Equal Pay for Equal Work

Introduction

From the very beginning, India has been a patriarchal society. A woman was subjected to the horrors of a male-dominated culture at every step of her existence, even before she was born. For generations, women, in the sake of religion and socio-cultural norms, have been denied opportunities for growth and advancement Women faced restriction of freedom even at home, repression and artificial indoctrination, an uneven and inferior status, rigorous caste system, and even untouchability on the social-political plain.[1] Women were characterised as meek and obedient individuals incapable of having a distinct identity, autonomous existence, or autonomy. In the Indian society, a woman has been subjected to humiliation, abuse, and exploitation. In society, there have been numerous cases of rape, murder, dowry, burning, wife abuse, and prejudice. Men predominate in Indian society, and as a result, women are victims of male dominance in their different spheres of life; particularly in economic life, where men have control over resource allocation, the use of her earnings, and her body.[2] Women are expected to stay in the house and provide for the families’ needs. Most of them are not given the permission to work, and out of those who are allowed get paid less than what they deserve. Just because they are women, they are conceived of as being naïve and unprofessional who would not know how to work better than men and hence are paid less, even if they are the best.

Problem of Unequal Pay

“Article 39(a) of the Indian constitution states that every citizen has the right to an adequate means to earn a living and 39(d) states that there should be equal pay for equal work for both men and women.” But still, compensation gap between men and women is a rising concern these days. This is because of rise in the incidents of discriminatory pay scales for the same work. India currently lacks a comprehensive and transparent compensation policy, which leads to the topic of possible equal pay demands as a source of concern.[3] During the First World War, when women were replacing men in many occupations or were being employed in new occupations to meet the urgent demands for labour, particularly in war industries, the problem of equal pay was considered primarily as one of the protection of men’s wages against undercutting by women employed at lower rates. The developments during the Second World War brought into limelight the threat to men’s wages by the payment of low rates to women to such an extent as to foster and in need cement the distinction between men’s job and women’s job with the lower rates attached to the latter, they were freezing the employment market and restricting the free choice of individual worker.[4] Studies made during World War II showed widespread inequality between the wages paid men and women war workers. A representative of the United States Women’s Bureau found women instructors in a large war plant receiving sixty cents an hour, though the men they were instructing were paid seventy cents an hour. In nearly all the small arms and artillery ammunition plants visited by the Women’s Bureau, entrance wage rates for men were found to be at least ten cents higher per hour than those for women, even though many of the jobs were the same for both sexes.[5]

Causes of Pay Gap

There are various reasons which account for the pay gap between both sexes.

1. Women workers have tended to look upon their jobs as a temporary stopgap until marriage. Because women work fewer hours to accommodate caregiving and other unpaid duties, they are more likely to work part time, resulting in lower hourly wages and less benefits than full-time employees.  Since they expected to work for only a few years, they were willing to accept lower wages.
2. In many cases women have found it difficult to secure jobs in industry, and in order to get work at all they have been willing to take low pay. With more number of men, the ball is in the court of the employers and then they offer them less wages blackmailing that they will give the job to some other man.
3. The great majority of women workers, until recent years, have not been organized in unions, and thus they have been at a disadvantage in bargaining for higher wages. Women workers as a group have been less aggressive, less inclined to protest against low wages. The turnover among women workers has been high. Many of them are not in industry long enough to develop a strong, organized pressure for higher wages.
4. Finally, the weight of tradition has been strong. Young girls seldom get the chance to get education. Parents usually prefer to send their sons to school and want their daughters to learn and perform the household chores, and hence do not send their girls to school (only 13% of the females in India have attended school). Therefore, women do not have the skills and education to work professionally and hence are forced to take up low paying jobs. Women have generally received lower wages than men, and it has been hard to break the long-established custom.[6]

Pay discrepancies are also caused and maintained by the long-term effects of limiting, traditional gender norms. Gender stereotypes force women away from traditionally male-dominated occupations and toward care-focused jobs, which is generally viewed as “unskilled” or “soft-skilled,” and thus lower paid.[7]

In the case Mackinnon Mackenzie & Co. Ltd vs Audrey D’Costa & Anr[8], Audrey, a confidential lady stenographer, filed a complaint stating that she was being paid less than what was being paid to her male colleagues. All of them were performing the same work but still she was being paid less. The judgement was in favour of Audrey, and she was paid the amount owed to her. This was the first case in the Supreme Court to recognise equal pay for equal work.

Unequal pay in India is not only between the genders. There have been many cases where because of a person’s education level or nepotism, or on the basis of time or days of work there has been unequal pay between the workers for equal work done.

In the case Randhir Singh v. Union of India[9], the petition was brought by a driver constable working for the Delhi Police Force under the management of the Delhi Administrations. The scale of pay for the drivers in the Delhi Police Force were fixed at a lower scale than similarly placed drivers in case such as the drivers for the Railway Protection Force, Secretariat and Non-Secretariat Offices, the Fire Brigade and the Department of Light Houses. Randhir stated that employee is entitled to a similar pay scale as similarly placed individuals in other departments of the government. The court taking into consideration Articles 14 and 16 ordered the Delhi Administration to fix the pay scale at a level that is at least at par with the drivers of the Railway Protection Force and plan a structured and equal pay structure for all the drivers.

In Markendeya vs. State of Andhra Pradesh[10], difference in pay scale, between graduate supervisors holding degree in Engineering and non-graduate supervisors being diploma and licence holders was upheld. It was held that on the basis of difference in educational qualifications such difference in pay scales was justified and would not offend Article 14 and 16. The Court pointed out that where two classes of employees perform identical or similar duties and carry out the same functions with the same measure of responsibility having the same academic qualifications, they would be entitled to equal pay.

The case of State of Punjab and Ors v. Jagjit Singh[11] was related to all kinds of daily wage workers, contractual employees or casual workers who were doing same work as of permanent workers they were in comparison paid very less wages, so court took the decision to make them equal. The court said that “Whether temporarily engaged employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), are entitled to minimum of the regular pay-scale, along with dearness allowance (as revised from time to time) on account of their performing the same duties, which are discharged by those engaged on regular basis, against sanctioned posts”.

Remedies Avaliable against Unfair Compensation

In India there are a number of acts and laws safeguarding the rights of every man and woman and their profession. Some of these articles include:

1. Article 14 states that everyone is equal before law. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
2. Article 39(a) states that the citizens, men and women equally, have the right to an adequate means to livelihood. Section (d) states that there is equal pay for equal work for both men and women.
3. Equal Remuneration Act of 1976 provides for equal pay to all men and women for the work done
4. Minimum Wages Act, 1948 Providing for statutory fixation of minimum wages. Since workers are poorly paid & have less bargaining power in India. So, it is important to protect them from exploitation.
5. The preamble of the Constitution of International Labour Organization proclaims the principle of equal remuneration for equal work. Article 4(3) of the European Social Charter which provides the right to fair remuneration and includes the recognition of right to men and women workers to equal pay. This has been considered as a good practise by various organizations including the United Nations.[12]

Steps to Ensure Equal Pay

1. Audit of compensation regularly: Employers should conduct a compensation audit that examines racial, ethnic, and gender pay disparities. An internal audit of this type allows a company to look into pay disparities across the organisation in a confidential manner and take specific steps to address the gaps that are discovered.[13]
2. Transparency in pay structures: A structured and definite salary system must be formed in an organization. This would ensure transparency and avoid the situation on compensation discrimination. For example, Buffer created a formula for calculating salary that they share internally and externally to model what salary transparency looks like at Buffer. This kind of transparency may help in diminishing pay gaps.[14] When the employment is of the same type or nature, it is the employer’s responsibility to provide equal remuneration to men and women. No employer shall give payments and benefits to any employee employed by him in an organisation or a job, whether payable in or at rates less favourable than those paid to a worker of the opposite sex in that company or a job of the same sort.[15]
3. Formation of department: Every organisation should form an advisory and check committee. This organisation will make certain that no gender is discriminated against in any way. This committee will also guarantee that the state and municipal governments’ minimum wage limits are adhered to in the organisation.[16]
4. Conduct workshops: There should be a seminar annually which should aim to make the employees aware of their rights for getting equal wages and other details while working anywhere. They should also be told about their remedies in case of any misconduct or illegal activity. The HR of the company should play an important role in avoiding any pay discrimination.

Conclusion

Despite multiple legislative, executive, and judicial initiatives, India’s problem of unequal pay for equal work persists. To address this issue, the legislature has created different legislation, and numerous court rulings across India have led to the acknowledgment of equal pay as a fundamental right for equal work. All of this has resulted in a significant improvement in the situation. Employees are now opening up and speaking out for their rights, and there are evidence and claims of a decrease in gender discrimination in the workplace. This is putting immense pressure on the government to strengthen workplace laws and order. With women becoming educated and independent, the situation is slowly healing and soon it is expected to be eradicated.

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References:

[1] Prerna Dhoop, What the women’s movement today can learn from 19TH-CENTURY social reforms Business Standard (2018), https://www.business-standard.com/article/current-affairs/what-the-women-s-movement-today-can-learn-from-19th-century-social-reforms-118103000357_1.html (last visited Aug 24, 2021).

[2] Basanta Nirola , Patriarchal society of INDIA holding back it’s women Youth Ki Awaaz (2018), https://www.youthkiawaaz.com/2017/12/role-of-patriarchy-and-status-of-women-in-indian-society/ (last visited Aug 24, 2021).

[3] Palak Lotiya, Equal pay for equal work WageIndicator subsite collection, https://paycheck.in/career-tips/workandpay/equal-pay-for-equal-work (last visited Aug 24, 2021).

[4] Brigid Stafford, Equal Pay for Women?, 79 The Irish Monthly 308–314 (1951).

[5] United States. Women’s Bureau. Your Questions as to Women in War Industries: Women’s Bureau Bulletin, No. 194 , Washington: Govt. Print. Off., 1942, https://fraser.stlouisfed.org/title/5467, accessed on August 24, 2021.

[6] Marguerite J. Fisher, Equal pay for equal work legislation, 2 ILR Review 50–57 (1948).

[7] Everything you need to know about pushing for equal pay, UN Women (2020), https://www.unwomen.org/en/news/stories/2020/9/explainer-everything-you-need-to-know-about-equal-pay (last visited Aug 25, 2021).

[8] 1987 AIR 1281, 1987 SCR (2) 659

[9] 1982 AIR 879, 1982 SCR (3) 298

[10] 1989 AIR 1308, 1989 SCR (2) 422

[11] CIVIL APPEAL NO. 213 OF 2013

[12] Hari Bharadwaj, Equal pay for equal work Legal Service India – Law, Lawyers and Legal Resources, https://www.legalserviceindia.com/legal/article-2767-equal-pay-for-equal-work.html (last visited Aug 25, 2021).

[13] Jocelyn Frye, 10 actions employers can take to secure equal pay for black women Center for American Progress (2020), https://www.americanprogress.org/issues/women/news/2020/08/13/489323/10-actions-employers-can-take-secure-equal-pay-black-women/ (last visited Aug 25, 2021).

[14] Sophia Bernazzani, How leaders can ensure equal pay for employees The Predictive Index (2021), https://www.predictiveindex.com/blog/how-leaders-can-ensure-equal-pay-for-employees/ (last visited Aug 25, 2021).

[15] Diva Rai, Equal pay for equal work and success of pay equity legislation iPleaders (2020), https://blog.ipleaders.in/equal-pay-for-equal-work-and-success-of-pay-equity-legislation/ (last visited Aug 25, 2021).

[16] Id