Abstract
The deeply embedded nature of gender hierarchy is manifested at workplace. However, in recent years, the role of gender justice and equality at the workplace has gained significant momentum. Workplace justice, first postulated by Greenberg in 1987, is closely connected with the concept of equity and is concerned with issues related to concept of equal remuneration, equal opportunities for promotion, and personnel selection procedures. Gender equality in work environment alludes to a variety of cultures, practices and mentality that subverts gender based segregation at work. Gender inequality at workplace manifests itself in multiple forms which include gender gap in employment, management and leadership, gender pay gap, uneven power relations, and sexual harassment. This paper intends to exclusively deal with the legislations enacted by the government of India to ensure gender equality at workplace. The Constitution of India provided a foundational basis to the idea of gender equality in work environment through article 14, article 15(1), article 16(2), article 39 and article 42 and paved the way for enactment of these legislations. In spite of progressive laws, organizations find it challenging to address gender inequality at workplace. Further, this paper intends to grapple with the impediments that stymie the effectual implementation of these legislative enactments and the shortcomings contained in these acts. Although biases and stereotypes continue to persist, the situation with respect to workplace justice is changing, albeit slowly. The paper will likewise delve into the measures which should be adopted in order to transform workplace culture and to resolve the issues of gender biases that perpetuate unequal dynamics in relationships in the organizations.
KEYWORDS: Workplace justice, Gender Equality, Legislation
Introduction
Workplace justice, first postulated by Greenberg in 1987, is closely connected with the concept of equity and is concerned with issues related to concept of equal remuneration, equal opportunities for promotion, and personnel selection procedures. Right workplace culture is very important for a working women to thrive. The deeply embedded nature of gender hierarchy in the society, prescribed gender roles, gender bias, male chauvinism have relegated women to a secondary status within workplace and has sustained the infiltration of gender inequality in work environment. Patriarchy is the social and ideological construct which apportions specific roles to men and women based on the fundamental hypothesis that men are superior to women. A part of this gender inequality, perpetuated through socio-cultural conditioning, is manifested in the workplace environment. Constructed on the precept of male predominance, a workplace infiltrated by patriarchy does not see women as central to things. Actually, one of the most obtrusive confirmations of the presence of patriarchy in the working environment is the sex-based stereotyping of jobs assigned. Generally the job opportunities available to women pertain to peripheral roles like front desk executives, receptionists, secretaries, etc. The demanding nature of the work environment tends to side-track women and compels them to opt for roles that enables them to cater to family responsibilities. Working women are subtly coerced into making compromises on the professional front so as to cater to her familial responsibilities because she is anticipated to place the needs of her family over her own interests and aspirations and therefore, it becomes highly exigent for a working women to strike an appropriate balance. So there are very few women holding senior leadership positions in organizations. Also she has to make sacrifices on the personal front in order to gain recognition in her professional life and so striking a balance becomes arduous. Practices like gender discrimination in recruitment, management and leadership, gender pay gap, uneven power relations, and sexual harassment perpetuate gender inequality at workplace and make it all the more difficult for working women to thrive.
- Constitutional Provisions and Various Legislations to ensure Workplace Justice.
The Constitution of India has provided a foundational basis to the idea of gender equity in work environment through article 14, article 15(1), article 16(2), article 39 and article 42.
Article 14 – The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Article 15(1) – The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
Article 16(2) – No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State.
Article 39 – The State shall, in particular, direct its policy towards securing
(a) that the citizens, men and women equally, have the right to an adequate means to livelihood;
(d) that there is equal pay for equal work for both men and women;
Article 42 – The State shall make provision for securing just and humane conditions of work and for maternity relief.
In Air India Cabin Crew Association v Yeshawinee Merchant and others[1],an appeal was filed at the Supreme Court of India following a successful petition filed at the Bombay High Court by the Air India Cabin Crew Association (the Association). The petitions argued that the required retirement ‘from flights’ at an age of 50 years for an Air India Air Hostess was discriminatory in nature and violated Articles 14, 15 and 16 of the Constitution of India. . The Bombay High Court held that the age of retirement for air hostesses constituted discrimination on the basis of sex.However, the Bombay High Court further imposed seniority rules applicable to all Air India flying staff.The Supreme Court determined that the judgment of the High Court was “unsustainable” in respect of the directions it had provided with regard to seniority rules. However, it stated that this part of the High Court decision was severable from the ruling which dealt with the retirement age of air hostesses. Therefore, the Supreme Court held that the retirement age of flight duty air hostesses will be 58 years.
In Mariamma v. Hindustan Latex Ltd.[2],promotion was denied to a lady security guard on the ground that she was a female by the employer namely Hindustan Latex Ltd., a Government of India undertaking and the petitioner had thereafter contended that such denial is discriminatory and is violative of Articles 16(1) and 16(2) of the Constitution. The challenge had been upheld by the learned Judge as the denial of promotion was purely on the ground of sex and such a denial based on discriminationwas a clear violation of Article 16(2) of the Constitution.The said decision was confirmed and upheld by a Division Bench of the Kerala High Court.
Pursuant to these constitutional provisions, the Government of India has over the years enacted various legislations to ensure gender justice and promote equality at workplace.
The Equal Remuneration Act
International Labour Organization evolved several conventions to provide protection to employed women and one of these guidelines of ILO has been assimilated in the Indian Constitution in Article 39 which directs the States to secure equal pay for equal work for both men and women. The Equal Remuneration Act, 1976, providing for the payment of equal remuneration to men and women workers for same or similar nature of work, allows no discrimination on the basis of sex in the recruitment process and service conditions except where employment of women is prohibited or restricted by the law. The Central Ministry of Labour and the Central Advisory Committee are responsible for supervising the enforcement of the provisions under this act. Despite this act being in place, yet women are denied equal work opportunities and disparity in salaries still exists due to insufficiency and inefficacy of the act.
In the case of Makinnon Mackenzie and Co. Ltd. v. Audrey D’Costa,[3]the petitioners had contended that the management due to its weak financial condition was unable to pay equal remuneration to the female stenographers and their male counterparts, who carried outsimilar kind of work. The Supreme Court ruled that the applicability of the Equal Remuneration Act, 1976 is not contingent upon the financial capability of the management and held the action of the employer to be violative of the constitutional principle of equal pay for equal work.
The Maternity Benefit Act
The Maternity Benefit act came into force in 1961 with the aim to facilitate a more favourable workplace culture and to ensure employment security for women after they attain motherhood.
In the case B.Shah vs. Presiding Officer,[4]in October 1967, a pregnant worker employed by the enterprise Mountain Stuart Estate was authorized to take her maternity leave. The worker received benefits equivalent to 12 weeks’ of work, but Sundays were excluded from the calculation since the enterprise considered them to be unpaid rest days.The Court ruled in favor of the claimant, ordering the enterprise to pay her for 12 Sundays as well. The enterprise once again appealed the decision before Supreme Court.The Court then analyzed the word “week” in linguistic terms, examining its various dictionary definitions, and reached the conclusion that the weeks in question did include Sundays. On these grounds, the Court held that if the legislator had wanted maternity pay to exclude Sundays, they would have written the law in a different way.
This act was amended and replaced by the Maternity Benefit (Amendment) Act, 2017. This fresh amendment expanded the term of maternity leave from 12 weeks to 26 weeks. Pre-natal leave was extended from 6 weeks to 2 months. The act has made it mandatory for the employers to inform the female employees about her rights under this act during the time of recruitment. Under this act option is given to female employees for telecommuting after the completion of the maternity leave of 26 weeks. This act has also made it imperative for the corporations employing at least 50 female workers to provide for crèche facilities.[5] Further, dismissal of the female worker during the prescribed maternity leave is deemed to be void. But unlike the practice followed in most of the countries where the government shares the cost of the maternity leave, in India the employer has to bear the cost of such leave and also the cost for provision of additional benefits like crèche facilities which further perpetuates gender discrimination during the recruitment process.
In the case ofAnshu Rani v. State of U.P,[6] the Respondent authority in the case had granted the Petitioner maternity leave for 90 days instead of 180 days. Aggrieved by the same, the Petitioner filed the writ petition wherein the Respondent had averred that maternity leave was rightly granted for a period of 90 days in view of the Government Orders dated 20.11.2017 and 3.1.2018.The Petitioner had contended that she is entitled to the benefit of the provisions contained in the Maternity Benefit Act, 1961 as has been amended by Maternity Benefit (Amendment) Act, 2017 and in view of the amendment, any order contrary to the same is liable to be ignored.The High Court of Allahabad allowed the petition while directing the Respondent authority to grant 180 days of maternity leave.It was further noted by the Court that after going through a large number of judgments and the matter in great detail, the Division Bench of this Court in the case of Dr. Rachna Chaurasiya Vs. State of U.P. and others,[7] had directed the State Government to grant maternity leave to all female employees with full pay for 180 days, irrespective of nature of employment, i.e., permanent, temporary/ad hoc or contractual basis.
The Employee Insurance Act, 1948 aims at providing medical and sickness benefits to the employees. The act also provides that an insured woman can claim maternity benefits in cases of confinement or miscarriage or illness arising out of pregnancy. In spite of the presence of tripartite bodies to oversee the running of the plan, the whole venture has fallen into notoriety because of corruption and inefficiency. [8]
The Factories Act
The Factories Act, 1948 aims at labour welfare wherein provisions concerning health, safety, welfare, working hours, leave and employment for the workers have been laid down. The act also lays down exclusionary provisions for women workers like prohibition of employment during night hours, hazardous work, provision for toilets, bathing facilities, rest rooms and crèche and fixation of maximum permissible load and of daily work hours at nine. But the provisions mentioned in the act are not implemented in totality and most of the welfare measures are pushed to the background. Moreover, a lenient approach is observed when it comes to the implementation of these policies for women as there is lack of effective check and the punishment for non-compliance is also mild.
In the case of Vasantha R. vs. Union Of India and Ors.,[9]some of the female workers had contended that section 66(1)(b) of the Factories Act was discriminatory in nature, according to which no women worker was to be allowed to work before 6 A.M. and after 7 P.M. They claimed that the gender discrimination perpetrated through the section was arbitrary and violated Articles 14, 15 as well as 19(1)(g) of the Constitution of India. The Madras High Court declared section 66(1)(b) of the Factories Act as violative of Articles 14, 15 as well as 19(1)(g) of the Constitution of India and issued certain guidelines for the employers with respect to the female workers who were willing to work in the night shifts which included steps for prevention of sexual harassment, appointment of at least two female wardens and provision of sufficient women security during the night.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) is the very first legislation in India which deals with the problem of sexual harassment at workplace. The act embodies the guidelines given by the Supreme Court in the Vishaka Case. The case of Vishaka & Ors vs. State of Rajasthan & Ors.,[10] involved the gang rape of a Rajasthan State Government employee, Bhanwari Devi, when she tried to stop a child marriage as a part of the Women Development Programme. The Supreme Court in this case had issued certain directives to address the issue of sexual harassment at workplace and had also laid emphasis on the need for a legislative frame work to deal with the same. The act provides for establishment of an Internal Complaints Committee by the employer or a Local Committee when the number of workers employed is less than 10.Both these committees are vested with the power to act as civil courts as provided under Civil Procedure Code, 1908. The act also mandates for the employer to provide a safe working environment for the female employees. The act however, has not been able to achieve the desired results and as such suffers from a lot of inadequacies including lack of clarity in the procedure to be adopted, definitional ambiguity, time-consuming and tedious nature of the grievance redressal process.
In 2010, the High Court of Delhi opined in the case of Dr. Punita K. Sodhi v. Union of India & Ors.,[11]that the experience of sexual harassment was subjective in nature and held “A complete understanding of the complainant’s view requires… an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women… Men tend to view some forms of sexual harassment as “harmless social interactions to which only overly-sensitive women would object. The characteristically male view depicts sexual harassment as comparatively harmless amusement.”
- CONCLUSION
With increasing participation of women in workforce, the concept of workplace justice has gained considerable significance. Workplace justice is based on the equity theory and requires the employer to adopt practices and procedures which are in consonance with the principle of equality and seek to ensure and promote gender equality at workplace. Despite various laws and legislations enacted by the government, women continue to face gender bias at work. These legislations are not sufficient enough as they are not effectively implemented and also due to lack of effectual check on non-compliance. Amendments like imposition of more stringent punishments in case of non-compliance and sharing of additional costs by the government required for implementing these legislations can help in the attainment of the objectives of these acts.
An organization should ensure that its culture, practices and policies are in consonance with the objective of fostering gender justice at workplace and should adopt the requisite measures to this effect. The organizations should emphasize on work-life balance policies such that female employees can strike a balance between the two, which would in turn help them to increase their productivity. The organizations should promote a culture where there is space for dialogue so that issues concerning female employees are discussed and addressed. The organization should adopt a speedy and efficacious redressal system for issues like sexual harassment at workplace, unequal pay, and discrimination during recruitment and promotion. Exclusionary practices furthering gender inequality at workplace should be identified and duly addressed. Organizations should conduct dialogues on gender equality at workplace so as to increase awareness among the employees. Moreover, the employer should appoint a person to further check on and report such practices demonstrating or perpetuating gender bias. Organizations should take up the responsibility of making the female employees aware of their rights like equal opportunity for work and promotion and equal pay for similar work. The organization should be diligent in implementing policies and legislations concerning gender equality at workplace. The idea of women empowerment and gender equality should be translated into organizational policies to ensure a gender equal and positive work environment.
[1]Air India Cabin Crew Association v. Yeshawinee Merchant and others,(2003) 6 S.C.C. 277 (India).
[2]Mariamma v. Hindustan Latex Ltd., 1994 ILLJ 488(Ker) (India).
[3]Makinnon Mackenzie and Co. Ltd. v. Audrey D’Costa,(1987) 2 S.C.C. 469 (India).
[4]B.Shah v. Presiding Officer,(1977)4S.C.C. 384 (India).
[5] Deblina Sen, 5 Laws Every Working Woman Should Know About, Sheroes (August 12,2019, 5:12 pm) https://sheroes.com/articles/5-laws-every-working-woman-should-know-about/MTI1NA==.
[6]Anshu Rani v. State of U.P,(2019) 5 ALJ 286 (India).
[7]Dr. RachnaChaurasiya v. State of U.P. and others, (2017) Civil Misc. Writ Petition No. 24627, Allahabad High Court (India).
[8]Irwin Cheema, Gender Justice and Indian Labour, Legal Service India(August 12, 2019, 6:00pm), http://www.legalservicesindia.com/article/763/Gender-Justice-and-Indian-Labour.html.
[9]Vasantha R. v. Union Of India and Ors., (2001) IILLJ 843 Mad (India).
[10]Vishaka&Ors v. State of Rajasthan &Ors., (1997) 6 S.C.C. 241 (India).
[11]Dr. Punita K. Sodhi v. Union of India &Ors.,(2011)ILLJ371Del (India).
