Problem of Unlawful Discrimination at Work Place

Problem of Unlawful Discrimination at Work Place


This Blog is written by Jatin Pandey from Dharmashastra National Law University, JabalpurEdited by Ravikiran Shukre.



Discrimination is generally defined as an act or action by which a distinction is created between individuals which are based on different factors like caste, sex, income, community, etc. Many of us faced discrimination in our life. Though we have certain legislations which prohibit unlawful and unjustifiable discrimination. There are different types of discrimination. This article provides an overview of the current situation related to discrimination at the workplace and also covers the other related aspect of it and also highlight the importance of comprehensive anti-discrimination law that tackle or resolve all the problems related to discrimination.


The problem of discrimination in the workplace exists in the past, it is also a problem in the present time. Probably we also face the problem of discrimination in the future also due to the lack of social awareness and comprehensive anti-discrimination law between the masses and also because of the lack of comprehensive legislation on discrimination at the workplace which can cover all the issues which arise due to the discrimination. In the past during the rule of Britishers in India, Indian workers did not consider equivalent to British Workers. Indians were denied from the job due to their nationality. Two individuals who were doing the same job received a different amount of salary because of the difference in nationality. So, this proves that there was discrimination during the rule of Britishers which was not unlawful because there was no such legislation that declared it unlawful, but when we analyze it from a modern perspective it is definitely unlawful. There were several similar incidents during the rule of Mughal’s also. From it, I can claim that there was unlawful discrimination which was based on nationality and other factors at the workplace.

At present time though there are various legislations that prohibit unlawful discrimination at the workplace but due to the lack of social awareness among the masses, people are not getting the same pay for the same job. In the informal sector in the present time also women are not getting the same pay as compared with men for the same job though we have legislation that mandates it i.e., Equal Remuneration Act, 1976. Though the situation in the formal sector is comparatively better because of such legislation.


At workplace, a person generally faces two types of discrimination first one is lawful discrimination which is also called positive discrimination and another one is unlawful discrimination. The state is prohibited from discriminating on the basis of religion, race, caste, sex, or place of birth under Article 15 [1] Positive discrimination or affirmative action based on gender, social or financial background, or traditional caste-based disadvantage is not prohibited by the Constitution. Article 15 further states that the state can create specific reservations for the advancement of women and socially and educationally backward segments of citizens, including scheduled castes/tribes.

Unlawful discrimination is prohibited by the constitution as well as by various legislation. Unlawful discrimination includes Discrimination on the basis of color, race, religion, sex, or national origin is illegal in hiring, firing, promotion, referral, and other aspects of employment.


Unlawful discrimination at workplace has sometimes life changing impact on the life of employees. Sometimes companies prefer to hire males in place of female employees because of the reason that when females will get marry and have children then they need to provide maternity benefits which include no deduction in salary when the mother is taking care of her child for a period of 12 weeks. Such types of thinking have a negative impact on that capable female employee who has the caliber but because of gender, she does not get a job. Similarly, a person with a disability also faces problems in getting good jobs. As companies are required to make special arrangements for such people, they are reluctant in hiring such persons. Though law clearly prohibits all such types of discrimination in the reality, some people face these hard realities in their life and due to the lack of awareness they are not aware of their rights.

“The State shall not discriminate against any person solely on the basis of religion, race, caste, sex, place of birth, or any of them,” Article 15 of the Indian Constitution states. It is important to clarify, however, that this rule only applies to the State and its institutions, and does not apply to private enterprises. India does not have a comprehensive and defined anti-discrimination act that governs employers and compensates discrimination victims. Discrimination against employees on protected grounds creates a gap between them, which can be harmful to the workplace. In India, employment-related inequality is an unavoidable consequence of wide diversity of people living in India. Some communities have better resources than other communities which creates a knowledge gap between such communities.


The Equal Remuneration Act, 1976:

The Equal Remuneration Act of 1976 aims to eliminate workplace discrimination based on gender. This act mandates those men and woman be paid equally for the same or similar job, and that no discrimination be made in selection for the same. Unless employment of women in that category is forbidden by relevant law. [2]

The Maturity Benefit Act, 1961:

The Maternity Benefit Act of 1961 intends to provide women with paid maternity leave and other related benefits. The Maternity Benefit Act prevents employers from firing pregnant women and requires them to provide maternity benefits. [3]

The Rights of Persons with Disabilities Act, 2016:

The Rights of Persons with Disabilities Act of 2016 is a landmark piece of legislation that states unequivocally that persons with disabilities will not be discriminated against in government employment. Private companies are included in the definition of “establishment” in Section 2(I) of the RPD Act. [4]

Article 15 of The Constitution:

“Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”


1. Vishaka and Others v. State of Rajasthan [5]

In this case, The Supreme Court of India Clearly define what constitutes “sexual harassment” and imposes an obligation on the employer (or other responsible individuals) to implement measures and procedures to prevent and deter acts of sexual harassment committed not just by employees but also by third parties. Women must also be given “suitable work conditions” in the areas of employment, leisure, health, and cleanliness, according to the guidelines.

2.  Salma Khatoon v. Secretary, Govt. of India, Department of AYUSH

The division bench of the Delhi High Court in the case of Dr. Salma Khatoon v. Secretary, Govt. of India, Department of AYUSH held and directed that when the respondent failed to take into account the complainant’s objections to the committee’s constitution and functioning, the court ordered the formation of a proper sexual harassment inquiry committee. The committee was reassembled’ after the writ petition was filed, but the Court noted, with the same members. [6]


As previously stated, there is no centralized, standard regulation that provides compensation to victims of discrimination in private businesses. Certain laws, on the other hand, exist to explicitly address difficulties that may obstruct the availability of job prospects or other employment-related issues. In terms of private sector employment, India currently lacks comprehensive law that addresses workplace discrimination, with the exception of sexual harassment, persons with disabilities, and HIV, and the Transgender Act, which protects transgender people from discrimination.  Certain sorts of discrimination, such as equal pay, sexual harassment, pregnancy discrimination, and disability discrimination, are prohibited in India. Discrimination in the workplace based on ethnicity, caste, or religion is not prohibited in the private sector. Though the situation in the public sector is better than the private sector because of the clear mandate elucidates in Article 15 of the Indian Constitution

In the lack of a particular statute in India, the Supreme Court issued the Vishaka guidelines, which established some rules mandating that every employer provide a system for resolving workplace sexual harassment complaints. The POSH Act was enacted with the goal of preventing and protecting women from workplace sexual harassment, as well as ensuring appropriate resolution of sexual harassment complaints.


Regardless of the existence of these distinct central legislations that address certain aspects of equality or the lack thereof, India still requires an all-encompassing anti-discrimination law that addresses the multiple elements of inequality. Employers may consider stipulating policies in terms of guaranteeing equal employment opportunities and prohibiting harassment and discrimination in the workplace until further legal protection is available. [7]

Employees should be provided with enough guidance to enable them to use the internal grievance redressal procedures. Furthermore, it is vital to remember that several of these regulations protect employees in the public sector but not in private-sector businesses. Discrimination in the workplace makes the targeted employee, as well as other employees, feel uncomfortable and perhaps unsafe. Therefore, all such activities should stop either through comprehensive anti-discrimination law or by social awareness in the masses. Until people are not aware of their rights and duties, then all such practices may affect people in the future also.


(1) Article 15 of the Indian Constitution, available at

(2) Section 4 of the Equal Remuneration Act of 1976 available at

(3) Section 4 and 5 of the Maternity Benefit Act of 1961 available at

(4) Rights of Persons with Disabilities Act of 2016 available at

(5) JT 1997 (7) SC 384.

(6) Salma Khatoon v. Secretary, Govt. of India, Department of AYUSH (W.P. (C) 9144 of 2009) Delhi High Court

(7) Vikram Shroff, Indian laws on employee and workplace discrimination and harassment available at




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