For verification of this paper, please visit on http://www.socialresearchfoundation.com/remarking.php#8

What is Gender Discrimination at Work?

“Need a commitment from you…you cannot get pregnant in the next 2-3 years,” the HR head of one the country’s largest asset management companies told a 34-year-old female jobseeker in an interview recently. “Think about it… Once you have made up your mind, come back to us.”[5]

Though it can take many various forms, gender discrimination in the workplace typically refers to how an employee or job candidate is treated differently or less favorably according to their sexual orientation, gender identity, religion , societal status, pregnancy or sex. Although the terms "sex" and "gender" have distinct definitions, they are frequently used synchronously in legislation prohibiting discrimination in the workplace. In certain cases, discrimination against workers is based not just on their gender but also on their ethnic origin. A woman of color, for instance, can encounter prejudice in the workplace in a different way than a female coworker who is white. Due to the mix of her gender and ethnicity, she could experience harassment, receive less money, or be turned over for a promotion. An institution that practices Gender equality, treats men, women, transgender persons and people with other gender identities fairly and equally at work. Contrarily, gender inequality refers to a situation in the workplace where gender minorities are treated unfairly and with inferiority. When someone is treated differently from their coworkers or prospective employers due to their gender or sexual orientation, it is considered gender discrimination. Discrimination based on gender can happen at any stage of the employment process, from the recruiting process until retirement.[6]

Gender discrimination can take many forms, such as when a female employee receives an adverse performance review that calls her out for being too "aggressive" (while men who act in the same way are commended for demonstrating "leadership") or when a female employee wears short hair and is told she needs to look more "presentable." The inability to advance, receiving less money, receiving unfair treatment, receiving less challenging tasks, receiving less support from superiors solely because of one's gender, and so forth are some common instances of gender discrimination in the workplace. We'll talk more about them in the parts that follow. We recognize that companies may have overlooked gender imbalance concerns because of outdated corporate cultures, individual prejudices and attitudes, sector- specific practices, and other factors. However, changes are occurring gradually, and now is the right moment to act.[7]

Nature and consequences of discrimination of women at Workplace

“Improving gender balance in the boardroom not only increases the performance of the board and strengthens the business but is also good for the UK economy, as it enhances our competitiveness, ability to attract talent and reputation for good governance in a global market.” -Philip Hampton[8]

There have been improvements in workplace gender equality over the years, most studies on the topic show that firms still have a long way to go. In urban India, gender discrimination is responsible for 98% of the employment difference between men and women, according to a recent Oxfam India report. The 'India prejudice research 2022' research also said that prejudice is the primary reason of the 100% employment disparity that women in rural regions experience. Owing to cultural and employer stereotypes, women in India encounter discrimination in the workplace even when they possess the same educational background and professional experience as men. The poll claims that 93% of the pay gap between men and women is due to discrimination.[9]

According to the LinkedIn Opportunity Index 2021, the covid-19 pandemic has had a greater impact on working women in India than on those outside. According to the report, among the women in the Asia-Pacific region, Indian women struggle the most for equal opportunities and remuneration. The study concentrated on how women saw possibilities and how, in the midst of the epidemic, the gender gap is making it harder for working women in India to develop professionally.[10]

On the international front, things are not looking so well either. A 2017 Pew Research Center poll found that 42% of American women had encountered some kind of gender harassment at work. In the poll, 25% of women claimed they make less money doing the same work as a man. Because of their gender, 23% of working women said they were treated like inferiors. Just 7% of working males stated they received the same level of support from top executives as did 15% of working women in their line of work. 10% of working women felt that, due to their gender, they were not given the most important duties, compared to 5% of men.[11]

The Difference between harassment, bulling and discrimination

Discrimination happens when someone is treated less favorably because of a specific protected attribute. This can happen even in situations where the treatment isn't overtly obnoxious like when someone isn't promoted because they're pregnant or when they're the target of "joking banter" referencing the protected attribute. Indirect discrimination can also occur, like when an employer says they're open to hiring people with disabilities but doesn't provide the necessary opportunities.[12]

When someone is treated offensively, humiliatingly, menacingly, or intimidated due to a specific quality, that behavior is known as harassment. Unwelcome sexual encounters or attention are referred to as sexual harassment. Bullying is defined as persistently irrational behavior that jeopardizes the victim's health or welfare. When bullying or harassment is motivated by a protected characteristic of the victim, such as a handicap, it is deemed discriminatory behavior.[13]

Struggle for women Facing reality

Typical instances of gender discrimination in the workplace:-

Even though a good portion of males report experiencing gender discrimination at work, women still experience this problem more frequently than men. Let's examine some of the most common types of gender discrimination that women encounter nowadays at work. This will make it easier for us to understand what companies and workers can do to get rid of it.

1. Harassment

In industries where males predominate, women are more likely to become victims of sexual harassment at work. This is a worrying development and one of the main reasons women may find it harder to work in businesses where males predominate. Sex and gender discrimination are common in the workplace, despite the fact that they are not intrinsically sexual. Women, transgender persons, and those who identify as gender nonconforming or non-binary are the main targets of gender-based harassment. The most common form of this kind of harassment at work is when severe and frequent disparaging remarks are made against women and other gender minorities.[14]

2. The disparity in pay

Many organizations continue to be opaque about the criteria they use to determine employee compensation or how much they pay them. However, as per Indian legislation, it is illegal for an employer to treat a worker unfairly on the basis of their sex, religion, ethnicity, color, or caste. This implies that companies cannot lawfully deny someone a promotion, hire someone else, fire someone, or harass someone based on any of the above listed reasons. However, 25% of working women stated they made less money than a guy doing the same profession, according to the Pew Research Center study that we previously mentioned.[15]

3. Participation in management levels

According to 10% of working women in the Pew Research Center poll from 2017, which we mentioned before, they weren't given the most important tasks because of their gender. They claimed that not having access to development job possibilities was another obstacle to getting senior roles. Two additional major obstacles that working women face on their path to senior management roles are having obligations outside of the workplace and not having enough networking opportunities.[16]

4. Discrimination based on pregnancy

Because female employees could want to establish kids and take a long break from the working, employers can be reluctant to hire them. For the same reason, women may be passed over for top jobs and promotions. Regardless of their qualifications, working women continue to earn less than their male colleagues. When female employees take time off to give birth or receive prenatal care, they are often victimized.[17]

5. Work distribution

The allocation of work in the workplace is not always determined by skill or quality; instead, researchers believe that it is influenced by politics and professional cultures around women. The woman blossoming in front of them is too much for the guy to handle. Women continue to be turned down for jobs, being fired or, denial of promotions, transfers, and training opportunities. The application of more or different criteria, or experiencing harsher evaluations due to your gender identity, or as a result of your deviation with conventional notions of masculinity or femininity in your behavior or presentation.[18]

6. Menstruation leave:-

“Menstruation is a physiological phenomenon among women and only a small proportion of women/ girls suffer from severe dysmenorrhea or similar complaints”, adding “most of these cases are manageable by medication”. -Smriti Irani[19]

Since companies may view women as less available, offering menstruation leave could unintentionally result in prejudice against them when it comes to recruiting or promotions. Special leave regulations may increase the stigma associated with menstruation, bringing it to the public's attention and possibly causing discomfort.

Menstruation is not a disease; rather, it is a normal biological process. Gender differences in the workforce are respected when they are acknowledged through legislation. This kind of leave upholds women's equality and dignity and is consistent with Articles 14 and 21 of the Indian Constitution. Striking a balance between the necessity of gender-specific policy and the possibility of unforeseen repercussions is crucial. It's critical to execute such policies in a way that doesn't promote prejudices or result in discrimination, even while acknowledging biological distinctions. The issue for legislators and organizations is to create an inclusive, supportive work environment that meets individual needs without stigmatizing them.[20]

7. Societal stigma regarding working women

like the past, women have been urged to seek "care-oriented" professions like child care, nursing, and education. People of different genders "sort" themselves into stereo typically gendered jobs; this phenomenon is known as occupational sorting, and it results in stigma against women who choose to work in more traditionally male- dominated industries like technology. The idea that women should handle "domestic" and care giving duties also contributes to increased levels of unpaid labor in all fields (organizing work parties, preparing and cleaning up events, etc.). Ironically, women continue to perform the majority of unpaid, unseen work even in employee resource groups, which are praised as helpful venues for tackling disparities.There are some myths regarding working women in society like women is too soft and cold, not good in negotiation and they are being sexual harassed at workplace.[21]

8.Caste discrimination in the workplace: Approximately 18% of Indian workers experience some type of bias, including caste discrimination. A person who harasses, hurts, irritates, boycotts, obstructs, or insults a Scheduled Caste member faces a minimum one-month jail sentence and a maximum six-month jail sentence, as well as a fine of at least one hundred rupees and up to five hundred rupees, as per the Protection of Civil Rights Act 1955.[22]

The majority of modern forms of harassment are sexual in nature, and when they occur there rather than in a public setting, there are grave repercussions. In addition to long-term psychological suffering and worsening working conditions, some victims are obliged to quit in order to stop being harassed by others, which causes them to drop a few bucks. One research (Lim and Cortina, 2005) used two sets of questionnaires to work with women in the public sector in order to portray a distinction between workplace harassment or sexual harassment and general rudeness. The conclusion was that workplace harassment, including sexual harassment, and general rudeness happen side by side, which has an impact on women's psychological and organizational welfare. It is growing every day and is easily recognized these days.

An elaborate discussion in the Indian scenario

“Harassment is any improper and unwelcome conduct that might reasonably be expected or be perceived to cause offence or humiliation to another person. Harassment may take the form of words, gestures or actions which tend to annoy, alarm, abuse, demean, intimidate, belittle, humiliate or embarrass another or which create an intimidating, hostile or offensive work environment.”[23]

Vishaka & Ors. vs. State of Rajasthan27 The Hon'ble Supreme Court of India has rendered a significant ruling in the history of sexual harassment. Uninvited or unwanted sexual favors or sexual gestures directed towards the other gender by one gender are considered sexual harassment. The individual who is subjected to it feels degraded, outraged, and insulted. It also utterly ruins their mental tranquility, leading to more mental harassment.It made it more difficult for people to exercise their rights to life and dignity. The provision of a safe working environment at the workplace was the primary necessity. The Supreme Court of the United States ruled that women had an inalienable right to be free from workplace sexual harassment. Additionally, it included a number of crucial principles that workers should go by in order to prevent sexual harassment of women at work. The court recommended that appropriate procedures be followed when implementing situations involving workplace sexual harassment. The Supreme Court's primary goals were to guarantee gender equality in society and that discrimination against women should not occur in the workplace.[24]

The 1997 Vishaka recommendations, which were replaced by the Prevention of Sexual Harassment of Women at the Workplace Act, 2013, had a major weakness that must be addressed in situations of workplace sexual harassment: they did not apply to cases that occurred in earlier times. This means that there is little to no possibility of a legal settlement in situations of sexual harassment at work that occurred prior to the adoption of the Vishaka principles. In general, a number of conditions need to be met for workplace harassment to be acknowledged. First, the employee must find the behavior unpleasant and unwanted. The second step is for the employee to speak out against the behavior, giving the offending person or people the opportunity to change their behavior at work. The ruling would guarantee that women are accorded parity in the armed services and would examine all legislative and legal obstacles that stand in their way. The Supreme Court has made significant progress toward gender equality with its decision.In this instance, there was no justification for denying women PC because they are just as capable of sailing as male officers. The ruling demonstrates the equal value of the female officers who have committed their entire lives to serve the country and is a major motivator for young women to volunteer to do the same.[25]What is the POSH Act?[26]

When Bhanwari Devi, a social worker for the Rajasthani government's Women's Development Project, attempted to stop a one-year-old girl from getting married, five men set her up for gang rape. This happened in 1992. A set of guidelines known as the Vishakha Guidelines were established in 1997 to fill the statutory gap until a law could be enacted. The guidelines were established during the hearing of pleas filed by activist groups against the crime, noting the absence of any law "enacted to provide for effective enforcement of the basic human right of gender equality" guarantee against "sexual harassment at workplaces." These were legally obligatory and were to be "strictly observed in all workplaces".[27]

A number of Constitutional provisions, such as Article 15 (which forbids discrimination solely on the basis of religion, race, caste, sex, or place of birth), as well as pertinent international conventions and standards, such as the General Recommendations of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which India ratified in 1993, provided support to the Court. In the meanwhile, in 2000, 2003, 2004, 2006, and 2010, the National Commission for Women produced proposals of a code of conduct for the workplace. Following this, in 2007 then-Minister of Women and Child Development Krishna Tirath presented the Protection of Women against Sexual Harassment at Workplace Bill. Later, it was introduced in Parliament and underwent revisions. On December 9, 2013, the modified Bill became the POSH Act, also known as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal ) Act.[28]

Commenting on the effectiveness of POSH, the Court said: “However salutary this enactment may be, it will never succeed in providing dignity and respect that women deserve at the workplace unless and until there is strict adherence to the enforcement regime and a proactive approach by all the State and non-State actors.”[29]

 “If the authorities/managements/employers cannot assure them a safe and secure workplace, they will fear stepping out of their homes to make a dignified living and exploit their talent and skills to the hilt,” -Justice Kohli wrote in the judgement.[30]

The Bharatiya Nyaya (Second) Sanhita, 2023

In the new criminal bill Bharatiya Nyaya Sanhita, which is intended to replace the outdated India Penal Code and other criminal laws, the government has added two more sections to combat crime against women. The updated bill includes a new definition of "cruelty" in Section 86, which includes injuring a woman's physical and mental health.

“Gender equality is the goal that will help abolish poverty that will create more equal economies, fairer societies and happier men, women and children.”– Graça Machel [31]

Everyone is entitled to work, and they are free to choose to do so in a secure environment. The essential nature of the right to work is universally recognized, and it is analogous to the right to life. Profitable employment is necessary for these rights to be fulfilled in a nation where a great deal of individuals lack access to any financial resources other than work. Unemployment is one of the primary causes of poverty. Working freely refutes that since discrimination against upper class employees exists in the workplace. Any "qualification, prohibition, or preference made on the ground of race, color, political opinion, religion, sex, social origin, or national extraction, etc. The result of eliminating or limiting fair opportunities and treatment in work or occupation" is considered discrimination, according to ILO Convention No. 111.

A study found that 48% of Indians had encountered employment discrimination. Age (22%), gender (25%), and caste/religion (18%) account for the bulk of prejudices. The highest rates of bias were observed by workers in Delhi, Pune, and Chennai, while the lowest rates were observed in Ahmadabad. Remarkably, just thirty percent of the companies surveyed said they had a written anti-discrimination policy. Workplace discrimination can take many different forms. It might be driven by one thing alone, or by several things together. Discrimination at work can manifest in the following ways: Eligibility, Age, Sexual harassment, Incompetence, Being a mother ,Origin of nation, Color or race, Religion, Sexual misbehavior, Retribution or equivalent wage, Origin, social status and Cultural background.[32]

1. Dr. Brajesh Sharma Assistant Professor UILS Panjab University SSC RC Hoshiarpur,
2. Dr. Varsha Dogra Assistant Professor, VSLLS, Vivekananda Institute of Professional Studies-Technical Campus, Delhi.
3. An activist in Nigeria and strategic team member of the #BringBackOurGirls campaign, avilable at: https://plancanada.ca/en-ca/stories/6-quotes-that-explain-why-the-world-needs-gender-equality(Visited on 5th Feb, 2024).
4. Dr. Arundhati Bhattacharyya,Indian Women in the Workplace Mediterranean Journal of Social Sciences MCSER Publishing, Rome-Italy, Vol 6 No 4 S2 July 2015,availablble at: https://www.researchgate.net/publication/281413661_Indian_Women_in_the_Workplace
(visited on 5Th Feb, 2024)
5. UNDP report exposes India’s gender bias crisis, available at: https://frontline.thehindu.com/news/the- latest-undp-report-reveals-biases-against-women-worldwide/article66985325.ece (visited on 5 Feb, 2024)
6.Women and Work in India: Trends and Analysis, available at: https://www.india- briefing.com/news/women-and-work-in-india-trends-and-analysis-24758.html/ (visited on 5th Feb, 2024).
https://economictimes.indiatimes.com/jobs/mid-career/no-vacancy-for-women-india-inc-tightens- scrutiny-of-women-jobseekers/articleshow/106551378.cms?from=mdr
7. Vinita Bhatnagar, Sexual harassment in the Workplace, Shukla, Asha & Phookan Jaya (Ed.), Crime Against Women. New Delhi: Serials Publications Pvt. Ltd, pp. 344- 345 (2015)
8. Supra note 4.
9. Ibid. Chairman – Royal Bank of Scotland
10. India Discrimination Report: Women in India earn less and get fewer jobs, available at: https://www.oxfamindia.org/press-release/india-discrimination-report-women-india-earn-less-and-get- fewer-jobs (visited on 6th Feb, 2024)
11. Ibid.
12. Gender Discrimination at work, available at: https://www.equalrights.org/issue/economic-workplace- equality/discrimination-at-work/ (visited on 6th Feb, 2024)
13. What is the Difference Between Bullying and Harassment?, available at: https://www.pacer.org/bullying/info/questions-answered/bullying-harassment.asp vsited on 6th Feb, 2024)
14.Indira Jaising, Law relating to sexual harassment at workplace. New Delhi,Universal law, p. 104 (2004).
15. Ibid.
16. Supra note 14.
17. Anjani Kant, Women and The Law. New Delhi: A.P.H. Publishing Corporation, pp. 192-195 (2008).
18. The Story Of How Women Are Subjected To Violence In Indian Factories, available at: https://www.forbes.com/sites/ewelinaochab/2019/01/02/the-story-of-how-women-are-subjected-to- violence-in-indian-factories/?sh=62989d536ee7
19. Smriti Zubin Irani is an Indian politician and former actress, fashion model and television producer. She has been Minister of Women and Child Development since 2019, and also Minister of Minority Affairs since 2022 (told the Rajya Sabha that menstrual leave could lead to discrimination against women in the workforce).
20. Row over paid leave for menstruation: How Parliament took up the issue over the years, available at: https://indianexpress.com/article/political-pulse/paid-leave-menstruation-parliament-smriti-irani- 9073902/ (visited on 6th Feb, 2024)
21. Workplace to cyber space- practical challenge, available at: https://www.livelaw.in/columns/from- workplace-to-cyber-workspace-practical-challenges-undersexual-harassment-of-women-at-workplace- preventionprohibition-and-redressal-act2013-160311( visited on 6th Feb , 2024)
22. Ibid.
23. In its explanation of mental harassment, the Division Bench of the Honorable Andhra Pradesh High Court cited the Indian Journal of Community Medicine, an official publication of preventive and social medicine, in the article "A cross-sectional study in Coastal South India," which provided the following definition of workplace harassment.
24. Case Analysis-Vishakha nd other svs State of Rajathan, available
at: https://www.legalserviceindia.com/legal/article-374-case-analysis-vishaka-and-others-v-s-state-of- rajasthan.html (visited on 7th Feb, 2024)
25. Union of India & Ors. vs. Lt Cdr Annie Nagaraja & Ors. (2020 SCC OnLine SC 326)
26. The Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 [POSH Act], available at:https://www.livelaw.in/top-stories/supreme-court-posh-act-protection-of- women-from-sexual-harassment-228601 (visited on 8th Feb, 2024)
27. Ibid.
28. Supra note 27.
29. Aureliano Fernandes v. State of Goa, 2023 SCC OnLine SC 621, decided on 12-05-2023.
30. Sexual Harassment at workplace: “Assure women safe & secure workplace or they will fear stepping out”;SC issuesdirections for PoSH Act implementation, availble
at: https://www.scconline.com/blog/post/2023/05/14/sexual-harassment-of-women-at-workplace-sc- directions-to-implement-posh-act/ ( visited on 8Th Feb, 2024)
31. Founder of the Graça Machel Trust and member of The Elders, on the far-reaching benefits of gender equality.
32. Supra Note 20.
33. As told to Sally Armstrong, author, human rights activist and journalist, and Plan Canada’s very own Celebrated Ambassador. She shares the inspiring words of a young girl she met during her travels across the globe.
34. What is Gender Discrimination at Work? How can Employers Prevent Gender Discrimination at Work?, availableat: https://www.bimakavach.com/blog/gender-discrimination-at-work/ (visited on 8 Feb, 2024)
35. Malala Yousafzai is a Pakistani female education activist and the 2014 Nobel Peace Prize laureate at the age of 17, availble at: https://www.brainyquote.com/authors/malala-yousafzai-quotes (visited on 8th Feb, 2024).