Discrimination Against Women at Workplace in India - A Legal Perspective

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(2014) 4 GJLDP (July) 23
Discrimination Against Women at Workplace in India: A Legal Perspective
DISCRIMINATION AGAINST WOMEN AT WORKPLACE IN INDIA: A LEGAL PERSPECTIVE

by
Archana Sarma
Abstract With rapid industrialization, economic development and modernization in
varied spheres of economic activities, the employment of women has increased
manifold in the recent times. In today's world, the importance of economic
independence for women cannot be denied. In fact, women's economic independence
and security is necessary for the elimination of physical, sexual, mental, emotional and
financial abuse that women come across in their relationships. But once women
become a part of the workforce, they face severe forms of discrimination in the
workplace, which, in no way, diminishes the extent of abuses that they experience as
not being economically independent. It is not only their right to work that is violated,
but also the very human dignity is lost. A glance at the social and economic position of
women at the end of the twentieth century reveals a striking persistence of
disadvantage. Wide pay disparities persist and women remain segregated in low
paying jobs. They are denied healthy and safe working conditions, fixed working hours,
prohibition in hazardous employments as well as maternity benefits. In India, most of
the work that women do, such as collecting fuel, fodder and water, or growing
vegetables, goes unrecorded in the Census counts. The paper critically analyzes
various factors leading to discrimination against women and their consequences. It
lays emphasis on two of the various forms of discrimination against women i.e. sexual
harassment at workplace and discrimination on the basis of wage, and the legal
framework to address these issues in an effective manner.
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1. INTRODUCTION
Since the advent of human civilization, right to work or to earn livelihood has been
universally accepted as a fundamental right of every human being. It signifies the
economic independence of a person. Similarly, it imposes an obligation on the part of
every individual not to encroach upon others' right to work or earn livelihood. Whereas,
on the one hand, there is recognition of the right to work, on the other hand, it has
been equally recognized that everyone has right against discrimination. Discrimination
in the workplace has become a part and parcel of our day to day affairs. Discrimination
may occur on the grounds of race, sex, language or religion. These grounds were
recognized in the United Nations Charter (1945) in Article 55. To these four grounds of
possible discrimination another eight were added three years later in the Universal
Declaration of Human Rights (UDHR). These were colour, political or other opinion,
national or social origin, property, birth or other status. The Universal Declaration of
Human Rights has explicitly provided that all are equal before law and are entitled
without any discrimination to equal protection of the law.1 Irrespective of this,
discrimination does take place against women at workplace.
“Economic independence refers to a condition where individual women and men
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have their own access to the full range of economic opportunities and resources in
order that they can shape their lives and can meet their own needs and those of their
dependents. It recognizes that women are economic players who contribute to
economic activity and should be able to benefit from it on an equal basis with men.
Women need to be valued and recognized for the contribution they make to their
children, home, community and economy. Women need economic resources to make
choices for themselves and their children.”2
In 1991 women and girls comprised 22.5 per cent of the official workforce. Data
from the National Sample Surveys records higher work participation by women than
the Census. Women constitute 90 per cent of the total marginal workers of the
country. Rural women engaged in agriculture
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form 78 per cent of all women in regular work. They are a third of all workers on the
land. The traditional gender division of labour ensures that these women get on
average 30 per cent lower wages than men. The total employment of women in
organized sector is only 4 per cent.3
Women in the workplace come across such violence which is directly related to the
unequal distribution of power and to the asymmetrical relationships that exist between
men and women in our society, which perpetuate the devaluation of women and their
subordination to men.4 Such gender-based violence that is perpetrated against women
at workplace is sexual harassment, which has threatened the very existence of women
in the employment structure. The intensity of this kind of gender based violence may
vary from cases to cases. The most unfortunate thing is that women, who come across
such kind of humiliation in the workplace, hardly disclose it due to various factors. This
may lead to more dangerous consequences not in terms of the victim but for the
society as a whole. Another form of discrimination lies on the basis of wage. The
principle of equal pay for equal work is often seen to be not applied in case of women
workers. It is unjust to discriminate men and women workers on the basis of wage for
equal work. Today, women are engaged in almost all kinds of work as men are. In
such a state of affair, there is no question of women being deprived of their wages for
equal amount of work compared to men. Therefore, there is a need to protect women
from such economic exploitation and thereby, to improve the lot of women who have
to support themselves with their earnings.
2. DISCRIMINATION AGAINST WOMEN AT WORKPLACE: THE PRESENT SCENARIO
Women constitute a significant part of the workforce in India. Among rural women
workers, majority are employed in agriculture as labourers and cultivators. In the
urban areas, women workers are primarily employed in the unorganized sectors such
as household industries, petty trades and
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services, buildings and constructions etc. In many regions, women's participation in

remunerated work is seen in the formal and non-formal sectors and in the latter due
to, inter alia, difficult economic situations and a lack of bargaining power resulting
from gender inequality, many women have been forced to accept low pay and poor
working conditions and thus have often become preferred workers. On the other hand,
women have entered the formal organised workforce increasingly by choice when they
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have become aware of and demanded their rights. Some have succeeded in entering
and advancing in the workplace and improving their pay and working conditions.
However, women have been particularly affected by the economic situation and
restructuring processes, which have changed the nature of employment and, in some
cases, have led to a loss of jobs, even for professional and skilled women. In addition,
many women have entered the informal sector owing to the lack of other
opportunities.5
The issue of discrimination of women in the workplace has been the focus of
attention for a long time and particularly in the 1990s, across the globe including
India. It covers the qualitative as well as quantitative aspects. Quantitatively, the
nature of debate revolves around levels and magnitude of employment of women as
well as men. Qualitatively, the discrimination ranges from earnings differential to
regularity and security of job, work environment, etc.6 Discrimination is a concept of
increasing importance both in the social sciences and in the world of action to protect
human rights. On the one hand, women are discriminated against employment
opportunities by depriving them of proper access to work; on the other hand, they face
discrimination once they are absorbed in the workforce. The most unfortunate thing is
that their contribution to the economic activities is always underestimated. This results
in deprivation of lot of opportunities that they can avail of being a part of the
workforce.
Discrimination can take various forms in due course of employment. Some of the
discriminatory practices that women often come across are as follows:
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i) Low Pay: Although it is commonly thought that one of the most recent
phenomenons of recent decades has been the rise in the women's participation rates
in paid work, in fact, significant numbers of women have always participated in the
paid work-force. It is still an act that, even when men and women are engaged on
identical work, women are paid less than men. In other words, there is no equal pay
for work of equal value.
ii) Job segregation: The pattern of job segregation in the 1990s reveals an
increasing polarization of women in the paid work force. While some women have
clearly progressed up the job hierarchy, this is matched by the fact that women's
share of traditionally feminine jobs continues to rise. Women are still seriously under
represented in the construction industry, forming just over 10 per cent of employees
and scarcely twenty per cent in the energy and water supply industry. Women are now
concentrated in a relatively small number of sectors and occupations. In the field of
engineering and manufacturing, men are preferred than women. Job segregation is
particularly marked in respect of part-time workers. Women part-timers tend to work
in occupational areas which are characterized by their low pay and low status and are
quite different both from male full-timers and female full-timers. In particular, women
part-time workers are heavily concentrated in lower level service jobs such as personal
services and sales occupations, and many of these are temporary too.7
iii) Education and Training: Improvement in the quality of women's employment
depends upon increased access to education and skill development training. With the
development of science and technology, women are often seen to be deprived of
proper educational and skill development training. As a result of that, most of them
have to lose their jobs being unable to compete with the sophisticated work culture. In
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fact, they do not fulfill the requirement to apply for the job due to lack of adequate
knowledge.
iv) Unequal promotion prospects: Women are often discriminated in their job
prospects by not promoting them to the position they deserve. Men are often seen to
be given a preferential treatment. Women with same qualification as men may not,
sometimes, get the opportunity of being promoted. There may be so many factors
behind this. One of the reasons is the
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patriarchy that prevails in the family as well as workplace. The male members always
expect the women to be in the subordinate position whether in the family or in the
workplace. Such constructions of the society hinder the development of women's
personality.
v) Marriage: a bar to employment: Various organizations refuse to employ

married women as it is believed that marriage creates obligations and difficulties
which adversely affect the efficiency of women workers. There are many cases of
dismissal on pregnancy. In India, there are many establishments which have adopted
the broad framework of the Maternity Benefit Act in their own service rules. The
service rules of some of these establishments provide for termination of services of
women employees on pregnancy as was seen in the landmark judgment of the Air
India dispute.8 By making pregnancy a bar to continuance in service of an air hostess
the corporation has adopted an unreasonable individualized approach to woman's
physical capacity to work even after pregnancy. The Supreme Court of India found this
provision to be most arbitrary and unreasonable. In spite of this condemnation, there
have been cases where pregnancy of women has been considered a bar to their
employment. Apart from that, the law of maternity benefit was enacted to ensure the
health and well-being of the working mother and the child. It was meant to provide
support to a woman worker to enable her to play her productive and reproductive roles
and to remove any discrimination faced by her, because of the biological role she is
required to play. All these good intentions seem to have backfired since employers
refuse to employ married women in order to avoid paying maternity benefit.9
vi) Sexual harassment at workplace: The problem of sexual harassment of
women has become a global issue and has caught the attention world over. Sexual
harassment of women at the workplace violates their sense of dignity and right to earn
a living with dignity and is against their fundamental rights and their basic human
rights. Indeed sexual harassment apart from being a dehumanizing act is an unlawful
intrusion on the right of privacy and sanctity of a woman. In India, there has been a
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continuous rise in the number of cases reported on sexual harassment. Besides, there
is equally good number of unreported cases, because most of the women employees
are still reluctant to report the matter to the concerned authority fearing that this may
lead to have a negative impact on their job. Sexual harassment is deliberately
perpetuated simply to debase their role, especially to keep them in the subordinate
rank. By deliberately drawing attention to their sexuality, their working capacity and
leadership qualities are debased.
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In a recent development, the special legislation to deal with this issue, the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013
got the assent of the President of India The legislation which has been long overdue
addresses a broad range of offences in office spaces such as sexual favours, offensive
remarks, physical advances or display of pornographic material. The need for such a
law has all the more been felt given the swelling female participation in the labour
market. Hence, it is pertinent to look into various issues related to sexual harassment
in the workplace and find out ways to eliminate such abuses to create a healthy
environment in the workplace.
3. SEXUAL HARASSMENT AT WORKPLACE
In rural Rajasthan, in India, back in 1992, a female government official was gang
raped by five men whom she tried to refrain from marrying off a girl (less than a year
old) from their family. The demon of sexual harassment of women and automatically
discrimination of women at work hit the Indian society real bad. It wasn't that it was
never there or people were not aware of it, but it was an eye opener of sorts. In this
case though, lot of women's organizations filed a petition in the Supreme Court, since
they were unable to get justice at lower judicial levels. The petition was filed as
Vishakha and in 1997, after five long years, the Supreme Court of India gave a
landmark judgment adding teeth to rights of women in the workplace by putting
across guidelines, called the Vishakha Guidelines.10
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From the statistics of National Crime Records Bureau (NCRB), it is evident that
there has been a considerable decline in the number of cases reported on sexual
harassment during these five years.11 Besides these, there are equally good numbers
of unreported cases. To cite an example, it is surprising to know that India's software
capital, Bangalore has been witnessing startling statistics on sexual harassment at the
workplace. Over 700 complaints were ‘unofficially’ registered with the Karnataka
labour department in 2012 from just the IT/ITeS and biotech sectors. These include
anonymous emails and letters, and complaints without full details of a case. Formal
complaints are fewer. Sources in the Labour Department said many cases were not
even registered, with women simply bearing the harassment. The Department
investigates many of the ‘unofficial’ complaints as well.12 A study was conducted by
Oxfam India and Social and Rural Research Institute in November 2012 which
revealed that 17 per cent of working women faced sexual harassment at their
workplace. The study was done in Delhi, Mumbai, Bangalore, Chennai, Kolkata,
Ahmedabad, Lucknow and Durgapur, among working women from the organised and
unorganised sectors. Among the sectors studied the three sectors that emerged as
‘unsafe’ for women were labourers (29 per cent), domestic help (23 per cent) and
small-scale units (16 per cent). The study concluded that while a majority of
respondents were aware of such acts, they were reluctant to take any formal action
due to reasons such as ‘fear of losing the job’, ‘absence of any complaints mechanism
at the workplace’, ‘fear of getting stigmatized’ and ‘not aware of redressal
mechanism’.13
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3.1. Combating Sexual Harassment in India: The Existing Scenario

The efforts to have anti-sexual harassment legislation in India started long back with
the Supreme Court judgment in the Vishakha case. In the absence of a law, the cases
of sexual harassment are dealt through common laws-Penal Code, 1860 (IPC) and
Code of Criminal Procedure (Cr.PC.) etc, though India has detailed constitutional and
other legal provisions giving adequate protection to women at work and providing
them equal opportunity with men.
3.1.1. Provisions under Criminal law:
Even though the criminal law in India does not deal specifically with sexual
harassment of women in the workplace, there are several provisions in the Penal Code,
1860 (IPC), that declare certain acts covered by sexual harassment to be an offence
and prescribes punishment for such acts. Section 509 of IPC prescribes penalty for the
act similar to the sexual harassment. It provides that whoever intending to insult the
modesty of any woman utters any word, makes any sound or gesture, or exhibits any
object intending that such word or sound shall be heard, or that such gesture or object
shall be seen by such woman, or intrudes upon the privacy of such woman, shall be
punished with simple imprisonment for a term which may extend to one year, or with
fine, or both. Section 354 provides that whoever assaults or uses criminal force to any
woman, intending to outrage or knowing it to be likely that he will thereby outrage her
modesty, shall be punished with imprisonment of for a term which may extend to two
years, or with fine or both.
Apart from that, various social legislation such as the Young Persons Harmful
Publications Act, 1956; the Indecent Representation of Women (Prohibition) Act,
1986; Section 67 of the Information Technology Act, 2000 punishing a person who
publishes child pornography on the net etc are to some extent addressing the issue of
sexual harassment. Besides among labour legislations, the Factories Act, 1948; the
Maternity Benefit Act, 1961; and the Equal Remuneration Act, 1976 contain certain
provisions relating
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to working women that directly or indirectly address the issue of sexual harassment.
3.1.2. Efforts to Have a Law on Sexual Harassment:

With the ratification of CEDAW in 1993, India came under an obligation to ensure
protection of women against sexual harassment. But the verdict of two landmark
judgments of the Supreme Court in Vishaka v. State of Rajasthan14 and Apparel Export
Promotion Council v. A.K. Chopra15 suddenly drew the attention of all and the whole
issue took a new turn after the pronouncement of these two judgments. Since then,
various efforts have been made to come up with legislation for addressing this issue.
National Commission for Women (NCW) took initiative to draft the first bill on
protecting women from sexual harassment at workplace which underwent several
changes. Finally, on February 27, 2013, the Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Bill, 2012 was approved by the
Rajya Sabha unanimously, which was already passed by the Lok Sabha in September
2012. The Bill was first introduced in the Parliament in 2010, and then it was referred
to the Standing Committee on Human Resource Development. The Committee made a
number of recommendations, some of which were incorporated in the Bill which was
passed by the Lok Sabha. However, the Rajya Sabha did not have any substantial
amendment to the Bill as passed in the Lok Sabha. Prior to these developments, the
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country witnessed another significant step being initiated in the form of Criminal Law
Amendment Ordinance, 2013; triggered by the infamous Delhi gang rape case. Justice
Verma Committee, constituted to revisit the criminal laws of the country and make
recommendations, also pondered over the issues relating to sexual harassment against
women at workplace. Some of the recommendations have already been included in the
Bill.
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3.1.3. Major features of the Sexual Harassment of Women at Workplace

(Prevention, Prohibition and Redressal) Act, 2012
a) Definition of ‘sexual harassment: ‘According to the Act, the term ‘sexual
harassment’ includes such unwelcome sexually determined behaviour (whether
directly or by implication) as:
(a) Physical contact and advances;
(b) A demand or request for sexual favours;
(c) Sexually coloured remarks;
(d) Showing pornography; and
(e) Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
Where any of these acts is committed in circumstances where the victim of such
conduct has a reasonable apprehension that in relation to the victim's employment or
work whether she is drawing salary, or honorarium or voluntary, whether in
government, public or private enterprise such conduct can be humiliating and may
constitute a health and safety problem, it amounts to sexual harassment.16 Even
though the definition includes a wide variety of situations, it falls short of including
textual, graphical or electronic actions leading to sexual harassment, which are the
outcome of latest technological developments.
b) Expansion of the definition of ‘workplace’: The new legislation expands the
definition of workplace to include sports institutions, stadiums, transportation provided
by the employer, and any place visited by the employee arising out of or during the
course of employment. Expanding the scope of the Act to cover such areas directly or
indirectly associated with employees' primary workplace is indeed a significant step
towards preventing sexual harassment even outside the premises of a workplace.
c) Prevention of sexual harassment: The Act has also identified certain
circumstances that may lead to sexual harassment, such as, implied or explicit
promise of preferential treatment, implied and explicit threat of detrimental treatment,
threat about her present or future employment
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status, and interference with her work and creating an intimidating or offensive or
hostile work environment for the woman employee. These circumstances are wide
enough to cover situations resulting in sexual harassment. However, the use of certain
terms like ‘hostile work environment’ has nowhere been defined, which may create
confusions.
d) Constitution of Internal Complaints Committee (ICC): Under the Act, every

employer is required to constitute an ‘Internal Complaints Committee’ at all offices
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and branches with the staff strength of 10 or more employees. Each committee shall
comprise of four members (to be nominated by the employer) with a senior woman
employee, two or more employees and one member from an NGO involved in the
cause of women. Some of the issues that may arise out of it are — how to take a
decision in a case where the bench is equally divided; and the stipulated period within
which the committee is to be formed.
e) Constitution of Local Complaints Committee (LCC): Clause 6 of the Act
mandates constitution of a Local Complaints Committee in every district by the District
Officer who will be either a District Magistrate or Additional District Magistrate or
Collector. LCC shall receive complaints of sexual harassment from establishments
without Internal Complaints Committee and complaint against the employer himself.
Here, the problem lies in the fact that the District Officer has a number of other
responsibilities in the capacity of either a magistrate or collector. In such a situation,
LCC may not become a priority for him/her. Thus, the purpose of such committee gets
diluted.
According to Clause 6(2) of the Act, the District Officer shall designate on the Nodal
Officer in very block, taluka and tehsil in rural and tribal area and ward or municipality
in the urban area to receive complaints and forward the same to the concerned LCC
within a period of seven days. However, no information is provided in the Act with
regard to the nodal officer who holds a crucial position and works as a link between the
complainant and the LCC.
f) Complaint of sexual harassment: Any complaint of sexual harassment has to
be filed within three months fro the date of the incident. The time-limit may be
extended by maximum of three months for reasons recorded in writing. The time
frame given appears to be quite reasonable,
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especially in cases where, for reasons mentioned in the Act, the aggrieved woman is
unable to file a complaint. However, the Act is silent about sexual harassments which
are serious in nature. There should have been provisions to address such situations,
such as the Committee being authorized to take suo moto cognizance of such
incidents.17
g) Conciliation: ICC or LCC, as the case may be, at the request of the aggrieved
woman, may settle the case between the complainant and the respondent by way of
conciliation. It also provides that there shall not be any monetary settlement as a
basis of conciliation. Certain distinctions should be drawn between minor and major
offences and conciliation should be permitted only in less serious offences.
h) Punishment for false or malicious complaint and false evidence: The Act
provides for punishment in cases of false and malicious complaints. As far as false and
malicious complaints are concerned, bot cannot be placed under one category. A
complaint may also be considered to be a false one if it cannot be proved due to lack
of evidence, which is very much possible. But, that should not be a ground for
imposing penalty. This will discourage the victims to come forward. Unlike false
complaint, a complaint with a malicious intention may always invoke penalty as it is
very clear that there is a malafide intention behind filing such complaint. Hence, a line
has to be drawn between a false complaint and a malicious complaint.
In spite of a few mismatches here and there, the clearance of the Act by both the
Houses of the Parliament as well as receipt of the assent to the President recently is,
undoubtedly, a huge step towards combating sexual harassment in the country.
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4. Discrimination against women on the basis of wage: legal responses

The relationship between a worker and an employer is based, in law, on contract. That
contract represents in most cases a ‘wage-work’ bargain in
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which the worker undertakes to provide her own labour and skill in return for the
employer's promise to pay wages. This bargain is so fundamental to the way in which
the society is currently structured that levels and forms of reward are inevitably an
area of conflict, not only as between the opposing interests of capital and labour, but
also between different groups of workers. The setting of wage levels is a function of
the continuing interplay of supply and demand and the relative bargaining strengths
which results from the wider economic context, including the impact of demographic
trends on the availability of labour. Indeed, it is this latter factor which may eventually
have the greatest impact on women's wages and their other terms and conditions of
employment. The distribution of wages amongst workforce depends not only on
general economic influences but also on more specific matters which may include
productivity, endeavour, ability, qualifications, experience and status. Levels of pay
may also depend on one's sex. 18
It has been a universally accepted principle that there is equal pay for equal work.
Accordingly women workers are entitled to equal amount of wage as men are, for
equal amount of work. But, unfortunately, women and men receive different wages in
respect of the same kinds of work. The gender-pay gap exists both within and between
occupations, within and between industries and workplaces. The differences between
men and women engaged in the same work are explicable in terms of:
■ Their different levels within occupational hierarchies-women tend to be clustered
at the bottom; and
■ The fact that men and women are found in different workplaces and that those in
which women predominate pay lower wages.
In addition, whether men and women do the same or different work, pay practices
may disadvantage women. Such pay practices include:
■ heavy reliance of earnings on overtime payments;
■ performance-related pay-women are less likely to work in the jobs to which it
applies and, even where they do, they are generally awarded lower payments;
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■ the payment of bonuses, etc., only in those jobs in which men predominate.
■ Women are concentrated in different occupations from men, and these
occupations are, typically, lower paid than those in which men predominate.
Many arguments have come up regarding higher wages for men than women for
equal work. The reason is attributed to skills, education, training, labour market
experience, etc. but holding all these factors constant, men still earn more than
women. It is also argued that women are excluded from men's jobs, because they are
unreliable and undeserving, because they are less able than are men to comply with
requirements such as being willing to work ‘flexibly’, or to work full-time, or to take on
over time work, because they fear discrimination by employers or sexual harassment
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by predominantly male workers, because only the most determined and single-minded
women can survive in ‘male’ jobs.19
Whatever be the argument, it is generally accepted that women are discriminated
against equal wage for equal work. It is expected that waged employment outside the
home provides women increased income which presumably should improve status.
However, waged work often doubly disadvantages women as they occupy low status
and low wage jobs along with retaining the overwhelming burden of child care and
housework.
4.1. Legislative measures
Inequalities of pay between men and women led to the passing of the Equal Pay Act in
1970 in the United States, an attempt to eradicate discrimination by the simple
expedient of raising women's pay to the level of their male colleagues employed by
the same employer, although this Act could not serve the purpose for which it was
meant. In India, the distinctive problems faced by women workers, i.e. inequality in
wages and discrimination resulting from the biological role of child bearing motivated
the enactment of the Equal Remuneration Act, 1976 and the Maternity Benefit Act,
1961. The Equal Remuneration Act, 1976 was enacted to counter the discrimination
which women faced in payment of wages by enjoining the employer
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to pay equal wages to men and women workers for performing the ‘same work’ or
‘work of similar nature.’ The Maternity Benefit Act, 1961 mandates paid maternity
leave for women.
The enactment of these statutes leads to the prima facie inference that our legal
system in recognizing the special needs of women workers grants them substantive
equality. Till 1975, there was no specific legal provision mandating payment of equal
wages to women even though discrimination against women in the payment of wages
was widely rampant. Such discrimination was practiced not only by private employers
but by the instrumentalities of the state as well. The discrimination continued in spite
of the fact that Article 15 of the Constitution specifically prohibits discrimination
against women. Even the states accorded no sanctity to this constitutional mandate.
Evidently, ensuring equal wages to women has not been perceived as a task of high
priority by the government. The provision relating to ‘equal pay for equal work’ is not
an enforceable fundamental right but is issued as a directive to the state in Part IV of
the Constitution.20 By this part, the state is obliged to secure such social and economic
freedoms for the citizens, which could not be guaranteed at the time of framing of the
Constitution due to the then prevalent socio-economic conditions. Even though
ensuring equality of wages between men and women is not dependent on economic
conditions, pay parity was not guaranteed as a right in Part III but incorporated as a
directive in Part IV. The complacency of the government towards this issue vital to the
women is further reflected in the fact that though India had ratified the Equal
Remuneration Convention of International Labour Organisation in 1958, it honoured
the promise of equal pay only in 1975 when the Equal Remuneration Ordinance was
promulgated to commemorate the International Women's Year. This Ordinance was
later replaced by the Equal Remuneration Act in 1976. The Act places a duty on the
employer to pay equal remuneration to men and women workers employed by him in
an establishment or employment for performing same or similar nature of work. The
deciding factor for the successful pursuit of a claim for equal wages under the Act is
that the work being performed be either ‘same or of similar nature’. Section 2(h) of
the Act defines such work as “work in respect of which skill,
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effort and responsibility required of a man and those required of a woman are not of
practical importance in relation to the terms and conditions of employment.
The air hostesses of Air India brought a case against their employers contending
that they were being discriminated as against assistant flight pursers who did more or
less the same kind of work on flight, had better service conditions, later date of
retirement and other facilities.21 In order to set at rest all doubts with regard to
violation of the provisions of Equal Remuneration Act, the Government issued a
notification which stated that the difference in regard to pay etc. of these categories of
employees are based on different conditions of service and not on the difference of
sex. The Court while granting some marginal concessions to the air hostesses like
raising their age of retirement and declaring the provision requiring termination of air
hostesses on pregnancy as unconstitutional upheld the other discriminatory conditions
of service.
In our country, there is a strong division of labour between the sexes. Work for
women is limited to a small range of jobs at the lower end of the market where there
is no male counterpart with whom they can claim equality. In such a scenario, the
contention of doing ‘same or similar work’ as men and consequent claim of equal
wages cannot be technically raised under the statute. Such occupational segregation
works to the disadvantage of women workers. This is because even if the women are
performing more strenuous and skilled work, if the work they do gets classified as
women's work, it is automatically designated ‘light’ work with less output and lower
wage.
The Maternity Benefit Act, 1961, another women specific legislation was enacted in
response to recognition of women's' reproductive role and is intended to grant
substantive equality to women by granting them paid leave for a fixed period before
and after delivery. In recognition of women's productive and reproductive roles Article
42 of the Constitution directs the State to make provision for maternity relief. The
Maternity Benefit Act, 1961 applies to factories, mines, plantations and establishments
where persons are employed for exhibition of equestrian, acrobatic and other
Page: 40
performances.22 The Act provides for payment of cash maternity benefits for certain
period before or after confinement, grant of leave and other medical facilities. This
benefit is available in case of confinement, miscarriage, sickness arising out of
pregnancy and premature birth of child. This Act was amended in 1995 to provide
leave with wages in case of medical termination of pregnancy, tubectomy, and for any
illness arising out of that.23 In other words, the Act provides for benefit as an
indemnity for the loss of wages incurred by a woman who voluntarily before and after
child birth abstains from work in the interest of the health of the child and herself. It
also provides other benefits to women workers in the industrial establishments to
which the Act is applicable. These are some of the efforts made in the national level to
eliminate disparities of wages between men and women workers in the work place.
5. Implementation of Instruments in Combating Discrimination Against

Women at the Workplace
-----------------------------------------------------------------------------------------------------------------------------------------------------------
The Constitution of India seeks to protect the interests of women through fundamental
rights and Directive Principles of State Policy. Article 14 of the Constitution not only
assured equality before law or equal protection of law within the territory of India but
made a specific clause prohibiting the discrimination on the ground of sex. Thus,
Article 15(1) of the Constitution provides that the State shall not discriminate against
any citizen on ground only of religion, race, caste, sex, place of birth or any of them. It
gives special treatment to women namely ‘nothing in Article prevents the State from
making any special provision for women and children’. In accordance with that,
various legislations have been enacted to eliminate discrimination against women in
the workplace. The objective of these legislations is to fulfill the yardsticks provided in
the Constitution of India. Apart from assuring the right to work as a basic right
although included in the Directive Principles of State Policy, there are some other
provisions in the Constitution which lay down yardsticks for the state to comply with
its policies relating to employment. Article 42 provides for just and humane conditions
of work and for maternity relief, Article 43
Page: 41
provides for living wage to all workers. Article 43A provides that the state shall take
steps to secure participation of workers in the management of undertakings,
establishments or other organization engaged in any industry. Article 39(d) provides
that there is equal pay for equal work for both men and women. By the letter of the
word, the Constitution does not proclaim ‘right to equal pay’ as a fundamental right,
but the Supreme Court by reading Article 39(d) with Articles 14 and 16 has
proclaimed it to be a fundamental right.24 As it provided in the Directive Principles that
the state shall direct its policy for equal work both for men and women, accordingly,
the Equal Remuneration Act, 1976 came into being. The most important is the
implementation part. The objective of legislation is fulfilled only when it is properly
implemented. One of the important factors for proper implementation of the
legislations is the awareness among the people for whom they are meant.
Unfortunately, the factor hindering implementation in India is the ignorance of women
workers themselves. They are generally unaware of the legislative provisions meant for
their welfare. The trade unions are generally not responsive to the women workers'
problems. They do not have any policy for women workers. It is not realized that being
an oppressed section within the working class itself, women are a special section
having special problems which need to be addressed.
In order to claim the benefit continuous service for a certain period was required.
Earlier the employers wanting to avoid the expenditure kept a large number of women
as temporary or casual workers. Thus, these workers were not able to fulfill the
obligatory requirement of having worked for 160 days in the preceding one year.
Sometimes employers caused a break in the service on the slightest pretext in order to
avoid paying maternity benefits. As a result of these practices, a very small
percentage of women were able to claim these benefits. To check this malpractice, the
Act was amended in 1988 to reduce the eligibility criterion for claiming maternity
benefits from 160 days to 80 days. Employers have thus been prevented from
escaping their obligation by causing a break in service. Thus, the ignorance of women
workers, apathy of the trade unions and the reluctance of employers are either
individually or collectively responsible for the low proportion of women workers being
able to avail their
Page: 42
-----------------------------------------------------------------------------------------------------------------------------------------------------------
statutory right of maternity benefits. These are the practical difficulties arising out of
various factors including loopholes in the Act itself, in the way of implementation.
In the landmark judgment of the Supreme Court in Vishakha Case on sexual

harassment, the Court recognized that the existing Indian laws had not adequately
protected women from workplace related sexual harassment, and it issued guidelines
on the prevention of sexual harassment in the workplace. The Court explained that
they would be judicially enforceable until further legislation is enacted. The guidelines
define sexual harassment, and outline the duty of employees to prevent, punish and
remedy sexual harassment. The Court speaking through Justice Verma relied on
General recommendation 19 on violence against women, of the Committee on the
Elimination of all forms of Discrimination against Women (CEDAW).25 Here the Court
explained that the international conventions and norms are to be read into (the
fundamental rights guaranteed in the Constitution of India) in the absence of enacted
domestic law occupying the field where there is no inconsistency between them. It is
now an accepted rule of judicial construction that regard must be had to international
conventions and norms for constructing domestic law when there is no inconsistency
between them. It is worth mentioning that, although India has yet to ratify a host of
international instruments, various principles of the basic human rights instruments
have been incorporated in the domestic legislation and the have been well
implemented in their respective fields.
However, on many occasions, it has been found that the legislation have failed to
achieve their purpose because of non-implementation of laws. Following can be some
of the factors for non-implementation of laws.
1. lack of effective machinery for implementation,
2. lengthy or expensive provisions,
3. lack of strong political will of the states,
4. lack of vigilance among civil society members,
5. problem of inadequacy in the law itself, and
6. inadequacy in the judicial system.
Page: 43
Laws cannot be effective unless they are properly implemented. As we have noticed
loopholes in the legislation itself can be a factor for non-implementation. Besides, the
implementing authority has to be efficient enough to actualize the purpose of the
legislation. The state has to play a pro-active role in dealing with the issues relating to
women workers. Being a male dominated society, preponderance of male oriented
policies cannot be ignored. That would definitely defeat the purpose of the legislation.
There must be sufficient vigilance among civil society members to urge the state for
proper implementation of laws. To sum up, it is not only the responsibility of the state
but also individual to actualize the purpose of every legislation in order to eliminate
discrimination against women in the workplace.
6. Conclusion
The Constitution of India has laid down certain provisions which are well in conformity
with creating an environment where men and women have equal access to all kinds of
work under just and humane conditions. There are also basic instruments dealing with
-----------------------------------------------------------------------------------------------------------------------------------------------------------
equality between men and women in the workplace. But here a question arises as to
why the states have not been able to eliminate discrimination at workplace
irrespective of the existence of all these instruments. To address this question we need
to look at the coordination between the domestic laws and the international
instruments. Most of the instruments are non-binding in character. Therefore, unless
these principles laid down in the instruments are incorporated into the domestic
legislation, they cannot be effective. The problem arises in implementing these
principles in the form of legislation. Many a time it is seen that, although the state
incorporates principles drawn from international instruments into their domestic laws,
they fail to comply with those principles. There may be several factors behind it. One
of the most important factors is that although law is used as an instrument to bring
about change in the society, there are undercurrents which adversely affect the very
purpose of law. The campaigns to make gender discrimination visible, the process of
articulating rights and the ongoing demand for legislation and effective
implementation of laws, while being a crucial aspect of the women's movement,
carries with it the understanding that law alone
Page: 44
cannot effect change. The limitation of law is amply demonstrated in the formulation
of the law itself, as well as the unwillingness to pass laws that could seriously
challenge gender inequality. Illustration can be drawn from the present context. The
legislature has repeatedly failed to come to a consensus regarding the Women's
Reservation Bill. This shows the reluctance on the part of majority of the society to
accept a trend which can change the basic structure of the society. The same is the
case with the legislation on sexual harassment which took several years to get
approved.
As far as sexual harassment in the workplace is concerned, the author would like to
put forward the following suggestions:
■ A policy/procedure designed to deal with complaints of sexual harassment should
be regarded as only one component of a strategy to deal with the problem. The
prime objective of the employers should be to change behavior and attitudes, to
seek to ensure the prevention of sexual harassment.
■ The best way to prevent sexual harassment is to adopt a comprehensive sexual
harassment policy. The aim is to ensure that sexual harassment does not occur,
as prevention is always better than cure, and where it does occur, to ensure that
adequate procedures are readily available to deal with the problem and prevent
its recurrence.
■ Employers need to quickly set up redress mechanism/complaints committees as
per the Vishaka Guidelines.
■ The employers should provide for sexual harassment awareness training. The
setting up of a complaints committee and anti-sexual harassment policy lays a
strong foundation for a sexual harassment free work place. However, effective
training programs are essential to sensitize/train all their staff members, men
and women, to recognize sexual harassment, deal with it when it occurs and
prevent it.
Finally, the author would like to raise an issue as to whether any structural change
is required for the legal system to address the issue of discrimination against women
at workplace. Since ‘gender’ is a socially constructed term (based on biological
function of men and women), there is need to reflect on those trends in the society
-----------------------------------------------------------------------------------------------------------------------------------------------------------
such as patriarchal norms, and subordination of women which have led to gender
discrimination. Or,
Page: 45
we may also think of the legal system which itself is not gender neutral always.
Therefore, it is high time that apart from implementation of various laws, it has also
become important to address some of the basic issues prevalent in the society as well
as the legal system, which indulge in such forms of discrimination against women.
ARCHANA SARMA is Assistant Professor of Law at ITM University Law School,

Gurgaon.
Bibliography/References
■ Alien McColgan, Just Wages for Women, (Oxford: Clarendon Press, 1997.
■ Amita Dhanda & Archana Parashar (ed.) Engendering Law-Essays in Honour of
Latika Sarkar, (Lucknow: Eastern Book Company, 1999).
■ Anne E. Morris and Susan M. Nott, Working Women and the Law, (London:
Routledge, 1991)
■ B.D. Singh, “Issue of Sexual Harassment — Legal Perspective”, Indian Journal of
Industrial Relations, Vol. 36, No. 1, July, 2000.
■ Chetana Kalbagh ed., Women and Development, Women, Employment and the
Workplace, Vol. I, (New Delhi: Discovery Publishing House, 1991)
■ Nieves Rico, “Gender-based Violence: A Human Rights Issue”, (United Nations,
Santiago, Chile: June 1997)
■ Sandra Fredman, Women and Law, (Oxford: Clarendon Press, 1997)
■ S.C. Srivastava, Sexual Harassment of women at work place: Law and Policy,
IJIR, Vol. 39, No. 3, January, 2004.
■ S. Shakthivel, B.B. Bhattacharya, “Feminization of Indian Labour Force? -
Evidence from the Literature”, Labour and Development, Vol. 8, No. 1 & 2,
December, 2002.
———
1
Universal Declaration of Human rights (UDHR), G.A. Res. 217 (III) art. 7, U.N. Doc, A/810 (Dec. 10, 1948).
2Circle of Prevention, Economic Independence for Women: Leaving or Living in Abusive Relationships, Discussion
Paper (2002) available at http://www.gov.nl.ca/VPI/publications/economicindependence.pdf.
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Andhr Pradesh: A Case Study of Karimnagar District, 2 (3) International Journal of Business Economics and
Management Research 117 (2011).
4
Nieves Rico, Gender-based Violence: A Human Rights Issue (Women and Development Unit 1997) available at
http://www.eclac.org/publicaciones/xm1/3/4743/lc1957i.pdf.
5 Women and the Economy, Beijing Platform for Action, para 151.
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(1&2) Labor & Development 149 (2002).
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Sandra Fredman, Women And Law (Clarendon Press 1997).
8 Air India v. Nargesh Meerza, (1981) 4 SCC 335.
9Engendering Law-Essays In Honour Of Latika Sarkar (Amita Dhanda & Archana Parashar eds., Eastern Book
Company, 1999).
10
Discrimination against women in the workplace, http://www.buzzle.com/articles/discrimination-against-women-
-----------------------------------------------------------------------------------------------------------------------------------------------------------
in-the-workplace.html (last visited April 22, 2013).

11 National Crimes Record Bureau (NCRB), Crime against Women, available at 2
12 Bangalore IT companies see 2 sexual harassment plaints a day, Times of India, Jan. 10, 2013, available at
http://articles.timesofindia.indiatimes.com/2013-01-10/job-trends/36257944_1_sexual-harassment-committee-
labour-department-harassment-complaints (last visited on January 24, 2013)
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Rashi Aditi Ghosh, Sexual Harassment of women not down despite laws to protect them, zeenews.com,
available at http://zeenews.india.com/exclusive/sexual-harassment-of-women-not-down-despite-laws-to-
protect-them_6270.html (last visited on April 23, 2013)
14 (1997) 6 SCC 241 : AIR 1997 SC 3011.
15 (1999) 1 SCC 759 : AIR 1999 SC 625.
16
Vishakha v. State of Rajasthan, (1997) 6 SCC 241 : AIR 1997 SC 3011.
17 Comparison of the provisions of the Bill as introduced and as passed by Parliament with the recommendations
of the Standing Committee, PRS Legislative Research, available at
http://www.prsindia.org/uploads/media/Sexual%20Harassment/Comparison%20of%20Bill,%20Act%20and%
20Standing%20Committee%20Recommendations.pdf.
18 Anne E. Morris and Susan M. Nott, Working Women and The Law (Routledge 1991).
19
Alien Mccolgan, Just Wages for Women (Clarendon Press 1997).
20 Article 39(d) of the Constitution of India.
21 Air India v. Nergesh Meerza, (1981) 4 SCC 335.
22
Section 2(1)(a).
23 Air India v. Nergesh Meerza, (1981) 4 SCC 335 at p. 11.
24 D.S. Nakara v. Union of India, (1983) 1 SCC 305 : AIR 1983 SC 130.
25
General Recommendation 19, Violence against Women, available at
http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm (accessed on 19.4.2013).
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
authenticity of this text must be verified from the original source.

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(2014) 4 GJLDP (July) 23

Discrimination Against Women at Workplace in India: A Legal Perspective

DISCRIMINATION AGAINST WOMEN AT WORKPLACE IN INDIA: A LEGAL PERSPECTIVE

services, buildings and constructions etc. In many regions, women's participation in

v) Marriage: a bar to employment: Various organizations refuse to employ

3.1. Combating Sexual Harassment in India: The Existing Scenario

3.1.2. Efforts to Have a Law on Sexual Harassment:

3.1.3. Major features of the Sexual Harassment of Women at Workplace

d) Constitution of Internal Complaints Committee (ICC): Under the Act, every

4. Discrimination against women on the basis of wage: legal responses

5. Implementation of Instruments in Combating Discrimination Against

In the landmark judgment of the Supreme Court in Vishakha Case on sexual

ARCHANA SARMA is Assistant Professor of Law at ITM University Law School,

in-the-workplace.html (last visited April 22, 2013).

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