Equal Employment Opportunity (Eeo)

The most important thing to understand about equal employment opportunity in India is structural. There is no single Act that prohibits discrimination in private employment across grounds, in the way the United States Civil Rights Act or the United Kingdom Equality Act do.

Protection instead comes ground by ground, from separate enactments written at different times for different purposes. Some grounds are addressed thoroughly. Others have no statutory protection at all in private employment.

This matters practically because policies and training material are frequently imported from jurisdictions with a general statute, and they describe a legal position India does not have. A policy asserting that discrimination on a long list of grounds is unlawful is stating something broader than the law provides, which is a strange thing for a compliance document to do.

The constitutional guarantees of equality are also frequently invoked in this context. They bind the State and its instrumentalities. They do not directly regulate a private employer's hiring decision, which is a distinction worth keeping straight.

The bottom row is the one people find surprising and it is the accurate position. Where a ground is not covered by a specific enactment, a private employer's decision is not made unlawful by a general equality provision, because there is not one.

That is a statement about statutory exposure and not an endorsement. The absence of a prohibition does not make a practice defensible, and several of the reasons to avoid discriminatory selection have nothing to do with whether a statute forbids it.

The Rights of Persons with Disabilities Act, 2016 imposes duties that reach private establishments, and awareness of them is low.

Section 21 requires EVERY establishment to notify an equal opportunity policy detailing the measures it proposes to take under that Chapter, in the manner prescribed. This is not limited to government establishments.

Section 22 requires every establishment to maintain records of persons with disabilities in relation to employment, facilities provided and other necessary information.

Section 20 is narrower and applies to government establishments, providing that no government establishment shall discriminate against a person with disability in any matter relating to employment. So the non-discrimination duty in section 20 and the policy and records duties in sections 21 and 22 have different scopes, and conflating them is a common error.

Section 3(3) frames the general prohibition: no person with disability shall be discriminated against on the ground of disability, unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim. And section 2(y) defines reasonable accommodation as necessary and appropriate modification and adjustments without imposing a disproportionate or undue burden.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is the most procedurally specific of the relevant enactments, and it is not optional.

Section 4 requires every employer of a workplace to constitute an Internal Complaints Committee by an order in writing, with a separate committee required where offices or administrative units are located at different places.

Its definition of employee at section 2(f) is deliberately wide: a person employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or through an agent. An organisation that constitutes a committee covering only its permanent staff has misread the scope.

Timelines are prescribed. A complaint is made in writing within three months of the incident or the last in a series under section 9, the inquiry is to be completed within ninety days, and the report forwarded within ten days of completion.

Where the respondent is an employee, section 11(1) requires the inquiry to be conducted in accordance with the service rules applicable, which links this regime back to standing orders and the disciplinary procedure rather than standing entirely apart from them.

• Notify an equal opportunity policy under section 21 of the disability legislation if you have not, and maintain the section 22 records. This is a live obligation on every establishment.
• Constitute the Internal Complaints Committee properly, covering the wide definition of employee, and run inquiries to the statutory timelines.
• Ensure pay for the same or similar work does not differ by gender, using the section 2(v) test of skill, effort, experience and responsibility rather than job titles.
• Do not import a policy asserting a general prohibition India does not have. Describe what you commit to as employer policy, and what the law requires separately.
• Measure outcomes by group anyway, since the absence of a statutory prohibition does not make an uneven pattern in hiring, progression or exits any less of a problem to explain.

The last point is the practical one for most organisations. Statutory exposure is only part of the risk, and an unexplained pattern in who gets hired, promoted or dismissed is damaging regardless of which enactment does or does not cover the ground.