Diversity & Inclusion Policy in India

Introduction

The Constitution of India explicitly prohibits discrimination based on sex, race, religion, or on any other ground, but it has taken some time for this protection to be extended to LGBTQ+ individuals. The landmark judgment in NALSA v. Union of India case in 2014 marked a progressive interpretation by the Supreme Court, which recognized that discrimination based on sexual orientation and gender identity falls within the ambit of "discrimination on the grounds of sex." The court emphasized that such discrimination violates the fundamental right to equality enshrined in the Constitution[1].

In a subsequent case, Navtej Singh Johar v. Union of India, the Supreme Court took one step forward by acknowledging that the freedom to choose one's sexual orientation and express one's gender identity, including through dress, speech, and mannerisms, is at the core of an individual's identity.

Although there is an absence of standalone anti-discrimination legislations in India, certain laws such as the Rights of Persons with Disabilities Act, 2016, the Equal Remuneration Act, 1976 (along with the Code on Wages, 2019), the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017, and the Transgender Persons (Protection of Rights) Act, 2019, do contain provisions addressing discrimination against individuals falling under the ambit of the aforementioned laws.

A major drawback of the Equal Remuneration Act, 1976 is that while it encourages pay parity at workplaces, however its scope is restricted to merely two genders, i.e., men and women thereby alienating an individual with a different sexual orientation from obtaining the benefits under this legislation.

This piece highlights the various workplace policies in India and the need to make them more inclusive for the disabled persons and those belonging to LGBTQ+ communities.

Equal Opportunity Policy under Rights of Persons with Disabilities Act, 2016

The Rights of Persons with Disabilities Act (“Act”) requires all establishments to have an equal opportunity policy (EOP) specifically for individuals with disabilities.[2] This policy must be made publicly available, preferably on the establishment's website or in conspicuous locations within the premises. The EOP should outline the facilities and services that will be provided to enable individuals with disabilities to fulfill their responsibilities effectively in the establishment.

Furthermore, if the organization employs 20 or more individuals, the EOP must include the following details[3]:

• A comprehensive list of positions within the establishment that are deemed suitable for individuals with disabilities;

• The procedure for selecting individuals with disabilities for different positions, as well as providing post-recruitment and pre-promotion training, prioritizing them in transfers and job assignments, granting special leave, allocating residential accommodation if available, and offering other necessary facilities.

• Provisions for assistive devices, ensuring barrier-free accessibility, and implementing other necessary measures to accommodate individuals with disabilities.

• Information about the designated liaison officer. It is mandatory for every establishment with 20 or more employees to appoint a liaison officer responsible for overseeing the recruitment of individuals with disabilities and ensuring the provision of necessary facilities and amenities.

• A copy of the EOP must be registered with the relevant authority (whether a Chief Commissioner or State Commissioner, as the case may be) specified by the law.

Can POSH Policy be Gender Neutral?

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) is an Indian legislation designed to address workplace sexual harassment and ensure a safe working environment for women. Although the law primarily aims to protect women due to the widespread gender-based discrimination they face, it does not exclude or expressly/impliedly prohibit inclusion of men or individuals of other gender identities from receiving protection. It is important to recognize and address the experiences of all individuals who may encounter sexual harassment, regardless of their gender identity.

It is important to note that in the POSH Act, there is no bar on gender for the respondent, i.e., although the victim can only be a woman, but there is no specific gender mentioned for the respondent. Therefore, the term "respondent" encompasses all genders.

During the legislative process, the idea of enacting a gender-neutral law was discussed. However, this discussion primarily centered around men's rights groups advocating for equal treatment and was framed as a debate between men and women. In response to this, the Parliamentary Standing Committee in 2011 proposed that the law should remain specific to one gender, citing the historical disadvantages, discrimination, abuse, and harassment faced by women. The committee based its recommendation on the belief that women are particularly vulnerable to workplace harassment, which hinders their ability to work. The primary objective of maintaining a gender-specific law was to increase female participation in the workforce and establish a robust mechanism to safeguard women's employment rights.

In Anamika v Union of India, the Delhi High Court ruled that transgender individuals can utilize the protection under provisions related to sexual harassment, (which are commonly resorted to in cases of harassment by men against women), to file complaints. It is pertinent to note that in this case, although the aggrieved person was a transgender, however she identified herself as a woman and possessed a legally sanctioned identity document as evidence.

Provisions under Transgender Persons (Protection of Rights) Act, 2019

In 2014, the Supreme Court of India made a significant ruling in the case of National Legal Services Authority v. Union of India. This ruling played a crucial role in establishing the rights of transgender individuals in India. The court recognized the category of "transgender" as the "third gender" and introduced various measures to prevent discrimination against transgender individuals and protect their rights. The judgment also suggested that reservations should be made for transgender individuals in employment and educational institutions. Additionally, it affirmed the right of transgender individuals to identify their gender based on their self-perception, without the requirement of undergoing a sex reassignment surgery.

The Transgender Persons Act requires all establishments, including private employers, to adhere to certain regulations:

• Prohibition of discrimination: Ensure a safe working environment and prevent any form of discrimination against transgender individuals in all aspects of employment, such as recruitment, promotions, infrastructure adjustments, employment benefits, and related matters.
• Equal opportunity policy: Develop and publish an equal opportunity policy specifically for transgender persons. Display this policy on the company website, and if there is no website, post it at a conspicuous place within the premises.

• Infrastructural facilities: Provide necessary infrastructure adjustments, including unisex toilets, to cater to the needs of transgender employees. Take measures to ensure their safety and security, such as transportation arrangements and security guards. Additionally, ensure the availability of amenities like hygiene products for transgender employees.

• Confidentiality of identity of the transgender employees to be ensured at workplaces.

• Appointment of Complaint Officers: Establishments are obligated to assign a complaint officer who will handle any grievances concerning the infringement of the regulations stated in the Transgender Persons Act. The designated complaint officer is entrusted with the responsibility of investigating the complaints, and it is mandatory for the head of the establishment to act upon the report produced by the complaint officer within the specified timeframes.

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[1] Constitution of India, Article 14

[2] Rights of Persons with Disabilities Act, 2016, Section 21

[3] Rights of Persons with Disabilities Rules, 2017

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- Senior Associate | Legal