Diversity and inclusion initiatives at the workplace have become essential for employers across the world. While most of the developed nations have comprehensive codified laws to prevent workplace discrimination across sectors, India has a few anti-discrimination laws that prohibit and prevent discrimination of employees in the private sector. Particularly, there are laws against harassment and discriminatory practices against women, pregnant women or women on maternity leave, persons with disabilities, transgender persons, persons with HIV and AIDS and a particular class of non-managerial employees (referred to as ‘workmen’ under Indian industrial relations laws) (such criteria collectively being referred to as ‘Protected Criteria’). Such laws require employers to frame organisational policies, make reasonable accommodations, spread awareness amongst the workforce , promote sensitivty, and provide for certain redressal mechanisms.
Is this sufficient to translate into an inclusive and discrimination-free workplace?
Unfortunately, as of date, the answer is tilted more towards the negative.
It is imperative to recognise that discrimination on grounds not listed above, is still, strictly speaking, ‘not illegal’ in the private sector. Statutory protection is available to only specific identified groups of persons. Unlike the Indian Constitution which prohibits the State from discriminating against any citizen on the grounds of religion, race, caste, sex, place of birth or any of them, there is no similar comprehensive legislation applicable to the private sector.
Therefore, workplace measures preventing discrimination emanating from various factors (including the Protected Criteria) that go beyond what the extant laws require, are largely only at the discretion of the employer. Private sector employees do not have any statutory right, and accordingly, have no specified remedy under the law if they are discriminated against on grounds such as religion, race, caste and community.
Enforcement
Even with the Protected Criteria, there is an absence of proper and effective implementation and enforcement of anti-discrimination laws. Relevant local authorities tend to accord low priority to inspections as far as anti-discrimination measures are concerned. Even where certain non-compliances are identified, the consequences for the employer are largely confined to nominal monetary penalties.
Certain anti-discriminatory laws aim to bring in self-sufficient regimes with the redressal mechanism being provided within the relevant statute. For instance, the Transgender Persons (Protection of Rights Act) 2019 provides for the appointment of a ‘Complaint Officer’ at each establishment to hear and redress complaints raised by transgender persons. However, there are no specifications on the rank, qualifications or authority of such officer, and there are no penalties prescribed if an employer fails to appoint a Complaint Officer or if the aggrieved employee is not satisfied with the findings of the Complaint Officer. Resultantly, aggrieved individuals have to approach the jurisdictional High Courts or Supreme Court to seek appropriate remedy. This not only becomes cumbersome but also defeats the purpose of providing redressal mechanisms under the anti-discriminatory laws.
Way foward
Given India’s socio economic landscape, the guarantee of a diverse and inclusive workplace cannot be left to the discretion of the employers. While the existing checks and balances in the legislations provide a certain push for employers to comply with the laws, there is a lot left desired to make the extant legal regime effective. India requires a more stringent and comprehensive anti-discriminatory legal regime for the private sector, with appropriate enforcement mechanisms.
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