Employment Law Newsletter – DEI In India: The New Frontier Of Employment Practices : June 2024

Introduction 

As the world’s fifth-largest economy, India is witnessing rapid growth, necessitating that businesses align with global employment standards to maintain profitability and scalability.

Global integration has profoundly influenced employment practices across sectors and geographies. In the post-COVID-19 era, there has been a heightened focus on employee well-being, leading to significant changes in workplace dynamics. Central to these changes is the emphasis on Diversity, Equity, and Inclusion (DEI).

In a country as diverse as India, with its multitude of gender identities, religions, cultures, and ethnicities, fostering an inclusive workplace is more relevant than ever. Businesses must provide equal opportunities to all individuals to comply with national regulations and meet global standards.

India’s labor laws reflect this diversity and commitment to inclusion. Articles 14 and 15 of the Constitution of India guarantee equality before the law and prohibit discrimination based on religion, race, caste, sex, or place of birth. These constitutional provisions, along with other specific labor laws, aim to create inclusive and equitable workplaces across the nation.

By delving into DEI practices and the legal framework governing them, this newsletter aims to provide insights and best practices for fostering an inclusive and equitable work environment in India.

Equality in Matters of Remuneration and Conditions of Service

Under the Minimum Wages Act, 1948, and the forthcoming successor Code of Wages, 2019, minimum wages are set by state-appointed committees based on various factors like skill level and location. However, private establishments lack laws governing remuneration above minimum wages, leading to potential biases. Statutory social security benefits, such as provident funds and gratuity, are regulated, preventing discrimination. Yet, contractual benefits remain unregulated, allowing possible bias.

The Directive Principles of State Policy and the Equal Remuneration Act, 1976, mandate equal pay for equal work and prohibit sex-based discrimination in recruitment and service conditions. The Code of Wages, 2019, extends these protections to all genders.

Laws for Inclusion and Equal Opportunity for Women

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, mandates prevention, prohibition, and redressal of sexual harassment. Employers must create safe working environments, formulate internal policies, and establish Internal Committees (IC) for complaints. The Maternity Benefit Act, 1961, grants maternity leave and benefits to eligible women, including a requirement for crèche facilities in establishments with 50 or more employees.

Laws for Protection of Differently Abled Individuals

The Rights of Persons with Disabilities Act, 2016, requires employers to provide equal opportunities and non-discrimination in recruitment, promotion, and training. Employers must formulate and register an Equal Opportunity Policy (EOP), appoint a Liaison Officer, and ensure workplace accessibility.

Laws Protecting Third-Gender Individuals

The Transgender Persons (Protection of Rights) Act, 2019, prohibits discrimination in employment and requires an EOP and a Complaints Officer for grievance redressal.

Laws Protecting Certain Castes and Classes

Article 16 of the Constitution mandates equal employment opportunities. Although private sector reservations don’t exist, compliance with the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, and the Apprentices Act, 1961, is required.

Laws Protecting HIV-Positive Individuals

The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017, prevents discrimination against HIV-positive individuals in employment and mandates confidentiality and grievance redressal mechanisms.

DEI and Environmental, Social, and Governance (ESG)

ESG frameworks, mandated by SEBI for the top 1,000 listed entities, include Business Responsibility and Sustainability Reports (BRSR) detailing DEI measures. The NGRBC principles require disclosures on employee well-being, stakeholder responsiveness, and human rights.

Best Practices and Emerging Trends to Foster DEI at Workplace

1. Gender-Agnostic Roles and Job Descriptions: Ensure recruitment roles and designations are gender-neutral to eliminate preconceived notions and biases.
2. Gender-Neutral Terminology in Documentation: Use gender-neutral terms in policies, codes, memoranda, and procedures to foster inclusivity.
3. Transparent and Central Grievance Redressal Mechanism: Establish a transparent, multi-tiered grievance redressal system to handle disputes efficiently and without bias, ensuring justice for all employees regardless of religion, race, caste, sex, or place of birth.
4. Robust Code of Conduct: Develop a comprehensive code of ethical business conduct, emphasizing professionalism and discipline while considering the diversity of the workforce.
5. Anti-Retaliation Policy: Implement a strict anti-retaliation policy to protect complainants and respondents from retaliation or stigmatization, in line with various anti-discrimination legislations.
6. Transparent Recruitment, Salary Appraisal, and Progression Process: Clearly define and communicate standards for recruitment, salary appraisals, and career progression to ensure transparency and fairness.
7. Performance Standards and Improvement Opportunities: Define clear performance standards and provide performance improvement plans to help employees meet expectations and enhance their skills.
8. Parental Benefits and Paternity Leave: Offer paternity and other parental benefits to support gender diversity and inclusion, extending beyond the provisions of the Maternity Benefit Act.
9. Work-from-Home During Pre-Natal and Post-Natal Periods: Provide work-from-home options during pre-natal and post-natal periods to support female employees and reduce post-pregnancy attrition.
10. Insurance for Maternity Benefits: Obtain insurance to cover maternity benefits, mitigating financial burdens on the organization and promoting the hiring of female talent.
11. Gender-Neutral Mechanism for Sexual Harassment Complaints: Develop a gender-agnostic redressal mechanism for sexual harassment complaints, ensuring inclusivity for all genders beyond the provisions of the POSH Act.
12. Visitor Management Policy: Create a comprehensive visitor management policy that addresses the needs of diverse visitors and provides avenues for grievance redressal in case of discrimination.
13. Support for Mental Health and Counseling: Prioritize mental health by providing counseling services and support for employees facing harassment or discrimination, enhancing overall well-being and productivity.
14. Confidentiality and Employee Data Privacy: Safeguard personal data such as gender, sexual orientation, and health status in compliance with the Digital Personal Data Protection Act, 2023.
15. Employee Resource Groups (ERGs): Encourage the formation of ERGs to foster a sense of community and support among employees, ensuring alignment with organizational goals.
16. Hygiene, Sanitation, and First Aid Facilities: Ensure hygiene, sanitation, and first aid facilities are accessible to all employees.
17. Training, Awareness, and Sensitization: Conduct regular training, awareness, and sensitization sessions on DEI values and culture, making attendance mandatory to bridge the gap between policy and practice.
18. Regular Monitoring and Evaluation: Continuously monitor and evaluate DEI efforts through regular feedback, including anonymous platforms, to identify challenges and adjust strategies accordingly.