Abstract
One of the harsh realities of the 21st century is the existence of a persistence gap between wages of men and women around the world. In developing countries like India, the wage disparities based on gender is far more striking. There are significant differences across the globe when it comes to the remuneration of men and women. There is a common practice worldwide to devalue female activities concerning the workforce, meaning that if a woman performs the same task as her male colleague, her performance is less acknowledged.[1] This global phenomenon is called the gender pay gap. It is estimated to reduce within seventy years from now, but this applies only to those developed countries that are closer to reducing this unequal pay gap.[2]
This article addresses the issue of the gender pay gap in India and studies the law on maintaining equal pay. Further, it also analyses some case studies to understand the issue in depth.
Keywords: Gender, pay gap, women
Introduction
An employee's gender does not indicate either expertise or competence. Remunerating employees on a fair basis, free from prejudices like gender should be an essential component in an institution.[3] Nonetheless, we witness women being paid less than men for work of equal value which attacks the very core of gender equality at the workplace.[4]
This imbalance is known as the 'gender pay gap'. The gender pay gap measures the disparity between male and female average salary as a percentage of the male salary.[5] Parameters like educational levels, qualifications, work experience, occupational category and hours worked comprise of the "explained" gender pay gap.[6] It is the other factors stemmed on the gender of the candidate which form the "unexplained" pay gap. Whether it is conscious or subconscious, it always leads to discrimination at workplaces.[7]
Equal Work and Work of Equal Value
To understand the gender pay gap, it is imperative first to study the difference between two concepts - "work of equal value" and "equal work". Equal pay for work of equal value envisages cases where men and women do the same or similar work, but also cases where they perform different tasks. When men and women carry out tasks divergent in content, involving separate duties, demanding different skills, and are performed under different conditions but are of equal value, equal remuneration should be received. This concept is essential in eliminating discrimination and maintaining equality as women and men often perform different jobs, under different conditions or even in various establishments.[8]
Women are still restrained to a limited number of jobs, and the ones held predominantly by women are often undervalued. In industries such as management, women tend to be confined to specific departments like public relations, administration and human resources, which are less rewarded than areas such as operations, sales and general management predominantly held by men.[9]
Laws pertaining to equal pay in India
International law
India is a permanent member of the International Labour Organisation since 1922. It has also ratified the C100 Equal Remuneration Convention, 1951.[10] The convention obligates all member states to frame their municipal laws aiming for equal to all workers, regardless of gender. To fulfil its obligation, India, with the assistance of the Report by the Committee on status of women in India, enacted the Equal Remuneration Act of 1976.
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Equal Remuneration Act, 1976
The Act aims to prevent discrimination based on gender in issues regarding employment and employment opportunities. The scope of the Act is not limited to guaranteeing women the right to demand equal pay, but challenge any inequality concerning recruitment processes, job training, promotions, and transfers within an organization.[11] The caveat to this right, however, is that it does not extend to situations where: (i) a woman is attempting to comply with the requirements of laws giving women special treatment; and (ii) a woman is being accorded special treatment on account of the birth of a child, or the terms and conditions relating to retirement, marriage or death.[12] This Act can hold companies as well as individual employers accountable to maintain the prescribed standards.[13] In the case of Mackinnon Mackenzie & Co. Ltd. v. Audrey D' Costa & Another, the Supreme Court of India held that gender discrimination exists when men and women perform the same work or work of a similar nature but are paid differently. It further clarified the need of a flexible approach to decide kinds of work to classify as 'similar' by considering the duties performed as a part of the job, and not the responsibilities capable of being completed. [14]
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Constitutional safeguards
Article 39 of the Indian Constitution obligates all states to ideally direct policies guaranteeing equal pay for equal work for everyone, and also assure that men and women have the right to an adequate means of livelihood. [15]
The constitution also guarantees equality and condemns non-discrimination[16]– which is inclusive but not limited to gender. Articles 14, 15, and 16 guarantee equality before the law, protection against discrimination and equality of opportunity in matters of public employment. The same has been held in Union of India v. Dineshan K.K [17] In the famous case of Air India vs. Nargesh Mirza, employment conditions of air-hostesses of Air India were challenged. The airlines held retirement of females mandatory: (i) upon attaining the age of 33; (ii) if they were married within four years of service; or (iii) upon their first pregnancy. The court struck down these provisions and held them to be arbitrary and discriminatory as it violated Articles 14, 15 and 16 of the Constitution.[18]
Additional legislation
Statutes such as the Maternity Benefit Act, 1961 and the Factories Act, 1948 contribute to additional benefits available to women in the area of employment. The Maternity Benefit Act is applicable to establishments with more than ten employees.[19] Under the Maternity Benefit Act, a pregnant woman worker is entitled to 26 weeks of fully paid maternity leave, and six weeks in case of miscarriage or termination of pregnancy.[20] Pregnant women also have the right not to perform physically arduous work, which may affect their pregnancy, and no deductions can be made from their wages because of this.[21] Additionally, as per the Factories Act, employers are required to provide childcare for children under six years old at all worksites that employ over 30 women. [22]
Conclusion
Mere increases in work participation of women remain inadequate in altering the gender inequalities unless these are supported by the nature of work they undertake being decent, lucrative, equally remunerative and secure. The consideration of women's participation in paid spheres of the labour market differs from that of males due to the stereotypical traditional notion that women's roles are limited to the private, domestic areas. Since this patriarchal role stereotyping precedes any deliberation on women's contribution to the economy, the space for unbiased consideration and gender-based comparison becomes non-existent. A similar constriction to assess and compare women's ef?ciency or productivity with that of their male counterparts within employed spheres limits an unbiased assessment of wage inequalities in India. This is further delimited by the lack of adequate information to make such wage and income comparisons across equals feasible.
Disclaimer: Kindly note that the views and opinions expressed are of the author, and not Law Colloquy.
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