Workplace is arguably the most important area of an individual’s life. Be a player, not a victim, is the first rule of thumb in office politics. But what if you are a young professional on a learning curve, and your supervisor’s prejudices catch you unawares?
Ample evidence of this was seen when the #MeToo movement took a life of its own in India, expanding the discourse on feminism and women’s liberation. Three stories in the media stood out – Nasreen Khan’s account of her Calcutta Times editor Satadru Ojha and his team of predominantly female cohorts who spoiled her copies and planted stories in her name; Navbharat Times reporter Anita Shukla’s lawsuit against her editor and three other colleagues who formed a cabal against her for her intransigence when asked to cosy up to him; and Meenakshi Menon’s account of how her housing society refused to transfer her flat in her name after a managing committee member lost his bid for it and made life difficult for her till she launched a legal battle and won. All these women helped identify the larger elephant in the room – professional and gendered harassment of women.
On November 17, after a deliberation aimed at addressing the avalanche of #MeToo plaints, the National Commission for Women (NCW) along with Justice V. Sujata Manohar announced its plan to draft a separate law or policy addressing sex bias in the workplace and discrimination against women employees by employers.
Speaking to The Wire, NCW chairperson Rekha Sharma said about 50% of the 2,383 workplace harassment complaints received by it over the last few years comprise simple cases of discrimination. The NCW got 522 such complaints in 2015, 539 in 2016, 570 in 2017 and 752 in the ongoing year.
Justice Manohar, was part of the Supreme Court bench that laid down the Vishakha Guidelines, 1997, which were later subsumed under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, said: “The current definition (as per Section 2(n) of the Act) is not enough to cover all kinds of harassment based on sex. We need a law to address gender-based discrimination in its entirety. After all, the Constitution prohibits discrimination based on sex. Such a law should cover sex-based discrimination that is not sexual in nature.”
Such discrimination, she said, could include baseless derogatory remarks in reports on women employees, finding fault with her work publicly but without any grounds so as to affect perception about her, and further victimising her if she complains about her superior’s conduct. It could also include sidelining her from the outset; not giving her assignment as per merit due to “consideration bias” [a situation where seniors stereotype a woman as having greater family duties than men]; and passing her over for promotions and wrongful termination.
“In some instances, there is an overlap between sexual and other professional harassment, but sex bias is at the root of an overwhelmingly large number of cases,” Sharma said. Asked if men, too, could demand a similar redress mechanism at the workplace and seeing that a far greater majority of them bear the responsibility of providing for the family, she said that redressing those grievances is “not the Commission’s mandate”.
For now, the Commission will ask various states and Union Territories to give their inputs and prepare a draft policy after incorporating the suggestions of all stakeholders before submitting it to the Prime Minister’s Office and the labour ministry. This process will take at least three to four months.
Drafting a fresh piece of legislation, however, will throw up a plethora of challenges. The rights of employees in India are protected by a labyrinth of at least 22 laws and Acts [see box]. Yet, breaking them is commonplace. For instance, the Equal Remuneration Act, 1976 guarantees same pay for same work done by men and women. But men draw family wages, while women are usually offered a living wage, no questions asked. In case of a denied promotion or an unfair dismissal, employees of government and government-run institutions, universities and trusts can turn to the Industrial Disputes Act, 1947, to move the conciliation officer of the government who will refer it to a labour court for adjudication. It’s a long-winded process.
Blue collar workers are protected under the Factories Act, 1948, Industrial Employment Standing Orders Act, 1946 and the 1926 Trade Unions Act. Examples abound wherein workers have got themselves reinstated or promoted by moving court under these laws or the respective state-specific Trade Union Acts (labour being on the concurrent list). Some examples include the Mackinnon Mackenzie Ltd vs Mackinnon Employees Union, 2015, and Nashik Workers Union vs M/S. Trimbak Rubber Industries, 2001. State and central administrative tribunals are also at the disposal of disgruntled government servants.
However, it is managerial-level employees in private firms who lack effective legal recourse. They are bound and protected only by the terms and conditions of their contracts. They enjoy no support of private unions, like the clerical and the blue collar staff.
Senior advocate Chander Uday Singh told The Wire, “The law primarily looks at these issues through the lens of conflict between workers and the management. So the private sector executive finds himself left out.” Incidentally, the women who complained to the NCW mostly belong to the private sector.
But, Singh said, a separate law will not help as it will add to the twin problems of over-legislation and under-implementation. Anyone, for instance, can directly file a writ petition in a high court under Article 226 challenging the denial of fundamental rights in case of discrimination. Even so, an individual (as opposed to a union) does not have the staying power and resources to fight the case which the other side has. So it’s a lost cause.
“It would be better to just amend existing laws to plug loopholes and increase their coverage. That will also strengthen these laws,” said Singh. “Or else, if women in the private sector are the target group of this measure, the scope of the Sexual Harassment of Women at Workplace Act should be expanded to include all other forms of harassment.”
Still, whether it will be a separate law or amendments in line with a newly drafted policy is an open question, as it is still early days, Justice Manohar told The Wire. “What is important is that this is a clear constitutional value that has to be applied in all fields. People have to be sensitised, cutting across all industries and sections of society,” she said.
But how do policymakers plan to draw a line between protective discrimination as sanctioned under Article 15(3) [it has special provisions for women and children] and consideration bias, especially when companies hesitate to employ women in night shifts although the Factories Act was amended in 2015 to allow it? On this, Justice Manohar said, “It is a statement of fact. Women may choose to forgo office transport, but that won’t make a difference as long as there is a law requiring employers to provide it. We need to take into account the views of all women working in factories at nighttime to know whether they feel there is such a requirement.”
Regarding the protective discrimination that such a law or amendment could embody of itself, Justice (Retd) Prabha Sridevan of the Madras high court said: “Article 15(3) does not militate against Articles 15(1) and (2), which prohibit the state from discriminating (negatively) against any citizen on the grounds of religion, race, caste, sex or place of birth, or Article 14, which ensures equality of all citizens before the law. So I do not think a special law for women violates the principle of gender equality. Gender neutral is not always gender equal. We need gender equal laws. Gender neutral laws may result in gender unfairness on the ground. How an act reads on paper is very different from how it pans out in reality.”
Justice Sridevan is not very optimistic though. “Sometimes, the law envisages and the society then catches up. It was before Independence that the law made dowry an offence. We can make laws for sure, but will they bring about change?” she said.
Nevertheless, whether this effort bears fruit or not, putting it in the public domain will go a long way in building awareness about the issue. That is one goal the NCW has been successful in achieving.
The corporate heart awaits its emancipation.
No dearth of laws
Indian workplaces are governed by many laws. But they are not always enforced, have quite a few loopholes, and do not cover private and unorganised sectors. These include:
- Factories Act, 1948
- Shops and Establishments Acts (statewise)
- Contract Labour (Regulation & Abolition) Act, 1970
- Industrial Employment Standing Orders Act, 1946
- Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996
- Industrial Disputes Act, 1947
- Trade Unions Act, 1926
- Payment of Wages Act, 1936
- Minimum Wages Act, 1948
- Payment of Bonus Act, 1965
- Equal Remuneration Act, 1976
- Payment of Gratuity Act, 1972
- Workmen’s Compensation Act, 1923
- Employees’ Provident Fund and Miscellaneous Provisions Act, 1952
- Employees’ State Insurance Act, 1948
- Maternity Benefits Act, 1961
- Sexual Harassment of Women at Workplaces (Prevention, Prohibition and Redressal) Act, 2013
- Central Civil Services (Pension) Rules, 1972
- Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995
- Beedi and Cigar Workers Act, 1966
- Plantation Labour Act, 1951
- Mines Act, 1952
Sucheta Dasgupta is a feminist, a former short story writer and a journalist with India Legal.