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Wednesday, 10 March 2021

Diversity and Inclusion: How do Indian Labour Laws fare ?

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.

In terms of the law, The Rights of Persons with Disabilities Act 2016 provides for reservation for people with disabilities. It also incentivises employers to hire disabled people. Implementation has been poor though. Most states have not notified their rules and the act has not taken full effect.

The Transgender Persons (Protection of Rights) Act, 2019 (Act) is also a move in the positive direction. The normalisation of this category as a part of the workforce is overdue. This is just the first step in a long journey in making transgenders 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

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