In the "P.O. vs. The Board of Trustees, A.F., et al." case, the applicant accompanied one of respondents, a co-worker “J.”, on a work-related trip. Throughout the business trip, J. made sexual innuendos towards the applicant and when his advances failed, he physically beat her. He booked a single hotel room, while the applicant believed she would have her own room. As a result, the applicant was forced to sleep on the floor and returned to Kenya two days later, while J. continued to the conference. Upon the applicant’s return, she received multiple threatening emails from J. and her employment was terminated for alleged “misconduct” for not travelling to the conference. Her salary was unpaid. The key issue before the court was whether the applicant was subjected to gender-based discrimination and thus unlawfully terminated, and what, if any, entitlement is due to her. The Industrial Court determined that J.’s conduct towards the applicant clearly amounted to gender-based violence against an employee, and that his conduct “had the effect of nullifying or impairing the equality of opportunity or treatment in employment, based on her sex.”
Sex or Gender Discrimination in employment includes treating a person adversely because of the one’s gender, whether they are applying for a job or are a current employee. The discrimination based on one's gender is unlawful in all aspects of work, including recruitment, terms and conditions on which a job is offered, employment benefits, training, transfers, promotion and dismissal. There's a prevalent practice mostly in the corporate world termed as- "Glass Ceiling". It is referred to the invisible hurdles that restrict women from attaining higher positions at workplace, irrespective of their qualification and experience. For an instance, if a manager of a company is to be appointed, men will be smarter and faster to lead in comparison to the women and so recruiters will give preference to the male candidates only, regardless of the level of experience, qualification and education. Similarly, there are a number of reasons for those who do not want the women to succeed or lead higher than men. They just find the excuse to appoint the men over women. Although, women have made it clear by their skills and qualifications that they have the ability to perform with the same efficiency in every endeavor engaged in by men, the issue of gender discrimination still holds many back. A series of lawsuits against the giants from Google and Twitter to Nike and Goldman Sachs reveals the growing frustrations of professional women in pursuit of the Executive-level Managers of such companies.
"A woman, an efficient senior manager in a male-dominated industry, was constantly ridiculed by another manager at her workplace because of which her competence was compromised and her position at her place diminished. She was called 'mother hen' and her unit referred to as 'the nursery'." Such an incidence can be categorized under Direct Discrimination, which is treating a person less favourably because of their gender than someone of a different gender, in similar situation. Another categorization is Indirect Discrimination, which may be less obvious but is highly prevalent. Like, sometimes a rule or policy seems to treat everyone the same, but in fact, some people end up being treated less favourably. For example, applicants for a post of a security officer are needed to go through a fitness test set at a standard more suitable for men. Women are less likely to be able to pass the test and therefore, the requirement for the post would be unreasonable as the task of the job includes very little physical activity at such a level.
Although, there can be some exemptions that apply to the gender discrimination that would otherwise be discriminatory. Like the competitive sporting activities which have a requirement of strength, stamina or physique, the activity may be restricted to males or females; the single sex educational institutes; the acts done to promote equality of opportunity for people of a particular gender; if it's a work done in a person's own house to perform his personal errands or if it's a genuine occupational requirement, for example: considering only women applicants for a job of body inspections of a women. These could be some of the exceptions where it is legally possible to discriminate on the basis of the gender. Other than these genuine circumstances, it is not at all humane to discriminate a person just because of one's gender, as nobody opted for it but is a gift by the creator to each one of us.
Photo by: Peter Greenberg
Indore Institute of Law