sexdiscrimination at workplace
Author: Anisha Keshava
Year: 3rd year
College: Christ (Deemed to be University)
Introduction
The dramatic increase of women in the workforce in the developed world is due to many factors, including labour-market shortages that made it necessary for employers to hire more women. In particular, a growing service sector created many part-time and full-time positions for women. In addition, over the decades a greater acceptance of women in the workforce was the result of greater political participation by women.
Today women can be found in occupations from which they were previously barred or discouraged from entering, from firefighting to IT to engineering, women have conquered all fields.[1] In spite of the lack of significant representation of women at the very highest levels in organizations, some women have made it to the top and many women have made significant inroads into lower and middle management.[2]
Sex or gender discrimination in employment involves treating someone unfavourably because of the person’s sex; whether they are applying for a job or are current employees. Although women have made it clear that they can perform with the same skill and success in every endeavour engaged by men, the issue of sex discrimination still exists.[3]
Occupational segregation is horizontal when women are employed in different categories from men in general economy. Women tend to be concentrated in jobs that require interpersonal skills, such as service roles, or nurturing characteristics, such as teachers, nurses, etc. which are not as highly valued nor rewarding as jobs which require technical skills which are usually attributable to the male gender.[4]Since most women are known to act in accordance with this norm, this has become a stereotype among the women sex. In the workplace, women are frequently subjected to subtle discrimination by both sexes.[5]
Vertical segregation reflects the view that women have fundamentally different capabilities, skills and emotional strengths than men do, and are therefore suited to different work. It exists when men and women disproportionately occupy different positions within the same general field. This sort of segregation stems from the view that men ’s capabilities, skills, and strengths qualify them for more authoritative and more responsible positions than women. Vertical Segregation is often referred to as the result of a “glass ceiling” – an invisible or unspoken barrier to the advancement of women beyond a certain level of authority responsibility and pay in a job-classification that is not horizontally segregated.[6] Qualified women may be passed over for promotions because they become pregnant or because they might become pregnant. Jobs may be offered to less qualified males for the mere reason that they are males.[7]
Vertical segregation reinforces the idea that women are suited for lower-level roles with less responsibility rather than managerial or professional roles within the same occupational category because they possess certain innate characteristics (passivity, nurturance, emotional sensitivity, for example), or because they have less cognitive capability or fewer higher-level skills compared to men.
Vertical segregation can be found within several job disciplines, including sales education, medicine, and business management. In many fields, men are chosen as managers more frequently than women. In the realm of business, women managers usually lead less profitable business units and less powerful departments, and female bank managers often work in smaller more remote branch offices.
Situation In The Indian Demography
In India, societal norms, rules, and roles instruct and encourage men to devalue women even when there are anti-discrimination laws in place to discourage such attitudes. Discrimination has for ages now and ages to come has existed in various forms.[8] As per ancient Hindu Law, women are supposed to be in the custody of their father when they are children, they must be under the custody of their husband when married and under the custody of her son in old age or as widows. In no circumstance should she be allowed to assert herself independently. In Muslims also[9], the situation is the same and sanction for discrimination and subordination is provided by their religious texts.
Any denial of equality, gender and opportunity based on gender is discrimination. Nature doesn’t discriminate men from women, but society does. Women worldwide have been victims of inequality not only in terms of social and political rights but on the grounds of employment opportunities.[10]The male dominant society of India makes its women habitual to this form of discrimination. Modern society has made clear, women can perform with equal skill and success in virtually every endeavour engaged by men – including employment, athletics, academics and politics. Yet the discrimination based on sex has a long history and its residual effects still operate to keep women’s salaries lower and opportunities fewer in the employment realm.[11]
The same also functions in matters of promotion, where women can be adversely affected by managers who believe that women are risky promotional prospects than men or who have outdated attitudes about suitability of women in leadership roles.[12]In the workplace, women are frequently subjected to subtle discrimination by both sexes. Qualified women may be passed over for promotions because they become pregnant or because they might become pregnant. Jobs may be offered to less qualified males for the mere reason that they are males.
The Pay Gap
Women earn less than men in many areas from service-related jobs to management and professional occupations. The gap becomes greater in professions that pay more and in professions or jobs that are stereotyped as “male” – such as higher-level management roles and production, transportation and material moving jobs.[13]The employers are prejudiced against employing women, especially in jobs where workers have always been men.[14]In some cases, the wage differentials are fixed by Wage Boards based on geography, occupation, and industry. Still several studies have shown severe wage discrimination against women.
The gap between women and men is lowest in traditionally female occupations such as administrative support – secretaries, typists, receptionists. Technological change sometimes results in men entering into traditionally female occupations as their traditional male occupation become obsolete.
The Social Role Theory[15]suggests that men and women adhere to gender roles that they have acquired early in childhood. These roles are shaped by societal expectations of both men and women that direct them to behave according to a particular gender role. These societal expectations may have an effect on pay in the workplace in several ways. First, employers may offer men more money because they see them as the key breadwinners. Second, men tend to act more assertively, and they will likely negotiate for more pay. Finally, although to their disadvantage, women will naturally fall into their gender role, and not act as assertively as men.
Men should not be paid more for performing a particular job just because they are men. The Equal Pay Act, 1963 made it a federal requirement that pay scales for identical work be the same regardless of whether the employee doing the labour is male or female. If a woman works the same hours, performs the same tasks, and is required to meet the same goals as her male counterpart, she is entitled to equal pay.[16]In India, various empirical studies have shown that the wages of women workers in the unorganized industry, particularly in the construction industry are significantly below the minimum wage.[17]
Hostile Work Environment And Sexual Harassment
Legally, sexual harassment can be defined as any conduct, gesture, comment or sexual contact that is likely to cause offence to any employee – male or female – or be perceived by the employee to place a condition of a sexual nature on employment or any opportunity, training, job assignment or promotion.[18]Sexual harassment behaviour can run the gamut from sexist remarks all the way to sexual assault. The most common forms of sexually offensive verbal behaviour are jokes of a sexual nature, sexual innuendo about an individual’s clothing or body.
The law recognizes two forms of sexual harassment – quid pro quo harassment and hostile work environment harassment. Quid pro quo harassment occurs when employment decisions are based on the employee’s submission to, rejection of, sexual favours.[19]For example, quid pro quo harassment would have occurred if a woman’s supervisor threatened to deny her a promotion unless she succumbed to his/her sexual advances. The employment decisions could include any number of things such as hiring and firing decisions, salary increment, work schedule.
A hostile work environment can be defined as behaviour that focuses on the sexuality of another person in the environment. The unwelcome sexual conduct creates an environment that makes an individual feel intimidated or uncomfortable or an environment that interferes with work productivity.[20]Supervisors, co-workers or customers can create such an offensive environment.
The apex court in the landmark judgement of Vishaka v. State of Rajasthan[21]held that gender equality finds place in Fundamental Rights enshrined under Article 14, 19 & 21. Sexual Harassment at Workplace is a clear violation of gender Equality which in turn violates these integral rights of the female class. Such harassment also results in the freedom provided under Article 19(1)(g)[22]. The protection of females has become a basic minimum in nations across the globe.
In the absence of domestic law to curb the evil, assistance could be rendered from International Conventions and Statues to the extent that it does not contravene with any domest
ic law or the do not violate the spirit of the Constitution. The Judiciary derived this authority from Article 51(c)[23]and Article 253 read with Entry 14 of the Union List of Seventh schedule of the Constitution. The court held that such violation therefore attracts the remedy under Article 32.
ic law or the do not violate the spirit of the Constitution. The Judiciary derived this authority from Article 51(c)[23]and Article 253 read with Entry 14 of the Union List of Seventh schedule of the Constitution. The court held that such violation therefore attracts the remedy under Article 32.
This incident revealed the consequences which an employed woman faces and the pressing need for protection by any other procedure in the lack of statute. The court therefore felt the need to find an alternative mechanism to deal with such incidents. These guidelines had the effect of protecting female liberty in the employment establishment so that they could feel an atmosphere of equality. The court ruled that violation of gender equality is violation of Right to life & liberty mentioned under Article 21[24]. Along with the violation of Art. 21, the court also found gross violation of Article 14[25]and 15[26].
The Vishaka judgment along with its importance also contains the rationality in the sense that it does not over-pressurize the employer in constructing redressal mechanism. The judgment has only directed what seems appropriate for employer in order to maintain the constitutional principles of equality and liberty. The court seeing the importance of the matter, came directly into the ground by breaking all the restrictions upon it by the constitution and laid down such guidelines which would ensure that no such act of harassment goes unpunished. The court in the absence of domestic law didn’t hesitate in reading international law on the subject matter (CEDAW).
Root Cause Of Such Discrimination
The root cause of gender inequality in Indian society lies in its patriarchy system. The system finds its validity and sanction in our religious beliefs, whether it is Hindu, Muslim or any other religion. The most deep-rooted forms of sex inequality or discrimination had been built into the structure of traditional Indian society.
Sex discrimination issues have become central policy arena. The issues of sex equality and justice assumed added significance in the context of the interface between new economic policy perceptions and gender relations. The issues of gender equality and justice assumed added significance in the context of the interface between new economic policy perceptions and gender relations. The gender equity became part of country’s strategy for eradicating poverty and human misery.
The policy makers strongly believed that a positive commitment to gender equality and equity will strengthen every area of action to reduce poverty because women can bring new energy and new insights. A lot of debate is going on women and development since last few decades.[27]Several interventions had taken place both at national and international level leading to passing of several loss including loss against physical violence IPC Section 498 (a) and Section 125 for maintenance. The importance of feminism has been steadily growing and gaining intellectual legitimacy.
[28]
[28]
Indian Constitution provides for positive efforts to eliminate gender inequality; the preamble to the Constitution talks about achieving social, economic and political justice to everyone and to provide equality of status and of opportunity to all its citizens. In this sense, gender justice in India is extricable from the workings of the democratic principles adopted by us. The inclusion of gender justice – equality before the law, enfranchisement, positive discrimination for neutralizing social and economic inequity – among other things has made the Indian Constitution in many ways a revolutionary document.[29]
Article 14[30]provides for equality before the law or for equal protection of laws. The State shall not discriminate between two citizens as everyone is equal in the eyes of law. Article 15(1)[31]explicitly prohibits any discrimination on the basis of sex, it states, ‘The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.’ This does not prevent the State from taking affirmative action in favour of women. Under Article 15(3), the State is provided with the power to make special provision for women and children.
Article 16[32]provides for equality of opportunity of all in matters relating to public employment or appointment to any office; it specifically forbids discrimination on the grounds of sex. Article 39[33]provides for securing the right to any equal means of livelihood for both men and women have the right to equal pay. Article 42[34] provides for securing just and humane conditions of work and for maternity relief.
Extreme poverty and lack of education are also some of the reasons for women’s low status in society. Poverty and lack of education drives countless women to work in low paying domestic services, organized prostitution or as migrant labourers.[35]Women are not only getting only unequal pay for equal or more work but are also being offered only low skill jobs with even lower wages. Lack of opportunities and socio-economic advancement is also another reason for gender bias. The education and upbringing of women is not given as much importance as that of men and in some cases, their education is terminated so as to give the male in the family an opportunity to continue with further studies even if the female showed more interest. With such biases in society, it will be hard to bring the level of work of a woman to that of a man in an organised industry.
Conclusion
The types of discriminations or inequalities may go on, but the real change will come when the mentality of men will change, when the male species start treating women as equal and not subordinate or weaker to them. In fact, not only men but women too need to change their mindset as through cultural conditioning they have also become a part of the same exploitative system of patriarchy and support men whose agenda is to dominate women.
Suggestions To Be Implemented To Reduce Sex Discrimination
· Work life balance
The concept of a work life balance today largely focuses on married women with children. It is important for organisations to re-examine the manner in which they promote work life balance policies to make employees more productive and organisation more inclusive.
· Leadership
Leadership is a crucial component in changing workplace culture. Leaders can promote mechanism to address patriarchal action by using facilities that internal policies related to gender equality established. In this manner, leaders appear more human and pro-active, thereby promoting the benefits and convenience of policies that foster a work life balance.
· Space for dialogue
When organisations encourage their employees to freely speak about discrimination by providing space for reflection, they foster an environment that is conducive for change. When an employee’s issues bring about a change in the policy, an organisation meaningfully ensures that the employees’ concerns are taken into consideration.
· Changing workplace culture
For work-place cultures to change, there is a need to redefine “work” by building equality into the bedrock of the concept of work. The notions of productivity and efficiency need to be redefined by the employees to ensure equality in the workplace. Mere changing of policies is not sufficient, implementation also needs to be equally thorough.
· Supporting women into more senior roles
Companies should support women into more senior roles so that the other female employees do not become a victim of “glass-ceiling” in the organisation.
· Implementing gender neutral recruitment processes
Jobs should advertise gender neutrally for jobs in their organisations so as to ensure that there is no discrimination at the recruitment stage and that every person regardless of their gender has an opportunity to apply for the job.
· Diversify the board
Targets should be set for gender diversity on the board so as to incorporate different points of views and to encourage more women participation in the board.
If some of these suggestions are given a strict implementation, then the discrepancy between the sexes will surely decrease. The legislations should also increase the penalty for any discrimination against women at their workplace as well as ensure proper protection for women during work hours. This change will only show effect if started from the educated lot and then flow towards the lower level female workers, because unless the educated urban mindset is not ready to accept such change, it would be very difficult to implement it in the lower strata which are worse affected.
[1]Eichner, Maxine N. “Getting Women Work That Isn’t Women’s Work: Challenging Gender Biases in the Workplace under Title VII.” The Yale Law Journal, vol. 97, no. 7, 1988, pp. 1397–1417. JSTOR, www.jstor.org/stable/796444. Accessed 29 Feb. 2020.
[2] Linda Human, Discrimination and Equality in the Workplace: Defining Affirmative Action and Its Role and Limitations, 2 Int’l J. Discrimination & L. 23 (1996).
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[4] Martha E. Reeves, Women in Business – Theory, Case Studies, and Legal Challenges(2010).
[5] Mehra, Madhu. “AND MILES TO GO… CHALLENGES FACING WOMEN’S HUMAN RIGHTS.” Journal of the Indian Law Institute, vol. 40, no. 1/4, 1998, pp. 121–130. JSTOR, www.jstor.org/stable/43953312. Accessed 29 Feb. 2020.
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[7]Srivastava, S. C. “Sexual Harassment of Women at Work Place: Law and Policy.” Indian Journal of Industrial Relations, vol. 39, no. 3, 2004, pp. 364–390. JSTOR, www.jstor.org/stable/27767912. Accessed 29 Feb. 2020.
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[9]Narain, Vrinda. “Muslim Women’s Equality in India: Applying a Human Rights Framework.” Human Rights Quarterly, vol. 35, no. 1, 2013, pp. 91–115., www.jstor.org/stable/23352253. Accessed 27 Feb. 2020.
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[11] Vimal Balasubrahmanyan. “Biology and Gender Bias: Some Issues in Discrimination against Women at the Workplace.” Economic and Political Weekly, vol. 20, no. 20, 1985, pp. 876–877. JSTOR, www.jstor.org/stable/4374417. Accessed 29 Feb. 2020.
[12] Singh-Sengupta, Sunita. “Gender, Work and Organisational Culture: A Southeast Asian Experience.” Indian Journal of Industrial Relations, vol. 41, no. 4, 2006, pp. 304–328. JSTOR, www.jstor.org/stable/27768036. Accessed 29 Feb. 2020.
[13] Basu, Kaushik. “The Economics and Law of Sexual Harassment in the Workplace.” The Journal of Economic Perspectives, vol. 17, no. 3, 2003, pp. 141–157. JSTOR, www.jstor.org/stable/3216826. Accessed 29 Feb. 2020.
[14] Bukhari, Syeda Shazia, and B.C. Sharma. “Workplace Gender Diversity & Inclusive Growth in Public & Private Organizations.” Indian Journal of Industrial Relations, vol. 49, no. 3, 2014, pp. 551–563., www.jstor.org/stable/24546997. Accessed 29 Feb. 2020.
[15] Martha E. Reeves, Women in Business – Theory, Case Studies, and Legal Challenges(2010).
[16] Lahle Wolfe, Unequal Pay is a form of Gender Discrimination, The Balance Careers (Jan. 27, 2019),https://www.thebalancecareers.com/gender-discrimination-in-the-workplace-3515145.
[17] VAN DER MEULEN RODGERS, YANA, and NIDHIYA MENON. “LABOR REGULATIONS AND JOB QUALITY: EVIDENCE FROM INDIA.” ILR Review, vol. 66, no. 4, 2013, pp. 933–957. JSTOR, www.jstor.org/stable/24369559. Accessed 29 Feb. 2020.
[18] Basu, Kaushik. “The Economics and Law of Sexual Harassment in the Workplace.” The Journal of Economic Perspectives, vol. 17, no. 3, 2003, pp. 141–157. JSTOR, www.jstor.org/stable/3216826. Accessed 29 Feb. 2020.
[19] Ratna R. Bharamgoudar, Sexual Harassment at Workplace: A Dignity Wrong on Women, 6 Indian J.L. & Just. 5 (2015).
[20] Singh-Sengupta, Sunita. “Gender, Work and Organisational Culture: A Southeast Asian Experience.” Indian Journal of Industrial Relations, vol. 41, no. 4, 2006, pp. 304–328. JSTOR, www.jstor.org/stable/27768036. Accessed 29 Feb. 2020.
[22] INDIA CONST. art. 19, cl.1.
[23] INDIA CONST. art. 51.
[24] INDIA CONST. art. 21.
[25] INDIA CONST. art. 14.
[26] INDIA CONST. art. 15.
[27] Ramni Taneja, Legal Liability for Sexual Harassment in the Workplace: India, 7 Int’l J. Discrimination & L. 293 (2005).
[28] Dr. E. Raju, Gender Discrimination in India, IOSR Journal of Economics and Finance (Jan. 2014), http://www.iosrjournals.org/iosr-jef/papers/vol2-issue5/H0255565.pdf.
[29] Shiv Shankar Singh, Constitutional Prohibition of Sex Discrimination in Employment and Legislative Efforts: Quest for Equality, 4 Indian J.L. & Just. 1 (2013).
[30] INDIA CONST. art. 14.
[31] INDIA CONST. art. 15.
[32] INDIA CONST. art. 16.
[33] INDIA CONST. art. 39.
[34] INDIA CONST. art. 42.
[35] Rajendra Kharel, Judicial Responses to Sexual Harassment at Workplace, 1 NJA L.J. 187 (2007).
