Diversity and inclusion at the workplace have become a legal reality

A research found that a diverse workforce improves performance by 12 percent and the intent to stay by 20 percent.

The Constitution of India strives to protect the rights and status of individuals in aspects of social justice, liberty of expression, access, dignity, integrity, safety, equality of opportunity in employment and maternity relief. Specific laws relating to diversity, equity and inclusion have existed in the law books since 1976. However, most laws governing diversity and inclusion (D&I) had taken a backseat, until recently.

The unfortunate incident of Nirbhaya, worldwide #metoo, #blacklivesmatter and #pride movements have all percolated in the Indian context and triggered an awakening towards protection of women from sexual harassment/crimes, conscious inclusivity of persons with disabilities and LGBTQIA+ community at the workplaces as also stronger laws. Indian criminal laws were amended to include sexual crimes, which were not part of the law earlier, and new laws were brought into effect to implement protective and anti-discriminatory measures.

The D&I laws governing workplaces have come a long way from the Equal Remuneration Act, 1976 to Transgender Persons (Protection of Rights) Act, 2019 (TPPR Act). Currently the Equal Remuneration Act, 1976, the Maternity Benefit Act, 1961, the Sexual Harassment of Women (Prevention, Prohibition and Redressal) Act, 2013, the Rights of Persons with Disabilities Act, 2016, the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 and the Transgender Persons (Protection of Rights) Act, 2019 form the D&I legal framework for workplaces in India.

Equal Opportunities

Under these laws, employers are required to implement policies on equal opportunity, prevention of sexual harassment, maternity leave available to a woman employee and set up internal committees and appoint officers for redressal of grievances, in addition to making statutory filings. These laws are being constantly reviewed and their interpretations have evolved with time.

For instance, the 2017 amendment to the Maternity Benefit Act, 1961 increased the paid maternity leave from 12 weeks to 26 weeks (the increase was made applicable to the first two children and 12 weeks to be continued for the third child onwards), enabled adopting and commissioning mothers to avail 12 weeks of maternity leave, mandated that organisations having 50 or more employees provided creche facilities and required that employees are informed of the benefits at the time of appointment. This made India among the countries providing the highest paid maternity leave, Bulgaria being the highest providing 58.6 weeks of paid maternity leave. The United Kingdom provides 39 weeks of paid maternity leave, and interestingly, the United States does not have a federal policy to provide paid maternity leave. Employees in the US, under the Family and Medical Act, can avail of unpaid leave of 12 weeks for childbirth and childcare.

The Companies Act, 2013 requires every listed company and every public company having a paid-up share capital of Rs 100 crore or more or turnover of Rs 300 crore or more to appoint at least one woman director on their board. The Companies (Accounts) Rules, 2014 under the Companies Act, by way of amendment of 2018, requires every company (except for one person and small companies), to make a statement that it has complied with the POSH Act in the report of board of directors. Further, a 2018 amendment of the Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations 2015 requires every listed company to annually disclose in their corporate governance report (a) the number of complaints filed during the financial year; (b) number of complaints disposed of during the financial year; and (c) the number of complaints pending as on end of the financial year.

The Equal Remuneration Act, 1976 requires employers to pay equal remuneration to male and female employees and to ensure there is no discrimination while recruiting men and women. This law is being subsumed in the Code of Wages, 2019 (pending enactment) and the legislators, taking into account the changing landscape of workforce, have made this obligation gender-neutral, whereby an employer is prohibited from discriminating on the grounds of gender for wage-related and recruitment related matter.

Proactive Steps Being Taken

The approach towards inclusion and anti-discrimination no longer remains a tick in the box by companies. A research conducted by Gartner found that a diverse workforce improves performance by 12 percent and the intent to stay by 20 percent. Needless to say, these are the two main issues companies struggle with, performance and output, and attrition of valued employees. A few of the steps being taken by companies are:

* Global MNCs in India and other organisations have set up support groups for LGBTQIA+ community, and most companies had such groups even when Section377 of the Indian Penal Code, 1860 existed in law books. The intention is to offer emotional support to individuals, irrespective of their gender identity, sexual orientation and personal status.

* Paternity leave is becoming part of the internal policies of many private organisations. A food tech aggregator introduced its parental leave policy in 2019 which entitled fathers to paternity leave of 26 weeks, like mothers under the Maternity Benefit Act.

* With the rise of gig economy, platform workers are often exposed to harassment, specifically sexual harassment, which goes un-redressed as they are not ‘employees’ under the POSH Act. However, a food tech aggregator has expanded the scope of its policy framed under the POSH Act to redress complaints of sexual harassment by its food delivery partners.

* Appointing diversity officers (who are often designated as grievance officers) has become a top priority to ensure that compliances under D&I laws are taken care of seamlessly, and the culture of the organization is inclusive and safe.

* Companies are making infrastructural changes in the premises such as setting up gender-neutral washrooms, making available assisted devices and overhauling software and hardware to enable employees with disabilities to work without many obstacles.

* Sensitisation sessions on not just legal aspects but also softer aspects such as allyship and unconscious bias to address the root causes of discrimination rather than just explaining the routes available under law are being frequently held.

* D&I has become a priority for investors as well. Companies are often asked to provide reports about their employee demographics whereby, amongst other parameters, a healthy ratio of all genders is noted as a sign of a harmonious place to work.

While there is a long way to go, the legal reality of D&I can no longer be overlooked.

Pooja Ramchandani is Partner, Suruchi Kumar is Principal Associate at Shardul Amarchand Mangaldas & Co. Views are personal, and do not represent the stand of this publication.