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Hiring Discrimination
Hiring Discrimination
Contents
LEGAL CONCERN ............................................................................................................. 1 CURRENT LANDSCAPE - EXISTING EMPLOYMENT LAWS IN INDIA ..................................................... 3 EMPLOYMENT/EQUAL OPPORTUNITY LAWS IN OTHER COUNTRIES ................................................. 4 EMPLOYERS PERSPECTIVE ................................................................................................... 5 RECOMMENDATIONS: ........................................................................................................ 6 PROMOTE FAIR HIRING PRACTICES ..................................................................................... 6 PROTECTION FOR EMPLOYERS .......................................................................................... 6 ALTERNATE FORMS OF REDRESSAL ..................................................................................... 7 END NOTES/REFERENCES ................................................................................................... 9
The Equal Remuneration Act is quite explicit and guarantees No discrimination is permissible in recruitment and service conditions except where employment of women is prohibited or restricted by or under any law. It also guarantees Payment of equal remuneration to men and women workers for same or similar nature of work. The Right to employment of persons with disabilities is protected under the Persons with Disabilities Act. Issues involved in this area include creating and reserving posts under the disability category, protecting rights on acquiring disability, reinstatement, promotion, compassionate employment, concessions, compensation, and alternate employment. In addition to the Acts listed above, there is a proposal to Institute an Equal Opportunity Commission of India by a bill in Parliament (Ref. 4.). While in principal EOC is for equal opportunity, the focus of the bill and the public debate is focused on the caste/religion based discrimination.
In addition to the acts of Govt. some industry forums like the NASSCOM and CII have specific guidelines and initiatives to increase diversity in workplace. These initiatives are mostly focused on gender based diversity. Given the above Acts and basic constitutional guarantee, the group feels that any candidate who may be a victim of discrimination on any ground can get legal redressal. However the issue in the cases specified in Section 1, for a candidate to prove that the rejection is due to discrimination and not due to insufficient qualification. In most Knowledge based jobs the selection criteria are very subjective and companies normally give very generic reasons for rejection technical, behavioural etc.
Sex Discrimination Act of 1975 The Employment Equality Act (Age) Regulations 2006 China Although Article 12 of Chinas Labor Law expressly prohibits discrimination based on race, nationality, sex and religious belief, no other laws or regulations exist for enforcing such anti-discrimination provision. Nor is there any mechanism for victims of employment discrimination not specifically prohibited by law to seek any legal remedy. Few lawyers are willing to take on what they view as a quixotic attempt to challenge well-accepted discriminatory practices. Under such a market and legal climate, government agencies as well as employers from state-owned enterprises and the private sector routinely and openly engage in discriminatory hiring and dismissal practices without a second thought. Despite the express prohibition against gender discrimination under the PRC Labor Law, discrimination against women is among the most flagrant in Chinas job market. The government itself continues to maintain different retirement ages for male and female civil servants
Employers Perspective
In Private for profit Enterprises, the employer may argue that he/she reserves the right to hire people at will to ensure successful business operation. Eg. If hiring married women with children means the company has a higher risk of tardiness at work, the company may want to minimize the risk by hiring only male or unmarried candidates. Also given the strict laws against layoffs in India, the companies may be even more circumspect in eliminating the risk the at hiring time instead of being stuck with a partially productive employee. Similarly companies spend a lot of money in training their employees before they are fully productive. Especially in IT and High Tech companies the ramp up time of employees is significantly higher sometimes up to a year. In this context the companies want to ensure that the people they hire can be retained for a minimum period to get their return on Investment. For this reason a company based in South India may be selective of hiring mostly local people to minimize the risk of attrition due to relocation back to hometown. The Employers have to weigh the business risk against a moral obligation to not discriminate. This is usually true of small companies, family run businesses and startups where every Rupee counts where the business risk usually overrides the moral angle.
Recommendations:
There has to be a three pronged drive to address the issue: Promote Fair Hiring Practices Protection to Employers Legal Redressal Promote Fair Hiring Practices An act which provides guidelines for companies over a certain size to have procedures in place for promoting fair hiring practices which include: It should be mandatory for companies to train the hiring Manager and Recruiters about the fair and specific defined employment practices. Discourage employers from asking personal details which could lead to biases about religion, caste, age, sex, marital status or domestic status (number of children etc) not directly related to the job requirement. There should be some drive for the awareness of Hiring Discrimination. Government should form a separate corporate body, responsible for keeping a view on hiring discrimination and formulate the processes and policies to minimize the same. This could be taken up as part of setting up of the proposed Equal Opportunities Commission of India.
Hiring Discrimination in India | 5/7/2010
The labor courts in India are overwhelmingly biased towards workers. This actually reduces employments and promotes biases since it makes companies reluctant to hire people who are perceived as high risk. Simplify the laws related to firing of employees for performance reasons. A classic example is the Uttam Nakate case where the court found the employer guilty under Unfair Trade Practices law for dismissing an employee for repeatedly
sleeping on the shop floor (Ref. 5.). Even though the Supreme court later upheld the companys right to fire but it took 10 years for the legal process to complete. It is also important to ensure that the law puts the onus on the employers to prove non performance to ensure the same is not misused. Enforceability of Minimum Employment duration Bonds A number of IT companies earlier used to have bonds with Employees to guarantee min. years of employment to ensure return of investment for training, onsite assignments etc that the company has to bear. However the lack of enforceability of these bonds has made them redundant. Our recommendation is that the labor courts need to recognize that IT Companies spend a large amount of money in training their employees and they need to make sure the company gets adequate return on investment. In this regard the violation of these bonds (which are signed by the employees at free will at the time of employment) should be honored by the employees and this should be upheld by the labor courts.
The following are some of the examples of the types of complaints for which Ombudsmen may be approached: Any partial or total discrimination by any employer. Any dispute in regard to rejection from the employment opportunities on the basis of Sex, Marital status, race, etc Any dispute on the legal construction of the employment offer letter. Any dispute w.r.t the discrimination for publishing the job requirement. On separation any kind of delay in settlement.
There are some limitations in the types of complaints that are usually encouraged by Ombudsmen. The decision of the ombudsman should be binding on the companies but not on the employee, who may approach the courts, if dissatisfied.
End Notes/References
1. Govt of India Ministry of Labor website http://labour.nic.in/ 2. Employment of Women Legal Provisions http://labour.nic.in/women/WomenCell.pdf 3. Employment Laws in India Checklist http://www.scribd.com/doc/9364375/Employment-Laws-in-India 4. Equal Opportunity Commission What/Why and How http://minorityaffairs.gov.in/newsite/reports/eoc_wwh/eoc_wwh.pdf 5. Uttam Nakate case http://en.wikipedia.org/wiki/Uttam_Nakate 6. US Equal Employment Opportunity Commission (EEOC) http://www.eeoc.gov/ 7. Laws Enforced by EEOC in US
Hiring Discrimination in India | 5/7/2010
http://www.eeoc.gov/laws/statutes/index.cfm
8. Discrimination in China
http://www.chinareview.info/issue2/pages/main1.htm