This article is written by Mahima Chanchalani, a student of Jamia Millia Islamia. In this article, the author discusses the role of discrimination policies which are adopted in various legal firms.
Table of Contents
Introduction
Discrimination can be defined as any negative action towards a person because of some factors like age, caste, sex, race or any like factors. The concept of discrimination is among the most discussed topics regardless if it is at a workplace (in our case law firm) or any other society. Despite India being an independent country, the people still face discrimination because of gender, sex, caste, age or because of technical backwardness. This discrimination can be curbed only after some anti-discriminatory laws are adopted against them.
The goal of the law firms must be to ensure that there is no discrimination with either the members of the firm or with the candidates who are eligible to be employed, in order to satisfy the obligations under the Human Rights Code and Rules of professional conduct. The employees are discriminated against on the basis of their age and technological backwardness as well, but we seem to find no specific legislation that can help to curb them.
Discrimination can occur at profiling of individuals can happen in two different stages- before recruitment as an employee and post-recruitment. To be specific, before recruitment in the law firm they are discriminated against on the basis of the law school they belong to. There is discrimination of the students on the basis of their law school i.e. NLU and non- NLU. It is considered that students belonging to the National Law Universities (NLU) are considered more virtuous than those belonging to the non-NLUs.
The law firms adopt a policy that only those students who have secured exceptional grades and belong to the famous law schools of India are given jobs in most cases. There is also a lack of good mentors who could guide them in excelling in their careers. The students belonging to the not famous law schools are considered as non-intellectual people and not given jobs in the firms. They are not even allowed to prove themselves for a certain time. This is the policy adopted in most of the firms except the top firms where they actually conduct a 3 stage of examinations in order to select the students for jobs. This policy is fair and must be adopted by all the firms. This will act as a just method to provide jobs to the applicants and also curb discrimination.
Discrimination policies in legal firms – an analysis
In simpler words, discrimination can be understood as the unequal treatment given to a particular group of people owing to age, sex, caste, race, etc. It can also be defined as unequal treatment given to an equal set of people owing to certain characteristics like race, gender, age or sexual orientation. Discrimination can damage you mentally as it drains all the energy you put into some work.
Types of discrimination in law firms
Discrimination is a prevalent practice in law firms. It can be either sociological discrimination on the basis of caste and gender. In sociological discrimination, women become a victim of sexual harassment. It can also be technological discrimination, where people are discriminated because they lack a few skills in comparison to the other employees of the firm. This causes hindrance in the work of that person as it just keeps that person on the back-foot. This leads to the restriction in the work of that person. In that case, it is the duty of the firm to arrange some workshops to inculcate skills relating to the technical field.
Racial discrimination
The employees witness some kind of racial discrimination as in they might get fired from the job because of their race, or maybe they are not given equal remuneration owing the race, or may get treated unequally, or get harassed sexually. They might also get subjected to random comments that imply the hidden intention of discrimination.
Gender discrimination
Gender discrimination is where there is unequal treatment given to individuals owing to their gender. Sexual harassment is a form of illegal gender discrimination. There are some more instances that are covered under this type of discrimination like sexual harassment, unequal pay, no promotion solely for being a woman and many more.
Age discrimination
This type of discrimination is prevalent as the recruiters consider that old people are less energetic and would be able to contribute less towards their firm rather than a young employee, which is able to work for a greater period of time.
Technological discrimination
The employees already working in a company might face this kind of discrimination because of their technological backwardness. This can mostly be seen in employees who are aged i.e. have grown old and so might not be technologically advanced. In such instances, it becomes the responsibility of the employer to organize workshops to make them at par with the technologically advanced employees.
Legislations that prevent discrimination at the workplace
The Indian Constitution itself lays down certain provisions to prevent discrimination. Article 15 of the Indian Constitution restricts the state to discriminate its people on the basis of sex, race, caste or gender.
Protection under the Equal Remuneration Act
The Equal Remuneration Act of 1976 deals with the issues of discrimination between the employees in respect to wages, recruitment and promotion. This Act implies that there must be equal pay for equal work for men and women, and there must be no discrimination in reference to the wages provided to them. This Act also specifies that women must not be put at any disadvantage than men at the time of the hiring process and must consequently not be discriminated against owing to their gender.
Prohibition of sexual harassment against female employees
The Supreme Court of India in the year of 1997 in the case of Vishakha and Others v. State of Rajasthan and Others laid down some Guidelines against the Sexual Harassment at Workplace (also called as Vishakha Guidelines). The guidelines lay down some measures which must be adopted by the employer in order to prevent instances of Sexual harassment.
The guidelines also provide that women must also be provided with appropriate working conditions in terms of work, health and hygiene. The guidelines were regarded as a law owing to the fact that there was no law that was made to prevent sexual harassment at the workplace.
The necessity of the non-discrimination policies
There are various reasons why firms must adopt non-discrimination policies. They are:
- When legal professionals apply for a job at a law firm they believe that there will be equal treatment among the employees and they will not face discrimination on the basis of race, gender, caste, age, etc. The presence of a non-discrimination policy helps the firm grow without any hindrance. The absence of such a policy is indicative of a non-serious attitude to the work and so nobody would want to connect.
- The laws against discrimination vary in different countries. On the one hand, there are some countries that require employers to prioritize citizens over other candidates, whereas other countries just require you to have a work permit in order to work under them. The non-discrimination policy must comply with all the country as well as the local laws.
- The non-discrimination policy must clearly indicate the work ethics and the behavior of the people who are allowed in the firm. For instance, if an employee misbehaves with someone, then it gets easier to point to a policy rather than to refer to law.
- The presence of a clear policy is beneficial for the company as it enables the employees, candidates, and managers to have a clear picture of how they have to act and what the company expects of them. They need to understand that even an individual who has a discriminating nature, has to keep this outside of the firm premises.
There should be a version of the policies of the firm available online so that workplace policies are available to everyone and equity is maintained. This is also indicative of the firmness of the legal firm in following its policies.
Violation of the right to equality – an aspect to be considered
The Constitution of India specifically mentions that the government should provide equal protection of the laws or equality before the law. Same is the case with the private sectors, the individuals working in private companies or firms must also look after that every employee has a right to being treated equally. There must be no discrimination on the basis of race, caste, gender, sex or even on the basis of technical backwardness. This hampers the right to equality which is a fundamental right.
Discrimination amongst the employees because of various reasons like race, caste, sex and alike is a violation of the right to equality. The employees working in a firm are also the citizens of our country, so the discrimination amongst the employees also violates their right to equality. Some instances are where the male and female employees are given unequal pay for the same amount of work they do. There is discrimination amongst them when more no. of men employees are recruited than women employees, here sex discrimination is visible. This also violates the right to be treated equally.
A sneak peek into the barriers of equality in the legal profession in Canada
The people in the legal profession face discrimination owing to the serious barrier of equality. There are various studies that have been conducted by the Law Society of Upper Canada since 1989 which represent inequality in India.
- The Special Committee of the Law Society in Equity in Legal Education and Practice has in the year 1990 analyzed the statistics which indicates that the people in the legal profession were discriminated against in respect of their population in Ontario.
- The Law Society of Canada in 1996 published a longitudinal study named Barriers and Opportunities within Law where that study weighed the success of the Ontario Bar between 1975 and 1990 in the context of male and female lawyers. This report was indicative of the inequality faced by females in the legal profession.
- The Law Society in the year 2001 appointed Michael Ornstein who is the Director of the Institute of Social Research of York University who conducted a survey of the legal profession in Ontario and represented it demographically. The Canadian census of the year 1996 showed that 7.3% of the Ontarian lawyers are non- white out of the total 17.5% of the population. The report of the same year denoted that 30.15 of the lawyers of Ontario were females and only 7.8 of lawyers between 55 and 64 and 18% of lawyers between 45 and 55 were women. The report is also indicative of the fact that the average earning of the lawyers per annum is comparatively very less than that of white male lawyers.
Conclusion
Discrimination amongst the employees can be seen at all the work place including the law firms. It can be racial discrimination, sexual discrimination, gender discrimination, discrimination on the basis of age, discrimination of the employees who lack technical skill. Gender discrimination includes sexual harassment which can be curbed when some grievance committees are established to look into these matters. After the matter is heard, action must be taken so that it is not repeated with other employees. Some strict action must be taken against the accused. So, in order to curb them, some anti-discriminatory policies must be adopted. The anti-discrimination policies must ensure that right of equality of the employees is not hampered.
If the discrimination persists in the legal fraternity, it will violate the principles of law itself which the lawyers are aware of, that is a violation of the right to equality and justice. There is the only way that is possible to avoid discrimination is when a firm adopts a policy where there is no tolerance for any kind of discrimination and no lack of opportunities. The firm must stand firm in terms of equality, so that the policies adopted by it are not kept unused. The firm must make sure that the policies are from time to time reviewed, so that any new or modern policy can also be included in order to fight against discrimination.
References
- http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Indian_laws_on_employee_and_workplace_discrimination_and_harassment.pdf
- http://lawsocietyontario.azureedge.net/media/lso/media/legacy/pdf/p/guide-developing-law-firm-workplace-equity-policy.pdf
- https://www.illinoislawreview.org/wp-content/uploads/2016/05/Long.pdf
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