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Workplace Harassment – What FCC Left Unresolved

Workplace Harassment – What FCC Left Unresolved

The Federal Constitutional Court’s recent judgment has an impact far beyond the parties before it. It not only shapes what conduct the law recognises as harassment, but also how the evidence is assessed and whether reporting such harassment offers meaningful protection. It affects an employer’s responsibility to prevent harassment, investigate complaints fairly and guard against retaliation. It leaves insufficient clarity about the standards governing a fair determination. The FCC judgment leaves many unresolved questions, which has shaken confidence of a large segment of the public on whether dignity and equality at work will receive effective legal protection?

Unexplained Departure from Precedent        The FCC adopts a restrictive interpretation of “harassment” at the workplace by holding that the meaning of harassment under section 2(h) of the Act, 2010 is only restricted to conduct which is sexual in nature and all other acts of harassment fell beyond such restricted definition of actionable harassment. The FCC has held so without adequately addressing the Supreme Court’s broader, purposive interpretation of the original law. In particular, reliance on the earlier Nadia Naz decision required consideration of the subsequent review judgment, Nadia Naz vs. President of Pakistan, PLD 2023 SC 588, setting the same aside.

Although Article 189(2) excludes the FCC from the binding effect of Supreme Court precedent, such freedom from binding authority does not dispense with reasoned engagement on questions of law thoroughly considered and settled by the Supreme Court before the 26th and 27th Constitutional Amendment. FCC itself in its recent judgement in Shahbaz Masih vs. Additional Sessions Judge, PLD 2026 FCC 138, laid down the criteria of departure from earlier Supreme Court precedent making it justifiable if it is (i) manifestly inconsistent with the text or structure of the Constitution, (ii) undermines or dilutes fundamental right, (iii) reflects judicial overreach into legislative or executive domains, or (iv) has become incompatible with evolved constitutional values and democratic norms, and (v) any other compelling reason which tends to advance the cause of justice.

The FCC judgment needed to explain why the earlier reasoning is no longer persuasive and why the disavowed narrower interpretation better reflects the statutory text and purpose. The maxim ut res magis valeat quam pereat, that a provision should be construed to have effect rather than fail supports an interpretation that gives meaningful effect to the statutory remedy. The FCC’s approach has excluded conduct the law has intended to address, without sufficiently explaining how that result accords with its protective purpose.

Distinction between Original and Amended Law     The case predates the amendment to the Protection Against Harassment of Women at Workplace Act, 2010 (“Act”) in 2022. The FCC ought to have observed that it was  interpreting the pre-amendment law, and that its construction should not be treated as applying or governing the amended framework or in any way limiting Parliament’s broader protection. The FCC’s interpretation must therefore be distinguished from the broader definition the legislature introduced in its wisdom in 2022, expressly covering gender-based discrimination that need not be sexual in nature.

The judgment should have embodied a clearer distinction between the original text, the Supreme Court’s interpretation of that text in review and the Parliament’s subsequent amendment, to avoid uncertainty for employers, inquiry committees and complainants/accused.

Even on the FCC’s restrictive interpretation, the evidence required examination. The material rejected by the President as new pleas, together with the corroborative witness testimony discounted by him, concerned sexually explicit remarks and a drawing depicting a woman’s private parts. If accepted upon proper evaluation, that evidence would plainly satisfy the requirement that the conduct be sexual in nature. The unresolved question was, therefore, whether those allegations were proved? not merely whether non-sexual, gender-based harassment fell within the original definition. The FCC’s restrictive construction does not answer the IHC’s findings concerning the rejection of that evidence by the President, and ignores the critical point that two witnesses testified to the profane drawing. 

Presidential Powers, Limits & DelayThe President’s determination........

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