Inclusion and diversity are among the two most trending hashtags on LinkedIn. Corporate India has also embarked on a mission to be more inclusive and diverse in its hiring and policies. In this editorial, I look at the areas where our laws work, and those which can do with improvement.
In the first place, it necessary to define ‘inclusion’ and ‘diversity’. In many
conversations, the scope is restricted to gender. It is indeed critical for our
country to work on allowing our biggest latent resource to thrive, our women. This
topic is covered brilliantly by my friend Anirudha Dutta
in his book Half
a Billion Rising. We need more women on boards, we need more women
in leadership positions, we need more women in workplaces, we need these women
to be paid equally and last but not least, we need more women on panels and
webinars that discuss women’s inclusion.
I would also however like to extend the scope to encourage
the inclusion of disabled people, people with mental health issues, people who
do not conform to male or female genders and people of alternate sexualities. It
is hard to see the law extending positive discrimination to the rest of these
categories. However there is no reason corporates cannot work at equal
opportunity employment and making their workplace more friendly and inclusive.
GENDER DIVERSITY
I would first like to lay out the various areas covered by our
laws that relate particularly to working women.
- Maternity Benefits
- Prevention of Sexual Harassment
- Physical Safety and Security
- Working conditions
- Domestic Workers
Maternity
benefits
What works:
India does very well on this count. In 2017, the period of
paid maternity leave was extended to 26 weeks from 12, for women with fewer
than two surviving children. The ILO standard is 12 weeks and most countries
provide 14 weeks.
The law prohibits discrimination against and protects employment of women
during the period of maternity. The law also requires employers with 50 or more
employees to provide crèche facilities close to the workplace.
As a country that lacks social security, this protection is definitely above
par.
What could be better:
- Not hiring due to potential maternity: Paid
Maternity leave has the unfortunate consequence of discouraging
employers from hiring women. It is impossible for the law to police intent.
However, the law can criminalise this form of discrimination and insist on
active communication from employers to discourage managers from engaging in
this practice
- Adopted Children: This is a fairly absurd
provision. Employees are allowed 12 weeks leave if they adopt a child less than
3 months old. As an adoptive parent, I can confirm that is practically
impossible to adopt a child that is less than 3 months of age in India. Why
this provision has not been contested and changed, I do not know. In my
opinion, this limit should be extended to children of up to 3 years at a
minimum.
- Post-maternity attrition: @40-45%
in total. The biggest reason for this is a mismatch of
post-maternity career expectations between women and their employers. This is a
colossal loss of trained capability. This is probably not a subject that can be
addressed by law but corporates can and must put programs in place to reduce
this number.
Prevention
of sexual harassment
What works:
- The Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013, (POSH Act) is a landmark legislation.
- The definition of harassment is clear and all
encompassing.
- The actions required under the act provide for
communication and redressal of issues.
- The repercussions of non-compliance for an
employer are also strong.
- This law has actively discouraged such acts and
forced corporates to act rather than sweep issues under a carpet like earlier.
What could be better:
Not much really. Sexual harassment, by nature is not an act
that takes place in front of witnesses. I have been on committee hearings and
it is extremely difficult to ascertain facts or collate evidence. Rare are
cases that are clear and incontestable. As such, most legal disputes become a case
of one person’s word against the other and is down to the judge.
The issue of women using this as a weapon is also brought up. While that is also
a problem, it cannot be used as an argument against the law existing. The onus
of proof is already on the woman and the problem is real and widespread. The unintended consequences will have to be
tolerated.
On this issue, I believe the law does as much as it can, the rest is up to
employers to relentlessly communicate their lack of tolerance on this issue to
their employees.
Physical Safety and
Security
What works:
There is a general prohibition on
women working at night, usually after 7pm. In the last few decades, the rise of the
outsourcing industry has changed this dynamic. Both corporates and women
organisations have requested the flexibility for women to be able to work at
night.
Most states allow this exemption on application and with guidelines. The
guidelines are fairly strict and put a lot of onus on the employer to ensure
the safety of women workers in night shifts. This includes the provision of
transport to their homes. There have been incidents and each of them has
resulted in a few more loopholes being tightened.
It is fair to say that this process works as it should. The general safety of
women outside the place of work is still a matter of concern.
Working conditions
What works:
There are a few special provisions
for separate working conditions for women
- Prohibition of pay and recruitment
discrimination between genders
- Prohibition on women working at night
- Provision of crèches or day-care facilities
- Separate restrooms and canteens in certain
workplaces
- Separate toilets and washrooms
- Prohibition on the engagement of women in
certain hazardous occupation
Most of these are basic hygiene
factors of course.
What could be better:
- Pay
inequities still persist although declining. The law seems to lack
intent and teeth.
- Encouraging and incentivising STEM education for
girl children to address any perceived technical gaps
- Given the disproportionate allocation of home
and care duties on our working women, corporates could provide support and
concierge services that make the lives of working women a little easier.
Domestic Workers
What works:
- Not much
- Andhra Pradesh, Bihar, Jharkhand, Karnataka, Kerala, Odisha, and Rajasthan have introduced minimum wages for domestic workers.
What could be better:
- The law does very little for the estimated 4-5
million domestic women workers in our country.
- Minimum Wages – only 7 states have minimum wages
in place. Enforcement of this is non-existent.
- The Domestic Workers Welfare and Social Security
Act drafted in 2010 by the National Commission for Women has not been passed
yet.
- The Unorganised Workers Social Security Act 2008
was meant to develop schemes for welfare measures for this sector. However it
does not receive all the funds allocated and even
those lie unused. There was no welfare measure visible during the
lockdown migrant issue.
- Violence and sexual harassment of domestic
workers is a real issue. While these are criminalised, in law, there aren’t
adequate efforts to ensure that victims can receive legal advice and help.
- While domestic workers do come under the ambit
of laws such as the Unorganized Workers’ Social Security Act, 2008, and the
Sexual Harassment of Women at Workplace Act, 2013, they have gaps and cannot
address all their issues.
In conclusion, this huge
workforce is critical to enabling gender diversity in corporate India. Many a
woman’s career has been built on the reliability of their domestic help. It is a
great pity that they suffer a woeful lack of protection themselves.
OTHER DIVERSITY
I mentioned the inclusion of disabled people, people with
mental health issues, people who do not conform to male or female genders and
people of alternate sexualities. These categories have become an important part
of the corporate diversity conversation. There are many employers who solicit
people from all walks of the wood and make them feel welcome.
It is hard to see the law extending positive discrimination
to the rest of these categories. However there is no reason corporates cannot
go ahead and beyond. They have to work at equal opportunity employment and
making their workplace more friendly and inclusive.
One area of diversity that I haven’t
discussed here is caste, ethnic and religious diversity. There has been a fair
amount of affirmative action on these fronts, but largely from a political angle.
There is also a recent trend of states passing laws which force employers to
hire percentages of locals against new positions. The nature of these changes
could be the subject of a few books, and is too complex to include here.
CONCLUSION
It is indeed heartening to see the
desire of the more forward organisations to set the trends and go well beyond
what is prescribed by the law in terms of diversity and inclusion. This is a
trend that can only spread and move in the right direction.
This good feeling is however tempered by the limited reach
of these organisations. According to the Economic Survey (2018-19), 93% of the
total workforce of 450 million in India is from the unorganized sector. This
means that if every single workplace adopts best-in-class policies, you still
impact a negligible percentage of the workforce.
Finally, our track record on this issue is not very healthy either. We are
among
the
ten lowest countries in the world in terms of women’s involvement in
the workforce, and continuing to masculinise according to the World Bank. The
LFPR (Labour Force Participation Rate) for women
was
20.52% in 2019, down from 30% in 1990. Less than one in four women is
available for work.
There is hence a critical need for our laws to encourage if not insist on a
more inclusive and diverse workforce. It is also critical that the laws be more
inclusive in terms of actually covering a larger percentage of the country’s workforce.
comply4hr is a full service labour law compliance provider.
connect@comply4hr.com - get in touch for enquiries or to discuss labour laws
