In the past few years, ‘Diversity & Inclusion’ has become an imperative for corporate structures in India to adopt and promote. Diversity & Inclusion for a corporate means accepting the differences between people related to religion, gender, race, disabilities, sexual orientation, thought process, approach, knowledge, experiences, personalities, etc. And providing them equal opportunities to contribute to the growth of a corporate entity.

The Constitution of India upholds equality of opportunity as a fundamental right and prohibits discrimination on the grounds of religion, race, caste, sex or place of birth. The recent developments in Indian laws has helped add precedence to Diversity & Inclusion in the corporate scenario as well. Since 2014, we have seen numerous progressive judgements and amendments to laws endorsing diversity and ensuring inclusion like improved maternity benefits, decriminalization of same sex acts, prevention of sexual harassment at the work place, recognizing the rights of transgender persons etc.

KEY RECENT DEVELOPMENTS IN INDIAN LAW RELATED TO DIVERSITY

First, for recognition and inclusion of transgender people, the Hon’ble Supreme Court in its judgement dated April 2014 (NALSA vs Union of India) directed the central and state governments to grant legal recognition of gender identity whether it be male, female or third gender. This was followed by the Transgender Persons (Protection of Rights) Bill, 2016 revised in 2018. This bill proposes that neither a government nor a private entity can discriminate against a transgender person in matters of employment, recruitment, promotion, etc.

Second, for enhancement of maternity leaves to ensure that women have equal access to employment, in 2017 the Maternity Benefit Act was amended to increase the period of maternity leave from 12 to 26 weeks for the first two children. This amendment also provides 12 weeks leave to women having children through surrogacy or adoption and allows women to work from home. To ensure proper implementation of this amendment in the private sector, the Ministry of Labour & Employment in November 2018 proposed the Maternity Leave Incentive Scheme for motivating female employment in private organizations, wherein the government will reimburse to employers the cost of maternity leave wages for seven weeks for women employees with wage ceiling up to INR 15,000, subject to certain conditions.

Third, for eliminating stigma related to the hiring of LGBTQ+ people widely in corporate entities, the Hon’ble Supreme Court while declaring section 377 of the IPC unconstitutional, also stressed on the fact that LGBTQ+ persons are entitled to equal protection under the applicable law. This judgement has brought a change in corporate policies wherein the focus has been shifted to creating an inclusive and judgement-free work environment.

Fourth, to eliminate sexual harassment at the work place and to promote a safe environment for working women, the Government of India enacted in 2013, the Prevention of Sexual Harassment Act and Rules thereunder. If effectively implemented by corporate entities will ensure equality in gender and working conditions. This Act imposes obligation related to prohibition, prevention and redressal of sexual harassment on corporate entities. The Act empowers working women to report a complaint of sexual harassment at the workplace by opting for both civil and criminal proceedings. For the purpose of reviewing and redressing sexual harassment complaints, the Act puts the requirement on corporate entities of creating an Internal Complaints Committee (ICC) in every establishment with 10 or more employees. The Act also includes a penalty of up to INR 50,000 for corporate entities if it fails to constitute an ICC and even if it contravenes the Act or Rulesmade thereunder.

Fifth, in 2017 various laws were amended to bring them in compliance with recent developments in law related to diversity including the amendment to the Payment of Gratuity Act. This entailed while calculating the amount of gratuity for a woman employee, an employer also has to consider the maternity leave of 26 weeks in continuation of service. Additionally, The Maharashtra Shops and Establishment Act incorporated a provision for protection of women from sexual harassment and no discrimination in the matter of recruitment, promotions or wages for working women. And lastly, in one of the amendments notified in 2018 under Section 134 of the Companies Act, 2013, it is mandated that the board report of every company shall contain a statement that the company has complied with the provision relating to the constitution of the ICC under the Prevention of Sexual Harassment Act, 2013 to warrant that the board of directors of a company are aware about the incidents relating to sexual harassment complaints made during the year.

STEPS ADOPTED BY THE INDIAN CORPORATE WORLD TO ENSURE A DIVERSE & INCLUSIVE WORK ENVIRONMENT

It would be pertinent to mention herein that many corporates in India have started taking varied steps to develop inclusive workplace practices:

Most multinational corporations have inherited diversity policies from their parent companies (Foreign Parent);
Many companies have started sensitization sessions & workshops for their employees on the importance of Diversity & Inclusion and discrimination based on sexual orientation, race, gender or religion;
Several companies have dropped the column that sought gender information, which asks one to choose from three options - Male, Female or Others, during induction and other hiring processes;
Most companies have a strong antidiscrimination and diversity policy focusing on gender neutrality and inclusion;
Employee assistance programs include gender counselling and mentoring;
PROSH policy is inclusive of LGBTQ+ employees and equipped to deal with sexual harassment faced by such persons at the workplace;
Office infrastructure has been modified to ensure a gender-neutral workspace and provide accessible facilities for Persons with Disabilities (PwDs); and
Empowering its talent acquisition team to hire, manage and retain diverse people.

CONCLUSION

Even though Indian Laws offer a landscape for creating a diverse and inclusive environment, the implementation of these laws in a compliant manner still continues to be an issue. India still lacks a robust law that specifically deals with issues of the LGBTQ+ community. Now, the onus is on corporate entities to pave a path for an inclusive society by adopting and implementing policies that promote diversity, in which in-house legal counsels will have a challenging and contributive role.

Diversity & Inclusion - A Corporate Legal Perspective

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ABOUT AUTHORS

ROMISA BHAT