Indirect discrimination: analyzing contemporary mechanisms against women in workplace.

Abstract

The concept of indirect discrimination, while seemingly neutral on the surface, poses significant challenges to equality and inclusion in various facets of society, particularly in the workplace.

This abstract delves into the meticulous dynamics of indirect discrimination, contrasting it with direct discrimination, and explores its manifestation through case studies and legal precedents within Indian jurisprudence.

Drawing understanding from landmark cases such as Col Nitisha v UOI and Sharmila Yadav vs UOI and ORS, the abstract demonstrates the judicial interpretation and application of indirect discrimination, emphasizing its detrimental effects on marginalized groups, particularly women and minorities. Through a comparative analysis with international legal frameworks, the abstract underscores the pivotal role of Indian courts in advancing the principles of equality and non- discrimination.

Moreover, the abstract highlights the interconnectedness of indirect discrimination with factors such as gender, pregnancy, caste, religion, and disability, depicted through real-world scenarios and legal interpretations. It discusses the implications of indirect discrimination in perpetuating glass ceiling barriers, obstructing the career progression of women and minorities in corporate settings.

Furthermore, the abstract examines the legislative landscape aimed at combating indirect discrimination, citing provisions from the Indian Constitution and relevant statutes such as the Equal Remuneration Act, 1976, and the Mental Healthcare Act, 2017. It underscores the importance of transparent recruitment practices, inclusive policies, employee resource groups, and a culture of feedback and awareness in mitigating indirect discrimination and promoting diversity and inclusion in the workplace.

the abstract reflects on the evolution of Indian jurisprudence towards a more inclusive legal framework, propelled by judicial activism and a commitment to substantive equality. It advocates for proactive measures to address indirect discrimination, emphasizing the role of

leadership, legal education, and societal awareness in fostering a truly equitable and just society for all individuals, irrespective of their background or characteristics.

Keywords

indirect discrimination ,Workplace , Women, Legal , Equality

Research methodology

This paper is of descriptive nature and the research is based on secondary sources for the deep analysis of the indirect discrimination and glass ceiling discrimination in India. Secondary sources of information like journals, newspapers and websites are used for the Research.

Review of literature

The literature review aims to explore the concept of indirect discrimination within workplace settings, synthesizing existing scholarship and legal precedents to offer insights into its complexities and implications. By critically analyzing a range of sources, the review seeks to deepen understanding of indirect discrimination, its manifestations, and the effectiveness of interventions in addressing this issue.

Indirect discrimination occurs when ostensibly neutral practices disproportionately disadvantage individuals with protected characteristics. This review delves into the intricacies of indirect discrimination, contrasting it with direct discrimination, and highlighting its impact on marginalized groups. It emphasizes the role of systemic biases and organizational structures in perpetuating inequalities.

The literature on indirect discrimination reveals its multifaceted nature and its pervasive influence on diverse aspects of society, especially in the realm of employment. Judgements by judges such as Chief Justice D.Y. Chandrachud , Delhi HC Judges Sanjiv Khanna and Navin Chawla have examined the complexities of indirect discrimination, emphasizing its detrimental effects on marginalized groups and the perpetuation of structural inequalities. Legal precedents, including landmark cases like Col Nitisha v UOI and Sharmila Yadav vs UOI and ORS, offer insights into judicial interpretations and applications of indirect discrimination within Indian jurisprudence

Legislative measures, including the Equal Remuneration Act, 1976, and the Mental Healthcare Act, 2017, contribute to combating discrimination based on gender and disability. Moreover, scholarly discourse on the glass ceiling phenomenon elucidates how indirect discrimination hinders career advancement for women and minorities in corporate settings.

Research emphasizes the need for proactive measures such as transparent recruitment practices, inclusive policies, and employee resource groups to mitigate indirect discrimination and promote diversity and inclusion in workplaces.

Introduction

Indirect discrimination occurs when an apparently neutral provision, criterion, or practice (PCP) is applied, which puts (or would put) a person with a protected characteristic at a particular disadvantage. so for example, an employer requires all their employees to be 6ft tall. Women would be disadvantaged by that criteria because they are less likely to be able to meet it.

It must be shown that :

  • a provision, or a criterion, or practice has been (or would be) applied to all
  • it puts people with a protected characteristic at a particular disadvantage compared to others
  • A particular person has in fact, been put at that disadvantage, and
  • the PCP cannot be objectively justified

Indirect discrimination, however, can be justified. A justification is where there is a proportionate means of achieving a legitimate aim. So, in our example, the employer’s legitimate aim may be that he requires his employees to be strong, for example a rescue service where people may need to be rescued from a building that would be a legitimate aim. However, is requiring six foot height criteria, a proportionate means of achieving that aim? This must be considered whether there is a less discriminatory way you can achieve the aim that you have. So for example, applying a requirement that employees have a certain level of strength may be a more proportionate way of ensuring that staff are able to carry out a job, and that would be less discriminatory against women.

Is the action proportionate?

  • is it legal?
  • is it nondiscriminatory?
  • is it objective?

Is the action legitimate?

  • is it appropriate?
  • is it necessary?
  • is it the least discriminatory option?

Direct Vs Indirect discrimination

This is an area of law that can still cause difficulties today. This doctrinal divide between direct and indirect discrimination in which the former is based on intent and the latter on effect was highlighted in the judgment of Col Nitisha v UOI, 2021.

Direct discrimination is when you are treated unfavorably as a direct result of one of the FIVE protected characteristics under the Article 15(1)1 of the Indian Constitution. These are religion, race ,caste, gender and place of birth .

There is no justification and no defense for direct discrimination. Direct discrimination can also happen by association, if you are treated unfairly due to someone else’s protected characteristic. It will be direct discrimination if you are treated unfavorably because someone perceived that you have a protected characteristic, even if you don’t actually have it.

Indirect discrimination is when everyone is treated equally. The same policy or practice is executed and implemented to everyone in the same way, but in doing so one group (with a protected characteristic) is placed at a disadvantage.

To prove indirect discrimination, it must be shown

1 Constitution of India art. 15, cl. 1-6.

Firstly, that a practice has been or would be applied to all in a group,

Secondly, it puts a particular group (with a protected characteristic) at disadvantage, Thirdly, a particular person has been put at that disadvantage, and

Lastly, that there is no objective justification.

Unlike direct discrimination, indirect discrimination can be justified. This must be a relative means of achieving a legitimate aim. But it is important to remember that employers should always consider whether the action is proportionate and whether there is a less discriminatory option for achieving the legitimate aim.

Indirect Discrimination in Workplace

In the workplace context in India, indirect discrimination can manifest in various forms, often intersecting with factors such as gender, pregnancy, caste, religion, and disability. To illustrate, let’s consider a scenario involving indirect discrimination relating to sex and pregnancy.

Imagine a female employee who has recently returned from maternity leave and now seeks a flexible working arrangement to better balance her childcare responsibilities with her job duties. She submits a request to her manager, asking to reduce her hours, but her request is denied, citing a company policy that mandates all employees to work full-time.

In this scenario, the company’s policy, while seemingly neutral on the surface, disproportionately affects women, particularly those who are mothers. Statistically, women are more likely to bear the primary responsibility for childcare duties, and thus, they may require flexible working arrangements more frequently than their male counterparts. By rigidly adhering to a full-time work requirement without considering individual circumstances, the company indirectly discriminates against female employees, creating barriers to their equal participation and advancement in the workplace.

Addressing claims of indirect discrimination requires a proactive approach rooted in fostering a workplace culture that values diversity and inclusion. Employees should feel empowered to raise 2concerns about discrimination without fear of reprisal or adverse consequences to their employment status.

When dealing with grievances related to indirect discrimination, it is essential to follow a fair and transparent process. This entails conducting thorough investigations, gathering evidence, and interviewing witnesses in accordance with the Article 14 and 15(1) of the Indian Constitution and relevant Indian legislations.

Implementing an equal opportunities policy is crucial in demonstrating an organization’s commitment to combating discrimination in all its forms. Such a policy should explicitly outline the company’s stance against discrimination based on protected characteristics such as gender, caste, religion, disability, and others. By clearly articulating zero-tolerance for discrimination and promoting equal opportunities for all employees, organizations can create a more inclusive and equitable work environment.

Furthermore, providing support and accommodations for employees with diverse needs is essential in ensuring fair treatment and equal access to opportunities. This may include offering flexible working arrangements, reasonable accommodations for employees with disabilities, and sensitivity training for managers and staff to mitigate unconscious biases and promote inclusivity.3

How Indirect Discrimination Creates Glass Ceilings?

Glass ceiling discrimination is a form of promotion discrimination. it refers to a set of “artificial barriers” that have been keeping women and other racial minorities from securing the highest paid and most powerful positions in corporations. While the diversity of corporate world has certainly made significant progress over the last several decades, what we’re seeing is a stubborn persistence

2 N. Noor et al., Discriminatory Practices and Poor Job Performance: A Study of Person-Related Hostility Among Nursing Staff, 9 HELIYON no. 3, at e14351 (2023), https://doi.org/10.1016/j.heliyon.2023.e14351

3K. Tsubono et al., Multidimensional Analysis of Schoolteachers’ Occupational Stress by the New Brief Job Stress Questionnaire: Focusing on Gender Differences, 62 INDUSTRIAL HEALTH 39 (2024), https://doi.org/10.2486/indhealth.2023-0018.

of women and racial minorities generally being excluded from those top, most powerful, highest paying jobs.

Despite significant promotion of diversity in companies, as well as legislation for equal opportunities for women and men, it must be noted that women still remain largely in the minority in decision-making positions. This observation gives consideration to the phenomenon of the glass ceiling that amounts to vertical discrimination within companies against women.

the metaphor of the “glass ceiling.” This phenomenon of companies’ vertical discrimination against women has been widely studied by the academic community in various fields (management, human resources, finance, and psychology.

The glass ceiling is closely related to indirect discrimination as it represents a systemic barrier that impedes the advancement of certain groups, particularly women and minorities, within the workforce. While the glass ceiling may not be explicitly discriminatory in nature, it effectively prevents qualified individuals from accessing higher levels of employment based on characteristics such as gender, race, or ethnicity.

Indirect discrimination manifests through ostensibly neutral policies, practices, or cultural norms that disproportionately disadvantage certain groups. In the context of the glass ceiling, this can include criteria for promotion, leadership opportunities, or access to training and development programs that inadvertently favor dominant groups while excluding or limiting the advancement of marginalized individuals.

For instance, a company may have policies that require employees to have a certain number of years of uninterrupted full-time service for promotion to executive positions. While this policy may seem neutral on the surface, it disproportionately affects women who may have taken breaks from their careers for caregiving responsibilities or other reasons. As a result, even though women may possess the requisite qualifications and skills, they find themselves unable to break through the glass ceiling due to indirect discriminatory practices.

Similarly, cultural biases and stereotypes can contribute to the perpetuation of the glass ceiling phenomenon. For example, unconscious biases may lead decision-makers to perceive women as less capable or less suited for leadership roles, resulting in their exclusion from advancement

opportunities. These biases are often subtle and ingrained within organizational cultures, making them difficult to detect and address.4

Indirect Discrimination in Indian Jurisprudence.

Col Nitisha v UOI, 2021

In this case, the Supreme Court of India introduced the concept of ‘indirect discrimination’ into the country’s legal framework, aiming to reinforce the principles of equality and non-discrimination deeply ingrained in constitutional jurisprudence. Led by Justice D Y Chandrachud, the court embarked on an extensive exploration of this concept, drawing insights from the judicial practices of several nations including the United States, the United Kingdom, South Africa, and Canada. The verdict, which resonated with the essence of Baroness Hale’s perspective from a 2009 UK Supreme Court judgment, signifies a pivotal moment in Indian legal history.

The genesis of this development lies in a case concerning 86 women Short Service Commission officers advocating for parity in the application of standards for the grant of permanent commission. The court astutely recognized that seemingly neutral standards could inadvertently perpetuate patriarchal biases, indirectly discriminating against women.5 Acknowledging the nascent stage of jurisprudence surrounding indirect discrimination in India, the bench referred to sporadic mentions in previous judgments, including one authored by Justice Chandrachud himself, which decriminalized consensual private relations within the LGBTQ community.

Central to the court’s elucidation was the distinction between direct and indirect discrimination. Direct discrimination pertains to discriminatory acts driven by conscious bias, whereas indirect discrimination arises from ostensibly neutral criteria that disproportionately impact certain groups. Justice Chandrachud emphasized that indirect discrimination, though not overt, is as pernicious as its direct counterpart. It stems from unconscious biases or systemic structures that inadvertently

4A. Babic & I. Hansez, The Glass Ceiling for Women Managers: Antecedents and Consequences for Work-Family Interface and Well-Being at Work, 12 FRONTIERS IN PSYCHOLOGY 618250 (2021), https://doi.org/10.3389/fpsyg.2021.618250.

5 Col Nitisha v Union of India (UOI), (2021) 2 SCC 1

perpetuate inequality. Thus, to achieve substantive equality mandated by the Constitution, the court underscored the imperative of prohibiting indirect discrimination

The court’s deliberation highlighted the significance of focusing not only on the intent behind an action but also on its consequences. While direct discrimination involves assessing the act itself in isolation, indirect discrimination necessitates scrutiny of the broader institutional or societal context in which the act occurs. This doctrine, the court asserted, broadens the scope of anti- discrimination laws to address covert forms of discrimination that may evade conventional scrutiny.

In navigating the terrain of indirect discrimination, the court articulated a nuanced approach. It highlighted the need to evaluate the necessity of ostensibly neutral provisions, criteria, or practices concerning job performance. This entails discerning whether such measures are indispensable for achieving legitimate aims or merely perpetuate discriminatory outcomes.

Sharmila Yadav vs UOI and ORS,2017

This case showed CRPF’s Failure to Promote Female Officer Due to Pregnancy , the Delhi High Court criticized the Central Reserve Police Force (CRPF) for failing to promote a female officer, Assistant Sub-Inspector Sharmila Yadav, due to her pregnancy, highlighting a significant stance against pregnancy discrimination. The case originated when Sharmila Yadav, initially recruited as a constable in 2009, successfully passed a departmental exam for the role of Assistant Sub- Inspector. However, despite her qualifications, her promotion was delayed due to her being categorized in a lower medical category because of her pregnancy.

Yadav raised concerns about this unfair treatment to her seniors, which led to her eventual promotion in 2012 but without the restoration of her seniority. This lack of seniority restoration resulted in her being ranked below her peers and even some juniors, affecting her career progression within the CRPF.

The CRPF defended their decision by stating that Yadav was placed on the promotion list for 2011-12, but her promotion was deferred until 2012-13 when she was deemed medically fit. The

force argued that since Yadav was promoted after her juniors, she could not claim seniority over them.

Addressing the issue, Delhi High Court Justices Sanjiv Khanna and Navin Chawla emphasized that pregnancy should not be considered a disability or a disqualification. The court condemned the CRPF’s actions as discriminatory and violative of gender equality principles, stating that such discrimination against pregnant women is unacceptable and infringes upon their rights.6

The court further declared that treating pregnancy unfavorably is unlawful and constitutes gender discrimination, stressing the importance of providing equal opportunities for promotion and career development to all employees, irrespective of their gender or pregnancy status.

In its verdict, the Delhi High Court quashed the CRPF’s orders regarding Yadav’s seniority and ordered the restoration of her seniority, as if she had been promoted alongside her immediate junior. Additionally, Yadav was entitled to receive arrears dating back three years from the filing of her petition, underscoring the court’s commitment to rectifying the injustice she faced.

This judgment serves as a critical reminder of the legal protections against gender-based discrimination, reinforcing the notion that pregnancy should not impede a woman’s career advancement or rights within the workplace. The decision by the Delhi High Court marks a significant step towards ensuring equality and combating discriminatory practices in employment, particularly against women who choose to become mothers.

The court’s deliberation underscored the significance of focusing not only on the intent behind an action but also on its consequences. While direct discrimination involves assessing the act itself in isolation, indirect discrimination necessitates scrutiny of the broader institutional or societal context in which the act occurs. This doctrine, the court asserted, broadens the scope of anti- discrimination laws to address covert forms of discrimination that may evade conventional scrutiny.

Decode: Laws Against Indirect Discrimination

6 Sharmila Yadav v Union of India, W.P. (C) No. 2631/2014

  • Constitution of India:
  • Articles 147, 15, 168, 17, and 18 (right to equality) of the Constitution of India form the equality rights and forms a cornerstone of the legal framework against discrimination. These five articles combined , guarantee equality before the law, prohibit discrimination on grounds of religion, race, caste, sex, or place of birth, and also ensures equal opportunity in public employment.
  • Equal Remuneration Act, 1976:
  • The Equal Remuneration Act, 1976, ensures that both men and women receive equal pay for equal work, in that way , addressing indirect discrimination based on gender in the workplace.9
  • Indian Penal Code, 1860 (Section 153 A):
  • Section 153 A of the Indian Penal Code criminalizes use of language that promotes discrimination or violence against any individual based on various protected categories, including race, caste, sex, religion, gender identity, and sexual orientation, by such means , combating indirect discrimination and hate speech.10
  • Mental Healthcare Act, 2017:
  • The Mental Healthcare Act, 2017, prohibits denial or refusal of mental healthcare services based on various protected categories such as race, caste, religion, sex, gender identity, and sexual orientation, thereupon, addressing indirect discrimination in access to mental healthcare facilities.11
  • Hindu Succession Act, 1956:
  • The Hindu Succession Act, 1956, as amended in 2004, grants daughters equal inheritance rights with sons, thus, invalidating the limited owner status of women and eliminating indirect discrimination in inheritance of property based on gender.12
  • Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989:
  • This act specifically addresses discrimination and hate crimes based on caste, ensuring protection and justice for marginalized communities against indirect discrimination.13
  • Transgender Persons (Protection of Rights) Act, 2019:

7 Article 14 of the Constitution of India,” Wikipedia, last modified on [18 july 2023], https://en.wikipedia.org/wiki/Article_14_of_the_Constitution_of_India.

8 India Const. art. 16.

9 Equal Remuneration Act, No. 25 of 1976 (India). Indian Penal Code, 1860

10 Section 153A, Indian Penal Code, 1860

11 Mental Healthcare Act, No. 10 of 2017

12 Hindu Succession Act, No. 30 of 1956

13 Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, No. 33 of 1989

  • The Transgender Persons (Protection of Rights) Act, 2019, specifically prohibits discrimination and hate crimes against transgender individuals, therefore, combating indirect discrimination based on gender identity and expression.14
  • Rights of Persons with Disabilities Act, 2016:
  • The Rights of Persons with Disabilities Act, 2016, interdicts discrimination against individuals with disabilities, thereupon, addressing indirect discrimination based on physical or mental disabilities.15
  • Industrial Disputes Act, 1947 (Section 2(ra) and Section 25T):
  • Sections 2(ra) and 25T of the Industrial Disputes Act, 194716, in addition with relevant state laws, address unfair labor practices such as victimizing workers and favoring one group over another, irrespective of merit. These provisions altogether aim to prevent indirect discrimination in the workplace.
  • These laws collectively provide a robust framework against indirect discrimination in various spheres of life, ensuring equality, dignity, and justice for all individuals, irrespective of their background or characteristics

Suggestions

  • Enhance transparency: ensure and promote transparency in recruitment, promotion, and decision- making processes. This will help in reducing the biases and perception of unfair treatments.
  • Inclusive and flexible policies: implement inclusive policies within the organization . Also, ensure that these policies explicitly address issues of indirect discrimination. Implement flexible work policies that accommodate employees diverse and different needs, such as remote work option, flexible working hours, maternal leave and paternal leave. This will help reducing barriers to advancement.17

14 Transgender Persons (Protection of Rights) Act, No. 40 of 2019

15 Rights of Persons with Disabilities Act, No. 49 of 2016

16 Industrial Disputes Act, No. 14 of 1947, §§ 2(ra), 25T (India), available at https://www.indiacode.nic.in/handle/123456789/15191?sam_handle=123456789/1362.

17“A Modest Manifesto for Shattering the Glass Ceiling,” Harvard Business Review, January 2000,

https://hbr.org/2000/01/a-modest-manifesto-for-shattering-the-glass-ceiling.

  • Employee resource groups (ERGs): promote and encourage ERGs that represents diversified interests of employees belonging from diverse communities within the organization, this will lead to inclusiveness between the employees and will also prevent glass ceiling discrimination.

This group will provide support, networking opportunities, and a platform for addressing issues of indirect discrimination.

  • Culture of feedback: encourage a culture where feedbacks are appreciated and heard. Increase open communication and feedback channels where employees can raise concerns about indirect discrimination without the fear of retaliation. Active listening and promotion of understanding is vital.18
  • Awareness and Education: Provide regular training sessions and workshops for employees at all levels to raise awareness about indirect discrimination, unconscious bias, and the impact of the glass ceiling. This can help foster a more inclusive workplace culture.

Lead by Example: Leadership must exemplify inclusive behaviors and actively promote diversity and inclusion initiatives throughout the organization. When leadership demonstrates a commitment to combating indirect discrimination and breaking through the glass ceiling, it sets a powerful example for others to follow.19

Conclusion

In conclusion, the recognition and analysis of indirect discrimination within Indian jurisprudence mark a significant event in the pursuit of equality and justice. Through landmark cases such as Col Nitisha v UOI and Sharmila Yadav vs UOI and ORS, the judiciary has demonstrated a commitment to addressing hidden forms of discrimination that undermine the principles of equality enshrined in the Indian Constitution. By distinguishing between direct and indirect discrimination, the courts

18 “8 Ways to Prevent Discrimination in Your Workplace,” Health and Safety Handbook, [13 March,2024], https://www.healthandsafetyhandbook.com.au/bulletin/8-ways-to-prevent-discrimination-in-your-workplace/. 19“Prevent Discrimination in the Workplace,” EasyLlama, [14 March 2024], https://www.easyllama.com/blog/prevent-discrimination-in-the-workplace/.

have expanded the scope of anti-discrimination laws to encompass systemic biases and structural inequalities that perpetuate injustice.

Furthermore, the proactive approach taken by the judiciary in articulating the implications of indirect discrimination and providing guidance for its acknowledgement reflects a progressive evolution in legal thought. By emphasizing the importance of evaluating both the intent and consequences of actions, the courts have underscored the need for a holistic understanding of discrimination in all its forms.

The legal framework against indirect discrimination, supported by constitutional provisions and relevant statutes, serves as a bulwark against inequality and injustice. By ensuring equal opportunities and protections for all individuals, irrespective of their background or characteristics, these laws uphold the fundamental principles of dignity, fairness, and inclusivity.

Moving forward, it is crucial to build upon these legal foundations and continue the fight against indirect discrimination in all spheres of life. Enhancing transparency, promoting inclusive policies, fostering awareness and education, and leading by example are essential steps towards creating a more equitable and just society. Through collective efforts and unwavering commitment, we can overcome the barriers posed by indirect discrimination and strive towards a future where every individual is treated with dignity, respect, and equality under the law.20

Shristi kumari

University School Of Law And Legal Studies,GGSIPU

20 Col Nitisha v Union of India (UOI), (2021) 2 SCC 1

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