Addressing workplace discrimination in India
In June 2024, the National Human Rights Commission of India ordered an investigation into the hiring practices at one of India’s largest contracts electronic manufacturers, after becoming aware of alleged discriminatory practices and oversights by the regulatory officials in the State of Tamil Nadu. The concerned manufacturer faces serious allegations of excluding married women from assembly-line positions. This investigation and its aftermath raise critical questions on whether India’s extant laws are designed to prevent such discrimination and what employers need to do to prevent any form of gender and marital status-based discrimination.
LANDMARK LEGAL PRECEDENT: SETTING THE STAGE FOR EQUALITY
India’s Supreme Court made a landmark ruling in 1965 in Bombay Labour Union Representing the Workmen of International Franchise Pvt. Ltd vs. International Franchise Pvt. Ltd. (AIR 1966 SC 942) setting a precedent in addressing workplace discrimination. The case highlights the Supreme Court’s firm stance against discriminatory practices and gender-based inequalities in employment. In the concerned case, the employer implemented a policy specifically targeting unmarried women employees, requiring them to resign upon getting married. The employer additionally claimed that married women exhibit diminished productivity and efficiency in the workplace, resulting in higher rates of absenteeism compared to their unmarried counterparts.
The Supreme Court firmly rejected the employer’s claim and emphasized that the presumption of decreased productivity among married women was entirely unfounded and lacked evidence. The Court further held that any difference in attendance patterns between married and unmarried women would primarily stem from maternity leave—a situation that could be effectively managed through the employment of temporary workers. The Court concluded that employers cannot impose such unreasonable and discriminatory conditions on their workforce.
This ruling aligns with numerous landmark decisions which hold that gender-based workplace discrimination (in addition to other forms of discrimination) constitutes a direct violation of an individual’s constitutional rights, including the right to earn a livelihood. It has been consistently held that any such discriminatory practice contravenes the constitutional guarantees of equality, non-discrimination, and equal opportunity in employment. Furthermore, these practices infringe upon the fundamental right to life and personal liberty under the Constitution of India, highlighting the Court's recognition that workplace fairness is not merely a statutory matter but one of constitutional significance.
BRIDGING THE CONSTITUTIONAL GAPS IN PRIVATE SECTOR
While the Indian Constitution guarantees equal employment opportunity and prohibits discrimination, these protections can be enforced against the State and its instrumentalities. This leaves a significant gap in safeguarding rights of individuals employed in the private sector, who may feel that they are not afforded the same level of constitutional safeguards. This poses an important question about the enforcement of constitutional rights against private employers.
Interestingly, the Indian judiciary in Anandi Mukta Sadguru Shree Mukta vs. V.R. Rudani & Ors, 1989 AIR 1607) has extended constitutional safeguards to the private sector in specific cases, a significant evolution in the interpretation of fundamental rights. This case arose when a public trust managing a college refused to implement the Vice Chancellor’s award from June 12, 1970, which mandated equal pay scales for teachers. The trust subsequently closed the institution without providing employees with benefits. In its ruling, the Court held that writ jurisdiction can be expanded against private bodies if they perform public duties that promote the general welfare of the society.
In the recent case of MS (x) vs. Internal Complaints Committee ANI Technologies Private Limited and Ors (W. P. No. 8127/2019), the Karnataka High Court addressed a significant issue concerning the intersection of workplace sexual harassment law and the gig economy. While the case focussed on whether drivers of the ride-hailing platform, OLA, qualify as ’employees’ under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“PoSH Act”), it also discussed whether OLA can be subject to writ jurisdiction under Article 226 of the Indian Constitution, being a private entity. The Court held that pursuant to the PoSH Act and the Karnataka On-demand Transportation Technology Aggregators Rule, 2016, OLA owes a duty and obligations towards the public at large and rejected OLA’s argument that it is not discharging any ‘public duty’ involving ‘public law element’ making it amenable to Article 226 of the Constitution.
Thus, in circumstances where private sector organizations perform functions that significantly impact public interest or where their activities have a public law element, Indian courts have expanded the scope of constitutional protections to the employees. However, this extension remains selective and case-specific, rather than providing a comprehensive framework of protection. Given these concerns, it is also essential to consider if there are other legislative mechanisms and measures that protect employee rights and interests in a private sector entity in India, which employers will need to be aware of from an employee-relationship perspective.
One of the key Indian legislations addressing workplace discrimination in the private sector is the Equal Remuneration Act, 1976. This law prohibits gender discrimination during the recruitment process and mandates equal pay for both men and women doing the same or similar work - principles which are relevant in cases where women face wage disparities and systematic exclusion from employment positions based on their marital status and maternal status. Further, the Industrial Disputes Act, 1947 includes specific provisions for protecting workmen from discriminatory practices in the workplace. Any discriminatory dismissal of workmen through victimization or showing unmerited preferential treatment to certain workmen constitutes an 'unfair labour practice’. Employers found guilty of such practices are subject to penalties including fines and/or imprisonment.
BEYOND COMPLIANCE: BUILDING EQUITABLE WORKPLACES IN INDIA
Aligning with the global call to inclusive equitable workplaces, employers in India now face increasing responsibility to ensure their policies and practices align with constitutional values of being equal opportunity employers across board and not limited to specific protectionist employment laws. The modern workplace requires employers to go beyond mere statutory compliance. Employers should proactively develop comprehensive anti-discrimination frameworks that address both explicit and subtle forms of discrimination. This includes:
- Establishing transparent recruitment and promotion policies;
- Regular policy reviews and updates to address emerging forms of discrimination;
- Creating robust internal grievance mechanisms that ensure fair and timely redressal;
- Training programs to sensitize management and employees about discrimination;
- Conducting equity pay review; this review systematically identifies and rectifies compensation disparities across the demographic groups. This involves analysing salary data, promotion patterns, and hiring practices to ensure fair and equitable treatment for all employees; and
- Implementing Return-to-Work programs, which support women in re-entering the workforce after career breaks. These initiatives offer flexible work arrangements, mentorship, and skill-refreshing training.
Organizations must move beyond mere compliance to embrace diversity and inclusion as core business values, while staying prepared for evolving legislative requirements and workplace dynamics.
REGULATORY REQUIREMENT
The Securities and Exchange Board of India (“SEBI”) requires India’s top 1,000 listed companies to publicly report their efforts to create diverse and inclusive workplaces. This reporting, called the Business Responsibility Sustainability Report requires companies to disclose their diversity and anti-discrimination measures. SEBI's standardized reporting highlights the commitment of a company in combating workplace discrimination. This increased transparency and accountability pushes companies to build equitable workplaces, and it allows investors and consumers to support companies that prioritize inclusion.
WHAT NEXT?
Despite judicial attempts to extend constitutional safeguards selectively, systematic gaps persist, leaving many employees vulnerable to discriminatory practices. While newer corporate governance approaches show promise for large companies, they fail to protect all employees. This fragmented system highlights the urgent need for comprehensive anti-discrimination legislation that universally applies the constitutional values across all employment relationships. Without such reform, equity and equality at workplace in India will remain contingent on employer rather than being recognized as a fundamental right for all employees. With International Women’s Day, 2025 ahead and the theme of #AccelerateAction, this note will provide guidance to employers to move from tokenism to establishing a genuine inclusive and diverse workforce, tapping into India’s substantial population of skilled women workers at all levels of employment.
