workplace discrimination laws

This article on workplace discrimination laws in India is written by Ritika Das pursuing M.A. in business law from NUJS, Kolkata.

INTRODUCTION

Articles 232 and 243 of the Universal Declaration of Human Rights has specified and clarified The Right to Work as an imperative Human Right.Everybody has the privilege to work and can opt for working in a secure environment. The privilege to work is firmly identified as a fundamental right which could be equated with something as simple as the privilege to life. In a nation where a large number of individuals are denied any financial resources other than work, employment which is profitable is basic for these rights to be satisfied. Unemployment is one of the leading factors for poverty. The liberty to work negates that. There should be equal pay and equal work opportunities given to all without any discrimination. Right to work not only is a milestone to achieve steady economic, social and cultural development of the country but also ensures that everyone would have the chance to live a safe healthy wholesome life.

 

Discrimination at work

Discrimination is defined under ILO Convention No. 111as any “qualification, prohibition or inclination made on the premise of race, colour, political opinion, religion, sex, social inception or national extraction, etc, which has the effect of nullifying or impairing equal) of opportunity and treatment in employment or occupation.”

Inequity and prejudice can propagate destitution, smother improvement, efficiency and touch off political insecurities, says the report which was prepared under the ILO’s 1998 Declaration on Fundamental Principles and Rights at Work. According to the report, discrimination is still a typical issue in the work environment. While a portion of the more obtrusive types of discrimination may have ebbed, many still dwindle and have taken on new or less visible forms.

 

Worldwide movement joined with the redefinition of national limits, developing financial issues and the disparity has intensified xenophobia, racial and religious diversity. As of late, new types of intolerance and bigotry is coming to light in the field of HIV/AIDS, handicap, age or sexual orientation are a reason for developing concern.

 

The right to Work:

The privilege to work is firmly identified with other essential rights, for example, the privilege to life, the privilege of education. In a nation where a huge number of individuals are denied of any financial resources other than labour, is basic for these rights to be satisfied. The privilege to work expresses that everybody ought to be given the chance to work for an essential living compensation.

Types of Discrimination

  • Direct Discrimination
  • Indirect Discrimination
  • Gender Equality and Right to Work
  • Violence against Women
  • Equal Remuneration
  • Sexual Harassment
  • Equal Choice of Profession
  • Crimes against Scheduled castes
  • Religious Discrimination
  • Crimes against Scheduled castes

 

Direct Discrimination

When workers or labourers are avoided on the ground of marital status, political opinion, or sex that would count for Direct Discrimination.

 

Indirect Discrimination

Aberrant discrimination may happen when evidently impartial standards and practices have a negative effect on a lopsided number of individuals from a specific gathering regardless of whether or not they meet the necessities of the occupation. It demonstrates that the utilization of a similar condition, treatment or prerequisite to individuals can indeed prompt to extremely unequal outcomes depending on the life conditions and individual qualities of the general population concerned. The prerequisite of learning of a specific dialect to get a job, when language skill is not a key requirement for an opportunity but a type of indirect discrimination in view of national or ethnic beginning

 

Gender Discrimination and Right to Work

The concept of gender mainstreaming began somewhere around the year 1980 which had been embraced by nations everywhere throughout the world which aspired to make equality of sex fundamental to the development practices. Despite the factor that our Constitution and numerous other authoritative Acts have encouraged general equality, the status of women remains low. There is an incredible upsurge in the consciousness of ladies’ among all segment of society. There is an incredible improvement in the consciousness of women appropriate among all segment of society. Despite urbanization and economy which remains pastoral based thus to accomplish financial gains attempts ought to be made through particular projects for multiplying life expectancy of women decreasing female infanticide to maintain harmony amongst male and female populaces. To completely eradicate gender inequality and encourage equity in society it is vital to eliminate discrimination.

 

WORKPLACE HARASSMENT LAWS IN HIGHER EDUCATION:

Madras University framed sexual harassment code in the year 1991. Sexual harassment includes the commission of any verbal, physical or other conduct including comments or gesture of a sexual nature. It induces eve-teasing, unwelcome remarks, jokes causing or likely to cause awkwardness or embarrassment, gender-based insults or sexist remarks. Unwelcome sexual overtones in any manner over the telephone, touching or brushing against the body, displaying pornography or other offensive or derogatory picture, cartoon, pamphlets or saying, forcible physical touch or molestation, physical confinement against one’s will or any other act violating one’s privacy according to the code.

Significantly, denial of equal opportunity in career development and making the work environment unfriendly as well as menacing employees are included as part of the term ‘harassment’.

The recommendations of a four-member committee have been sent to Rajya Sabha Deputy Chairperson Najma Heptuallah to help enact such a code in all workplace across the country. The code has been framed to deal with complains of sexual harassment in which staffs were either victims or executioners. The penalty imposed under the code shall be a warning, serious warning, fine in monetary terms in proportion to gravity or nature of harassment.

The Solicitor General introduced ‘Visakha Guideline’ after giving the historical judgment on Visakha Vs. Rajasthan Government in 1997 basing on the writ petition of 1992, to protect the interest of working women both in government and private sector, dealing with violence on women and nature of equal justice.

Directives to constitute Woman’s cells also came from the Supreme Court in all universities to deal with workplace harassment on women. Sexual harassment bill was passed in the India Parliament in 2001, which also deals with workspace harassment on women. Section 304-B, 306, 498-A of Indian Penal Code, Section 32,113-B of Indian Evidence Act also deals with various kind of harassment. Section 354 of IPC deals with assault or criminal force to woman with intent to outrage her modesty. Article 15 (3) deals with positive prejudice in favor of women. Article 14, 19, 21 of Indian Constitution gives women equal rights and opportunities.

Status of Women in India

Equal rights have been vested on women with respect to status, opportunity, protection of law with respect to a social, economic and political issue in accordance to the preamble. There is still a long way to go regarding the full equality of marginalized groups especially women. In accordance to a census data of the year 2001, approximately one twenty million women are living below the poverty line. Rural India has the highest record for mortality during childbirth. Hours spent in household activities by women are ignored by the Census. Women financial vulnerability is visible with regard to payment of daily wages when compared with men.

 

Existing Legislative Framework

Specific aspects of women equality are mentioned in the Constitutional laws but anti-discrimination code is missing. Laws like the Maternity Benefits Act, 1961, Equal Remuneration Act, 1976 and the National Rural Employment Guarantee Act, 2005 attempt to deal with violence against women. An example of civil law which addresses any violence in domestic sector is mentioned in the Protection of Domestic Violence Act, 2005., The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 is an example of criminal law to counter acts of violence against SC/ST women. There is no broad statutory definition of inequity that takes into account special manifestations of prejudice and its blow in the deficiency of an anti- discrimination code.

 

The National Human Rights Commission and the National Commission for Women are constituted to safeguard and protect human rights. For better enforcement of human and women rights these commissions are given the responsibilities. These Commissions have their limitations too. Individual grievances are not being entertained here neither the Commission can bind a government’s decision regarding the issues.

 

Proposed Law

Setting up a new legal framework for tackling grievances of the minority population was formulated in Sanchar Committee report in 2006. The Menon Committee Report in 2008 proposed a new framework in the form of Equal Opportunity Commission (EOC). This is is an extensive authority to investigate, collect data, carry out audits, sponsor and provide guidance. But the planned legislation does not envisage an influence which can restore grievances and give relief to individuals. Amid other things, the discussion will look at this proposed legal framework in a significant manner. Our country needs an equality legislation that will safeguard the constitutional assurance of equality particularly for women of the society.  ‘Towards an Anti-Discrimination Law in India’ is a consultation which was organized on December 11-12, 2010 at India Habitat Center, New Delhi which planned and suggest the need for an anti-discrimination legislation whose objectives and structure reply to the need of the society.

Indian Women Of 21st Century

It is encouraging to note that the requirement for sex-specific information has been perceived and different censuses and other official large scale level measurements are starting to show up with female calculations. These are best utilized as markers of patterns and not as outright figures.

In the overall public tables of gender ratio demonstrated a descending pattern with the exception of the age limit between 25-29. This could be a positive response to the raised age of marriage and lower maternal mortality in that age aggregate. A diminishing gender ratio in urban zones could be demonstrative of the expanding female-headed rural families which need to depend on small, sporadic settlements from male members who move to urban areas for work, for instance, in Orissa, the gender ratio in 2012 was 871 while the provincial urban breakup was 1000 and 794 separately. Comparative trends were seen in different states also. Curiously, the lopsidedness of gender ratio in the rustic/urban populace was more prominent in states where ladies are accepted to have a lower societal position with limitations on their movement and social interaction.

The Indian Constitution ensures fundamental rights to women, yet its jurisdiction is just to state or public institutions and does not stretch out to the private sector. Furthermore, there is no general anti-discrimination policy in India or even a statutory meaning of “discrimination.” Instead, there is a progression of laws illustrating parts of equality, and standard or personal law which can stay substantial notwithstanding while disregarding these arrangements.

Discrimination is of many kinds but amongst all is the desire to have a male child. Gender discrimination refers to the inequality that exists among the genders.  People of the modern era considers this to belong to the narrow-minded orthodox people although many who belong to the higher strata support gender discrimination.  Besides this, the unequal treatment that is visible in workplaces among genders is a burning issue that our society is facing.

Workplace gender discrimination reports unusual or unequal or unhealthy behavior towards females as compared to the male populace. This has been supported by researchers as well. Gender discrimination can be of different categories which includes harsh treatment of one sex in comparison to the other sex.

  • Discrimination regarding unequal wage being paid to women for the same type of work is very much visible. The term “housewife material” is often used to address female employees. Men folk are considered to be more dedicated and hard working.
  • Lower wages are given to female employees in spite of their qualifications and taking undue advantage of the situation through which and for which an individual is forced to go out and work.
  • Molestation, blackmailing of women in workplace by their boss is a very common abuse in the workplace that is found nowadays.
  • In spite of being much more knowledgeable the male employees are often ignored from taking part in meetings that ask for some sort of entertainment to clients.
  • Sexual abuse is considered a major inequity and harassment in the workplace.
  • Harassing a female employee by delegating irrelevant work is another common abuse.
  • More deserving and hardworking women employees are sometimes being deprived of higher incentives and salaries as compared to the male counterparts.
  • Another debatable issue is granting promotion and perks to male workers who are considered to be more responsible and capable ones.
  • Involvement of men and women among themselves are being handled harshly by the employer and women are more vulnerable in this field.

Some of the important laws passed during the past few decades, including amendments to existing laws, are worthy of mention. They include:

  1. Hindu Marriage Act
  2. Special Marriage Act.
  3. Child Marriage Act.
  4. Dowry Prohibition Act.
  5. Equal Remuneration Act.
  6. Factories Act.
  7. Maternity Benefits Act.
  8. Criminal Procedure Code.

Violence against Women

Women even in today’s world are often the victims of abuse and violation in their respective workplace.Although they are also valued for the meaningful contribution they have in life. The term ‘violence’ has been described by Gelles(1979) as “an act of striking a person with the intent of causing harm or injury but not actually causing it”. Megargee(1982) has defined violence as “the overtly threatened or overtly accomplished application of force which results in the injury or destruction of persons of their reputation”.

Crime Against Women Cell and police stations of different metropolitan cities give record of cases reported against women in workplace whether it is in corporate or factories. There is an increase in the cases being reported but this also shows an increase in awareness among women regarding their rights and the gradual confidence of the victims in their respective workplaces.

If we were to develop a typology against women, we may give six types of violence:

  • Violence which is money oriented
  • Violence which seeks power over the weak
  • Violence which aims at pleasure seeking
  • Violence which is the result of the perpetrator’s  pathology
  • Violence which is victim- precipitated
  • Violence of stressful family situation

Equal Remuneration Act, 1976

Equal Remuneration Act, 1976  obliges businesses to pay equal to compensation to laborers for same work or similar work with no discrimination on the premise of gender. The Act requires each business not to pay to any labourer the compensation at rates less great than those at which fee is paid by him to the labourers of the opposite sex for playing out a similar work or work.Law additionally commits managers not to decrease the rate of compensation of any laborer with the motive of conforming to the arrangement of equivalent pay for same work or similar work.

This law aims to prevent gender discrimination of wages, hiring, promotion, or training and can be circumvented through wage reclassification of skilled and unskilled workers. Often, regardless of the type or skill-level of a job, women are placed in the unskilled, lower-paid wage category, while men are placed in the skilled, higher-wage category.The Act Includes Equal pay to men and women workers for same or similar work. No discrimination in recruitment and service conditions, except where employment of women is restricted by the law such as night hours or industry specific restrictions.

Amendment to the Act

Act, 1987 Amends the Equal Remuneration Act of 1976 by expanding certain punishments for guilty parties, and also providing for jurisdiction for a trial of offences. The Equal Remuneration Act was passed in 1976, accommodating installment of equivalent compensation to men and women for a similar kind of work, and to anticipate victimization of women in business. The Factories Act was revised in 1976 making it necessary for the business to give crèches to kids, where the quantity of women laborers is at least 30. The extent of the Maternity Benefits Act was extended in 1976 to cover those ladies who were not qualified for advantage under the ESI Act of 1958.

National Commission for Women Act, 1990 (Act of Parliament)

Makes a National Commission for Women to survey existing statutory assurance of women; get occasional reports to the Central Government on matters identifying with safeguard for women’ rights; research dissensions identifying with the hardship of these rights.

Constitutional (74th Amendment) Act, 1992

women in political power at the lower level have battled for mass education activities and additionally for control over assets, for example, water. But since running for office has turned out to be progressively costly, parties just set forth a couple of women candidates, and these are often relative. While these women are getting advanced, generally speaking there are still relatively few women in politics.. “The Amendment mandates one-third reservations (or quotas) for women in local governing bodies in state or public institutions.”

Sexual Harassment

Reviews have demonstrated that between 40–80 percent of women in India encounter inappropriate behavior at work, and in 66% of those cases, the culprit is the woman’s boss or superior.In spite of the fact that India passed rules on sexual harassment in 1977, women aren’t mindful of their reality. The Supreme Court of India in the Vishaka Judgment characterized lewd behavior in the work environment to incorporate undesirable physical contact, advances, or demands, and additionally the show of explicit material and verbal or non-verbal sexual conduct.The Supreme Court proclaimed that this judgment likewise correlated to the private segment. The Vishaka Judgment characterized inappropriate behavior as an infringement of fundamental rights and the outcome is that many organizations have set up anti-sexual harassment committees. However, in spite of this Supreme Court judgment, there is as of now no enactment or legislation women from sexual harassment at work.In April, the amendments to the Sexual Harassment of Women at Work Place Prevention, Prohibition and Redressal Bill, which would have put the weight on the superior to demonstrate chastity, neglected to pass the union cabinet. This bill, without the new corrections, is right now pending before the parliament.

Vishaka and Others Vs. State of Rajasthan

After several cases of sexual harassment at the workplace, Vishaka and others filed a writ petition. The guidelines are a framework for workplace protocol, with an emphasis on the prevention of sexual harassment. Through the determined work of women’s groups, the Vishaka Judgement guidelines have become influential in the workplace.  

The Supreme Court expressed that sexual harassment abuses a working woman’s constitutional rights. Through the Vishaka Judgment, progressions of rules were made, including:

  • “It is the responsibility of companies to prevent sexual harassment.
  • Organizations must create a sexual harassment oversight committee headed by a woman.
  • Organizations must initiate disciplinary action against offenders, and victims must be protected.
  • Women workers must be made aware of their rights”.

Equal Choice of Profession

Each person has the privilege to practice in any field of work as per the Constitution subject to any reasonable confinements implemented under the law.

According to the Factories Act 1948, Women in India are not allowed to work in the same industries as men, it is mentioned in the act that , women aren’t permitted to work in any part of the factory for cotton while the men are at work. The Act additionally expresses that the day by day work hour exclusion can’t be conceded for women laborers and night work is likewise disallowed to them. Also the Act restricts work of women in “dangerous” occupations.

Crimes against Scheduled castes

As far as work/occupations are considered  as per the 1991 evaluation of the aggregate schedule caste  populace of 1382 Lakhs ,574.9 Lakhs Fall In The Category Of Workers. Around two third are reinforced workers of the schedule castes and tribes.Literacy among the Schedule castes individuals is to a great degree low. It was just 13.6%in 1991 as against the all India normal count  of 52.11 %. The majority of them live beneath destitution line and are the easy mark to work place separations.

Practically speaking, untouchability may have been abrogated, yet the Schedule Caste keep on being subjected to discrimination, badgering and embarrassment.

The reports of the National Commission on Scheduled Castes and Scheduled Tribes have every year reflected an increase in the number of crimes against the Scheduled Castes. Most of the SC women are the victims of rape by upper caste men. SC men on the other hand are exploited by upper castes by usurping their lands, giving them low wages, using them as bonded labours. For checking this exploitation, a set of comprehensive guidelines covering preventive measures have been formulated and communicated by the central government to the states for necessary action. Some of the measures are :

  • Gearing up machinery for apprising the government of disputes of land, wages etc. concerning the schedule castes.
  • The police is instructed to treat cases of crime against schedule castes as special report cases and arrange for quick trial and prosecution.
  • Setting up special courts for quick disposal of cases pertaining to schedule castes.
  • Setting up special Scheduled Caste Cells under DIG Police to ensure that crimes against scheduled castes are properly registered and investigated promptly.
  • Setting up State level committees under the chairmanship of the Chief Ministers t look after various aspects concerning welfare of schedule castes.

The Mandal Report

The provision for reservation for the Scheduled Castes and Scheduled Tribes was made in the Indian Constitution framed after independence but the reservation for other backward castes/classes was announced by the Janata Dal government only on August 7,1990. As many as 27% seats were proposed to be reserved for 3742 other backward castes/classes. But many resistance regarding this poured in from different sectors of life. There was a sense of frustration and anger st the system, a feeling that the system had given them the false hope that education would give them better jobs, and thus a better future. So this was a discrimination against the candidates belonging to the General category.

Arguments in favour of Mandal Report

The following are few of the arguments  given in favour of the Commission:

  • It is our moral and social duty to ensure that the oppressed and the deprived peple are at par with the affluent people in society.
  • The reservation will be only for the Central Government services and not more than1% of the total  population of the country is in this service.

While framing the Constitution of India, Ambedkar had suggested three propositions :

  1. there should be equality of opportunity for all citizens
  2. there ought to be no reservations of any sort for any class or community at all
  3. there should be reservations for a limited period in favour of certain communities which have so far been outside the administration. These three seem to be the workable propositions even today for our society.

 

Religious Discrimination

Whether a private company is legally bound under the provisions of the Constitution or of any law to recruit its personnel from all religions equally or whether it has complete freedom to select people of its own choice is a debatable issue now specially after the Mumbai police had  registered  an offence under the Indian Penal Code (IPC) against the above private company. The matter of a Muslim MBA student Zeeshan Khan having been declined employment by a private company called   Hari Krishna Exports Pvt. Ltd. Because he is a Muslim, has attracted a lot of media .  The issue of a Muslim MBA student Zeeshan Khan having been refused employment by a private company Hari Krishna Exports Pvt. Ltd. on the ground that he is a Muslim, has attracted a lot of media attentionThe issue of a Muslim MBA student Zeeshan Khan having been refused employment by a private company Hari Krishna Exports Pvt. Ltd. on the ground that he is a Muslim, has attracted a lot of media attention.

Article 15 of the Constitution deals with laws against discrimination on religious grounds. The State shall not discriminate against any citizen on grounds only of religion. The State shall not discriminate against any citizen on grounds only of religion. No citizen shall, on grounds only of religionNo citizen shall, on grounds only of religion regarding access to shops, public restaurants, hotels and places of public entertainment; or the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.” So the case being filed by the Mumbai Police is totally illegal.

CONCLUSION

India’s way to deal with substantive equity has just been unassumingly effective in alleviating the basic issues that encourage discrimination in employment. The current framework addresses only disconnected parts of the issue since it fundamentally lays on a system of quotas that relate just to the general population and in light of the fact that it doesn’t consolidate a comprehensive statutory scheme that addresses unintended discrimination in its different structures and against a full scope of disadvantaged groups.

The legislature’s inability to make definitive move to address discrimination in the work environment has exacerbated the issue. The work discrimination framework remains greatly affected, and the privileges of the scheduled and backward castes and women are neglected. Without powerful administrative arrangement, the judiciary  ought to keep on promoting the reason for substantive equality in the manner employed in Vishaka .

“However, in the absence of effective legislative policy, the judiciary should continue to further the cause of substantive equality in the manner employed in Vishaka. This kind of activism on the part of the Court may provide interim relief and serve the purpose of prodding the legislature into fulfilling its part in upholding substantive quality. In interpreting the state’s guarantees of equality, the judiciary should apply a primarily substantive approach free from the regressive effects of traditional values and norms. Formal equality should be applied as a secondary framework, after establishing that the relevant parties are similarly situated in terms of their levels of (dis)advantage, such that the application of formal equality principles will not perpetuate existing social hierarchies. A more robust substantive equality of opportunity will, it is to be hoped, be a step towards eradicating the structures of subordination that operate as barriers to advancement in all spheres of life”.

 

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