Discrimination in workplace can be in different forms; there might be a single reason or a combination of multiple grounds of discrimination. Discrimination in a workplace may constitute in form of: 1. Age, 2. Sex, 3. Qualification, 4.  Disability, 5. Pregnancy, 6. National origin, 7. Race/ Colour, 8. Religion, 9. Sexual harassment, 10. Equal pay or compensation, 11. Region/Place of origin, 12. Caste and 13. Ethnicity.

According to a survey made by TeamLease, 48 % of Indians have faced some kind of discrimination or the other at the workplace. Most of the biases are based on gender (25%), age (22%) and caste/religion (18%). Amongst the cities, employees in Delhi, Pune and Chennai faced the highest rate of discrimination, while employees in Ahmedabad faced the lowest amount of discrimination. Surprisingly, only 30 % of the surveyed companies stated that they have a clear policy on discrimination.

While, certain types of discrimination is illegal in India like, equal remuneration, sexual harassment, discrimination due to pregnancy and disability. Other types of discrimination in workplace like based on ethnicity, caste or religion are not illegal in the private sector. However, in the public sector apart from the protection granted to the employees of the private sector, the employees are also protected from discrimination on the basis of caste, creed, colour, sex, religion or place of birth.

Legal Protections

The Constitution of India has several provisions which grant certain fundamental rights to its citizen, which includes right to equality.

Article 14 guarantees Equality before Law.

Article 15 prohibits state from discrimination on the grounds of religion, race, caste, sex and place of birth.

Article 16 empowers the state to make reservations with respect to appointment for posts in favour of backward classes of citizens if in the opinion of state such classes are under-privileged.

However, these protections can only be opted when the discrimination has been made by the State or any Governmental bodies, including Government offices of both Central and State Governments. In case of discrimination on any of the grounds mentioned in Article 15, ie, religion, race, caste, sex and place of birth by the Government through its policies, or regulations, or otherwise, including recruitment, promotions, transfers, demotions and removals, the affected person can file a writ before the concerned High Court of the State or the Supreme Court.

The Constitution further lays down certain fundamental duties, which though cannot be challenged before a Court of law; the duties should ideally be implemented by the Government. Article 39 in part IV of the constitution urges state to ensure that citizens ,men and women equally have the right to an adequate means of livelihood, right to shelter ,food, education and work.

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Disability

Disability discrimination occurs when an employer or an entity treats a qualified individual with disability who is an applicant or employee unfavourably due to that person being disabled. This unfavourable behaviour can be experienced during hiring, pay, promotion, etc.

India, being a party to U.N convention on the Rights of Persons with disabilities made an International commitment for promoting, protecting and ensuring the rights recognised in that convention. In furtherance of this commitment India has legislated The Persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 for safeguarding and protecting the disabled in India.

Under the Act, only the following categories of  ‘disabilities‘ are protected – (i) Blindness; (ii) Low vision;  (iii) Leprosy-cured;  (iv) Hearing impairment;  (v) Loco motor disability;  (vi) Mental retardation and (vii) Mental illness

‘The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation)Act, 1995 made it compulsory for all government establishment to reserve not less than six percent of vacancies arising against all posts and in promotion of all persons with disabilities.

Moreover, Section 24A of the Act guarantees no discrimination in employment, Section 24C provides an environment free from discrimination in promotion by reason of disability , Section 24D is focussed towards an equal opportunity policy and Section 24F provides for no removal or reduction in rank on acquiring disability.

Remuneration

Discrimination may also exist in the payment of compensation to the employee which includes salary, overtime pay, bonus stock options, life insurance and other benefits.

Principle of Equal pay for Equal work

It is the duty of employer to pay equal remuneration to men and women workers for same work or work of a similar nature as per the Equal Remuneration Act, 1976.  Section 5 of the Act prohibits the employer from formulating a hiring process putting women on disadvantage on account of their gender which is in reference to the work that is same or similar to that which is offered to men and even in respects of transfers and promotions.

Discrimination on the basis of sex

Discrimination on the basis of sex can happen when an employee or a probable candidate is discriminated on the grounds of a person belonging to a particular sex. Discrimination on the basis of sex might be seen in the areas of hiring, conditions of employment, promotion, benefits, dividing work tasks based on whether staffs are male or female.

Discrimination on this ground is prohibited by Article 15 of the Constitution which says no citizen shall on the grounds of sex, caste , place of birth  be ineligible for ,or discriminated against in respect of ,any employment or office under the State. However, the State can make laws which might be discriminative towards male but which might be beneficial for the women on the grounds of affirmative action. Discrimination on the basis of sex is not prohibited under the law for those involved in the private sector.

Discrimination on the grounds of pregnancy

Discrimination can be refusal of grant of job to a women who is pregnant or dismissal of the women from the organisation subject to her disclosure of the fact of pregnancy.

Safeguards against such discrimination under the Maternity Benefit Act, 1961

When a women absents herself from work in accordance with the provisions of this Act it shall be unlawful for her employer to discharge or dismiss her during or on account of such absence or to vary to her disadvantage any of the conditions of her service.

No deduction shall be made from the normal and usual daily wages of a woman entitled to maternity benefit under the provisions of the Act,

No woman shall work in any establishment during the six weeks immediately following the day of her delivery.

Discrimination on the basis of caste

In India, one of the forms of discrimination that affects around 18 % of the workforce is discrimination on the basis of caste. Under the Protection of Civil Rights Act, 1955 if a person molests, injures, annoys, boycott, obstructs, or insults or attempt to do such act toward a person of Scheduled Caste, that person may be punished with imprisonment of term not less than one month and may extend upto six months and with fine not less than one hundred rupees and not more than five hundred rupees. If a person of Scheduled Caste faces boycott in form of not allowing that person to work or do business with other person or receive from him the services he renders, or any other things which are commonly done in ordinary course of a business is a punishable offence and he may file a FIR in the local police station.

 
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6 COMMENTS

  1. […] related to employees. A legal case filed against the employer by the employee on the grounds of discrimination, an employee getting injured in the course of performing a business activity or an employee being […]

  2. dear friend

    under Section 4 of 1961 Maternity Benefit Act, your wife can inform her manager that she has a legal right to take time off from her work as she is pregnant. she is legally entitled to maternity [email protected] of average daily wage for period of her actual absence I.E. 1. period immediately preceding day of her delivery, 2. actual day of her delivery and 3. any period immediately following that day. leave applies to her with [email protected] benefit rate for maximum period of one month u/Sec 10 of the Act. her wages cannot be deducted. further, if she justifiably legally absents herself from work in conformity with this Act (IE pregnancy), it is unlawful for her employer to discharge/dismiss her during/or on account of such absence/or giving notice of discharge/dismissal on such day that the notice would expire during such absence, or to vary to her disadvantage any of the conditions of her service. If this persists plz tell her to consult a labor lawyer in your city on applicability of Maternity Benefit Act to her n to file a civil suit against the company for violating her labour/maternity rights….good luck friend

  3. Hello ,
    I am facing discrimination for job at a firm because of my cardiac history . My cardiologists have given them in writing that I am fit for the job that doesn’t involve anything physically strenous . It’s a software development and application integration job.Still the HR and doctors of the firm have not given me the offer despite clearing the recruitment process. They give different reasons when I call them . At one instance they tell me there is lot of stress and pressure so u won’t be able to handle it.I clearly opposed their reason . When they felt that this reason won’t work they gave a different reason the next time I called them . They said our requirements are low now and thats y we cannot take your profile forward .I feel there shouldnt be any question of low recruitment after the interview has been done . Right? They give me the date of joining and then they say the requirement is low. I mean after clearing interview , they are discriminating agianst me . They have given offer letter to other candidates but not me .Please help. I am depressed and tensed

  4. Hello,

    I need advise on a situation that has recently surfaced during my wife’s pregnancy.

    The manager who represents the company has done one on one meeting with my wife, asking what are her plans as the work is suffering due to her pregnancy.

    The manager states that she needs to take out time off hours for pregnancy related tests, even when she is taking leaves for those with prior intimation and company too deducts salary every time she takes leaves.

    Recently she had to take 2 days leave because of fever and the manager in an one on one meeting asked my wife about her plans further as the work suffered because of her leaves for which there was clear prior intimation that she was not well.

    This discrimination has started recently on the grounds of her pregnancy forcing mentally my wife to take a decision of resigning from the employment.

    I want advise on how to file law suite against the employer and the manager.