This article is written by Krishnendu Ganguly, pursuing a Diploma in Labour, Employment and Industrial Laws for HR Managers from LawSikho. This article deals with the different kinds of discrimination encountered by workers at their workplace.
It has been published by Rachit Garg.
Table of Contents
Introduction
Discrimination in the workplace is an unfortunate reality that all organisations and employees have to deal with. In simple terms, discrimination means to favour someone else over others in a way that goes beyond the person’s knowledge, skill, and ability to do the job.
There are many kinds of workplace discrimination, and in this article, we will focus on Direct and Indirect Discrimination at the workplace for Indian employees. We would look at some of the key legal frameworks prevalent in India and the impacts discrimination has on employees and the organisation. We would explore ways of addressing and minimising discrimination in Indian employment.
Definitions and examples of direct and indirect discrimination
Before going through details, lets understand some basic definitions
Protected characteristics
As per Article 15 in the Constitution of India, discrimination should not be done against any citizen based on religion, race, caste, sex, or place of birth.
Direct discrimination
These are scenarios when an individual or a group of individuals at the workplace face discrimination directly based on protected characteristics. Discrimination can take many forms, like not getting selected at interviews, not being allowed certain services, or not getting opportunities or promotions.
Calling out some scenarios and examples:
- A Hospital hires only female nurses , with the bias that male employees cannot be as caring as females. This discrimination is based on sex.
- A female employee getting less challenging assignments at work post-marriage, since the employer assumes females post marriage will not be fully dedicated to work. The same doesn’t hold true for male employees.
- Employers refusing to give employment or firing someone based on caste, religious, or political beliefs.
- Employees from the LGBTQ community face discrimination owing to their sexual orientation.
Indirect discrimination
These are scenarios where laws are apparently the same for everyone, but in practicality, they seem to put certain segments at a disadvantage. This is a little more complex than direct, as employers might not be aware of some scenarios that might put certain sections at a disadvantage. Essentially, the concept of the same law applying to all can sometimes be a disadvantage for some. It’s like the “One Size does not fit all” verbiage. Some scenarios below can make this easy to visualise:
- Employers are mandating some days as working days for employees. This can impact workers of some religions if the day clashes with holidays of their sects. Also imagine a scenario where, based on management directions, a section of employees is mandated to attend a training program that falls on some religious holidays.
- Designing Job descriptions for certain roles where some criteria like weight, height, English fluency, etc. are not really necessary qualifications.
- A retail outlet that has designed steps to get inside is basically discriminating against disabled and elderly customers and will not go well with that customer segment. While no written law states any restriction, a segment is impacted.
- A company cafeteria that serves only a certain type of food can put some segments at disadvantage and does not cater to diversity. For example, an office in North India serving only North Indian food will cause folks from South India to suffer, and vice versa.
Legal framework in India
Owing to many challenges, the legal framework in India still needs to be robust in dealing with all scenarios of Direct and Indirect discrimination. There are certain laws that protect Indian employees. Acts around these are still evolving. I am highlighting some of them.
Constitution of India
- Article 14 guarantees “Equality before law.”
- Article 15 – Discrimination not allowed based on religion, race, caste, sex or place of birth
- In the case of any discrimination based on Article 15, it can be taken up with the courts legally by filing a writ or a PIL (Public Interest Litigation).
These laws mostly protect cases of direct discrimination.
Equal Remuneration Act, 1976
- Wages (Section 4)
Ensures fair payment of equal remuneration to both men and women employees for work of similar nature (concerning skill, knowledge, and responsibility).
- Recruitment (Section 5)
It protects against recruitment biases for men and women. This extends to scenarios of promotions and transfers, where employers must treat men and women equally.
The ground reality is quite different as you progress to subsequent sections. Despite these laws, women in India continue to face direct and indirect discrimination against men.
Industrial Disputes Act (IDA)
This law prohibits unfair labour practices that include discrimination at the workplace. The fifth schedule of the Act calls out all unfair labour practices on the part of employers and trade unions of employers.
PWD Act, 1995 (Persons with Disabilities Act)
This Act protects the rights of people with disabilities at the workplace.
The Maternity Benefits Act 1961
This Act protects the rights of women who are taking maternity leave in an organisation. The law protects the employee from being terminated on maternity grounds by the organisation. The law was recently amended in 2017 to increase some of the benefits for women.
The Sexual Harassment of Women at Workplace (POSH Act of 2013)
Sexual Harassment is the worst form of discrimination against female employees. Offences under this Act fall under criminal acts and are punishable by law.
Some states, like Maharashtra, protect Women against discrimination in matters of recruitment, training, transfers, promotions, and wages in various Acts like Shops and Establishment Act.
Impacts of discrimination
On individual
The impact on an employee who is a victim of discrimination can range from mild to severe. In mild cases, it may lead to temporary uneasiness at the workplace, which does not have a profound effect. In severe cases, employees might suffer from:
- Lower Energy Levels at Work- Employees will feel disengaged at work and unable to show their full productivity as per their potential. This will translate to the overall performance of employees and can have a cascading effect depending on the criticality of the role. Employees can start feeling resentful towards peers, managers, and management.
- Health Concerns – Increased stress levels can eventually lead to health issues that can translate to absenteeism at work. Absenteeism, in turn, costs the company and reduces employee morale.
- Inclusivity – Employees start feeling they need to work in an inclusive environment. They have a negative view of fairness and equity in their companies. It has the potential to create a hostile work environment.
- Reduced Career Opportunities – Employees who face issues with pay hikes, promotions, etc. owing to discrimination would start to feel the impact on their careers and would eventually end up quitting the organisation.
On organization
Discrimination can have some adverse impacts on the bottom line of companies. The impacts can range from financial implications to adversely impacting the brand image of the company.
- Liability to the Company – Addressing and resolving discrimination charges costs company time and money. For severe cases where companies do not have in-house experts to deal with the same, it would mean taking external help to resolve issues. Eventually, a company with a discriminatory culture will have an impact on its bottom line.
- Lack of Employee Morale and Low engagement – In instances where it’s evident that promotions, hikes, and perks are given based on discrimination, it will directly impact the ones who feel discriminated against and indirectly the employees who are not. This would eventually lead to high percentages of attrition and absenteeism in the company, impacting the financials of the company negatively.
- Brand Image of the company – In the modern age of social media , it doesn’t take long to spread the negativity within a company to the outside world. The brand of the company will take a severe hit, and it will eventually lose out to competitors. Recruitment efforts will take a hit. Nowadays, employees do research on the company before applying, and the discriminatory culture becomes quite evident.
Statistical data on discrimination in India
Sharing some highlights from the “India Discrimination Report 2022,” which was released by Oxfam India. As per the report, women in the Indian labour market continue to face lower salaries than men owing to 67% discrimination and 33 percent due to qualifications. Oxfam India is urging the Government of India to protect equal rights and wages for women workers.
These reports are based on data on labour and employment provided by the Government from 2004 to 2020.
- Employment Discrimination in Urban Areas
- Caste based discrimination in Regular/Salaried and Self Employed
As per the PLFS (Periodic Labour Force Survey), during 2019-20, 37.5% of the SC/ST population were engaged in Regular / Self Employment (R/SE) jobs, in comparison to 41.3 % of non SC/ST. The difference is not very high. Caste-based discrimination has decreased from 2004-05 to 2019-20.
- Religion-based discrimination in Regular or Salaried employees
As per PLFS Data, in 2019-20 15.6% of the years plus population of Muslims are engaged in regular jobs, and the corresponding figure is 23.3% for non-Muslims. 68% of this gap is due to discrimination. In 2004, discrimination accounted for only 59%, which has increased by 9%.
- Gender based discrimination in Regular/Salaried and Self Employed
Gender-based discrimination in favour of men accounts for 98% of the employment gap in urban areas, which has hardly changed in the period spanning 2004 to 2020.
- Wage / Earning Discrimination in Urban Areas (for Regular/Salaried Employment)
- Caste based discrimination
As per PLFS Data for the year 2019-20 mean income of SC/ST is Rs 15,312 as against Rs 20,346 for general categories. The difference is, however, not due to discrimination but to the legal system of our country. The difference is due to non-discriminatory reasons like endowment, education, and age.
- Religion based discrimination
As per PLFS Data for 2019-20, the average earning of Non Muslims is Rs 20,346, which is significantly higher than that of Muslims, who are at Rs 13,672. However, discrimination accounts for only 6.9 % of the difference in pay, again proving that the statute around equal pay has been effective in our Country.
- Gender based discrimination
The average earnings for men are Rs 19,779, compared to Rs 15,578 for women. Discrimination is accountable for 67% of this difference, which decreases to 54% when the age group of 25 and above is considered. This shows younger women face much more discrimination, as they tend to cause more disruption at work due to marriages, pregnancy, etc.
Addressing and preventing discrimination in Indian employment
Both as employers and employees, we can look at means of addressing and preventing discrimination. While it cannot be stopped completely, efforts can be made to minimise it.
- As an employee, have a clear idea of the relevant company policies, and try to have a clear idea of what their role is towards themselves and towards others. Getting into a mindset of asking oneself if their actions and decisions are discriminatory towards others
Example, If you are a team manager, have regular introspection if you are unfair to someone in your team in your decisions that are based on unconscious or conscious bias and end up being discriminatory.
Similarly, as an employee, be aware if any decisions made against you are discriminatory.
It’s also important to know as an employee how to address and report discrimination, who the immediate POCs are, and what forum the instances can be voiced out and recorded in.
Both managers and employees should try to lead by example in their awareness and the way they respond to discrimination.
- As an employer,
- You should have robust and detailed policies and procedures, and efforts should be made to make employees aware of these policies.
- Efforts should be made to check if any policy has the possibility of infusing indirect discrimination.
- Ensure that employees know how to raise incidents related to discrimination in the correct forums.
- Ensure rule handbooks are regularly updated to match the current regulations to minimise the chance of discrimination.
- Have regular training and awareness programs with employees on workplace discrimination.
Conclusion
The legal system in India has evolved over the years to handle discrimination. With the kind of data analysis we saw, we see cases of prevalent discrimination, especially for women. The Government of India should look to incentivise the participation of women workers in the Indian job market to reduce gender discrimination. When comparing the discrimination heads of gender, caste, and religion, it’s gender-based discrimination that needs attention compared to the other two. Caste and Religion based discrimination are much less common compared to what women in India face against men.
References
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- https://thenationaltrust.gov.in/upload/uploadfiles/files/Persons%20with%20Disability%20Act%201995.pdf
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- https://www.citation.co.uk/news/hr-and-employment-law/how-to-deal-with-discrimination-in-the-workplace/
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