21 March 2024

Diversity, Equity, And Inclusion In The Workplace: The Indian Context, The Applicable Laws And What Companies Need To Know To Comply!

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The idea of a utopian workplace in the modern scenario is one of tolerance, inclusivity, and representation of all persons, which is sought to be achieved by breaking the barriers that are rife with
India Corporate/Commercial Law
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The idea of a utopian workplace in the modern scenario is one of tolerance, inclusivity, and representation of all persons, which is sought to be achieved by breaking the barriers that are rife with prejudice, discrimination, and historical marginalisation of persons based on their personal characteristics and socio-economic factors.

The growing demand for diversity, equity, and inclusivity in the workplace has required the Indian Government and the businesses to make a paradigm shift in their policies and culture to adapt to this societal change. In this article, we explore whether the initiatives and measures taken by the Indian Government and businesses meet the requirements in the Indian scenario.

The Indian Constitution contemplates DEI principles as part of the fundamental rights of a person. A person's right to equality before the law and equal protection of the laws is granted under Article 14, the discrimination of any citizen on the grounds of religion, race, caste, sex, or place of birth is prohibited under Article 15, and the equality of opportunity for all citizens in matters of employment is granted under Article 16.

The evolving jurisprudence of the Indian Constitution has enshrined the concept of 'equity' within its ambit by recognising the doctrine of reasonable classification, which allows the law to make reasonable classifications or differentiations to account for the unequal circumstances that one may face. This achieves the purpose of ensuring that likes are not treated unlike, and unlike are not treated alike.

Given the context discussed above, the concept of DEI in the workplace would entail not only recognising such diverse characteristics/ differences but also respecting, celebrating, and accommodating them, while ensuring equity in access, treatment and opportunities and providing an inclusive environment where all persons feel welcomed to be a part of the collective.

DEI in the Indian Legal Framework

In the Indian context, there are a multitude of legislations which recognise and address concepts of DEI in the workplace, some of which have been summarised below:

  1. The Indian Constitution provides special protection and affirmative action for Scheduled Castes, Scheduled Tribes, any socially and educationally backward classes of citizens or Other Backward Classes, and economically weaker sections of society. These protections extend in the form of reservations of seats/vacancies, or additional protections such as relaxations in age limits, attempts at examinations/applications and eligibility criteria such as marks/score in test results etc., in educational institutions or employment in government or public sector.

Mandatory reservations and relaxations do not extend to employment in private sector, but private employers must still be cautious and ensure that no form of discrimination is adopted at their workplace as it can trigger penalties under legislations which criminalise discrimination of such protected categories, e.g., the Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989. The offences construed within 'atrocities' under the aforesaid legislation are very wide in scope and include, inter alia, where someone insults or intimidates with intent to humiliate such persons, abuses them of their caste/tribe name in public view, promotes enmity, ill-will or hatred against such persons by words (written or spoken) or by signs or visible representations, and obstructs or prevents such persons from practicing any profession, or carrying on of any occupation, trade, business, or employment which others have a right or access to. The punishment for such offences is imprisonment between 6 months to 5 years along with fine.

  1. The Equal Remuneration Act, 1976 ("ERA"), provides that an employer cannot discriminate against women employees in recruitment, work conditions and remuneration to any person that are less favourable than those paid to workers of the opposite sex for performing the same or similar work. The ERA prescribes various punishments for contravention of its provisions by employers including monetary penalties and/or imprisonment that can extend to 1 year, and in case of offences by companies, the person in charge of or responsible for the company and its business would be punished accordingly.
  1. The Transgender Persons (Protection of Rights) Act, 2019 ("TP Act") provides for protection of rights of transgender persons and their welfare. The definition of "transgender person" means "a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta".

It requires all commercial establishments to adopt an equal opportunity policy, implement measures for providing a safe working environment, and ensure no discrimination in any matter relating to employment including, but not limited to, infrastructure adjustments, recruitment, employment benefits, promotion, and other related issues. Specifically, the prohibition against discrimination by any person or establishment includes denial of or termination from employment or occupation, or denial or discontinuation of or unfair treatment in the opportunity to stand for or hold public or private office. Companies are also required to designate a complaints officer who must investigate complaints received under the TP Act within 15 days from the date of receipt of complaints.

While the TP Act places an onus on employers to comply with the aforesaid obligations, it does not prescribe a specific penalty for its non-compliance. Instead, the TP Act contains broad penal provisions and imposes a monetary penalty and imprisonment on whoever (i) compels or entices a transgender person to indulge in act of forced or bonded labour, (ii) denies them the right of public passage or obstructs them from using or accessing a public place that is available to other persons, and (iii) harms or injures or endangers their life, safety, healthy or well-being, whether mental or physical, or tends to cause them physical, sexual, verbal, emotional or economic abuse.

  1. The Maternity Benefit Act, 1961 ("MB Act") provides additional leaves and benefits to female employees. Paid maternity leave of 26 weeks is prescribed under the MB Act for female employees expecting a child. Women with 2 or more surviving children, or women who legally adopt a child below the age of 3 months, or commissioning mothers will be entitled to 12 weeks of paid maternity leave.

In case of a miscarriage or medical termination of pregnancy, the woman is entitled to 6 weeks of paid leave immediately after the day of such miscarriage or medical termination of pregnancy. Further, the MB Act requires employers to pay a medical bonus to the female employees entitled to maternity benefits under the MB Act if no pre-natal or post-natal care is provided by the employer free of charge.

Employers are not permitted to employ or ask women to work in any establishment for 6 weeks immediately following the delivery, miscarriage or medical termination of pregnancy. Pregnant women can also request their employers (which cannot be refused by employers) to not do any arduous work or work which involves long hours of standing or which in any way is likely to interfere with their pregnancy or normal development of the foetus or adversely affect their health. This is allowed during the period of 10 to 6 weeks before their expected date of delivery. In cases where the nature of work allows the woman to work from home, then the employer may do so for such period and on such conditions that the employer and the woman may mutually agree.

The MB Act offers special protection from termination since an employer cannot discharge or dismiss a female employee during or on account of such maternity leave. Companies cannot give female employees termination notices in such a manner that the notice will expire during such absence or to change any conditions of their service to her disadvantage.

Further, every establishment having 50 or more employees are required to provide a crèche facility (or day care) in their office premises or in close proximity either separately or along with common facilities.

Contravention of MB Act provisions by the employer where employer fails to pay any maternity benefit (i.e., paid leave, medical bonus etc.) or discharges/dismisses a woman during such maternity leave, is punishable with imprisonment and / or monetary penalties.

  1. The Rights of Persons with Disabilities Act, 2016 ("PWD Act"), which applies to establishments having 20 or more employees, requires employers to frame an Equal Opportunity Policy and implement measures to provide job opportunities, reasonable accommodations, amenities, assistance, and other facilities to persons with disabilities in the workplace. Additionally, all establishments to which the PWD Act applies are required to appoint a liaison officer for supervising the recruitment of persons with disabilities.

Contravention of any of the provisions of the PWD Act by a person shall be punishable with significant monetary penalties. Offences by companies are also recognised under the PWD Act, under which, any person who was in charge of and was responsible to the company for its conduct or its business shall be liable and punished accordingly.

  1. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ("POSH Act") is a specific law on the prevention of sexual harassment of female employees at the workplace. The POSH Act, inter alia, requires employers to adopt an appropriate policy, set up grievance redressal mechanisms (establishments having 10 or more employees are required to establish an Internal Complaints Committee in this regard), and undertake initiatives on sensitization and awareness on the prevention of sexual harassment of female employees in the workplace. Non-compliance with the provisions of the POSH Act by an employer may be punishable with monetary penalties and potential revocation/cancellation of licenses/registrations required for its business or activity.

Identifying gaps

Despite the fact that there are various Indian legislations that seek to recognise, address, and regulate DEI related measures in the workplace (as summarised in this article), there are still key gaps that exist in the Indian employment scenario as categorised below:

  1. LGBTQ+ Rights – Until recently, LGBTQ+ rights in India were marred by outdated legislations and judicial precedents. In 2017, a landmark Supreme Court decision declared that a person's sexual orientation is covered within the ambit of the fundamental right to individual privacy under the Indian Constitution. This accelerated the paradigm shift in recognising and protecting LGBTQ+ rights and subsequently in 2018 the Supreme Court further declared that Section 377 of IPC is unconstitutional to the extent that it criminalises consensual sexual activities by the LGBTQ+ community. In October 2023, the rights of the LGBTQ+ community in relation to marriage, inheritance etc. were argued before the Supreme Court, which declared that it cannot strike down provisions of some of the impugned marriage and inheritance laws as it would amount to judicial legislation, and reaffirmed the rights of the LGBTQ+ community under the constitution.

While the protections under the TP Act and ERA are a welcome step, they afford protection against discrimination based on gender. In the absence of specific laws that prevent discrimination on the basis of "sexual orientation", the mantle is passed to voluntary efforts by employers to extend protections in their organisational policies. Further, the lack of penalisation for employers for failure to adhere to the compliance requirements under the TP Act further renders it quite toothless.

  1. Gender focus – While Indian legislations often go beyond global standards when it comes to affording protections and benefits to women (refer to MB Act and POSH Act above), the legislative framework does not contemplate scenarios such as sexual harassment of male employees in the workplace.

In a similar vein, the creche benefits under MB Act appear to apply for the benefit of female employees only (although the MB Act uses the term "employees" in general for this provision). Multinational companies looking to apply global policies to their Indian operations often find these different yardsticks difficult to implement in keeping with their DEI mandates.

Practical Challenges

Despite the growing awareness and focus on DEI initiatives, employers often find themselves at crossroads with balancing organisational objectives and addressing employee concerns. Some common issues that often crop up are highlighted below:

  • Accommodations of their mental health concerns – There is a growing demand in modern workforce for mental health concerns as there is still stigma and fear around voicing such concerns in the workplace. Employers may need to consider mental health aspects of their employees and ensure a healthy work environment. To illustrate, employees may have anxiety, depression or any condition which may or may not be diagnosed, or even general mental health concerns which may require more accommodations to be provided by the employer such as access to mental health resources, reduced workload, change in reporting timings etc. Some employers have addressed this by expanding their insurance coverage for mental health resources, providing flexibility in work timings, providing optional community activities like art, yoga, gaming, relaxation breaks from work, etc.
  • Adequate time off from work – In the wake of the COVID-19 pandemic, the global workforce witnessed a shift to remote work, or hybrid work and not having fixed work timings like the usual typical 9-5 workday. However, this has also led to an overlap of work reporting hours and personal time as the lines between the two have become blurred in remote working scenarios. Employers have reported feeling that employees work less when working remotely. Among employees, there seems to be shift from the 'Rise-and-Grind' culture to the 'Work-Life-Balance' culture as employees complain that they should not be contacted for work matters after reporting hours.
  • Acknowledging gender roles and yet breaking stigma – Working women (especially mothers) may make requests for flexible work timings or more work-from-home to cater to their responsibilities. Such responsibilities may be more for women based on the gender roles in specific societies, most of which remain patriarchal. This is a crucial aspect to be considered by employers. At the same time, the same gender stigma applies to lack of adequate paternity leaves to male employees. Given that Indian law does not provide any paternity leaves, employers provide the same as per their own discretion. As such, employers may be hesitant to provide paternity leave requests of a long duration and employees may even hesitate to ask for the same.

Key Takeaways

So, what do employers need to do in order to address the gaps that remain in the Indian employment environment? Some of the several means to achieve DEI in the workplace are set out below:

  1. Identifying key inequities that remain in existing policies and making assessments on how to adequately address them.
  2. Based on such assessment, establish new policies and/or revise existing frameworks that include DEI measures. This can include establishing grievance redressal mechanisms such as appointing/designating specific officers with required authority under law or best market practices, having adequate checks and balances to ensure adherence at each level, etc.
  3. Assess and routinely audit operational trends in the organisation to identify whether despite having policies, if there are lapses in its application.

For example, in terms of recruitment, employers can:

  • review the trend of how many candidates actually apply,
  • review what factors were considered while shortlisting the candidates,
  • ensure to keep a panel of recruiters to prevent the recruitment being influenced by individual bias,
  • create opportunities that accommodate persons with disabilities,
  • engage with organisations/stakeholders engaged in DEI initiatives to increase more participation from candidates belonging to protected groups, etc.
  1. Undertake regular employee surveys or other feedback mechanisms to ascertain their job satisfaction, work-relationships, or team dynamics whereby employees feel comfortable to discuss their concerns and provide suggestions with anonymity to prevent fear of facing retaliation or prejudice from their peers/seniors.

Such DEI measures being undertaken by employers can lead to a fair, discrimination-free, and protective work environment where every individual can effectively and efficiently contribute, grow, and thrive to result in a successful and sustainable business operation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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