Category: Economic Discrimination on the Basis of Sex

Leela had been a binding assistant at the Kerala Books and Publications Society, a state-owned textbook publishing house, for 19 years when she was overlooked for the post of a supervisor. In terms of seniority, she claimed she was eligible for a promotion. However, her employer argued that as a woman, she could not work beyond 7 pm, which she would need to in a supervisory role, under the Factories Act, 1948. 

Leela took her grievance to the court in 2004, arguing against the discriminatory nature of Section 66 of the Factories Act. The Kerala High Court dismissed the petition, reasoning that “the familial and social commitments of women are such that they cannot be entrusted with certain jobs as their male counterparts can”. 

Leela is likely not the only Indian woman to be denied a promotion or even employment on account of laws that treat men and women differently. There are over 200 employment-related laws from across the country that discriminate against female job-seekers, according to the recent State of Discrimination Report by Trayas, an independent regulatory research and policy advisory organisation. 

These discriminatory laws allow the State to act as a paternalistic agent and put a premium on the employment of women, impacting female labour participation. 

The laws discussed in the study—a few of which group women with children, criminals, and people with disabilities—either completely prohibit the employment of women in certain occupations or impose time restrictions on their work. They also insist on a whole nexus of permissions/conditions that make it hard for employers to take on female employees.  The study, published in March 2022, assessed 23 Indian states on the basis of four restrictions on female jobseekers: (1) working at night; (2) working in jobs deemed hazardous; (3) working in jobs deemed arduous; and (4) working in jobs deemed morally inappropriate. 

Of these, employment of women at night is the most legislated: five of the six laws analysed in the study —Factories Act and Rules, Shops and Establishment Act, Contract Labour Act and Rules, Inter-state Migrant Workmen Act and Rules, and Plantation Labour Act—place restrictions on women working at night. 

The study ranked Odisha, Meghalaya, Chhattisgarh, and West Bengal as the worst performers in terms of the numbers and egregiousness of their restrictions on female employment. Kerala, Tamil Nadu and Goa were ranked best. 

As for the laws, the Factories Act, 1948 has the maximum types of restrictions on female employment — it prohibits women from working at night, in hazardous processes, and in jobs deemed arduous. 

The study’s conclusions may help explain why Indian women remain severely underrepresented in the formal economy—only 18.6% of all women, and only 24.5% of those in the working-age group, are a part of the workforce in India. 

The female working-age population possesses an untapped potential: research shows that if India were to focus on harnessing female economic participation, 264 million more workers could be mobilised and the country’s GDP could grow by 27%. Removing discriminatory provisions and providing equal opportunities to Indian women, can add USD 700 billion (Rs 70,000 crore) to the country’s economy. 

Legal Restrictions and Labour Participation 

States that had rankings above the median on the State of Discrimination Index—that is, states with relatively fewer restrictions—had greater average female labour force participation rates, number of women in managerial positions, and ratio of women’s salaries to men’s salaries. Also, these states had an average unemployment rate of 10.39% compared to the 12.36% in states rated below the median. In addition, women’s salaries in states with ratings above the median, was 77.4% of men’s salaries, in comparison to states with below-median ratings—where it was 67.7% of men’s salaries.

Several factors influence women’s decision to not join the workforce, studies have shown: income and employment of family; marital status, childcare arrangements and safety; women’s decisions to continue studying over joining the labour force early; and domestic responsibilities for instance. The effect of restrictive laws on women’s employment remains an unexplored factor though it limits the demand for women workers and impacts their right to choose work.The report’s aim is to advocate competitive federalism, for states to correct discriminatory provisions. We look at a few gender skews in some of the employment-related laws, or their interpretation, by states.

Infantilising Women 

When laws deem women as a “special” category with no agency, it signals to employers that women are incapable of some jobs. The language of these provisions also reinforces traditional norms—that women are en masse a “vulnerable” group and need sanctuary and protection. 

These laws end up becoming the tools that restrict their entry into and mobility in the labour market. While drafting or justifying these legal provisions, states have kept women’s constraints in mind, but rarely their aspirations. 

Some of the laws studied for the report infantilise women, putting them on par with children and giving the State the role of a benevolent intervenor and curtailing the autonomy of female workers. These restrictions have been justified as necessary for preserving “women’s safety, moral integrity and health, and for family welfare”.

Take, for instance, Section 87 of the Factories Act, 1948 which prohibits the employment of women, adolescents, and children in operations that are classified as “dangerous”. It empowers state governments to specify any number of processes as “dangerous”, exposing employees to serious bodily injury, poisoning, or disease. 

For instance, Bihar prohibits the employment of women in pottery units, West Bengal from working on jute hemp and fibre-softening machines. Madhya Pradesh does not allow women to work on machines used for cutting stones or making grooves on stones in the manufacture of slate pencils. 

Even in occupations that are women-centric, laws place restrictions on female employment. For instance, women constitute more than 50% of the workforce in plantations, research has shown, but the Plantation Labour rules of Tamil Nadu and Tripura prohibit the employment of women in the sector because it is deemed to be “hazardous”. Rule 69A of the Tripura Plantation Labour Rules, 2017 prescribes the “eligibility for employment in spraying works” that prohibits both children and women from engaging in the process. 

Bihar and Jharkhand each have deemed 49 processes as “too hazardous” for adult women and children to work in. On similar grounds, more than 650 provisions in Factories Rules across Indian states restrict women’s entry into the labour market. 

’Criminal, Diseased Or Women’ 

There are laws that undermine the capabilities of women by grouping them with people with disabilities, people afflicted with diseases, and criminals. The Chhattisgarh Excise Act, 1915, for example, requires a person applying for a liquor licence to submit an affidavit swearing that he would not employ a salesperson or representative who has i) a “criminal background”; ii) “suffers from any infectious or contagious disease or is below 21 years of age”; or iii) is “a woman”. 

Laws also diminish the agency of women by anchoring their employment to familial relationships. The Shops and Establishments Acts of Madhya Pradesh and Sikkim, for instance, allow women to work in shops/establishments at night only if they are the owner’s family members.

Contesting Restrictive Laws 

It is not that the laws that limit a woman’s participation in the job market have gone unchallenged. We referred to the Leela vs State of Kerala case earlier. Here are some more examples and in a few cases the judgement supported the petitioners: 

In Hotel Association of India and Ors. v. Union of India and Ors., 2006, the petitioners challenged the prohibition on women serving liquor under Section 30 of the Punjab Excise Act, 1914. The Delhi High Court allowed the petition and declared Section 30 as violative of the Articles of the Constitution. 

Such discriminatory legal provisions are justified by arguing that the Constitution allows positive discrimination in favour of women: Article 15(3) permits the State to make special provisions for women and children. Acknowledging that Indian women have been socially and economically disadvantaged for centuries, this Article was added to the Constitution. But to reduce women’s employment prospects by quoting Article 15 (3) would be “to cut at the very root of the underlying inspiration behind this Article”, it was argued in the Vasantha R. v Union Of India (UoI) And Ors., 2000. The petitioners in the case pleaded against Section 66(1)(b) of the Factories Act, 1948, on the grounds that it violated women’s fundamental right to livelihood and equality. The Madras High Court allowed the petition, stating that Section 66(1)(b) of the Factories Act creates a classification solely on the basis of sex. The court declared the section unconstitutional.

Source: https://behanbox.com/2022/04/21/how-indian-laws-patronise-working-women-limit-job-opportunities/

India aims to become a $5-trillion economy by 2025. China, which started from a similar base in the late 1970s, today has an economy four times larger than India’s. There is much to compare and contrast between the two countries. We focus on the fact that while the male labour force participation rates in the two countries are fairly similar, their female labour force participation rates (FLFPR) are vastly different. While China’s FLFPR, at more than 60%, is higher than the figure for the world and Organisation for Economic Co-operation and Development (OECD) countries, India’s FLFPR is abysmally low at 18.6%. The big gap in the size of the female workforce is a critical detail that unabating comparisons between the two countries have overlooked.

With its aspirational agenda, India can longer afford to pass over the untapped potential of the female working-age population. But India has a bigger problem: Not enough jobs to absorb the steady rise in its workforce. To rev the engine for sustainable growth, India needs to create at least 90 million new non-farm jobs by 2030.

India experienced high growth for over a decade, has seen steadily declining fertility and maternal mortality rates, and rising female education attainment levels until the pandemic hit. These are the classic preconditions to rising FLFPR elsewhere in the world. But not in India. According to the ministry of finance in 2021, only 24.5% of working-age women participated in the labour force. Women also bore the brunt of the pandemic – the likelihood of a woman being employed in August 2020 was nine percentage points lower than that for men, compared to August 2019. The decline in the unemployment rate for women indicates that they are not moving from unemployed to employed, but out of the labour force altogether.

The bulk of the research on female participation in the labour force has been on supply-side constraints: Family income and employment, marital status, childcare arrangements safety, and domestic responsibilities. However, none of these phenomena fully explain the frequent transition of working-age women in and out of the labour force, as well as the women expressing the desire to be in paid work, if work was to be available at or near their homes. Indian women’s labour force participation is more likely shaped by low and declining demand for female labour rather than supply-side constraints keeping women indoors. Certainly, demand-side constraints are more amenable to policy interventions. Recruiters are around 13% less likely to click on a woman’s profile than a man’s while hiring candidates and 3% less likely to advance a woman to the next round of the hiring process, according to LinkedIn Gender Insights Report. Employers may do so because they perceive women as less capable and unsuitable for certain ‘male-dominant’ jobs.

Gender-discriminatory laws with the intent to protect female workers further reinforce such essentialist norms by drawing parallels between adult women and children. For instance, the Factories Act, 1948, prohibits the employment of women, adolescents, and children alike in operations the government deems ‘dangerous’. The Trayas State of Discrimination report explored gender-discriminatory employment-related laws, a hitherto unexplored demand-side constraint. The study used 48 Acts, 169 rules, and 20 notifications or orders to uncover the cumbersome regulatory landscape women and their employers face in India. States adopt different regulatory stances in spelling out discrimination against female jobseekers. They either completely prohibit female employment at certain hours or jobs or require permission or give conditional exemptions.

Some laws diminish women’s agency by anchoring their employment to their familial relationships. The Shops and Establishments Acts of Madhya Pradesh and Sikkim allow women to work in shops/establishments at night only if they are family members of the owner of the shop/establishment. This mentality also reflects in the biases of hiring managers who are likely to discriminate against married women, especially with young children but not against men.

Additionally, employers believe that hiring women is costlier than hiring men. Providing infrastructure and special amenities such as crèches, compulsory safe transport at night, women’s hostels, and maternity leave make employers averse to hiring women. Unsurprisingly, the 2017 Maternity Benefits Act, which increased the mandatory maternity leave period from 12 weeks to 26 weeks, is seen as a leading reason behind the drop in female hires.

Lately, there seems to be a gradual movement away from absolute restriction. For instance, the Occupational Safety, Health and Working Conditions Code, 2020 (OSHWC code), which replaces the Factories Act, allows women to work at night based on conditions that states set. While Himachal Pradesh’s draft OSHWC Rules impose 14 conditions, Haryana imposes 25 conditions, including requirements of minimum number of women in the night shift, and Punjab proposes to bring the number of conditions down to 8. By introducing the right type of reforms, states can set trends for
years to come.

Non-discrimination in the law is a necessary first step to help female job seekers enter the market without any roadblocks. But this apart, employers also need to see the paucity of women as a problem and be willing to implement solutions to alleviate the multiple demand-side constraints. As a country we need to commit to first providing and solving for the women in our labour force as we celebrate Labour Day.

Source: https://www.hindustantimes.com/opinion/how-to-ensure-more-women-in-the-workforce-101651242000301.html/

We all know women who log night shifts at the Cyber-hub, Gurgaon or IT hub, Bangalore or a bank office. But, it’s not as simple as clearing multiple rounds of interviews, and working hard every day at your job. No! In 13 Indian states, women can only be employed for night-shifts if their employers comply with a set of conditions mandated under their Shops and Establishments Acts.

These conditions are levied to ensure safety, health, and ‘adequate protection of privacy, dignity and honour’ of the woman employees.

Transport-related conditions, for example, create a mini-inspectorate out of the HR department and the transport service providers. For example, security guards at the office have to ensure that the woman has boarded the vehicle, and the driver has to ensure that the woman has entered her residence before leaving for the next destination. The supervisory office of the company will design the route of pick-up from the office and drop to the employee’s residence. The routes have to be designed in such a way that no woman is picked up first or dropped off last. States like Karnataka and Telangana also mandate that the movement of these vehicles should be tracked by the control room/ travel desk of the company. Grown women have to bid adieu to their right to privacy to work at night.

Lawmakers missed an important detail: what happens in case a grown woman wants to use her own vehicle for transportation at night? No state accounts for this situation, at least not in publicly available acts, rules and notifications. Women’s safety is a contentious issue, and any slip-up can lead the company to the courtroom. In the absence of clear directions, companies have come up with their own ways of dealing with grey areas. Conversation with people in the industry suggests that the companies ask the woman employees to sign a declaration that they do not want to use the office transport, and therefore, will be responsible for their own safety.

There are also days when you call up a friend to pick you up from the office. While the list of conditions do not tell companies what to do in such a situation, we understand that the companies try to ensure that woman employees are picked up by their ‘blood relatives’ only. That too preferably from the reception area where the CCTVs can at least capture the person who is there for the pick up.

In Haryana, companies have to maintain a boarding register and a movement register. The boarding register records the “date, name of the model manufacturer of the vehicle, vehicle registration no., name of the driver, address of the driver, phone/contract no of the driver, and time of pickup of the women employees from the establishment destination.” The movement registers daily records the female employee’s time of pick-up and drop-off, their destination, along with their signature during the drop-off. One HR officer we talked to, caustically referred to himself as a hostel warden and pointed out the irony of asking your female boss to sign the company register every day before she leaves the office.

Some states require that women can only work at night if they are accompanied by a minimum number of female employees. In Andhra Pradesh, a female employee can work at night only if she is accompanied by four other female employees. In Kerala, a female employee can work at night only in groups of five, of which two employees should be women.

Karnataka and Kerala exempt women in managerial roles from restrictions on working at night. It is almost as if the issue of female safety vanishes when women take up managerial roles. We can apply similar reasoning to states like Assam, Gujarat and Madhya Pradesh that exempt women working in central and state government offices from restrictions on working at night.

We understand that there are law and order problems in India. We understand that women’s safety is a serious issue. We also understand that some of these ideas may help draw women into the workforce. But perhaps these options should emerge out of negotiations between employees and firms, without the state’s whip.

Our research for the State of Discrimination index shows that the State repeatedly mollycoddles adults on the basis of sex. The first-order issue is the way these conditions trivialise a woman’s agency. To even begin on the second-order issues like the cost of complying with these conditions and the disproportionate burden they place on women’s employment would require another article. International Women’s Day, 2022 called for breaking the bias. When will we break the bias in our laws to allow women to burn the midnight oil, freely?

Source: https://www.business-standard.com/article/current-affairs/women-in-the-night-shift-terms-and-conditions-apply-1220317009391.html

Usha Uthup, the queen of Indian pop, recently released her biography to incredible fanfare at Park Street in Kolkata. Uthup was a cabaret artiste at the Trincas Restaurants and Bar and benefited from the exposure to the ‘amazing musicians that it had over the years’. Bars and restaurants like Trincas cannot legally employ female cabaret artistes unless they take the excise collector’s written permission. State laws across the country impose similar restrictions on the employment of female performers, bartenders, waitresses, restaurant managers, housekeeping staff, and others employed in the hospitality industry. But the issue has barely received any media attention.

1 State laws against performers

Kolkata, for instance, requires female performers working in hotels, bars and restaurants to apply for a ‘crooner licence’, even when their employers were licensed to hold performances. Performers such as Purnima Nandi filed a petition against this requirement, stating that no law necessitated them to obtain such a licence. The high court agreed but decided that the requirements of the ‘crooner licence’ be read into the licences under the Bengal Excise Act and therefore, be legitimised. A 2015 article in the Economic Times suggested that Kolkata had 138 crooners with valid licences, while 120 applicants had continued to be in the queue. Mumbai, on the other hand, has been persistently trying to ban bar dancing. A 2005 ban on the performance of dance in eating houses and beer bars devastated the lives and families of dancers, most of who hail from socially and economically deprived castes and class. In 2013, the Supreme Court struck down the ban, observing it led to a loss of 75,000 jobs for women and forced many of them towards the flesh trade. The government in Maharashtra enacted another law in 2016 to regulate dance bars. The law did not expressly prohibit bar dancing but required dance bars to get licensed. The conditions of the bar licence were so restrictive that between 2014 and 2019 no licence was issued. For instance, to obtain a licence a bar had to have a 120 sq ft. stage with a minimum space of 15 sq ft. per dancer, such that no more than eight women performed on the stage simultaneously.

2 Women in hospitality industries

Delhi’s excise laws had rendered female hotel management graduates clueless about what they should do with their degrees. Three female hotel management graduates in Delhi had filed a petition in the Delhi High Court challenging Section 30 of the Punjab Excise Act in 2005. The Section prohibited the employment of women in premises where liquor was consumed by the public. Since the term ‘premises’ was not defined under the law, the court observed that this provision could severely jeopardise women’s careers in the hospitality industry. The Supreme Court stated it was wholly unjust “to deprive a large section of successful young men and women from obtaining any job for which they have duly been trained.” Trivandrum’s excise laws almost cost waitresses across the city their jobs. Dhanyamol CJ and Soniya Das — both bread-winners of their families — risked losing their jobs as waitresses at a hotel because of an amendment to the Kerala Foreign Liquor Rules. The amendment prohibited women from being employed “in any capacity for serving liquor”. Neither the principal Act nor the rules prohibited the employment of women in liquor outlets, and to provide support to its ‘presumed illegality’ the government brought about the amendment. In the words of the Kerala High Court: “the government brands something illegal without any statutory base. . . and subsequently brings about justification by amending the rules.” Bar owners in Mumbai have often been left to the mercy of police officers. Employees of bars and restaurants are required to procure a ‘nokarnama’ under the Bombay Foreign Liquor Rules (attached to the Bombay Prohibition Act, 1949). In 2013, Barkur Sudhakar Shetty’s bar and restaurant, Rukmini Palace, had all these nokarnama documents. Yet, he was regularly harassed by police authorities who issued ‘oral orders’ restricting the number of women hired at the premises and shutting the entire restaurant down on some days. At one point, they posted a squad of 72 constables to keep an eye on the restaurant. The Bombay High Court observed that it wasn’t necessary to post 72 constables for this purpose when the state was witnessing a shortage of police staff. In our research for the State of Discrimination Index, we learnt that excise regulations of 12 states prohibit the employment of women in licensed country liquor establishments and eight states prohibit women from working in establishments selling foreign liquor. Meanwhile, India’s largest liquor company, United Spirits, appointed Hina Nagarajan as its first female CEO in 2021. It’s strange to think that women across the country continue to be banned from selling the very products manufactured under Ms Nagarajan’s leadership. Increasing women’s presence in leadership positions will mean little if the laws continue to fetter women who aren’t in positions of power.

Source: https://theprint.in/opinion/no-cabaret-crooning-or-cocktails-how-laws-impact-women-in-indias-hospitality-industry/870594/