In the past decade, legal rulings in India have extended workplace protections to lesbian, gay, bisexual, and transgender employees in the public sector, but discrimination in the private sector is still legal. Workplace harassment harms both individuals and India’s economy. Recent efforts in Parliament to outlaw discrimination in the private sector have been unsuccessful, but are a necessary first step in creating LGBT inclusive workplaces.
The lack of state support for lesbian, gay, bisexual, and transgender (LGBT) workplace issues in India is a serious human rights concern. Despite the fact that a spectrum of sexualities has been present since at least ancient and medieval India, the government has failed to respect or protect members of the LGBT community.
Although the Constitution of India prohibits discrimination on the basis of sex, that right was only recently extended to LGBT Indians. In 2014, the Supreme Court of India in National Legal Services Authority (NALSA) v. Union of India progressively interpreted the constitutional protection against “discrimination on the grounds of sex” to include discrimination based on sexual orientation and gender identity. The Court observed that such discrimination because of not conforming to stereotypical generalizations of binary genders violates the fundamental right to equality guaranteed under the Constitution. Four years later, in Navtej Singh Johar v. Union of India, the Supreme Court recognized that at the core of one’s identity lies the ability and freedom to choose a self-defined sexual orientation and gender expression, including dress, speech and mannerisms.
Nevertheless, India’s LGBT community continues to face workplace harassment and economic exclusion in their daily lives. Existing laws reek of colonial prejudice and ignore unique cultural and socioeconomic disparities. A failure to enact anti-discrimination legislation for the workplace is emblematic of a state that continues to ignore the rights of its most vulnerable minority groups.
Dismal Protection of LGBT Rights in the Private Workplace
LGBT Indians are no strangers to workplace harassment. They have experienced varying forms of harassment such as insensitive casual banter, homophobic jokes, insults regarding sexuality, degrading references to a person’s sexual orientation, and even complete isolation at the workplace. People who have changed their name and gender in official documents find it challenging to get hired by employers. They also continue to face harassment, abuse and persecution in public spaces at the hands of law enforcement agencies and stakeholders within the criminal justice system.
In addition to explicit harassment, LGBT employees may also experience implicit discrimination. Indian courts have already recognized indirect forms of discrimination at the workplace, observing that even actions taken on “seemingly neutral” grounds can have discriminatory effects because of existing structural inequalities between communities. When employers and co-workers ignore harsh workplace realities, they place the burden of sensitizing others on the shoulders of LGBT people, who must then attempt to engage in meaningful conversations with those who discriminate against them.
Although the Supreme Court’s recent decisions now protect public employees from discrimination, constitutional rights do not extend to private workers. Existing laws on workplace harassment, such as the Equal Remuneration Act, 1976 and the Sexual Harassment of Women At Workplace (Prevention, Prohibition and Redressal) Act, 2013, do not account for the rights of LGBT people By failing to do so, they place no obligation on employers in the private sector to formulate inclusive workplace policies. Even anti-discrimination laws such as the recent Transgender Persons (Protection of Rights) Act, 2019, and Rules, 2020 are too weak to provide proper protection for private employees. These laws use gendered language, require proof and certification of transgender status, and provide no remedy in case of violations.
The social stigma surrounding LGBT rights and domination by cisgender men and higher socioeconomic classes in the workplace makes them more susceptible to economic exclusion. Many in the transgender community in India rely on begging and sex work to earn their livelihood. However, criminal statutes such as beggary laws unfairly target LGBT persons who are already vulnerable to state violence. Although discrimination based on one’s sexual orientation or gender identity is a violation of the right to freedom of expression under Article 19 and the right to lead a dignified life under Article 21 of the Constitution, India is not adequately protecting LGBT workers’ rights.
Workplace Stigmatization and Economic Loss
Failing to extend adequate workplace benefits to the LGBT community has perilous consequences for India. The World Bank in 2014 found that many forms of homophobia result in enormous losses to India on account of lower labour force participation, lower economic output, and higher health and social costs concerning LGBT people. Some organizations and human resources departments have set positive examples by publishing gender-neutral job profiles, providing gender-neutral washrooms, paid leave, medical benefits, and health insurance. Other workplaces also offer regular counselling sessions, support groups and have adopted different diversity strategies.
However, these measures are provided at the sole discretion of employers. Research suggests that more inclusive workplaces outperform others. Prejudicial attitudes towards LGBT people and even indirect discrimination in the long run such as a failure to provide affordable housing can reduce workplace productivity and affect economic outcomes. More disclosure and openness in policies of hiring can also help change social narratives within the workplace.
Pushing for a Comprehensive Equality Law
Article 16(2) of the Indian Constitution stipulates that “no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.” Similar protections are also guaranteed under Article 15(2) concerning access to public places. However, these constitutional guarantees are limited to discrimination in the public sector. Present laws do not explain what these rights would mean vis-à-vis private parties, leaving Indian LGBT employees with no recourse when their rights are violated by private employers.
In 2008, a Report by the Equal Opportunity Commission under the Ministry of Minority Affairs recognized the need for protection against direct and indirect discrimination in both public and private spheres. However, it did not state that such discrimination is illegal or propose effective measures to remedy individual violations. In 2016, Member of Parliament Shashi Tharoor, who has a doctorate in international relations and affairs, introduced an Anti-Discrimination and Equality Bill (modelled on a previous bill drafted by Tarunabh Khaitan, who is currently a legal professor at Wadham College (Oxford)). The Lower House of Parliament – including some of Tharoor’s party members – rejected the bill. Notably, neither of these bills addressed intersectional or structural discrimination in the employment sector.
More recently, in 2019, the Centre for Law and Policy Research drafted a comprehensive and inclusive Equality Bill that addresses the gaps that were missed by previous efforts. This bill guarantees protection from direct or indirect forms of discrimination based on a wide range of “protected characteristics,” including sex, sexual orientation, gender identity, gender expression, disability, marital status, political beliefs, linguistic identity, or a combination of these. The bill also proposes a legal framework of setting up “Equality Courts” which are designated District Courts conferred with exclusive jurisdiction and powers to address any violations of its provisions and provide civil remedies. If effectively operationalized with judicial officers who receive prior training and sensitization, such courts can help build and expand existing equality jurisprudence and plug gaps in precedents.
Chapter III of the Equality Bill specifically addresses workplace discrimination by private employers. This includes eliminating discriminatory policies of hiring and firing, providing fair compensation and terms and conditions of work, prohibiting the classification or segregation of employees in a way that deprives them of employment opportunities, as well as the allocation of work in a manner that perpetuates stereotypes based on one or more protected characteristics. However, to avoid unfairly infringing on private employers’ interests, Section 11(5) of the bill recognizes that employment practices based on “bona fide occupational qualification reasonably necessary for the normal operation” of a workplace are not unlawful. If such exceptions are not appropriately scrutinized, employers could misuse this exception. This is particularly true in cases where an apparent genuine employment-related qualification mandated by employers could have underlying motives based on personal characteristics.
For example, an employer with a majority of women employees might state that a certain job role exempts pregnant women and young mothers from working the night shift. Such a policy may unfairly disadvantage lesbian employees as same-sex adoption is not legally recognized in India. The employer must be able to justify why such a qualification does not discriminate based on any protected characteristics and is reasonable in the given circumstances, perhaps to incentivize young mothers to return to work or by proving that there is an equal number of non-LGBT women also working the night shift. However, it is unclear what constitutes the “reasonable” standard and how the interests of the employers and employees are to be balanced. Thus, there is a need for clarity about how the burden of proof and motives as provided in Chapter II will be determined in cases of indirect or apparently inadvertent discriminatory conduct.
The COVID-19 pandemic has brought to the fore egregious forms of occupational discrimination faced by the poor, mainly migrant workers, contract employees, healthcare workers and transgender persons. The Equality Bill widens the definition of the terms “employee” and “employer” under Sections 2(m) and 2(o) to include some types of unorganized sector workers such as domestic workers. However, scholars have raised concerns about how the rights of non-standard workers, including self-employed workers, street-vendors and other gig economy workers are protected. For instance, many government welfare schemes provide self-employment opportunities to support transgender people. Thus, there is still some ambiguity surrounding the rights of such individuals under the bill. By addressing such challenges, the Equality Bill, if brought into force, can help tackle gross inequalities in the private employment sector.
The Road Ahead
By emphasizing the need to adopt an intersectional understanding of how discrimination operates, the Supreme Court has left it open for individuals to challenge discriminatory employment practices against the LGBT community in the private sector. However, as per the doctrine of separation of powers, the judiciary cannot engage in specific law-making as its role is limited to interpreting existing law. At present, court rulings lack effective implementation, leaving the rights of LGBT Indians at the workplace in desperate need of legislative backing. It is likely that the government may not arrive at a political consensus regarding the enactment of such a law. In such a situation, an anti-discrimination law may have to be formulated by lawyers, activists, research organizations, and non-governmental organizations in conjunction with one another. Future litigation can help fine-tune unforeseen consequences and include necessary modifications in keeping with changing norms.
It is also important to keep in mind the significant disparities between rural and urban responses to persons identifying themselves as queer. In rural India, LGBT people are ostracized and bullied by both family members and society at large, resulting in many such persons hiding their sexuality. Lesbian couples, particularly rural women, face double discrimination owing to conservative notions surrounding a woman’s sexuality. They, too, prefer not coming out, to avoid being subjected to “corrective rape” or even dying by suicide. In such circumstances, where poverty is already rampant, LGBT people cannot search for employment opportunities. Therefore, changing mindsets and creating greater acceptance of LGBT people is essential across the board – not just in the urban sector. Today, the movement is gaining momentum with the decriminalization of homosexuality and greater visibility and sensitivity towards LGBT issues in India. The enactment of an anti-discrimination law by Parliament will certainly be a stepping stone in the right direction. Even so, legislation alone will not improve the lives of LGBT Indians. To ensure the LGBT community’s true acceptance in workplaces across India, we must first fight a hard battle by doing away with our ingrained prejudices towards alternate sexualities and diverse gender identities.
