FCC ruling limits harassment law’s scope only for cases before the 2022 amendment

The Federal Constitutional Court's (FCC) recent ruling on the harassment claim of an NBP employee has led to confusion about the scope of the harassment law. However, the court's decision does not limit the law's coverage to cases involving overtly sexual conduct only. According to the source, allegations of workplace harassment that occurred prior to the 2022 amendment of the Protection Against Harassment of Women in the Workplace Act must still involve conduct of an overtly sexual nature to fall within the law's scope.

Nevertheless, incidents that took place after the 2022 amendment are covered by the law if they are rooted in gender-based discrimination, not just overtly sexual in nature. The definition of harassment was amended in January 2022 to include discrimination on the basis of gender, which may or may not be sexual in nature but can embody discriminatory and prejudicial attitudes towards the complainant.

This amended definition would only apply to incidents that occurred after the amendment. However, the Supreme Court, in its 2023 review of the Nadia Naz judgement, declared that the original definition should be interpreted to include gender-based discrimination, contradicting the principle of statutory interpretation that requires each provision to be given its distinct meaning.

The FCC's interpretation of the original definition was restrictive and did not refer to the 2022 amendment, which is why the expanded definition would not apply to cases that predated the amendment.