Author: Radhaanjana S, SASTRA Deemed University

Many jurisdictions and laws see discrimination in employment as one of the biggest violations of equality and human dignity. Even though we have protections in our Constitution and laws, people still face wrongful discrimination. This continues to happen in our country, on the basis of gender, caste, race, religion, sexual orientation, etc. This affects the opportunity to receive equal employment opportunities. This article is a critical analysis of the law of discrimination and equality in employment in India by comparing the law and other developments coming from reference to foreign jurisdictions such as the United States, United Kingdom and the European Union. The paper also shows how international instruments such as ILO Conventions and the United Nations Declaration on Human Rights  change the law inside a country. It argues that India has an effective constitutional framework promoting equality but anti-discrimination legislation is weakly implemented in the non-state and informal sectors. The study stresses the importance of all-encompassing anti-discrimination laws and a significantly stronger enforcement system that can deliver real equality in the workplace.

Keywords

Employment Discrimination, Equality in Employment, Substantive Equality, Reasonable Accommodation, Affirmative Action, Comparative Labour Law

It is nearly impossible to address all aspects of equality when addressing the specifics of employment equality. Employment encompasses much more than income .Employment provides an individual with a sense of value in both social status and economic security (e.g., security from supplemental income).employment encompasses the provision of equal opportunities to everyone regardless of race, color, national origin, gender, or religion. The measures that may be called for under this section include: Recruitment, Promotions, Pay and Environment.A violation of these employment measures will not only violate the principles of equality, but further entrench structural inequalities in our society as we know it today. 

Now, in India, the Constitution guarantees equality under Part III and Articles 14, 15, and 16 of our Constitution.To quote the Constitution the intent of these articles is to "provide for equality before the courts, equal access to the market and access to the court system to all people of India without discrimination based on nationality, race, religion, sex, class or language". 

However, the continuing discrimination against caste, gender, and disability clearly indicates that simple constitutional guarantees of equality will not suffice. Therefore, the effective implementation of these guarantees is crucial. The discrimination that occurs globally is addressed at the international level by organizations such as the International Labour Organization (ILO) and the United Nations (UN), both of which have developed a framework to protect against discrimination in the employment sector.

This article examines the development of legal protections against employment discrimination in India to date, as well as compare those protections with those in foreign jurisdictions, and with a view to determine whether legal protections available under the laws of India are adequate for the present day, and how improvements may be made, based on the findings of comparisons made with the legal frameworks established in foreign jurisdictions.

Employment discrimination laws in India state that while legal protections exist to address workplace discrimination, ensuring their effective implementation can be challenging. To establish a workplace environment free from harassment and discrimination it is important for companies, workers, and the government to work together because implementing legal protections against harassment and discrimination can be difficult.

Several scholars have analysed the constitutional vision of equality in Indian employment law. Granville Austin highlights that the Indian Constitution aims for not merely formal equality but transformative social justice. Baxi argues that Indian equality jurisprudence has shifted from a narrow formal interpretation to a broader concept of substantive equality.

In a study Desta and Toni had found that women experience elevated levels of workplace discrimination and mistreatment compared to men and that they have also been passed over for a promotion or other opportunities because of their sex. They also analysed that on a lower age strata, the discrimination is low and is vice-versa in the higher age strata. In the international context, Sandra Fredman’s work on Discrimination Law demonstrates how modern legal systems incorporate both direct and indirect discrimination theories. 

The primary objective of this research is:

1. To analyse constitutional and statutory provisions on employment equality in India

2. To study judicial developments on discrimination in employment

3. To examine International and Foreign legal frameworks on workplace discrimination

4. To compare and evaluate India’s legal frameworks with global standards.

The study adopts a Doctrinal and comparative methodology. Primary sources such as constitutional provisions, statutes and landmark judgements have been analysed along with the secondary sources including articles and international instruments are employed in this research. Comparison has been made with the employment discrimination laws of the USA, UK and EU. 

1. Indian Constitutional Framework

The Indian constitution consists of a comprehensive framework to ensure equality to all the citizens, particularly in the sphere of employment. Article 14 guarantees equality of all citizens before law and equal protection of law to all citizens. This provision safeguards from the arbitrary action of the state. A classification made by the state must satisfy the two tests consisting Intelligible differentia and Rational Nexus. 

Article 15 prohibits discrimination on grounds of religion, race, caste, sex, or place of birth. This provision by recognising the historical and structural disadvantages faced by certain groups, permits the state to make special provisions for women, children, socially and educationally backward classwork, Scheduled Castes and Scheduled Tribes. This shifts the formal concept of equality to substantive equality.

Article 16 specially guarantees equality of opportunity in matters relating to public employment. It ensures that all citizens shall have equal opportunity to public employment. But at the same time, it authorizes the state to provide reservations in public employment to Backward Class, Scheduled Castes, Scheduled Tribes and Economically weaker sections so that there is adequate representation in marginalized communities in public services. 

In the case of E.P. Royappa v. State of Tamil NaduThe Supreme Court held that equality is antithetical to arbitrariness. In Indra Sawhney v. Union of IndiaThe court upheld that reservation is a tool for achieving substantive equality. 

2. Statutory Protections in India

The Equal Remuneration Act, 1976 promotes gender equality by mandating equal pay for equal work for both men and women and also prohibits discrimination in recruitment, service conditions and wages on the ground of sex. 

The Right of Persons with Disabilities Act, 2016 introduced reasonable accommodation, requiring employers to make necessary adjustments that would help persons with Disabilities to perform their duties without unfair disadvantage. 

The Maternity Benefit Act, 1961 strengthens women’s workplace rights by providing paid maternity leave and job security during the time of pregnancy and protection against dismissing a woman on grounds of maternity leave. This also ensures the women’s rights to health under Article 21. 

The Transgender Persons (Protection of Rights Act), 2019 prohibits discrimination against transgender persons in recruitment, promotion and other spheres of employment based on their gender identity. In Vikash Kumar v. UPSCThe Supreme Court recognised that reasonable accommodation is not charity but a constitutional obligation from the right to equality. 

3. International and Foreign Legal Frameworks

4. United States

Title VII of the Civil Rights Act, 1964 (US) prohibits discrimination based on race, sex, religion and national origin. The U.S legal system recognizes indirect discrimination which was established in Griggs v. Duke Power Co., where the doctrine of indirect discrimination was recognised. This means that even neutral employment policies would be regarded as illegal if they harm a particular group without any legitimate purpose. 

2. United Kingdom

The Equality Act, 2010 consolidates anti- discrimination laws which protect the employees across nine protected characteristics, including gender, disability, race, age and sexual orientation. It does not only prohibit direct or indirect discrimination, but also places a legal duty on employers to make reasonable adjustments for employees.  In Archibald v. Fife CouncilThe House of Lords held that employers must reasonably adjust job roles for disabled employees. 

3. European Union

The EU has now developed a strong legal framework through various equality directives to ensure non-discrimination in employment across all member states. These directives cover gender, racial and ethnic origin, religion, age, disability and sexual orientation. European Union laws focus on both direct and indirect discrimination and require member countries to implement these laws more effectively so as to obtain equality in employment. 

The article reveals that Indian Constitutional jurisprudence provides equality to all citizens and particularly in public employment, through Article 14, 15 and 15. The Supreme court in various cases has interpreted these provisions in a very progressive manner, giving it wide scope by including concepts like non-arbitrariness, reasonable classification and substantive equality. Many landmark judgements including Indra Sawhney and E.P Royappa have expanded the scope of equality in Indian jurisprudence. 

Judicial activism has played a crucial role in expanding the scope of anti-discrimination protection in India. The courts have recognized new dimensions of equality, including protection of persons with disabilities, transgenders etc, through various cases including Navtej Singh Johar v. Union of India. 

The article also highlights a major gap that India lacks a proper codified framework addressing the discrimination in private sector employment. While public employment is constitutionally recognised and protected, the private employers are still governed by fragmented labour laws. Unlike in the US and UK, India lacks a consolidated anti-discrimination law that applies to employees working in all sectors, irrespective of whether they are in the private or public sector. 

A multi-pronged legal and institutional strategy must be developed if India wishes to effectively combat employment discrimination. The first step in this process should be to enact clear comprehensive anti-discrimination legislation covering all forms of both public and private sector employment. At present, protections are spread out across disparate pieces of legislation, primarily focused on receiving public sector employment. A unifying piece of legislation can provide a clearer definition of direct, indirect, and intersectional discrimination, as well as provide victims with easily accessible means of bringing claims against their employers. 

In order for Anti-Discrimination Laws, or any legislation for that matter, to be enforced correctly and hold violators accountable, the enforcement mechanisms and penalties for breach of the laws must be increased in strength. The main reason that many laws are not enforced properly is that they are not drafted poorly, but rather that they lack effective implementation. In order for all forms of discrimination to be heard in an efficient manner, as well as to provide a chance for people who have suffered discrimination to obtain just compensation, the establishment of specialised equality commissions or employee tribunals will be beneficial. The penalties imposed when an employee's equal rights are violated must be strict in order to serve as a real deterrent to those parties who violate them. 

Finally, both employees and employers must be educated regarding the legal awareness of their rights and obligations under Anti-Discrimination Legislation. Many employees working in the informal sector of the labour market do not understand their rights or what constitutes their equal treatment, while many employers do not understand their obligations to their employees under the Anti-Discrimination Legislation. Employers and employees will benefit from Awareness Programmes, Training within the Workplace, and the Inclusion of Employment Equality in Professionally related Education, leading to the eventual establishment of a more inclusive work environment for all.

Though the Indian Constitution promotes equality and non-discrimination strongly, there are still visible and invisible ways of discrimination at the workplace. People still continue to face unfair treatment based on their gender, caste, race, disability, sexual identity and social background, especially found more in private and informal sectors which are not given any constitutional backup. Though the judiciary has expanded the scope of equality, the intervention of courts cannot be the solution. 

For real changes to happen, there needs stronger legislative and administrative reforms. India still lacks a comprehensive anti-discrimination law that applies uniformly to all employees across all the sectors. Existing laws are often fragmented and often poorly implemented due to lack of awareness and weak enforcement machinery and mechanisms, and limited access to remedies for vulnerable workers. 

Learning from International models like the UK and US can help India strengthen its legal framework. Their focus on indirect discrimination, employer accountability, and workplace inclusion can be adapted to suit Indian conditions. 

1. Ashika and Shiva Asati, Employment Discrimination Laws in India, International Journal of Law, Management and Humanities, Vol.6 Issue-4

2. Granville Austin, Working a Democratic Constitution (Oxford Univ. Press 1999)

3. Upendra Baxi, The Crisis of the Indian Legal System (Vikas Publishing 1982)

4. Desta, Toni and Other, Prevalence of workplace discrimination and mistreatment in a national sample of older US workers, SSM Popular Health, 2029

5. Sandra Fredman, Discrimination Law (Oxford Univ. Press 2011) 

6. E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555

7. Indra Sawhney v. Union of India and Ors, AIR 1993 SC 477

8. Vishak Kumar v. UPSC, (2021) 5 SCC 370

9. Griggs v. Duke Power Co., 401 US 424 (1971)

10. Archibald v. Fife Council, [2004] UKHL 32