Gender Pay Gap at Workplaces: Indian Aspect

The Article 'Gender Pay Gap at Workplaces: Indian Aspect' by Sai Aasheerwa Gudla is an intensive study of workplace discrimination along with the various steps in the form of legislative enactment to curb this social evil. In 2022, Global Gender Gap Index, India is ranked 135th out of 146 nations. The World Inequality Report 2022 estimates that men in India earn 82% of the labour income while women make only 18% of it. In both rural and urban areas, workplace discrimination is the sole reason to blame for the 98% employment gap between men and women, according to Oxfam India's "India Discrimination Report 2022".

These statistics show how important it is to understand why working men and women differ in every aspect of their professional lives, from pay and employment gaps to disadvantages and mistreatment. Even though India has made significant progress in closing the gender pay gap over time, the gap is still large by international standards. India, a country with a large labour force, has implemented several legislative changes to close the gender gap. In this regard, India was one of the first countries to pass the Minimum Wage Act in 1948, which was followed by the Equal Remuneration Act in 1976. It is the need of the hour to reconsider the diverse practices that take place in both urban and rural areas and also increase female participation in the workforce.

Introduction

We say that all humans are equal, regardless of sexual orientation, but patriarchal gender roles and standardized society encourage people to behave in certain ways, which biases them and limits their holistic development. The term "gender bias" refers to the unfair and discriminatory treatment of individuals based on their sexual orientation.

It is the tendency to favour one gender over the other for no valid reason. If we look into ancient India, an Indian woman was considered to be of high esteem and was called Mata (mother) or Devi (goddess) in the Vedas and Upanishads. Then, the practice of polygamy worsened the position of women, and during the medieval period, the practices of the purdah system, the dowry system, and the sati system came into being. But over time, the status of women was degraded.

The origins of gender inequality can be traced back to the male gender's dominance. In India, it is still assumed that a woman needs the anchor of a husband and a family. It was all practiced and preached from the beginning and is followed to this day. In the case of the reservation of seats for women in parliament, the opposing parties believe that women are born to do household tasks and manage children and families.

In many parts of India, women are viewed as an economic and financial liability despite their contributions in several ways to our society, economy, and families.

Characteristics such as being docile, emotional, caring, and less aggressive are sexist stereotypes directed at women but these become the opposite when applied to men. Women have been fighting against the patriarchy and seeking equality with men for a very long time. If these gender disparities are looked into, it will advance gender equality and result in enormous advantages for women like increased productivity, greater social cohesion, and poverty reduction.

In today's generation, women have begun to take on a significant role in the workplace, have excelled in a variety of fields, and have outperformed men; however, they are occasionally held back by a workplace structure that underrepresents women, prevents women from advancing, and places restrictions on women's ability to hold leadership positions.

Gender Pay Gap in the Workplace

Unequal pay refers to situations in which women are paid less than men for doing the same work. In order to combat this, equal pay is mandated by law in the majority of organized sectors. On the other hand, the gender pay gap measures the difference in overall earnings between men and women. When calculating it, several factors are taken into consideration, and they are then applied to the overall number of employed people of both genders. This means that it does not take into account women who have voluntarily left the workforce or taken a sabbatical.

In a country like India, the reasons for the gender pay gap are a little more cumbersome and can be linked to reasons ranging from socioeconomic to cultural. Girl children are sometimes kept out of school or made to drop out of school early.

Even if they are educated, they are forbidden by their family members from working. Women who enter the labour force need to frequently take extended leaves for maternity and child care, as well as to care for other family members' healthcare.

All these factors lead to women as a whole falling well behind men when it comes to their earnings over time. Women are routinely paid significantly less than men in the unorganized sector, particularly in industries like agriculture, due to their perceived abilities that are different from men's.

As long as social prejudice against women in the workplace and the general environment of social injustice against women are not addressed in India, the gender pay gap might not close. According to Oxfam India's most recent "India Discrimination Report 2022," societal and employer prejudice will cause women in India to face discrimination in the workplace, even though they have the same educational background and work experience as men.

According to the report, discrimination accounts for 67% of the lower salaries for salaried women, and education and work experience only account for 33%. Furthermore, the report stated that discrimination accounts for 93% of the earnings disparity between men and women. It stated, "Rural self-employed males earn twice as much as rural self-employed females." Male casual workers earn $3,000 more per month than females, with discrimination accounting for 96% of the difference."

Reasons Contributing to the Gender Pay Gap

1) Occupational Hindrance

The rate of female participation in the paid labour market is typically low and is mainly concentrated in rural areas in the agricultural sector. It has been noted that there is a clear gender division in labour in rural North India. In India, it has been found that female labour participation is higher in the informal economy, particularly in agriculture, and in industries that provide personal services and care. Studies have also revealed that over 60% of the causes of the gender pay gap in India are due to outright discrimination in the workplace. The gap narrows as one moves to the higher end of the pay scale, highlighting the existence of "sticky floors" in the Indian labour market.

2) Cultural Difference

While social and cultural norms differ from state to state within India, it has been observed that women are excluded from the paid labour market and that labour is divided based on status. Ironically, women from higher castes had more difficulty finding paid work, even when it was necessary for their survival. Women frequently work part-time jobs or take time off from their careers to care for their families because childcare is largely seen as being a woman's responsibility. After the break, women are paid less than their male co-workers when they return back to the workplace. In addition, it has been noted that women who do not yet have children still experience pay discrimination because they are seen as potential mothers who may soon need a break from their jobs.

3) Training and Education

In India, women's literacy rates are much lower than men, and it has been noted that many girls drop out of school before finishing their education. Investment in education and training has also been heavily biased in favour of men because they are raised with the expectation of being wage earners, and as a result, this investment is seen as necessary for their success, as opposed to women, who are seen as "future homemakers," for whom education may not be as important.

4) Unpaid Labour

According to the Human Development Report 1995, Women spend roughly two-thirds of their working time on unpaid work, while men only devote one-fourth of their time to it. In India, it is estimated that women work 21 hours more per week than men do. Over two-thirds of all jobs in India are currently in agriculture, but the majority of the work that women do in this industry is not accounted for or formally documented. Once more, the combined number of men and women in the workforce is not taken into account.

Equal pay for Equal work

The term "equal pay for equal work" means that every individual who has been employed for the work that is allotted to him or her should be given equal pay as that received by others. There should not be any discrimination in the payment of wages. It is most commonly used in the context of sexual discrimination, concerning the gender pay gap. Men are always considered superiors and have the potential and competency, whereas women are seen as incapable and incompetent in comparison to men.

While drafting the constitution, the framers paid close attention to the plight of women and included Article 15, which forbids discrimination based on caste, sex, creed, religion, race, or place of birth. Article 15(3), which declares that nothing shall prevent the making of laws for women and children, makes special provisions for women. In addition, Article 16 guarantees that everyone, regardless of sex, caste, creed, or any other factor, has an equal opportunity to apply for public employment.

Article 19 states that citizens have the freedom to carry out any profession or job, irrespective of their caste, creed, or sex. Therefore, the concept of the right to equal pay was concentrated under Article 39(d) of the Indian Constitution, which states that every woman should be paid equally to what men are getting paid in different commercial sectors. This concept has been a very important aspect of women's empowerment.

The principle of equal pay for equal work was first considered in the 1962 case of Kishori Mohanlal Bakshi v. Union of India, A.I.R. 1962 S.C. 1139, in which the Supreme Court ruled that it could not be enforced in a court of law.

However, after Mackinnon Mackenzie and Co. Ltd. v. Audrey D'Costa and Others, (1987) 2 SCC 469, the concept of equal pay for equal work received due recognition. The issue at hand was a demand for equal pay for female and male stenographers. The court, being in favour of equal pay, ruled in favor of the lady stenographers.

Further, the Supreme Court has given a judgment in the case of the State of Punjab and Ors. v. Jagjit Singh and Ors.,(2009) 9 SCC 541, where it was held that any employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities.

Laws Introduced To Curb The Gender Pay Gap in India

Equal Remuneration Act 1976

The Equal Remuneration Act was passed in 1976 to ensure equal pay for male and female workers who do similar work and put in equal effort, time, and energy, and it was enacted to prohibit sex discrimination against women in employment and other related matters.

This discrimination can get measured based on:-

• Salary increase and promotion
• Benefit programs, include annual raises, bonuses, provident funds, gratuities, and pensions.
• Benefits such as weekly holidays, earned leave, casual leave, maternity leave, medical leave, and insurance against accidents.

The effects of the Equal Remuneration Act of 1976 get laid down as follows:

• Enhancing the standard of women's employment conditions
• Female empowerment in the workplace
• Educate women about their rights and responsibilities
• Men and women are made aware of the application of the law and the prevention of discrimination.

Section 4 mandates that employers must pay male and female employees equally for comparable or identical work. No employer shall pay remuneration to any employee employed by him in an establishment or employment, whether payable in cash or in any kind, at rates less favorable than those at which he pays remuneration to employees of the opposite sex in such an establishment or employment for performing the same work or work of a similar nature. And no employer shall decrease a worker's rate of pay.

Section 5 mandates that there shall be no discrimination while recruiting men and women workers. While employees are recruited for work that is the same or of similar nature, no discrimination shall be directed towards women unless any law prohibits the same. This provision is also extended to activities after recruitment, that is, promotion, training, or transfer. The reservations that were made towards scheduled castes or scheduled tribes, ex-servicemen, retrenched employees, or any other class or category of persons would not be affected by this provision.

Section 6 mandates the formation of a 10-member advisory committee, half of whom must be women, and the committee's focus shall be on providing advice for increasing employment opportunities for women, nature of work, hours of work, and such other matters. The Advisory Committee shall have regard to the number of women employed in the concerned establishment or employment, the nature of work, hours of work, the suitability of women for employment, and such other matters.

According to Section 7, the appropriate government has the power to appoint authorities who are not below the rank of a labour officer for hearing and deciding claims and complaints with regard to the contravention of any provision of this Act and claims arising out of the non-payment of wages at equal rates to men and women. In case of a complaint, adequate steps are to be taken by the employer so as to ensure that there is no contravention of any provision of this Act.

The penalties under this act are laid out in Section 10. Sub-section (1) of Section 10 covers omissions or failures on the part of the employer to comply with the act's provisions. Acts and omissions on the part of the employer are covered by sub-section (2).

In accordance with Section 10(1) of the Equal Remuneration Act of 1976, if an employer,

• Omits or fails to manage any register or other document concerning workers employed by him.
• Omits or fails to keep the register, muster roll, or other documents pertaining to the employment of his employees.
• Refused to produce evidence or prevented his agent, servant, or person in charge of the establishment from doing so when called upon.
• Refuses to provide any information requested.

The employer will then be sentenced to up to one month in prison or a fine of up to one thousand rupees.

According to Section 10(2) of the Equal Remuneration Act, if an employer,

• Makes any recruitment in violation of the provisions of this act.
• Pays unequal remuneration to men and women for doing the same or similar work.
• Discriminate against men and women workers in violation of this act's provisions
• Omits or fails to comply with any direction issued by the appropriate government under section 6's sub-section (5).

He shall be punished by a fine of not less than ten thousand rupees but not less than twenty thousand rupees, or by imprisonment for a term of not less than three months but not less than one year, or by both for the first offense, and by imprisonment for a term of not less than two years for the second and subsequent offences.

In 1982, People's Union for Democratic Rights v. Union of India case, women were only paid Rs 7 per day, compared to Rs 9.25 per day for male workers. After hearing both sides, Justice P.N. Bhagwati, basing his decision on the Equal Remuneration Act of 1976, held that it is the employer's responsibility to pay equal remuneration to men and women workers for the same or similar work. An employer cannot claim exemption from the Equal Remuneration Act of 1976 on the basis of financial incapability. No discrimination should be made while recruiting male and female workers. No employer shall, while recruiting for the same or similar work or in recruitment such as promotions, training, or transfers, discriminate against women in such work as is prohibited or restricted by or under any law currently in force.

The 2019 Code on Wages

On July 23, 2019, Mr. Santosh Gangwar, The Minister of Labour, introduced the bill in the Lok Sabha. It aims to control wages and bonuses for all positions in any industry, trade, business, or manufacturing. The Code repeals the Payment of Wages Act of 1936, the Minimum Wage Act of 1948, the Payment of Bonus Act of 1965, and the Equal Remuneration Act of 1976.

The Wage Code forbids discrimination on the basis of gender in hiring new employees for similar or identical jobs and in determining salaries. Work of a similar nature is defined as work requiring the same level of expertise, effort, responsibility, and experience. Except in situations where the employment of women is restricted or prohibited by law, employers are not permitted to lower a worker's pay or engage in discriminatory hiring practices.

When performed by employees under similar working conditions, "same work" or "work of a similar nature" is defined in Section 2(v) as "work with respect to which the skill, effort, responsibility, and responsibility required are the same, and the difference, if any, between the skill, effort, and responsibility required for employees of any gender is not of practical significance in relation to the employee's conditions and terms of employment;"

Section 3 states that there shall be no gender discrimination among employees in an establishment or any unit thereof in matters relating to wages by the same employer, in respect of the same work or work of a similar nature performed by any employee. And no employer shall:

(i) reduce the rate of wages of any employee for the purpose of complying with the provisions of sub-section (1); and

(ii) make any sex discrimination while recruiting any employee for the same or similar work and in the conditions of employment, except where the employment of women in such work is prohibited or restricted by or under any law currently in force.

With regards to advisory boards, Section 42: The Advisory boards will be made up of the State and Central Governments. Employers, employees in an equal number of employers, independent persons, and five representatives of State Governments will make up the Central Advisory Board. State Advisory Boards will be made up of independent individuals, employers, and employees. In addition, one-third of the total members of the central and state board will be women. The Boards will provide guidance to the Central Governments on a variety of matters, such as the setting of minimum salaries and (ii) expanding possibilities for women in the workforce.

The Code defines penalties for offences committed by an employer, such as (i) paying less than the appropriate wages or (ii) violating any Code provision, under Chapter VIII, which deals with offences. The maximum punishment is three months in jail and a fine of up to one lakh rupees. Penalties vary based on the type of offence.

Conclusion

India's ranking in the Global Gender Index has slightly improved when compared to other nations. This year, India received a score of 0.629, an increase of 0.003 from its 0.625 scores from the previous year. The report makes it clear that, despite the clear need for it, progress in the direction of a gender-just world is rather slow. In addition to moral and humanitarian considerations, gender equality is crucial for economic growth and human development. Any development that excludes gender justice is ineffective because it excludes and marginalizes a sizable portion of society.

One could also consider gender justice to be a vital aspect of economic growth. It is essential to involve women and gender minorities in decision- and policy-making because doing so creates a more inclusive environment for development. And finally every person, regardless of gender, caste, or religion, deserves to be fairly compensated for the effort they have put into their work.

References

[1] Global Gender Gap Index 2022, Available Here

[2] Female Labour income in India, Available Here

[3] Gender Discrimination Cause for 98% of Employment Gap Between Men & Women In India, Available Here

[4] Priti Jha & Niti Nagar, A Study of Gender Inequality in India, Available Here

[5] Kinjal Sharma, Gender Bias at Workplaces: A Myth or A Reality?, Available Here

[6] Nilanjana Chakraborty, What is the gender pay gap and why is it so wide in India?, Available Here

[7] India Discrimination Report: Women in India earn less and get fewer jobs, Available Here

[8] Equal pay for Equal Work in India, Available Here

Important Links

Law Library: Notes and Study Material for LLB, LLM, Judiciary, and Entrance Exams

Law Aspirants: Ultimate Test Prep Destination