation and legal compliance of human rights is a lesser problem for Pakistan than its actual enforcement. UN Guiding Principles for Business and Human Rights, 2011 face a similar problem, especially given the fact that it is only soft law. The roadmap to remedy has been drawn within the UN Guiding Principles. Sexual harassment is illegal in Pakistan in reference to a variety of provisions of law; it prevails at some work places because of the business environment that exists. Therefore, even in the interest of providing an access to remedy, business practices play an immensely important role.

Non-judicial mechanisms of resolution of human rights issues are an essential part of proper actualization of the BHR regime. Issues of harassment at workplace render women to be a specifically vulnerable and marginalized group in a business environment. Therefore, besides adjudication and dispute resolution mechanisms (like, mediation and negotiation) which put parties at adverse positions, mechanisms should be introduced whereby a business itself undertakes to resolve any rights-based grievance. Corporate Governance mechanisms are one aspect of such enforcement of human-rights as they facilitate ethical practices and require set up of systems and controls for redressal of grievances,^[16]  however they are ambiguous for the purposes of rights-enforcement and they only apply to listed companies in Pakistan. A wider, more appropriate measure of providing remedy is found in the example of Adidas, as they developed a transparent resolution mechanism, and also set up an independent inquiry committee. To address sexual harassment and its related issues for women, such independent committees that work with transparency can be a great leap forward. Principle 31 is pertinent at this point as it provides that effectiveness of such grievance mechanism can be ensured through its ‘legitimacy’, ‘accessibility’, ‘predictability’, ‘equity’, ‘transparency’, ‘rights-compatibility’ and capacity to learn from experience. Only a grievance mechanism which truly upholds accountability and enables stakeholders to build confidence in its fairness can be a resolution of the problem. Sexual harassment is an undeniable vice, present in our workplaces; it is imperative that businesses take an active initiative to remove it from our business culture.

Conclusion

Of the duties to protect, respect and remedy, respect is of utmost importance as it governs true realization of UNGP’s objectives. Undeniably, the State and adjudicators are responsible for curbing the issues of sexual harassment at workplaces, but the human rights implications of such issues are best resolved if their respect becomes part of business morality and ethical practices. A genuine attempt to enforce harassment laws as human rights, like any legal obligation, can only be effective if the principles or the rule of recognition is appreciated by the subjects of law. Sexual harassment in workplaces, thus, primarily lies in the dominion of businesses. The state of legal protection afforded by the State, the remedies available to victims of harassment and the overarching societal narrative to eliminate this practice is only possible through ensuring due diligent, transparent and easily accessible mechanisms of respect for human rights.

[1] United Nations, ‘Gender Discussion Group : Sexual Violence and Harassment Against Women’ (United Nations)https://www.ohchr.org/Documents/Issues/Business/Gender/GenderRoundtableSexualViolence.pdf  (accessed, 1 July 2020)

[2] United Nations, ‘Guiding Principles on Business and Human Rights’ (2011) United Nations Human Rights Office of the High Commissioner https://www.law.ox.ac.uk/sites/files/oxlaw/oscola_4th_edn_hart_2012quickreferenceguide.pdf (accessed 1 July 2020)

[3] See, ss 354A and 509, Pakistan Penal Code, 1860

[4] Section 3(2) Protection Against Harassment of Women at Workplace Act,2010

[5] See, s 4, Pakistan Penal Code, 1860

[6] S Ahsen, ‘Workplace Harassment law in Pakistan’ (Daily Times, 2019) https://dailytimes.com.pk/353990/workplace-harassment-law-in-pakistan/ (accessed on 3 July 2020)

[7] N Ali, ‘Students come forward as sexual harassment cases rife in LGS’ ,Daily Times https://dailytimes.com.pk/633567/students-come-forward-as-sexual-harassment-cases-rife-in-lgs/ (accessed 3 July 2020)

[8] For a list of some human rights based laws, see, Ministry of Human Rights, Government of Pakistan, ‘Business and Human Rights in Pakistan’ https://bhr.com.pk/ (accessed 3 July 2020)

[9] Shift & Mazars, ‘The UN Guiding Principles on Business and Human Rights’ (Shift & Mazars) https://www.ungpreporting.org/resources/the-ungps/ (accessed 2 July 2020)

[10] United Nations, United Nations Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, HR/PUB/11/04 (2011), (General Principles) 1

[11] See for example, section 204(2), Companies Act, 2017 (Directors’ Duties); section 227(3), Companies Act, 2017 (Requirement of Report and Statement of Compliance by Directors)

[12] Principle 12 explains that this refers to internationally recognised human rights principles

[13] J Bonnitcha, ‘The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights’ [2017] 28 EJIL 3, 899-919

[14] Adidas, ‘Human Rights’ (Adidas) available at https://www.adidas-group.com/en/sustainability/managing-sustainability/human-rights/#/2016/2018/human-rights-due-diligence/ (accessed 4 July 2020)

[15] J. Ruggie, Just Business: Multinational Corporations and Human Rights (WW Norton & Company 2013) 106

[16] Listed Companies (Code of Corporate Governance) Regulations, 2019