Everyone has a responsibility to combat unfair prejudice. It entails lowering the chance of discrimination, spotting it when it occurs, and learning how to react. It is the right and humane thing to do.
Additionally, it is a legal responsibility in each and every firm to prevent and rectify unjust discrimination. Employers and supervisors also have extra duties to lessen the possibility of discrimination and to handle any complaints or concerns in a professional manner.
In this article, we explore how to recognize discrimination when it occurs, and what you can do to address it.
Workplace discrimination is when an individual or group receives unfair or unequal treatment at work because of one or more specific reasons. Among these factors or qualities include sex, gender, identity, age, disability, religious convictions, ethnicity, race, etc.
Discrimination in the workplace can occur amongst coworkers, in the dynamics between an employer and an employee, or even while a candidate is being considered for a position. Discrimination at employment is mostly irrelevant to intent. Discrimination, whether it is unintentional or intentional, is wrong wherever.
Steps to be taken if you feel you are being discriminated:
1. First, Speak to a lawyer:
If you think you are being discriminated against at work, your first step is to consult an attorney immediately. An experienced employment lawyer will help you navigate this complex area of law, taking your specific situation into account. There are complicated issues involving statutory coverage, interrelation of federal and state laws, filing requirements, evidence gathering, and retaliation, among others. It is a good idea to contact an attorney as soon as possible so that you can have legal guidance moving forward.
2. Make Your Employer Aware:
Make your employer aware that you feel you are being discriminated against or harassed. It is likely that many illegal acts of discrimination and harassment go unrecognized or unpunished because the victim does not make it clear that the conduct is unacceptable and unwelcome. Rare is the case where employers will readily admit to discrimination or harassment and help you to draft legal papers against them. Your employer is responsible for complying with the law, but you alone are responsible for making sure your personal rights are protected.
3. Ask for a Written Report:
Let your employer know that you are taking the matter seriously. Ask that a written report be made every time you report an incident of discrimination or harassment. Ask that an investigation be made into your allegations and that disciplinary or corrective action against the offenders is taken. Employers are required by law to give prompt consideration to all reports of discrimination and harassment.
4. Make a Claim to the Industrial dispute committee or Your State legal Agency:
If you receive no response from your employer, consider contacting the industrial dispute committee(IDC). The IDC has responsibility for overseeing compliance with many anti-discrimination and anti-harassment laws, and your state agency is responsible for related state laws. Getting the statutory agency involved in your case will ensure you get the justice you deserve.
5. Compile and Keep Your Records:
Keep a record of any incidents of discrimination or harassment. Record the date, approximate time, location, parties involved, witnesses, and details of the improper conduct or speech. Also, keep any objects or photos that were posted, left for you, or given to you in the workplace that you believe were discriminatory or harassing. Take a photo of the offending object before taking it down or moving it, for use by your lawyer later. The location of the object may make the offense worse, such as if the object is visible to other employees who may pass by your office or workspace. Also, keep any offending emails or communications between you and the offending individual. Also make sure you go through your Company’s Anti-discrimination policy and provide it to your lawyer.
Laws applicable on workplace discrimination:
1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
Are the laws applicable 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.
In simple words, whether the company is state-owned, private or from unorganized sector is irrelevant and all the laws are applicable in case of workplace discrimination.
Once, the matter in proven internally then your are entitled to a fair compensation depending on factors such as mental stress caused, any deductions made in your renumeration, etc. Other remedies available are sacking of the harasser(if the situation is serious), suspension, restraining order based on the depth of the case.
If the matter is taken up in the Industrial Dispute committee or in the court of law then the remedy is provided by them itself depending on the case.
The Indian Constitution, the supreme law of the country, forbids discrimination. Discrimination is pervasive in India despite the existence of Article 15 and other supplemental fundamental rights such as “equality before the law”; this is mostly due to antiquated beliefs and traditions.
However, at least in the organized sector, employees today have more options for legal action and are better prepared to combat workplace discrimination. A major worry still is the unorganized sector. Organizations are also more aware of prejudice because no one wants to become a liability or suffer from negative press, especially in a time when news spreads quickly.
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