Workplace Discrimination: What Is It? How Can it be Prevented?

Workplace discrimination, conscious or unconscious, is based on race, gender, sex, disabilities, etc. and impacts pay, promotions, employee benefits – which hamper future prospects and growth. It is to be noted that the Constitution of India, via Article 15, prohibits discrimination on the grounds of religion, race, caste, sex, or place of birth.
 

What is workplace discrimination?

Workplace discrimination is unfair or unequal treatment meted out to a person or a group on certain grounds at the workplace. These grounds or characteristics include (but are not limited to) sex, gender, identity, age, disability, religious beliefs, ethnicity, race, etc.

Workplace discrimination can happen between co-workers, employer-employee relations or even during the process of accepting job applications. Intent in workplace discrimination has little value. Unconscious or conscious discrimination is illegal and unjust across the globe.
 

Indian legal framework on workplace discrimination

The Indian legal framework has various provisions that safeguard against workplace discrimination. These are listed as below:

The Constitution of India

• Article 14 guarantees ‘equality before law’.
• Article 15 prohibits discrimination on various grounds, as aforementioned.
• However, these protections can be employed only when discrimination is made by State or Government bodies – including State and Central Governments.
• In case of discrimination on any grounds mentioned in Article 15, a writ can be filed to the concerned High Court or Supreme Court of India.

Persons with Disabilities (PwD) [Equal Opportunities, Protection of Rights and Full Participation] Act, 1995

• Safeguards rights of differently abled persons in India, at the workplace and otherwise.
• 6% of seats in all government establishments are reserved for differently abled people.
• Section 24A guarantees no discrimination in employment.
• Section 24C provides for prohibition of discrimination in promotion owing to disabilities.
• Section 24D focuses on equal opportunity policies.
• Section 24F prohibits removal or reduction of any rank on acquiring or having a disability.

The Wages Code 2019

• Prohibits discrimination in matters of wages and recruitment of employees.
• Prohibited from reduction in wages on account of gender.
• Consolidates the provisions of 4 other statutes which have been repealed, namely: Minimum Wages Act, Payment of Wages Act, Equal Remuneration Act, and Payment of Bonus Act.
• Purpose of this Code is to provide ‘one roof’ to important provisions of the repealed statutes aforementioned. This will come into effect from 1 Oct 2022.

Industrial Disputes Act (IDA)

• Prohibits commission of unfair labour practices – this includes discrimination at workplace.
• List of such practices are listed under the fifth schedule of the Act.
• This includes discriminating against workers for testifying against an employer or being a member of a trade union.

Pay Disparity: Wages Code

The Wages Code 2019 has attempted to eradicate pay disparity at the workplace. The key elements of the Code are as follows:

• Eradication of discrimination in wages based on gender for same work or work of similar nature, which consolidates the idea mentioned in the Equal Remuneration Act.
• The Code is applicable to all sectors, i.e., organized and unorganized sector employees.
• Code introduces the concept of ‘floor wages’, which will be a rate set by the Central Government after accounting the minimum living standards of workers across areas.
• State Government will also set the floor rate for their respective regions which cannot be lower than the national rate.
• Code applicable to all employees without any wage limit.

Key Judgments

• In State of Punjab & Ors. vs. Jagjit Singh & Ors., the Supreme Court ruled that employees engaged in the same work cannot be paid less than any other co-worker who performs same or similar nature of duties and disparities. This Act of disparity in pay was seen as ‘oppressive, suppressive and coercive.’ Thus, the principle of equal pay for equal work constitutes a clear and unambiguous right and is vested in every employee, whether engaged on a permanent or temporary basis.
• The court again sided with equal pay for equal work in S. Narkara vs. Union of India. The Court used the unenforceable part of the Indian Constitution, i.e., Part IV – Directive Principles of State Policy (DPSP). The Court referred to Article 38 and said that the State must strive to remove the imbalances and disparities in pay status.

Where disparity may be justified:

• In Markendeya vs. State of Andhra Pradesh, different pay scales were provided for similar jobs based on educational qualifications. The difference was between graduate supervisors with degrees in engineering and non-graduate supervisors with diplomas and licenses. This disparity in pay was held to be justified, not offending the tenets of the Constitution or any other statute.
• The case would turn out differently if the academic qualifications for jobs of same measure of responsibility and functions were in question.
• Another factor for disparity in pay may be experience. A fresher cannot expect to earn the same as an employee with 5+ years’ experience – even whilst performing the same duties and responsibilities.
• Market demand may also play a role in disparity. It may so happen that a person may enter a job when the demand or need for that skillset was low, and hence the pay grade was also low. Another person with the same skillet, qualifications and experience may enter the market when the demand for that was high.

 

Conscious and Unconscious Biases at Workplace

The major difference between conscious and unconscious bias rests in awareness. Conscious biases include biased attitudes and preferences that one intentionally projects, while unconscious biases refer to the biased attitudes and preferences that are beyond one’s cognizance and control.

Unconscious Bias

• Largely based upon facts, stereotypes and past experiences.
• Leads to unconscious prejudiced decision-making.

Examples of Unconscious Bias A young management team thinks that older employees are not as competent or efficient as the younger ones. A senior employee feels that a new recruit is not efficient enough and others in the office start feeling the same although they have not worked with the new recruit. The impression that someone is good at work just because they speak good English and have a magnetic personality. The HR, while screening applications for a job, rejects those which carry names of people from a particular community with the assumption that everyone from that community are not to be trusted.

 

Conscious Bias

• Illegal by law as it leads to discrimination on various grounds.
• The person is fully aware and cognizant of their biases.
• Acted upon intentionally with possible malicious intent.
• Very easily observable in most cases.

Examples of Conscious Bias An employer making the decision that only candidates who have degrees from particular institutions will be selected for the job. When employers consciously do not employ women because they would at some point avail of maternity leave. When an employer consciously employs people mostly from their hometown or alma mater. An office’s hiring policy keeps persons with disabilities out of their processes because there are chances of high absenteeism.

 
 

Workplace discrimination based on Caste

Apart from the common grounds of discrimination around the world, India has one added ground – caste. This can happen not only in India, but abroad as well, as Indians are now working in world renowned MNCs like Google, Apple, Meta, etc.

• Anybody claiming caste-based discrimination at the workplace must be able to show that the particular caste falls under the ‘protected category’ in law.
• Often, even Indians in dominant positions at global MNCs face caste-based discrimination abroad.
• The most stringent law protecting caste-based discrimination in India is the Constitution itself. It is a fundamental right to not be a victim of caste discrimination in any form.
• The Schedule Caste & Schedule Tribes (Prevention of Atrocities) Act can also be invoked, meant specifically for prohibiting atrocities and discrimination against SCs & STs based on caste.

 

Workplace discrimination based on Race

Discrimination based on race can take various forms – direct, indirect, by association, etc.

• If anyone is treated differently, or not hired for a job despite being qualified enough, with other candidates with similar profiles being treated better, whether in the organization or at the hiring stage, it is an indication of ‘direct discrimination’.

Saira, a person of Asian ethnicity, applies to work as a receptionist. She meets all of the job requirements, but following an interview the employer tells Saira, ‘You wouldn’t fit in here.’ A white person with similar skills and experience is hired instead.

 
  

• Indirect race discrimination happens when any organizational rule or policy set by an employer discriminates or disadvantages a certain racial, ethnic or national group.
• Race harassment occurs to insulting remarks or behavior, but not limited to only that.

Shafiq is a Muslim working as an administrator in a local government. His line manager continually comments on his appearance and questions him about Islamic customs. As weeks go by, Shafiq begins to find his workplace hostile and intimidating.

 
 

A white man clears a job interview and is offered a job. The next day, however, the employer realizes that the candidate’s wife is of African descent and terminates his offer. This is racial discrimination by association.

Racial discrimination by association means that the employer treats a person differently simply because they associate with people from another race.
 

Does the Constitution apply to the private sector?

People facing discrimination at the workplace do file against such instances based on the Constitution. Therefore, private discrimination is pervasive in India.

• Most fundamental rights under Part III of the Constitution are against the State. However, Article 15(2), which prohibits discrimination, is addressed to ‘private individuals’. The only impediment is the grounds laid down under the provision.
• Most cases are filed against the State and discrimination claims are rarely filed against private parties.
• Under the Indian Medical Association (IMA) vs. Union of India, the question was considered whether a private college can be held accountable for discrimination under the Constitution. The court did not give a plain reading to the Constitution, as that would have absolved the college. Rather, it was interpreted along with Articles 14,15,16 & 38 and with national aspirations of seeking equality in status, opportunity and socio-economic justice in a welfare state. This shows that the private sector also must not facilitate ideas of discriminations and disadvantages and, in doing so, they shall be held liable for breaching the Constitution.
• The court’s interpretation of Article 15(2) is in consonance with the history, social context and the jurisprudence of discrimination law.

 

Need for an Anti-Discrimination Policy at the Workplace

• Employer Brand: The existence of an anti-discrimination policy can help the brand value of your organisation. A policy clearly states that the organisation/employer cares about the employees and sheds light on the values they hold in high regard.
• Compliance: A policy, in essence, reduces the risk of liability for the employer. It also complies with the Constitution of the country and other such related laws.
• Employee Behaviour: A clear policy provides clarity to the employees on what is acceptable in terms of behavior and what crosses the line. In case of misbehavior, it is much simpler to point to a policy and hold the individual accountable than pointing to some central laws.
• Limits Bias: Enforcing a laid down policy may not completely eradicate a person’s biases. However, it makes clear that those biases have no place for implementation at the workplace and that professional standards of the highest order must be maintained.

 

Benefits of Diversity & Inclusion at the Workplace

Diversity and inclusion are interconnected – but not the same. Diversity is about representation in the organization, its overall make-up. Inclusion is how well the value, presence and perspectives are integrated into the work environment. Following are the benefits of having a diverse and inclusive workplace:

• Bigger talent pool: An organisation can enhance its recruitment and talent pool leading to more diverse candidates.
• Better employee engagement: When employees feel included, they are more engaged with the organisation. This leads to greater trust between employees and top management.
• Better decision-making: Diverse teams bring better decision-making. Diverse minds, diverse backgrounds and experiences bring better solutions and decisions to circumstances.
• Skills: People from diverse backgrounds bring diverse skills. These skills can be put to use by the organisation as they deem fit and will only benefit the organisation. Employees can get together and learn these different skills from each other, leading to better cohesion and efficiency.
• Customer satisfaction: Having a diverse employee pool, especially in the customer service business, is extremely beneficial as many customers may feel more comfortable dealing with employees from similar/same backgrounds. This may lead to more business and opportunity for the firm.

 

Conclusion

Discrimination is prohibited by the Constitution of India, the highest legal instrument of the State. Despite the presence of Article 15 and other supplementary fundamental rights like ‘equality before law’, discrimination in India is widespread – largely owing to archaic beliefs and traditions.

However, employees now have better legal recourse than they did before and are better equipped to fight workplace discrimination, at least in the organized sector. The unorganized sector remains a big concern. Organisations are also more sensitized towards discrimination as nobody wants bad publicity or liabilities, especially in an era where news travel fast.