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Laws should not perpetuate existing social discrimination, Justice Ruth Bader Ginsburg had once said. Any differential treatment among genders must not “create or perpetuate the legal, social, and economic inferiority of women,” she had argued according to a New York Times report. 

Women benefit from positive discrimination, especially at the workplace, but law makers need to ensure there are no unintended negative consequences. At a time when the pandemic has disproportionately affected women’s employment, turns out one of the worst enemies for Indian woman are, ironically, the well-meaning laws meant for their benefit. 

Let’s take the example of India’s Maternity Benefit Act of 2017. The law increased women’s mandated paid maternity leave from 12 weeks to 26 weeks. But, since paid paternity leaves are not mandatory, the law ends up reinforcing women’s role as primary caregivers and increases employer bias. “We don’t say it, but we would rather not employ women in their 30s. If we employ someone in their 20s and they stay with us long enough, we grant them paid maternity leave,” said a Mumbai-based HR manager of a multinational corporation. The person requested anonymity as they were talking about unofficial company policy. 

Clearly, social change is needed to reverse “motherhood penalty”, it is not the place only for laws. But, India might not have time for slow-brewing changes. 

It has become an urgent need to set some of these laws right because of the country’s speedily contracting economy. GDP has shrunk by around 24%. For context, GDP of the US contracted by around 9%.  

One way to pull the GDP numbers up is by increasing women’s participation in the formal economy. A 2020 United Nations Global Compact study found that raising women’s participation in the labour force to the same level as men can boost India’s GDP by 27 %.

India’s female Labour Force Participation rate – the share of women aged 15-64 who report either as being employed, or being available for work – is 24.8% in 2020. This number is down from 34% in 2006.

And things seem to be spiralling downward. 

Some states have proposed changes in labor laws, with the hope that this might stimulate greater monetary inflow into the economy. Uttar Pradesh, which houses as many people as Germany, Spain and Italy put together, has suspended 35 of its 38 labor laws for three years. Worryingly, laws like the Minimum Wages Act, Maternity Benefit Act, Equal Remuneration Act (ERA) are gone. (Some observers believe it needs a humongous social push to get them back).

Contrary to boosting the economy, the suspension of these laws might push more and more women out of the workforce, which can be detrimental to the intended purpose. 

Without the Equal Remuneration Act, the gender pay gap is bound to widen. The states have passed a law which increases the mandatory minimum number of work hours from eight to twelve. Women cannot work extend hours as they are mostly the primary caregivers at home. In any case, the suspension of public transport had reduced women’s mobility, making it tougher to reach their respective workplaces safely. 

In India, women are also not allowed to work in any factory overnight, according to the Factories Act of 1948. The law was meant to ensure women’s safety in the workplace. However, apart from some exceptions such as the garment industry, the manufacturing sector sees disproportionately fewer women. Factories prefer to employ men over women. 

Researcher Ashmita Gupta focused on the impact trade liberalisation had on employment of women by big firms. In a 2015 paper, she wrote that the policy of constraining women’s work hours had an adverse effect on women’s participation in the labour force. 

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 is a positive step towards addressing harassment at work. Yet, 84% of companies surveyed in 2018 by the Observer Research Foundation and World Economic Forum report being unaware of the policy.

More women work in the informal sector compared to the formal sector. This puts them at a disadvantage to begin with, as the laws do not apply in the informal sector. 

Even for those the small number of women who are governed by these legislations, they are obstacles at best.

Published in: Forbes
Published on: September 27 2020