Overcoming hiring bias: Towards substantive equality in employment for Muslim women

This is the third of a four-part series on the interaction between Indian Muslim women and the law in India in the recent past. Collectively, they seek to examine issues of criminal law, employment, labour practices, and educational opportunities, and ask if Muslim women have an equal status under the law.

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IN Part I, I focused on the criminal justice system's workings in the Bilkis Bano case. In Part II, we covered the world of digital crimes and how Muslim women are targeted. In the next two parts, I turn away from crimes towards indicators of development, that is, employment and education.

In this part, I question how equal are the spaces of employment and education for Muslim women.

Declining female labour force

Female labour force in India has declined from 26.7 per cent in 2005 to 20.3 per cent in 2021, according to the World Bank. This rate has exacerbated during COVID-19, with Reserve Bank of India deputy governor, Dr. M.D. Patra, stating that the "female workforce participation in India is among the lowest in the world and continues to fall". Within this, National Sample Survey Organisation data shows that Muslim women have the lowest Labour Force Participation Rate.

The falling women's labour force and specifically the representation of Muslim women in labour force has negative effects on the country's economy. Business and economics research think-tank McKinsey Global Institute suggests that India is losing out on USD 770 billion in its Gross Domestic Product by not advancing women's equality.

There is a need to restructure Indian labour force in terms of gender parity; and visibilise Muslim women in the workforce to benefit India economically. This can be done in three ways, suggests McKinsey Global Institute:

• increase women's labour-force participation rate,
• increase the number of paid hours women work (part-time versus full-time mix of jobs), and
• raise women's productivity relative to men's by adding more women to higher-productivity sectors

Also read: The pursuit of practical equality for women

Intersectional discrimination

Muslim women face intersectional discrimination on the axes of gender and religion within employment. Many studies, articles and reports blame the low representation of Muslim women on internal factors – religious conservatism, low rates of literacy, or family-based restrictions. However, I urge that the discrimination is not limited to internal factors alone, but extends to societal stereotypes, stigma and prejudice relating to Muslim women which effects their chances of employment.

A recent study by non-profit organization LedBy Foundation showed the systemic bias present in hiring. Two equally qualified profiles, 'Habiba Ali' and 'Priyanka Sharma', were created according to market standards. No picture was used to depict any level of religious practice. Over a period of 8 months, these profiles were used to apply to 1,000 entry-level jobs, by both Ali and Sharma. The response showed the following net discrimination rate:

1. The net discrimination rate was 47.1 per cent, as the Hindu woman received 208 positive responses, while the Muslim woman received half of that (103). This was evident across industries.
2.  were more cordial to the Hindu candidate; 41.3 per cent of the recruiters had connected with Sharma over phone calls, while only 12.6 per cent spoke with Ali over a call.
3. North India had a lower discrimination rate (40 per cent) compared to jobs located in West (59 per cent) and South India (60 per cent).

The study is important because it has uncovered the external reasons. This ecosystem echoes the stigma and stereotype relating to Muslim women in India, who are at a dual disadvantage in terms of religion and gender.

Also read: Instead of discussing why India needs more women to work, let's look at how India undervalues work that women do

Prioritising a representative hiring process

The right to work has been vociferously fought for as an inalienable right of all human beings. It is enshrined in international and national law.

India ratified the Convention for the Elimination of Discrimination against Women in July 1993, and as such is obligated to provide protection against discrimination, including within the right to work (Article 11 of the Convention).

Within the Constitution, the equality provisions (Articles 14, 15 and 16) provide equality of opportunity and non-discrimination. Within the private sector, however, there is an unmistakable void in the statutory field. This shows the lack of protection accorded to women, and specifically Muslim women, who are the victims of intersectional discrimination. To implement substantive equality in employment for Muslim women, positive measures should be taken by the State.

The LedBy Foundation study recommends diversity goals. By setting one, organisations can prioritise a representative hiring process and make diversity a priority. Similar practices have been seen in the United States of America, the European Union, and the United Kingdom ('UK').

According to the UK Equality Act 2010, a public sector equality duty ('PSED') is applied to public bodies. According to the PSED, public authorities should have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations. Moreover, there is a duty to publish equality information and objectives. Additionally, Sec. 158 of the Equality Act allows an employer who reasonably thinks that a protected group suffers a disadvantage or has particular needs can be provided proportionate positive action to meet the relevant needs, reduce disadvantage and increase participation.

In the U.S., Title VII of the Civil Rights Act of 1964 deals with discrimination at the work place. American civil rights advocate and critical race theory scholar Kimberlé Crenshaw, in her seminal work on intersectionality, examined Title VII judgments by American courts – DeGraffenreid versus General Motors (1976), Moore versus Hughes Helicopter, Inc. (1983) and Payne versus Travenol Laboratories, Inc. (1976). In each of these cases, Crenshaw showed how discrimination affected black women, differently from black men or white women. Now there is a growing jurisprudence on recognizing intersectional discrimination when it comes to Title VII claims in America.

Also read: Changing forms of gender-based economic discrimination: Are Indian courts ready for challenges of algorithmic bias?

A similar stance can be taken in India. Justice Dr. D. Y. Chandrachud, in the Supreme Court's landmark judgment in Navtej Singh Johar & Ors. versus Union of India (2018) has allowed for a comprehensive reading of Article 15 of the Constitution. Unlike in Air India versus Nergesh Meerza & Ors. (1981), in which the Supreme Court allowed a strict formal interpretation of Article 15, stripping the prohibition on discrimination of its essential content, Navtej Singh Johar implements the substantive equality interpretation. This precedent should be used to recognize multiple and intersectional discrimination against Muslim women when it comes to employment opportunities.

Moreover, recent scholarship shows it is possible to apply the equality provisions under Article 15(2) to the private sector. In addition, a separate legislature can be enacted to provide intersectional equality within the private sector. Several attempts have been made in India to introduce such a bill.

If the law around employment can be sharpened to take positive measures for employment opportunities, Muslim women will have better prospects in not only substantively increasing their quality of life, but also contributing to India's economic growth.