The ‘gender wage gap’ | Part II: What the law has to say

[Editor's note: This is Part II of the two-part 'Gender wage gap' series. Read Part I here.]

[dropcap]A[/dropcap]ccording to Section 21 of the Maternity Benefit Act 1961, failure to pay maternity benefits or firing a female employee due to maternity will result in the employer's imprisonment for three months which may extend up to one year and a fine of rupees two hundred to five thousand. The Supreme Court in the case of B. Shah v. P.O. Labour Court has held that "100% wages were to be provided (to female employees availing the benefit) for all days including Sundays and rest days which may be wageless holidays during the actual period of absence." Because of incomplete information, hiring employers use proxies to estimate their potential employees' productivity and gender is one such proxy that disincentivises employers from hiring women due to factors such as women's inability to work late hours/night shifts, maternity leave etc., which heavily limits job opportunities for women and lies at the root of wage discrimination by changing the nature of demand and supply for labour.

The Equal Remuneration Act (ERA) 1976 mandates the payment of equal remuneration to men and women workers for the same or similar nature of work and makes discrimination in recruitment and service conditions punishable (except where women's employment is unlawful or legally restricted). The SC in dealing with the ERA provisions in the case of  Air India v Nargesh Mirza laid down a perverse logic of reasonable classification wherein the constitution of the categories i.e. Air Flight Pursers (AFP) for men and Air Hostesses (AH) for women was based only on the grounds of sex. Instead of striking down the basis of such classification as discriminatory on the constitutional anvil of Articles 14, 15 and 16, the court, in an absolutely circular reasoning, held that AFPs and AHs formed separate classes due to having different service conditions and promotional avenues. The unfavourable treatment of women wherein they had to conform to an additional qualification of being unmarried was used to justify the separation of the categories and treat them unfavourably further and has been discussed in more detail here.

The Court's arbitrary ruling was based on patriarchal stereotyping of women as care-givers and vessels of "family planning" and thus, the service condition disqualifying women on marriage within four years of employment was not found arbitrary. The court held that the difference in work performed by the AFPs and AHs was not of kind but only of degree. According to Section 16 of the ERA, where the appropriate Government is satisfied that the differences in remuneration of men and women workers in any employment is based on a factor other than sex, it may via a notification declare that the acts of any employer based on such a difference will not contravene the ERA. In absolute ignorance of the factor of difference being only sex in this case, the court held that the Central Government's notification of the different categories was conclusive of the matter. In this case, the judgement was thus not in compliance with the ERA provisions itself, but even if it were to be, labour law should always remain open to the rigorous constitutional analysis of Articles 14, 15 and 16.

Subsequent SC judgements have made the doctrine of equal pay for equal work an extension of fundamental rights in the case of Randhir Singh v. Union of India affirmed in D.S. Nakara v. Union of India, holding that the doctrine was a fundamental right in itself in light of Article 14 and 16's constitutional mandate of equality and prohibition of discrimination. The Madras High Court in the case of Chinnathambi And Ors. vs P.O., Labour Court noted that the objective of the ERA, was to provide "equal remuneration to men and women workers for the same work or work of a similar nature and prevent discrimination on the ground of sex to give effect to Article 39(d) of the Constitution of India in order to secure that there is equal pay for equal work for both men and women workers, it cannot be disputed that the said salient principle is intended to enforce Article 14 in spirit and substance. 

Reasonable classification

The Supreme Court in Inder Singh & Others v. Vyas Muni Mishra & Others, and Mewa Ram Kanojia v. All India Institute of Medical Sciences and Ors. held that the doctrine was applicable only when the employees were equal in every respect and not when the inequality in salary was based on reasonable classification among workers of the same category. The classification is permissible and can be said to be reasonable only when based on intelligible differentia as per State of Andhra Pradesh and Ors. v. G. Srinivasa Rao and Ors. and the doctrine is unenforceable when the categories are distinguished based on intelligible differentia as per the SC in Harbans Lal and Ors. v. State of Himachal Pradesh and Ors.

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Thankfully, Nargesh Mirza's ratio was severely undercut by the SC in MacKinnon Mackenzie vs Audrey d'Costa, wherein different remuneration was granted to male and female stenographers and in order to distinguish the categories, the latter were named Confidential Lady Stenographers. Holding that this was a violation of the ERA, the Supreme Court held that: "if two jobs in an establishment are accorded an equal value by the application of those criteria which are themselves non-discriminatory (i.e. those criteria which look directly to the nature and extent of the demands made by the job) as distinct from criteria which set out different values for men and women on the same demand and it is found that a man and a woman employed on these two jobs are paid differently, then sex discrimination clearly arises."

Thus, the MacKinnon Mackenzie  judgement pioneered the understanding of sex discrimination not just through directly excluding women, but also by structuring the workplace to burden women disproportionately. MacKinnon Mackenzie also facilitated the Supreme Court's conclusion in Uttarakhand Mahila Kalyan Parishad vs State of UP, which held that the creation of distinct cadres of male and female teachers and less salary as well as inferior promotional opportunities to the latter by the UP education department was illegal. The violation was remedied by a partial merging of the categories and directions to the government to make the service conditions and promotional opportunities equal expeditiously.

In the SC case of Air India Cabin Crew vs Yeshaswinee Merchant, the reasoning in Nargesh Mirza was adopted once more and the waiver of the fundamental right to non-discrimination was viciously held to be legitimate as a majority of airhostesses had agreed to an early retirement and benefits at the age of 50 and not 58 years as compared to male employees performing the same job. However, this was not a question of consent or choice as the provision to retire at 50 years for women was mandatory and discriminatory as it was based entirely on sex and amounted to the active denial to women of eight-year in-flight employment that was available to men. The Court thus effectively held that a majority of air hostesses could waive the right to non-discrimination on behalf of the others and impose their preferences on the minority despite numerous judgements of the SC holding that fundamental rights cannot be waived. The motivation behind such a ruling unsurprisingly was that fulfilment of caregiving responsibilities in the family was exclusively the women's preserve and that they were not physically fit, agile, mentally alert or able to deal with flight tension post 50 years of age, while men continued to be so till the age of 58.

Enforcement of the ERA

The SC in the cases of Sita Devi & Others v. State of Haryana & Others and People's Union for Democratic Rights vs Union of India (wherein female workers were being paid only Rs. 7 per day as the balance of the wage was misappropriated by the jamadars) noted that it was the principle of equality enshrined in Article 14 of the Constitution which was expressed in the provisions of the ERA. Thus, violation of the ERA could legitimately form the subject matter of a writ petition under Article 32. It admonished the Government for the unacceptable non-observance of the provisions of the ERA by adopting a non-interfering attitude on the grounds that the violation was committed by the contractors and not the State. In rendering the State/private entity divide irrelevant in this regard, the court observed that as the least of its responsibility as a welfare state, the authorities are liable even if it was a private contractor who was denying equality to the women. The Court said that this was because the State was under an obligation to institute a system of periodic inspections coupled with occasional surprise inspections by higher officers to ensure that the workers are not denied the rights and benefits to which they are entitled.

On account of certain exigencies like corruption and unwillingness of the State to remedy the same, the ERA remains ineffectively enforced. Thus, rights which should have been here and now enforceable are left to the 'tender' care of public officials. Labour Inspectors are over-burdened with work due to shortage of personnel and are tasked with the responsibility to oversee not only the ERA's implementation, but also that of 28 other laws. The Assistant Labour Commissioner of Delhi, K R Sawhney, had remarked that 60 labour inspectors were grossly inadequate to enforce all labour laws in the entirety of Delhi and as far as the ERA was concerned, enforcement in Delhi was accorded little importance and inspectors acted on it only upon the receipt of a complaint. Opacity regarding how much money men and women make, apprehension of losing their job, no hope of any favourable response by the employer and the restrictive social factors mentioned in Part 1 prevent women from making such complaints.

Bonuses, entitlements and benefits

The Bombay High Court noted in the case of Irene Fernandes vs Neo Pharma (Pvt.) Ltd. that the applicant must establish that the effort, skill and responsibility required to perform her work are the same as those required to be carried out by the men, post which the employer has an obligation to equally remunerate the applicant unless the classification is reasonable i.e. based on seniority or merit as equality of the total pay packet is not necessary, while that of the basic wage or salary is. Given that the workplace does not happen to be the beautifully meritocratic sanitised-of-all-primitive-biases arena that sexism apologists would have us believe, it is pertinent though incredibly obvious to note that women's competence and merit is heavily undervalued and the wage gap widens as employers freely resort to discriminatory practices by not providing benefits such as provident fund, gratuity, bonus etc. to women equitably.

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A fairly recent Supreme Court ruling in this regard in State of Punjab vs. Jagjit Singh was based on a fundamental rights analysis relying on precedent regarding human dignity as a part of Article 21. Further, the court held that work despite denial of what one is due is an impediment to the exercise of that dignity in the nature of an exploitative enslavement. It noted that temporary employees were entitled to draw wages at the minimum of the pay-scale and other benefits available to permanent employees at the same post. The court noted that this strengthens the principles of the Contract Labour Regulation and Abolition Act, 1970 invoking Article 7 of the International Covenant on Economic, Social and Cultural Rights, 1966. This indeed augurs well for the 120 million women in casual ad-hoc employment in the informal sector (UN Women 2016) though enforceability remains a crucial problem.

 Solutions

Any solution to bridge the gender wage gap has to be normative and holistic as the gap itself is a manifestation of structural sex discrimination. Provisions for mandatory parental leave rather than maternal leave will undercut the economic logic of such discrimination and allow women better reintegration in the workplace post childcare by making men shoulder their share of responsibility. Despite this if discrimination persists in the employers' mind (and there's a good chance it will as these biases are pernicious, get internalised and cannot be taken care of by simplistic economic logic), he will have to pay the price of such discrimination (i.e. hiring and promoting workers on the basis of sex and not efficiency) monetarily as these practices will be at loggerheads with the goal of profit maximisation bridging the wage gap to at least some extent.

Photo Credit: Vox

Organisation of female workers into trade unions will promote greater access to knowledge regarding how much both men and women make in comparable employment as well as provide women with both a collective voice and bargaining power in putting forth their grievance before the employment tribunal. Formalising the workforce to afford better accountability and transparency in grant of benefits to female workers and provision of mobile creches at the workplace can stand women in good stead while patriarchal attitudes take forever to change.

[Editor's note: This is Part II of the two-part 'Gender wage gap' series. Read Part I here.]