• The Feminist Times

ANACHRONISM FEMINISM: WORKPLACE DISCRIMINATION in 2021

“We must recognize here that the structures of our society have been created by males and for males. As a result, certain structures that may seem to be the “norm” and may appear to be harmless are a reflection of the insidious patriarchal system.”

- Justice D. Y. Chandrachud


The most recent development that has emerged out of the belly of the proverbial beast, the Judiciary of India is a string of cases that deal with employment parity of women. The two step examination of this trend that we will endeavour to do this in this Article is of three cases. Two from the Army, delivered by the Supreme Court of India and one from the private sector, delivered by a female judge from the Kerala High Court, all of these cases deal with expansion of the judicial understanding of discrimination at work place. The literature on work space discrimination has recently taken centre stage through the sexual harassment branch of its structure, but the discrimination is sadly not limited to this one issue that women have to deal with. Before we look into the content of the cases and how they would affect the narrative of gender equality at workplaces in India, let’s unpack the theories of workplace discrimination.

The U.S. Equal Employment Opportunity Commission describes workplace employment to have four types of possible gender based discriminatory practices that the employers have to look out for one. This elaboration of possible “theories” of discrimination is read as per the rights that have been awarded to the American citizens under the Bill of Rights 1964. The statute is a civil rights and labour law that prohibits any discrimination on the basis of race, colour, religion, sex, national origin, sexual

orientation and gender identity.

First mode of discrimination is “disparate treatment” where an employer or other person

intentionally excludes individuals from an employment opportunity on the basis of race, colour, religion, sex, or sexual orientation. Whenever similarly situated individuals of a different race, sex, religion, or national origin group are accorded disparate treatment in the context of a similar employment situation, it is reasonable to infer, absent other evidence, that discrimination has occurred. The presence of a discriminatory motive can be inferred from the fact that there were differences in treatment. Secondly, under “adverse impact” discrimination can result from neutral employment policies and practices which are applied evenly to all employees and applicants, but

which have the effect of disproportionately excluding women and/or minorities. Thirdly,

“perpetuation of past discrimination” for example if an employer previously refused to hire women for certain job categories and presently hires most of its employees for those jobs through word-of-mouth recruitment by male employees, the policy may perpetuate the employer’s past discriminatory hiring practices although not through overt manner of action. Lastly, the failure to accommodate an employee's or prospective employee's religious practices, and the failure to accommodate a handicapped employee or prospective employee may be discriminatory. The reading of equality with workspace as an ecosystem has been elaborated by the Supreme Court in the recent cases of Secretary, Ministry of Defence v. Babita Puniya in 2020 and Lt. Col Nitisha and

Others v. Union of India in March 2021. The cases elaborate upon the issue of army’s staunch and 1 CM-604 Theories of Discrimination, https://www.eeoc.gov/laws/guidance/cm-604-theories-discrimination

rebellious stance to not grant women permanent commissions and other work related privileges at par with the male counterparts, despite a 2010 High Court Mandate to do the same. Delivered by Justice DY Chandrachud and Ajay Rastogi, the cases have finally and firmly established a narrative of practices and liabilities of the employer to ensure than entrenched and hidden forms of gender based discrimination based on age-old gender stereotypes be dismantled. In the 2020 case the court while contesting the case heard from the Ministry of defence please such as:

“The profession of arms is not only a profession but a “way of life”, which often requires sacrifices and commitment beyond the call of duty by the entire family of service personnel involving separation, frequent transfers affecting education of children and career prospects of the spouse. As a consequence, it is a greater challenge for Women Officers to meet these hazards of service.....Inherent physiological differences between men and women preclude equal physical performances resulting in lower physical standards and hence the physical capacity of WOs in the Indian Army remain a challenge for command of units....Indian army a unique all male environment in a unit where presence of WOs requires moderated behaviour in their presence. Posting of WOs in

all male units thus has its own peculiar dynamics....Union of India has spoken of “physiological limitation” on the employability of women officers “accentuated by the challenges of confinement, motherhood and childcare”. Finally, the note portends the dangers of a woman officer being captured by the enemy and becoming a prisoner of war.”

Although the court dismissed these pleas that were submitted by the Ministry, it also denoted how these arguments reflect the larger problem of sex based discrimination at workplaces, it reflects the psychological, social and economic barriers that women face through super-structures of the society such as public institutions and in this case the Indian Army. The issue of gender discrimination is not one of a “dispute” between two parties as was seen in this case, it is a refined understanding of our long standing patriarchal traditions that have wholeheartedly accepted gender discrimination to be

the “way of life” as unchangeable and un-debatable. While allowing for the inclusion of women in all posts that male officers have been allowed to hold, the court referred to the same matter yet again in 2021 as it was seen that after the decision although the Army through its circulars decided to implement the directions and include women in all the posts, they created extraneously difficult, unfair and arbitrary standards for women to qualify. In this decision the court elaborated about two ideas which are crucial for our own everyday understanding. Firstly the concept of Formal and substantive equality and Secondly, the concepts of systemic direct and indirect discriminations.

The concept of Formal equality is premised on the notion that fairness demands the exact same treatment. Under this analysis, the fact that some groups are disproportionately and adversely impacted by the operation of the concerned law or its practice makes no difference. On the other hand substantive equality lies in recognizing that certain groups have been subjected to patterns of discrimination and marginalization, this conception provides that the attainment of factual equality

is possible only if we account for these ground realities. This conception eschews the uncritical adoption of laws and practices that appear neutral but in fact help to validate and perpetuate an unjust status quo. The court then delves into the two forms of workforce discrimination: Direct and Indirect. Direct discrimination requires a causal link between the less favourable treatment and the relevant ground. On the other hand, indirect discrimination requires a causal link between the practices, criteria of

employment and policy of the employer and the particular disadvantage suffered by the group and the individual. This difference is rooted in the fact that the aim of direct discrimination is to achieve equality of treatment. On the other hand, indirect discrimination seeks to create a level playing field, by spotting and eliminating hidden barriers which disproportionately affect a particular group, absent a legally acceptable justification. Indirect discrimination is also an indicator of systemic discrimination in an employment context. This is the type of discrimination that results from the

simple operation of established procedures of recruitment, hiring and promotion, none of which is necessarily designed to promote discrimination. The discrimination is then reinforced by the very exclusion of the disadvantaged group because the exclusion fosters the belief, both within and outside the group, that the exclusion is a result of “natural forces”, for example, that women “just can’t do the job”. To combat systemic discrimination, it is essential to create a climate in which both negative practices and negative attitudes can be challenged and discouraged. The doctrine of substantive equality and indirect discrimination as expanded in this case are related

to evolution of the Indian constitutional jurisprudence on Article 14 and 15(1) of the Indian

Constitution. It is important to remember that even neutral, innocent or good faith measures and policies adopted with no discriminatory intent whatsoever will be caught if their impact on persons who have a particular characteristic is greater than their impact on other persons. It is also important for the adjudicating authority, in our case the Supreme Court to understand that in cases of indirect discrimination for the petitioners to succeed, it is not necessary to show that every single member of the group possessing the relevant ground was unable to meet the standards set by the employer for the terms of employment. It is enough to show that the policy, practice or criterion for

employment disproportionately disadvantaged members of the concerned group.

The court held that systemic view of discrimination, the occurrence of discrimination is in a continuous feedback loop, and it not only targets overt actions of the employer but also the in- actions to root the insidious practices of discrimination. The organizations of our society must be checked in their daily activities, the work culture and the decision making processes that allow for continued oppression to exist and be held accountable as if they were deliberately discriminating against women. Through these cases we saw a beginning of the expansion of discriminatory liability of the employer in India. The earlier decision of the Supreme Court having pronounced that there must be equal treatment of law was not adequate and thus it was supplemented by the 2021 decision which substantiated HOW to get equal results through employment. Hiding under the garb of “innocent mistake” is not an option that can be allowed to the employers to sustain.

These two judgements were also used by Justice Anu Sivaraman of the High Court of Kerala to hold a provision of the Labour laws which prohibited women from being considered for an engineering post because it entailed night-shifts. The court held that the colonial idea that factories and work-places are unsafe for women has no space in the 21st Century and it is the duty of the employer to ensure that women can safely work under them in all the same circumstances as the men. Thus we see

that there is a development of an understanding for women to have rights rather than remedies

for attaining equality at work.


- Pragya Singh

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