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04. Anti-Discrimination Laws

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04. Anti-Discrimination Laws

Summary

In the context of private sector employment, India currently does not have a comprehensive legislation that addresses workplace discrimination, except in relation to sexual harassment and in the context of persons with disabilities and with HIV, and in the context of protection of transgender persons from discrimination under the Transgender Act.

Further, there are principles set out by the Indian judiciary that seeks to protect employees from discrimination and harassment at the workplace. It is also important to note that that most new-age employers in India already cover these subjects comprehensively as part of their internal policies/employee handbook.

a. SHW Act

As discussed above, the SHW Act provides for a detailed complaint and inquiry mechanism in case of sexual harassment complaints at the workplace. Though it is not an anti-discrimination legislation per se, the SHW Act recognises that women may be especially vulnerable to workplace discrimination and harassment – thus, the scope of the SHW Act only extends to complaints raised by ‘aggrieved women’ that pertain to the ‘workplace’ (it is important to note that the SHW Act is not a gender-neutral legislation). That said, several companies do frame gender neutral policies on both general and sexual harassment. The SHW Act requires an employer to formulate an anti-sexual harassment policy for the effective redressal of complaints pertaining to sexual harassment.

The SHW Act defines the terms ‘sexual harassment’ broadly to include any of the following unwelcome acts or behavior: i) physical contact and advances; or ii) demand or request for sexual favors; iii) making sexually colored remarks; or iv) showing pornography; v) any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.

In addition, the SHW Act also identifies certain circumstances which, if occurring in conjunction with sexual harassment (as defined in the SHW Act), would provide strong evidence that an offence has been committed. Such circumstances are: i) implied or explicit promise of preferential treatment in employment; or ii) implied or explicit threat of detrimental treatment in employment; iii) implied or explicit threat about present or future employment status; or iv) interference with work or creating an intimidating or offensive or hostile work environment; or v) humiliating treatment likely to affect one’s health or safety. It is important to note that the protections provided under the SHW Act extend beyond the parameters of the traditional employee-employer relationship. For example, the ‘aggrieved woman’ need not necessarily be an employee – she could be any woman who may be subject to sexual harassment at a workplace. The term ‘workplace’ is also defined broadly to include not only the usual place of employment, but any place visited during the course of employment, including any transportation provided by an employer. Further, as working from home has become the new norm amidst the COVID-19 pandemic, the ambit of the term ‘workplace’ has also been expanded.

b. Other Legislation

Other laws address workplace discrimination issues in the private sector by prohibiting acts such as: i) refusal of / obstructing employment solely on the grounds of a person belonging to a socially backward community; ii) deducting salary or dismissing women employees while on maternity leave; iii) payment of unequal wages to men and women employees performing similar tasks; iv) discriminating against persons with disability (as prescribed under the Rights of Persons with Disabilities Act, 2016 (“RPD”); v) discriminating against persons with HIV, as further provided under the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention And Control) Act, 2017 (“HIV Act”); vi) discriminating against transgender persons in relation to matters associated with employment, such as recruitment, termination, promotion, etc. as prescribed under the Transgender Act. The recent trend is that most companies, irrespective of size, have far more strict internal policies with reference to the workplace discrimination issues, than what is required under various statutes.

It is also pertinent to note here that the ID Act prohibits commission of certain ‘unfair labour practices’, which include: discrimination against any workman for filing charges or testifying against an employer in any inquiry or proceeding relating to any industrial dispute or discriminating against workmen by reason of their being members of a trade union and/or showing favoritism or partiality to one set of workers regardless of merit.

There have also been attempts by the Central and State Governments to introduce ‘quotas’ / reservation of posts in the private sector, for members of particular socially backward communities. However, this has been resisted in the past, and it is unlikely that such measures will be implemented in the future due to its sensitivity and other contemporary political and sociological circumstances.

c. Extent of Protection

India currently does not have a single comprehensive legislation on discriminatory practices at the workplace; instead, there are various laws that prohibit certain kinds of discriminatory practices and protect the interests of vulnerable communities such as workmen, women, persons with HIV and AIDS, persons with disabilities, transgender persons and members of certain socially backward classes. For instance, with respect to women, the ERA stipulates that male and female employees who perform similar tasks must be paid equal wages, and also mandates that employers are prohibited from discriminating against women in matters of recruitment, promotions and transfers. The Code on Wages, which has yet to come into force, also grants similar protections to employees. Further, women employed in labour intensive industries such as factories and construction sites, can work fewer hours than male employees. The MB Act also has stipulations protecting women from dismissal, while on maternity leave.

Under the RPD, the head of the establishment has the responsibility of ensuring that persons with disabilities are not discriminated against. In case any complaint is received in this regard, the head of the establishment shall either initiate action in the manner specified under the RPD / inform the concerned person as to how the ‘impugned act or omission is a proportionate means of achieving a legitimate aim’.

Under the Transgender Act, establishments are prohibited from discriminating against any transgender person with respect to matters related to the employment of such persons. The Transgender Act also requires an establishment to designate a complaint officer who would be responsible for the redressal of complaints pertaining to violations of the Act. The Transgender Act also requires an employer to provide the necessary facilities to transgender persons.

Protections Against Harassment

a. SHW Act Procedures

Every employer is required to constitute an Internal Complaints Committee (“ICC”) that will inquire into sexual harassment complaints. The ICC shall consist of: (i) a presiding officer who will be a senior women employee; (ii) at least 2 employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge; (iii) an external member from amongst non-governmental organisations or associations committed to the cause of women or an external counsel familiar with issues relating to sexual harassment. This external counsel can either be a social worker with at least five years’ relevant experience or a person familiar with labour, service, civil or criminal law. At least half of the ICC members shall at all times be women, and the term of the ICC members shall not exceed 3 years.

The broad process followed by an ICC will be as follows: (i) Upon receipt of a complaint, if the complainant is agreeable, the ICC may attempt to settle the matter by way of conciliation. If a settlement is arrived at, the ICC need not conduct an inquiry; (ii) If the ICC conducts an inquiry, it should be conducted as per the general rules of the organisation and in accordance with principles of natural justice. A quorum of 3 ICC members is required for conducting the inquiry, which has to be completed within 90 days. In the course of conducting the inquiry, the ICC is vested with the powers of a civil court under Indian laws. Accordingly, the ICC can summon and enforce the attendance of any person and examine him/her on oath, and also require the discovery and production of documents. The parties cannot, at any stage, bring in a legal practitioner to represent them before the ICC; (iii) Upon completion of the inquiry, the ICC shall prepare a report with its recommendations, and submit the same to the employer within a period of 10 (ten) days. It is imperative that the ICC records detailed reasons for arriving at its conclusion and recommendations. The management is required to act upon the ICC recommendations within 60 days from receipt of the inquiry report.

While inquiry proceedings are ordinarily conducted face-to-face, with parties and witnesses physically appearing for the meeting, in certain circumstances, especially during the on-going pandemic, the ICC may allow the parties or witnesses to appear through video conference or by telephonic means, subject to certain conditions and considerations.

The SHW Act also prescribes other obligations of an employer, including conducting periodic training and ensuring that the workplace has adequate safety arrangements.

b. General Harassment

Cases of general harassment (provided they are not criminal offices under the Indian Penal Code, 1860) are typically governed by the establishment’s internal policies, provisions of the IESO Act, and stipulations under the FA that mandate the setting up of a grievance redressal committee. Typically, the internal policies clearly stipulate the conduct that would amount to harassment, the manner of conducting an internal inquiry and nature of disciplinary action that would be undertaken, depending on the seriousness of the conduct.

Employer’s Obligation to Provide Reasonable Accommodations

This is again governed mainly by the internal policies of an organisation – however, the SHW Act, the RPD and HIV Act have certain stipulations in this regard. In terms of the RPD, employers are required to ensure compliance with certain accessibility standards, such as: (i) standards for public buildings as specified in the ‘Harmonised Guidelines and Space Standards for Barrier Free Built Environment for Persons With Disabilities and Elderly Persons’ as issued by the Government of India; (ii) standards for Bus Body Code for transportation system as specified in the relevant Government of India notification; (iii) website standards as specified in the guidelines for Indian Government websites, as adopted by Department of Administrative Reforms and Public Grievances, Government of India; (iv) ensuring that the documents to be placed on websites are in the Electronic Publication (ePUB) or Optical Character Reader (OCR) based pdf format.

Under the HIV Act, every establishment engaged in healthcare services and those where there is a significant risk of occupational exposure to HIV, is required to ensure a safe working environment. In terms of the SHW Act, employers have the obligation to provide a safe working environment which shall include safety from persons coming into contact at the workplace.

Remedies

Each of the statutes listed above have a different mechanism, and also penalties in case of non-compliances by employers – these penalties extend to monetary fines, imprisonment and even cancellation of any Government registration for carrying out their business.

For instance, if an employer commits any ‘unfair labour practice’ as defined under the ID Act, workmen have the right to approach the concerned labour court / industrial tribunal. In terms of the SHW Act, women employees can approach the ICC / file a complaint on a portal (www.shebox.nic.in). In terms of the RPD, persons with disabilities can also approach the Central / State Commissioner for Disabilities.

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