Gender Equity At Workplace: Legal Haze Under The Code On Wages, 2019
The report about rampant practice of hysterectomy amongst women cane cutters at the Beed District of Maharashtra,indicate the extent of authority and control over women's body exercised by the Contractor sat workplace. It is modern slavery in the pretext of employment and misappropriation of their body at the cost of their livelihood. Intervention over women's autonomy at workplace need to be read along with the report of the Kelly Global Workforce Insights Survey on Women in STEM (Science, Technology, Engineering and Mathematics). The survey report points out'double burden syndrome' as one of the reasons for mid-career drop out of Indian women from employment.Both at informal and formal workplace, the amount of violations over women's labour and extension of the same over her body and productivity, reveal manifestations of indignity, biases, undervaluation of labour and career prospects.
Apart from the socio-cultural structure conditioned to the normative that family and household duties are women's responsibility, other reasons that disengage and exclude women at work, would include anti-women biases at work, stereotyping, unfair performance evaluation, pay gaps etc. There are four patterns of global biases identified by Society of Women Engineers and the Center for WorkLife Law at the University of California which includes (1) Prove-it-again bias (constant demand of proving to get equal dignity at par with colleagues), (2) Tightrope bias (burden of keeping acceptable behavior), (3) Maternal wall bias (presumption of lack of concentration and efficiency at work against mothers) and (4) Tug of war bias (competition amongst women colleagues, artificially created at workplace). It is this wide range of rigid, disrespected and undignified workplace behavior against women that requires to be addressed to ensure longevity at service and socio-economic development of women citizenry.
One of the prominent legislative frameworks that deals with the sex discrimination at workplace had been the Equal Remuneration Act (ERA), 1976. Though the Code on Wages (CoW), 2019, repealed the ERA, it is important to analyse whether the progressive interpretation of anti-discrimination principle in Article 15has been imbibed into the spirit of the new provisions relating to non-discrimination at work. This study would explain conceptual narratives relating to 'gender equity' to understand the basis of the 'persuasive idea' in legislative framework relating to non-discrimination on the ground of 'sex'.
The concept of 'gender equity' demands creation of a 'level playing field'to access rights, benefits and protection. Gender equality and equity need to be understood with its distinctions as the former emphasizes on equality in their rights, opportunities and responsibilities while the latter stresses on fairness in the treatment and amelioration of imbalances or social norms imposed on women,to deprive equal rights and opportunities. Gender equity focuses more on fair access and social justice going beyond formal equality. Christina Hoff Sommers, while explaining 'equity feminism' argues for both social and legal equality. To make it more meaningful, social equality would argue for social, economic and political equality through equal opportunities, equal obligations and equal expectations by having equal rights and equal access to the same opportunities. With this understanding, any bias, attitudes or interventions shall be termed as violation of dignity towards woman. RatnaKapur writes that the Violence Against Women (VAW) discourse has been successful in translating specific structural violations experienced by individual women into human rights discourse.Sex role stereotyping is sex discrimination (Price Waterhouse vs. Hopkins) and such violations lead to continuous judgments and decisions that demand for additional proving and self-exploitation, impeding her advancement. The CEDAW Committee has noted that sex role stereotyping and gender-based roles are harmful practices and violative of human rights of women.
Martha Fine man has criticized 'formal equality' for its "inadequacy to resist or upset persistent forms of subordination and domination".This point of view is very relevant in Indian context since gender equality as a Constitutional objective, remains a distant dream. It requires more nuanced and explorative approach to identify and address challenges against creation of a 'level playing field' to access rights and entitlements by women. Equal protection doctrine fails to recognize structural and inherent inequalities against women at workplace in the form of sex role stereotyping, non-consensual terms of employment, differential treatment in conditions of service, exclusion in decision making, promotion on the basis of norms of gender hierarchy, extra-remunerative task allotments for dominant gender etc.
The Constitutional Precincts
The Constitution safeguards 'liberty and equality' of citizens under the Fundamental Rights Chapter of the Constitution. The principles of equality and non-discrimination loses its relevance when the society and the system perpetuate restraints on women's rights and unequal workplace relationships. Materialization of Principle of Fraternity through institutional empathy and creation of level playing field to conduct and perform work, is real implementation of 'equality of opportunity' promised in the Constitution. It requires dismantling of hierarchical gender relations reflected in acts of domination, structural and social patterns, sex role stereotyping, power relations and other systemic prejudices at workplace. To overcome structural and institutional barriers, it is so important that dignity of every individual is upheld by the actors in the society, institutions and the state. The Equality provisions in Article 14, 15,16 of Part III and Article 39 (a) to (d), 39 A, 42, 46 and 47 of Part IV of the Constitution,emphasizes to ensure not only equal opportunity, but also empowerment against socio-political and economic discrimination.
The Equal Remuneration Act, 1976: Argument for Levelling up
The Equal Remuneration Act (ERA), 1976,imbibes the philosophy of anti-discrimination on the ground of 'sex' in matters of payment and in matters connected with or incidental to employment. Though 'equal pay for equal work' is not recognized as a fundamental right, it is core principle under Art. 39 (d) of the Constitution, the basis of this legislation. The major criticism against legislation from the beginning has been its applicability only to the employees in the organized sector.
The Act ensures same payment to every one doing same work or similar nature of work, equal opportunity in recruitment, promotions, training, transfer and conditions of service. At the same time, it also gives flexibility/unregulated discretion to the appropriate government to pay differential wages if it has been determined not on the ground of 'sex' alone. The problematic reading of this provision in case laws, including 'Air India vs. NergeshMirza'toAICCA vs. Yeshaswinee Merchant,the Court upheld the view that as the language of Article 15 (1) and 16 (2) prohibit discrimination only on the ground of sex, the state can "discriminate on the ground of sex coupled with other considerations". Section 16 of the ERA is held constitutionally valid based on this interpretation that the ERA comes into play only if the discrimination is on the basis of 'sex' and not intertwined other intersectional elements. Being this law stood the ground for more than two decades, it is Navtej Johar vs. Union of India,Justice Chandrachud discusses the fallacy of such interpretation in 'egalitarian rights' framework. He argues that such an interpretation facilitates discrimination on the basis of "stereotypical notions of the differences between men and women". The Supreme Court resorted to uphold stereotypes at workplace going by the logic in NergeshMirza, in AICCA vs. Yeshaswinee Merchant's(2003). The Court stated that:
"Duties on flight demand of air hostess's physical fitness, agility and alertness. Duties in air are full of tension and sometimes hazardous. They have, therefore, agreed for comparatively early age of retirement with option to accept duties on the ground. There is nothing objectionable for air hostesses to wish for a peaceful and tension-free life at home with their families in the middle age and avoid remaining away for long durations on international flights."
These words clearly denote sex role stereotyping and prioritization of dominant sex over the other. In Price Water house vs. Hopkins (1989), the US Supreme Court found that the ground for her deferment of promotion was based on sex stereotyping which is nothing but, sex discrimination. Ann Hopkins was denied promotion on the ground that she is more aggressive than a woman should be and it was advised that her chances of promotion only if she would be more feminine.
The Indian Supreme Court in 2003, goes by the logic of socially accepted stereotypes as to how women are not good decision makers as men on emergencies at work. . The collective bargaining settlement that agreed on discriminatory conditions of service against air hostesses (petitioners), reached at between the trade union and the employer. It is not the case that the trade unions as democratic units that works for all employees, both men and women, are liberal spaces that respect autonomy of women. Majority of the times, the office bearers of the Union being men members, the conditions of service that they reached upon contains structural assumptions and expectations from women and these find their way into settlements. Based on the conditions of settlement, the court upheld the familial logic. This in turn instructs women to compromise mobility in career for family and presume women prefer to lead tension-free life as home maker at their middle age.These sex-based stereotypes have become the wisdom of the Court in Yeshaswinee Merchant's case. It is against this glibness of the Court, Justice Chandrachud clarified by stating that:
"The initial classification between the two cadres, as Air Hostesses and Flight Purses, being grounded in sex, itself was violative of the constitutional guarantee against discrimination…..The Court did not recognize that men were not subject to the same standards with respect to marriage. It holds that the burdens of health and family planning rest solely on women. This perpetuates the notion that the obligations of raising family are those solely of the woman….. That such a discrimination is a result of grounds rooted in sex and other considerations, can no longer be held to be a position supported by the intersectional understanding of how discrimination operates. This infuses Article 15 with true rigour to give it a complete constitutional dimension in prohibiting discrimination."
In Navtej Johar, the Court expanded Article 15 to prohibit any kind of discrimination, direct or indirect, on the basis of only sex or coupled with other intersectional elements, the socio-political and economic context. This clarity would strike down the discretion given to the appropriate government to determine differential remuneration between men and women under Section 16 of the ERA. This would also remove limitation of ERA with respect to arresting stereotyping at work, which is one of the common forms of sex discrimination.
The transformation of the Constitutional right through recent judicial interpretation has brought broader approach in application of the ERA. It has also geared towards more efficiency and outreach in implementation of the principle of non-discrimination against women at workplace. The recent labour reforms under the Code on Wages, 2019, has replaced four enactments, such as the Minimum Wages Act, 1948, the Payment of Wages Act, 1936, the Bonus Act, 1965, and the Equal Remuneration Act, 1976. This new enactment received the assent of the President and notified in the gazette on 8th August, 2019. It is important to analyse whether the new enactment progressively realise the more effective enforcement of the rights under the ERA.
The Code on Wages, 2019: legislative analysis
Two provisions of the Code on Wages (CoW), 2019, replaced the spirit of the ERA. Section 3 of the Act prohibits any kind of discrimination on the ground of gender in relation to wages for same work or similar nature of work done by any employee. Section 4 as remedial provision states that any dispute relating to interpretation of same or similar nature of work shall be decided by an authority notified by the appropriate Government. One of the prominent differences in terminology in CoW is the use of the term, 'gender' replacing the word 'sex' under the Constitution and the ERA. As we understand, there is difference between 'gender' and the 'sex'. Gender' is associated with socially and culturally accepted distinctions dominantly based on binaries, male or female and gender identity also identifies as being either masculine or feminine.More inclusive terminology is 'sex' as is not merely restricted to the biological attributes of an individual, but also includes their "sexual identity and character". 'Judgment in Navtej Johar, following the recommendations of the J.S. Verma Committee Repot, upholds that the word, 'sex' under Article 15 (c) includes sexual orientation and hence, "the prohibition on the ground of 'sex' should encompass instances where such discrimination takes place on the basis of one's sexual orientation".
Moreover, the ERA prohibits any kinds of discrimination on recruitment, promotion, training, transfer and conditions of service, for the same work or work of a similar nature. The CoW, not addressing beyond differential remuneration/wages, should be very seriously analysed at the backdrop of progress of jurisprudence relating to gender equity/sex discrimination at workplace. Legislative protection would stop at equal pay, but other socio-cultural and political reflections of patriarchy would not be arrested from intervening with economic independence of women. This legislative void would result in undermining dignity of women at work which would lead to their devaluation and marginalization.
Sex discrimination at work leads to deprivation of their entitlement to full autonomy as individual and in turn, full citizenship under the Constitution. Women in the country have come long way asserting their visibility both at public and private sphere of production. It is their assertion that led to enhancing the rights framework for women through protective legislations for women. If the new law (CoW) cannot create new rights, imbibing the progressive values of women's rights jurisprudence, it shouldn't dilute the existing rights and entitlements. Women in a democracy cannot be compelled to have their lives pushed into obscurity by ill-thought out new legislation vis-à-vis their existing rights. The transformative constitutionalism that scholars talk about should lead to creating liberal and egalitarian society, than leaving the women to structural injustices.
ConclusionSex based biases and stereotypes, though invisible, need to be legally addressed for creation of a workplace that ensures stability and productivity without hindrance. Practices of sex discrimination are normalized and has become part of structural violence over their bodies as we see in the case of women cane cutters in Beed District. Though pattern and gravity of violence is different, women in formal sector are subjected to different forms of discrimination which eventually lead to their drop-outs and demotivation in career. The ERA was enacted to ensure that women are not discriminated in comparison with men while they are doing same work or similar nature of work. The Act provided protection from any kind of discrimination during recruitment, conditions of service, promotions, transfer, training and remuneration. Though Section 16 of the ERA did provide discretion to the state in imposing differential wages if reasons for the same are not only on the basis of sex, the recent reading of Article 15 from Navtej Johar, strikes away such sweeping statutory provision. Moreover, the constant argument against the ERA had been that it failed to arrest practices of sex role stereotyping at workplace. While the judiciary through its new reading, expanded the possibility of application of the ERA, the new Code on Wages, 2019, enacted by the Government hammered the possibility of broadening gender equity jurisprudence. This has been done by eliminating the available protections under the ERA and replacing it with only right to equal remuneration. This would only contribute to dilution and regression in women rights at workplace which had long fought and achieved by women's movement in India.
(Author is A Post-doctoral Fellow—King's College of London & CWDS, Assistant Professor, NLUD)
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 Supra at 13, p. 20
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