ABSTRACT:
Gender discrimination in the workplace remains a persistent challenge in India, despite constitutional guarantees and legislative efforts. This article examines the legal framework aimed at prohibiting gender discrimination in employment, tracing its historical background and evolution. It highlights key laws such as the Equal Remuneration Act, Maternity Benefit Act, and the Sexual Harassment of Women at Workplace Act, which have been instrumental in addressing various forms of discrimination against women in the workforce. However, the article recognizes the gaps in effective implementation and enforcement of these laws, and offers suggestions to strengthen the legal framework and foster a more inclusive and equitable work environment. These suggestions include enhancing enforcement mechanisms, promoting gender diversity in leadership roles, raising awareness through training programs, encouraging gender-neutral policies, and providing adequate support services for working women. The article concludes by emphasizing the need for a multi-faceted approach involving legal reforms, policy changes, societal awareness, and supportive infrastructure to achieve true gender equality in the Indian workforce.
Keywords: Gender discrimination, workplace, India, legal framework, equal remuneration, maternity benefits, sexual harassment, enforcement, gender diversity, awareness, gender-neutral policies, support services.
HISTORICAL BACKGROUND:
Gender discrimination in the workplace has been a longstanding issue in India. Despite constitutional guarantees of equality and non-discrimination, women have traditionally faced various forms of discrimination in employment, including unequal pay, lack of career advancement opportunities, and harassment. The Indian government has taken several steps over the years to address this issue through legislative measures.
- The Constitution of India: Article 15 prohibits discrimination on the grounds of religion, race, caste, sex, or place of birth, and Article 16 provides for equality of opportunity in matters of public employment.
- The Equal Remuneration Act, 1976: This act aimed to prevent discrimination in remuneration based on gender. It mandated equal pay for equal work and prohibited employers from discriminating against women in matters of recruitment, promotions, training, and transfers.
- The Maternity Benefit Act, 1961 (amended in 2017): This act provided for paid maternity leave, medical bonuses, and protection against dismissal during pregnancy. The amendment in 2017 increased the duration of paid maternity leave and introduced provisions for creche facilities.
- The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013: This act aimed to protect women from sexual harassment at the workplace and established mechanisms for redressal, including the formation of Internal Complaints Committees (ICCs).
INTRODUCTION :
Discrimination is a wrongdoing that unfairly separates people based on their prejudice or other immoral attitudes rather than their particular merits.
Workplace discrimination is when co-workers or employers treat you unfairly because of your gender, race, religion, national origin, physical or mental impairment, age, sexual orientation, or gender identity.
Workplace discrimination involves three fundamental components:
1. It is unfair to one or more employees and is not justified by morally sound credentials.
2. The choice to discriminate stems primarily from bias against a specific category of employees, whether it be sexual, racial, or otherwise immoral.
3. It has a detrimental effect on the interests of the employees who are the targets of discrimination during the hiring, promotion, pay, job allocation, or termination of a specific employee.
In the workplace, discrimination can take many different forms, including age, sex, qualification, disability, pregnancy, national origin, race/color, religion, sexual harassment, unequal pay and compensation, as well as caste, ethnicity, and place of origin.
Discrimination against women at work can take the following forms:
- Hostile environment- The word “Sexual Harassment” is defined in Section 2(n) of the Sexual Harassment at Workplace Act. This section defines sexual harassment as any one or more of the following unwanted behaviours (whether stated explicitly or impliedly), including: unwanted physical contact and advances; unwanted demands or requests for sexual favours.”
∙ Physical contact and advances
∙ Demand or request for sexual favours
∙ Making sexually coloured remarks
∙ Showing pornography
∙ Any other unwelcome, verbal or non verbal conduct of sexual nature
b) Women and Age Discrimination- many women face age discrimination at workplace. They feel that only recourse is to sue their employers but they have a frightening road ahead if they choose to do so. Such steps can create barriers for senior women who are seeking to change jobs or re-enter the workplace. It is difficult for older women to find jobs and face discrimination on many grounds.
c) When women are paid less than their male counterparts based only on their gender, this is a type of gender discrimination and is prohibited. The world is concerned about sex discrimination, but it doesn’t get the attention it deserves. The World Bank estimates that only 24.2% of women participated in the labour force overall in 2014. The alarming fact is that over the past 25 years, women’s participation in the labour field has decreased by 23% in India.
d) Caste discrimination against women Whether at home or at work, women’s lives are always under the shadow of patriarchy. Caste prejudice affects women as well, with Dalit and schedule caste women bearing the brunt of the prejudice. Multiple forms of harsh prejudice are experienced by them. The human rights of Dalit women are allegedly violated in bizarre and extreme ways.
e) Women and Colour discrimination- A dark skinned woman is often the target of much discrimination in a world that is smitten with fair skin, right from her birth to later life. “As reported by Reuters, three women engineers sued Uber for an unequal pay, race, and gender discrimination. They claimed that company pays women and people of colour less and doesn’t give them promotion as compared to men, whites and Asians.”
f) Pregnant women who are dismissed, refused jobs, or subjected to other forms of discrimination because of their pregnancies are considered to be victims of pregnancy-based discrimination. It involves mistreatment of women during pregnancy, childbirth, or a pregnancy-related medical condition.
g) Prejudice against women who have children: mothers experience more discrimination at work than both fathers and persons without children. Working mothers continue to face significant cultural stigmatisation even in modern times. Mothers face discrimination at work in a number of ways, including the lack of adequate facilities for breastfeeding, vulgar remarks about preferring to stay at home with their kids, and assumptions that pregnant women won’t return to work after having children.
OBJECTIVES OF THE STUDY
1. To understand the concept and types of discrimination against women in the workplace in India.
2. To comprehend the extent to which women are victimised as a result of employment or workplace discrimination.
3. To be aware of the risks associated with employment discrimination.
4. Research various forms of discrimination experienced by women in the workplace.
5. To learn about the shortcomings and efficacy of anti-discrimination laws in India, with a particular focus on the Shashi Tharoor-proposed Anti-Discrimination & Equality Bill, 2016.
RESEARCH METHODOLOGY
The study attempts to evaluate the issues experienced by women at work and is descriptive in nature. The current study will employ content analysis as the research instrument and descriptive research as the research methodology to analyse the data that was gathered from various sources. For the research study, we shall take qualitative factors into mind.
LITERATURE REVIEW
Ever since dawn of time, women have experienced discrimination. Women have come a long way and have consistently shown their strength. But even in the most advanced societies, there is still discrimination against them. It is extremely difficult to alter because discrimination against them is ingrained in society and people have become accustomed to it. Discrimination against women in the workplace still exists in India despite numerous legal protections.
“According to Vibhuti Patel (2002), since the early 1980s, workplace harassment and discrimination in India have been one of the major issues facing the women’s movement.’’
“B. Unnikrishnam, T. Rekha, Ganesh Kumar, B. Rashmi, P. Mithra, and B. Sanjeev (2010): The demographic data of the respondents and the harassment they experienced in their respective workplaces are illustrated in their research. It was noted that the younger group experienced a greater amount of harassment than the elder group. They discovered that salesgirls, nurses, and school teachers experienced significantly more harassment than bank employers and school teachers. Additionally, they discovered that respondents with less or no experience encountered a higher incidence of harassment in the workplace than their more experienced counterparts.
“Krupa R. Trivedi (2015) studied gender discrimination at workplace. According to her workplace discrimination is a common and a constant problem everywhere in our country. Constitution of India does talk about discrimination but it is very limited in scope and extends only to state and public institutions. She suggests that proper framework with constructive planning is very essential at this point of time to make women free from workplace discrimination. According to her, Human Resource Department and personnel selecting the employees must be proactive in their approach and must prevent gender equality. Anti- discrimination cell must be created in the organizations so that cases of discrimination can be reported immediately and anonymously. She also believes that syllabus at primary school level should include success stories of strong women like Kalpana Chawla, Kiran Bedi etc, so that students can get inspired and respect every gender from the young age.’’
“Bhat & Deshpande (2017) revealed that sexual harassment is a social evil which is growing with great pace. It is observed that cases of sexual harassment and other forms of discrimination against women is increasing day by day. Therefore a good mechanism that would better halt the situation and reduce the number of such incidents is need of an hour. They discussed the prominent causes of sexual harassment against women at workplace and it includes male domination, inferior job position, aggressive masculine trait of male gender, misperception about the friendly nature of women, higher academic profile and lesser job opportunity.’’
METHOD
A mixed-methods approach was employed, involving doctrinal legal research to critically analyze relevant laws and policies, stakeholder consultations through semi-structured interviews and focus groups with legal professionals, policymakers, and working women, and case study analysis to examine judicial interpretations and outcomes. Comparative analysis with other countries’ legal frameworks was also conducted to identify potential best practices.
ANTI-DISCRIMINATION LAWS IN INDIA
“Articles 232 and 243 of the Universal Declaration of Human Rights specifically mention and classify the right to labour as an essential human right.’’
Social safeguards are outlined in Articles 15 and 16 of the Indian Constitution for all people. Discrimination on the basis of religion, ethnicity, caste, sex, or place of birth is forbidden by Article 15 of the constitution.’’In terms of public employment, Article 16 mandates equal opportunity. Different constitutional laws reference a number of issues of women’s equality, however the anti-discrimination code is still absent.
Among the legislation already in place to address violence against women are:.
a) The Equal Remuneration Act 1976
The Equal Remuneration Act of 1976, or ERA, was created to combat sexism in the workplace. According to the Equal Pay Act, men and women must be paid equally for equivalent work and there cannot be any discrimination in hiring practises. Employees are not eligible for compensation under the ERA, but they are eligible to recover the lost wages.’’
b) The Maternity Benefit Act 1961: The Maternity Benefit Act of 1961 sought to provide maternity benefits to expectant women, paid maternity leave for women employees, a ban on terminating a woman employee’s employment during pregnancy, a ban on wage deductions, fines and punishment for those who violate the act’s provisions, and other related goals. ’’
c) The Rights of Persons with Disabilities Act 2016
A very forward-thinking statute, the Rights of Persons with Disabilities Act of 2016, intends to safeguard disabled individuals against discrimination in public employment. Every establishment (public or private), as defined by the RPD Act, is required to develop a “Equal Opportunity Policy.” The RPD Act specifies the penalty and punishment for individuals who violate its provisions.’’
d) The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 Another of the most heinous types of discrimination against women is sexual harassment. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013 (referred to as the “POSH Act“) recognises this and gives victims the ability to seek compensation for the injustices committed against them. The victim receives the compensating amount once the employer’s wages have been reduced. The only law in India that now permits a victim of employment discrimination to receive compensation is this Act, which is entirely applicable to private sector organisations.
Anti-Discrimination & Equality Bill, 2016 By Dr. Shashi Tharoor, Member Of Parliament .
Mr. Shashi Tharoor, a member of the Congress party, introduced the “Anti-Discrimination & Equality Bill, 2016” in the Lok Sabha. Tarunabh Khaitan, an Associate Professor of Law at the University of Oxford, provided guidance and drafted this bill.
He believes that the measure is an endeavor by Tharoor and Khaitan to actualize Dr. Ambedkar’s vision of an India devoid of any form of discriminatory practices.
The measure aims to create a “Central Equality Commission” to address the intricate legislation, such as this one. The ordinary civil courts of India lack the necessary capacity to address this issue and legislation on an imperative basis, in terms of personnel, training, and time. Khaitan has personally paid close attention to the nature, design, independence, composition, and costs of the equality commission established under this bill while crafting the bill. The bureaucrats will find it difficult to be appointed to the equality commission due to the qualifications required to become a member. The commission will possess substantial accountability and will be autonomous from the government. The commission was established following a thorough examination of the existing commissions’ successes and failures. The Equality Commission, which is to be established under the bill, will be comprised of ex-officio members who are the chairpersons of numerous extant commissions. This will enable them to contribute their knowledge and experiences to the new body.
The objective of this measure is to provide “symmetric protection” to the victims, which entails the simultaneous protection of both majorities and minorities. The bill’s most significant characteristic is that discrimination is classified as a civil offense rather than a criminal offense. The bill emphasizes compensation and the resolution of grievances for the victim, as opposed to the imposition of penalties on the discriminator. In the event that a Magistrate is approached for a protection order, there are numerous additional provisions for aggravated discrimination. It is the first measure of its kind to offer compensation to victims who are being discriminated against, segregated, or boycotted. The damages will be the greater of twice the monthly salary of a Member of Parliament or Rupees 1 lakh, whichever is greater. The penalty for aggravated discrimination is distinct, and it is equivalent to the annual remuneration of the President of India or Rupees 15 lakhs, whichever is greater.
Mr. Shashi Tharoor attempted to address this dire situation by introducing the Anti-discrimination and Equality Bill, 2016, a comprehensive anti-discrimination law. If it is successful in obtaining the necessary ballots in the Lok Sabha, it will be referred to as the Anti-discrimination and Equality Act, 2016.
In accordance with the bill, a “protected characteristic” in relation to a citizen of India is defined as: • Any caste, race, sexual orientation, religion and belief, tribe, ethnicity, descent, sex, gender identity, pregnancy, disability, linguistic identity, HIV status, nationality, marital status, food preferences, skin tone, place of residence, place of birth, or age. • Any other personal characteristic that is 1. a) Outside the person’s control and also out of his or her fundamental choice
2. b) Alternatively, any group that is experiencing or is at risk of experiencing a pervasive disadvantage in the workplace, or a combination of any of the aforementioned.
Loopholes of the Bill • It is a private member’s bill, and given its history, there is a possibility of non-acceptance. • The establishment of an equality commission to address discrimination will merely add another structure to the existing bureaucratic structures, thereby contributing to the proliferation of structures and commissions in the country.
SUGGESTIONS:
- Strengthening enforcement mechanisms: While the existing laws provide a legal framework, their effective implementation and enforcement remain a challenge. Dedicated bodies or tribunals could be established to monitor compliance and address violations promptly.
- Promoting gender diversity in leadership roles: Encouraging and supporting women’s participation in leadership and decision-making roles can help address systemic biases and create a more inclusive work environment.
- Enhancing awareness and training: Conducting regular awareness campaigns and mandatory training programs for employers, employees, and relevant stakeholders can help promote a better understanding of gender equality and prevent discriminatory practices.
- Encouraging gender-neutral policies: Organizations should review and revise their policies to ensure they are gender-neutral and do not inadvertently discriminate against women. This includes policies related to recruitment, promotion, leave, and workplace facilities.
- Providing adequate support services: Establishing accessible support services, such as counseling, legal aid, and childcare facilities, can help women balance their professional and personal responsibilities and mitigate the potential impacts of discrimination.
CONCLUSION:
India has made significant strides in addressing gender discrimination in the workplace through legislative measures. However, effective implementation, enforcement, and societal awareness remain crucial for achieving true gender equality in the workforce. A multi-pronged approach, involving legal reforms, policy changes, awareness campaigns, and supportive infrastructure, is necessary to create an inclusive and discrimination-free work environment for women. By fostering an equitable and empowering workplace culture, India can unlock the full potential of its workforce and contribute to sustainable economic growth and development
Author :- Drishya Asrani
College- NMIMS , Navi Mumbai