Comparison between Indian and US laws regarding the discrimination — Law Insider
In India’s constitution is explicit in its mandate-”the state shall not discriminate against any person solely on the grounds of faith, ethnicity, caste, sex, place of birth or any of them”. However, it is important to note that this clause is limited to the state and its institutions, and does not include private companies. India lacks robust and codified anti discrimination laws governing employers and compensating discrimination victims. It is therefore appropriate to take reference from other state use dealing with aspects of discrimination.Discrimination against or individual profiling can occur at two levels that is pre-recruitment and post recruitment.
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The former includes rejecting prospective applicants on the basis of their gender, ethnicity, caste, marital status, pregnancy, etc., either arising from certain assumptions about their work ethics or product, or recruiters’ personal considerations, etc.Post recruitment discrimination is manifested on the basis of the same grounds in lesser pay, fewer benefits and/or leave or even termination.However, there are certain laws that specifically address an issue that might hinder the validity of job opportunities or other employment issues.
Discrimination based on Gender
The 1976 equal remuneration act (“ERA”) attempts to prohibit discrimination based on gender at work. ERA mandates that men and women be paid equal wages for the same work, and also that no other discrimination be made when hiring for the same job unless it is forbidden under applicable law to hire women in that category of work.While workers are unable to seek compensation under the period, they can demand the number of wages denied to them.
In addition, strict discipline threatens employees for breaching any of this rules-they will be disciplined with fine and/ or incarceration, with aggravated repeated punishment.In 1961 maternity benefit act (“MB Act”) aims to provide paid maternity leave and related aspects for women employees. The MB Act prohibits termination of pregnant women employee employment and mandates maternity benefit for such women. Furthermore, there will be no deduction from her salary if she is unable to perform a certain exhausting task during her job.Pursuant to Section 21 of the MB Act, the employee shall be liable to be disciplined with imprisonment or fine for contravention of the above provisions. The MB Act was recently amendment in 2017 to allow for extending maternity benefit for employees of pregnant women and also to allow maternity benefits for employees of adoptive and commission female.The 2016 law on the rights of a person with disabilities(“RPD Act”) is a very comprehensive statute that unambiguously insurance that there should be no discrimination against a person with a disability in government jobs.
The RPD Act includes private companies in the definition of government in section 2 (i), and there is a fair claim that the concept of nondiscrimination for promotion express in section 20 (3) could also be extended to private entities. Each establishment is therefore required to formulate equal opportunity policy and each establishment of government must also appoint a grievance redress officer. The employer will be fined for Contravening this RPD Act’s mandate.
The most egregious form of discrimination against women is sexual harassment. In consideration of this, the 2013 law on the sexual abuse of women at the workplace (prevention, prohibition, and redressal) (“PoSH Act”) empowers the committee on the internal grievance to prescribe a compensatory amount to be deducted from the perpetrator’s compensation and give to the survivor. Pursuant to Section 2(o)(ii), the PoSH act is fully applicable to private sector organisations and is currently the only legislation in India that entitles a victim of workplace discrimination to compensation, even if such discrimination does not occur to the employer himself. Indian criminal offense punishable under the PoSH act may also be prosecuted under section 354 of the Indian penal code.Section (ra) and section 25T of the industrial dispute act 1947 reading schedule v allows dismissal of employees by victimizing over another, regardless of merit, a “ unfair labor practice” punishable by fine and employer incarceration. According to Section 13 of the Maharashtra shop and establishment (employment and service condition regulation) Act, 2017, women in the workplace must not be discriminated against in the matter of recruitment, training, transfer, or promotion or salaries, with the employer being fined for contravention.The constitution of the United States does not tackle workplace discrimination explicitly, but its ban on discrimination by the federal government is kept to protect employees of the federal government. V and 14thamendments to the constitution of the United States restrict the federal and the state government power to discriminate.
The fifth amendment has a specific provision that without due process of law, the federal government should not be deprived persons of life, liberty, or wealth. It also contains an implicit guarantee that the 14thamendment expressly prohibits States from infringing the rights of due process and equal protection of an individual.Employee discrimination or harassment in the private sector is not unconstitutional because the federal constitution and most state constitution do not expressly give their respective government the power to enact private-sector civil rights laws.For instance, some state civil rights laws of job discrimination protections on the basis of sexual orientation, gender identity for political affiliation, even through to search forms of discrimination are not yet covered by federal civil rights law.
In the United States, the regulation of LGBT employment discrimination varies according to jurisdiction. Many states and localities forbid bias in hiring, assigning jobs, terminating and compensating as well as harassment based on one’s sexual orientation.Those rights are less expanded to cover sexual identity. Some cover government workers but do not extend their rights to the private sector. National protections are limited.State start you also provide extensive protection against discrimination in respect of employment. Many laws provide similar protection to employees not protected by such regulations as offered by the federal act.Other statutes protect groups that are not covered by federal acts. Some state loss offers employees of the state or state contractors greater protection
Originally published at https://lawinsider.in on July 6, 2020.