By C.S. Raghu Raman, Asst. Professor, Law Faculty at AP & Telangana Judicial Academy, Hyderabad
Employment Law – Discrimination Against Females: UK Experience and its Applicability in India
By C.S. Raghu Raman, Assistant Professor, Law Faculty at AP & Telangana Judicial Academy, Hyderabad
An employer may employ or may not employ anyone for whatever reason he wishes, including reasons based on the sex or race of that person, as the old common law principle of ‘freedom of contract’ applies equally to ‘contracts of employment.’ An equally important principle of employment law is that ‘jobs must be available to both males and females without any discrimination on the basis of sex alone,’ though in exceptional cases some jobs may be given only to males or females exclusively based on ‘genuine occupational qualifications’ for the job.
The above principle of ‘no discrimination’ is normally recognised as of universal acceptance, with India being no exception. When examining modern judicial trends in foreign jurisdictions, the no-discrimination principle applies at all stages—i.e., in giving advertisements, supplying application forms, and in conducting interviews—and is not confined to any particular stage. However, as a special dispensation for females, some reservation in jobs can be maintained in favour of the fair sex. In fact, Article 16 of the Indian Constitution also declares that discrimination on sex alone in providing employment in public services to both females and males is strictly prohibited.
Though so far there are no reservations of jobs in private employment, we must appreciate and applaud that discrimination on the basis of sex is not rampant in this sector, as more and more females are given employment depending on their merit and suitability of their skills for the job. The following very interesting decisions from the United Kingdom given under The Sex Discrimination Act, 1975 (called “The SD Act”) may be referred to for future guidance in India, though similar case law may not yet be found in India.
Part I: Arrangements for the Purpose of Determining Who Shall Be Employed
It is relevant to note that under Section 6(1)(a) of The SD Act, with regard to the arrangements made for determining who should be offered employment, it is not necessary to show that there was a discriminatory intention. It is sufficient merely to establish that the arrangements made operated in a discriminatory way.
- Ms. Brennan v. J H Dewhurst Ltd: Brennan, a woman, applied for a job as a butcher’s assistant. The district manager of the respondent had organised the recruitment for the post in question, but he had delegated initial interviews to the shop manager where the new assistant would be working. The shop manager indicated to Brennan that he had no intention of employing a woman. She was later informed that the job had been filled (although in fact the district manager had decided not to fill the position at that time and did not do so until later). It was held that there was unlawful discrimination under Section 6(1)(a) and the arrangements made included giving the shop manager the discretion to filter out whom he thought were unsuitable applicants. If he did so by excluding all women who applied, the arrangements operated to discriminate unlawfully against Brennan.
Conversely, the existence of a discriminatory intention will not of itself make the arrangements at interview discriminatory and unlawful under Section 6(1)(a).
- Ms. Impey v. Hertfordshire County Council: Impey applied for a school caretaker’s job. The headmistress indicated to the head of the education department that she preferred to appoint a man. This discriminatory statement did not, however, form part of the arrangements made for selection for the job, and there had been no discrimination in practice, as a better-qualified candidate had been fairly selected without sex bias. Although there might have been an intention to discriminate, the arrangements made were not themselves discriminatory.
Interview Questions and Discriminatory Arrangements
There are some useful cases on the types of questions put to applicants at interviews and whether they are unlawful because they amount to discriminatory arrangements for recruitment under Section 6(1)(a) of The SD Act.
- Ms. Saunders v. Richmond Upon Thames Borough Council: Saunders, a professional golfer, applied to the Council for the position of golf professional at a golf course at Fulwell. She was one of seven applicants shortlisted for interview but did not make it to the final list. Among the questions she was asked were: “Are there any women golf professionals in clubs?”, “So you’d be blazing a trail, would you?”, “Do you think men respond as well to a woman golf professional as to a man?”, “If all this is true, you are obviously a lady of great experience, but don’t you think this type of job is rather unglamorous?”, “Don’t you think this is a job with rather long hours?”, “I can see that you could probably cope with the playing and teaching side of the job, but I am rather concerned as to whether you could cope with the management side.”, and “If some of the men were causing trouble over the starting times on the tee, do you think you would be able to control this?”
Perhaps surprisingly, the Industrial Tribunal (known as the ‘Tribunal’) held that the questions did not amount to unlawful arrangements for selection for the job, and the Employment Appeal Tribunal (known as the ‘EAT’) did not interfere with this decision. The EAT said the question of whether such questions amounted to arrangements within the meaning of Section 6(1)(a) was a question of fact in each case, involving a consideration of the circumstances and the purpose for which the questions were asked. The questions asked at the interview did not by themselves show that there had been direct discrimination; the Tribunal had found as a fact that the questions were not discriminatory and that decision could stand. However, the EAT considered that some of the questions asked at the interview reflected an out-of-date and proscribed attitude of mind, and such questions might be very relevant in some cases when deciding whether there was direct discrimination against a woman in not appointing her. In the present case, however, the circumstances—including the qualifications of the applicant when compared with other candidates—did not give rise to an inference of such discrimination. - Ms. Brice v. J Sainsbury plc: By contrast, Brice, a woman, applied for a job as a management trainee. At the interview, she was asked if she planned to get married and have a family. All single applicants, male and female, were asked whether they were planning to get married, but no single male was asked whether there were any plans to have a family. The Tribunal found that the employers had discriminated in the arrangements they had made for selection under Section 6(1)(a) of the SD Act.
- Ms. Gates v. Wirral Borough Council: The applicant, a woman, was asked at her job interview, inter alia, about “her relationship with her husband, whether she was a ‘Miss’ or ‘Mrs’, whether she was legally separated from her husband, and whether she intended to have a family in the near future or what will you do when the children are sick?” Those types of questions were not in fact put to any male candidate. The industrial tribunal found that the questions were discriminatory and the employer had unlawfully discriminated against the applicant under Section 6(1)(a) of the SDA in the arrangements made for the interview.
It is very interesting to observe that in Gates, putting these questions only to women applicants may be discriminatory, but it suggests that asking men the same question eliminates the discrimination. To some extent, however, this suggestion is not particularly helpful, as it is the answers to the questions that will affect an employer’s decision.
How can employers get the message home to interviewers and avoid liability? As per the EOC’s Guidelines, the following non-medical questions—such as “What is your husband’s employment?”, “Do you have a boyfriend?”, or “Are you planning to get engaged or married?”—and medical questions—such as “Do you suffer from period pains?”, “Are you pregnant / do you intend to become pregnant?”, “Do you suffer from menstrual disorders?”, “Are your periods regular?”, “Are you on the pill?”, or “Have you ever suffered a miscarriage?”—are potentially unlawful.
It is submitted that, in general and as far as possible, questions should be asked along neutral lines: relevant to the job, free of sex bias, and asked of both men and women. Not offering a woman a job because of her sex takes place very often when a less-qualified man is offered the job in preference to a better-qualified woman.