Appreciate your reply, sir.
The central question, however, still remains - is it legally allowed or not? The Constitution argument doesn't hold. The question is, if I am a woman and told that I can't apply for a job because of my gender or am not recruited for being a woman - can I sue the company?
My view is that (please correct me if I am wrong) despite the preamble only saying, "Equal remuneration" and despite no notification as you say, Article 5 of the ERA clearly makes it illegal to discriminate against women in recruitment, and the offending company can be sued. Please clarify if this is the correct interpretation - your insights would be very valuable because of your having been the Labour Commissioner.
From India, Delhi
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250The central question, however, still remains - is it legally allowed or not? The Constitution argument doesn't hold. The question is, if I am a woman and told that I can't apply for a job because of my gender or am not recruited for being a woman - can I sue the company?
My view is that (please correct me if I am wrong) despite the preamble only saying, "Equal remuneration" and despite no notification as you say, Article 5 of the ERA clearly makes it illegal to discriminate against women in recruitment, and the offending company can be sued. Please clarify if this is the correct interpretation - your insights would be very valuable because of your having been the Labour Commissioner.
From India, Delhi
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My dear Bodhisutra,
I really appreciate your argument. Essentially, Labour Jurisprudence is an offshoot of Civil Jurisprudence. So, to determine the degree of compliance or contravention of a particular aspect or provision of any Labour Law would be dependent on the explicit subject matter that is made enforceable by the follow-up provisions. Even though incidental to the main object of securing equal pay for equal work irrespective of sex, the determination of the extent of employment in any establishment, i.e., the ratio of women employees, is not a negligible one. As such, I do agree with you that the pre-employment process of recruitment of women employees is well within the scope of the E.R Act, 1976. However, my point is that you cannot resort to the legal remedies provided in the Statute in the absence of the determination of the ratio of recruitment. You can easily find that some of the amended provisions in the I.D Act, 1947 have not been given effect so far. The reasons are obvious. That's why, keeping the legal aspect aside, I gave an answer that revolves around the fulcrum of social norms.
From India, Salem
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I really appreciate your argument. Essentially, Labour Jurisprudence is an offshoot of Civil Jurisprudence. So, to determine the degree of compliance or contravention of a particular aspect or provision of any Labour Law would be dependent on the explicit subject matter that is made enforceable by the follow-up provisions. Even though incidental to the main object of securing equal pay for equal work irrespective of sex, the determination of the extent of employment in any establishment, i.e., the ratio of women employees, is not a negligible one. As such, I do agree with you that the pre-employment process of recruitment of women employees is well within the scope of the E.R Act, 1976. However, my point is that you cannot resort to the legal remedies provided in the Statute in the absence of the determination of the ratio of recruitment. You can easily find that some of the amended provisions in the I.D Act, 1947 have not been given effect so far. The reasons are obvious. That's why, keeping the legal aspect aside, I gave an answer that revolves around the fulcrum of social norms.
From India, Salem
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Government is making laws to protect innocent female employees who often fall prey to evils in society. However, on the other side, not all female employees are innocent; some may try to misuse the law for their personal benefit. The laws that are made are easy to bend.
I heard a story from my friend once, a 24-26-year-old boy was traveling on a city bus. He was standing, and a lady was standing right behind him. Suddenly, the lady started accusing the boy of touching her with sexual interest. The boy was truly scared due to the scene created by the woman. The woman dragged him outside the bus and threatened to take him to the police. Once the bus left, she demanded money and his valuables. The woman took all the cash the boy had, his gold chain, his wristwatch, and fled. The boy was terrified and did not have the courage to go to the police due to the current laws in force.
I am not in favor of social discrimination, but employers should check the character of a woman before hiring her, especially during the personal interview and background check.
From India, Mumbai
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I heard a story from my friend once, a 24-26-year-old boy was traveling on a city bus. He was standing, and a lady was standing right behind him. Suddenly, the lady started accusing the boy of touching her with sexual interest. The boy was truly scared due to the scene created by the woman. The woman dragged him outside the bus and threatened to take him to the police. Once the bus left, she demanded money and his valuables. The woman took all the cash the boy had, his gold chain, his wristwatch, and fled. The boy was terrified and did not have the courage to go to the police due to the current laws in force.
I am not in favor of social discrimination, but employers should check the character of a woman before hiring her, especially during the personal interview and background check.
From India, Mumbai
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Employee reference policy.doc