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Summary: Chair/discussant: Gayatri Singh
Title:Limited Right to Work: A Study of Women Involved Labour Cases in Various Courts of India
Panelist:Roopa K.L., Research Scholar, Centre of Social Medicine and Community Health, JNU, New Delhi
Abstract:Women workers are generally not aware of their legal rights and even if they do approach the legal machinery, social and economic factors like class situation, fear of loss of job, act as restraints on them in voicing their rights and demands. Legislations are interpreted according to the whims of the employers and violations are rampant. Sometimes legal institutions are also seen as acting against the interests of the women workers. Many employers try to avoid paying maternity benefits by claiming that worker is a temporary employee hence not entitled to benefits. One such case is Municipal Corporation of Delhi v. Female Workers (Muster roll) and another. In this case, the question raised is whether the daily wage employees working on muster roll is entitled to maternity benefit as their services were not regularized. In Pramila Rawat v. District Judge Lucknow, the male dominated view of the court is clearly visible. The court views the maternity benefit as a privilege or concession to women worker not as her right. Likewise in Air India v. Meerza, the court upheld a regulation requiring air-hostess in Air India to retire if they got married within four years of being employed – a condition that was not imposed on their counter parts, assistant flight pursers. By this decision, the right to equality and prohibition of discrimination on the basis of sex lost its real meaning.
This paper intends to present an exploration of court cases where women approach the various courts in India for their labour rights and analyses the discriminatory nature of court verdicts.
Title:Income Tax and Women’s Labour
Panelist:Maithreyi Mulupuru, Centre for Study of Culture and Society, Bangalore
Abstract:In this paper I will seek to explore Indian Income Tax Law's attitude towards women's labour. Traditionally, there is no bar on the taxation of imputed income in India – legal fictions have always been used to impute an income from the ownership of house property or to impute income arising from a transferred asset to the transferor instead of the transferee. However, the law shies at imputing income where it considers the source-work 'undeserving' of income – as in the case of household labour. I seek to explore the construction of labour, particularly women's labour, as deserving or undeserving of income, by the law of income tax in India.
In order to do so, I will be examining the traditional law texts – statute and case law – but also proposals and discussions around them. I will use these texts to show how the income tax law constructs women's labour as unworthy of an income. I will also attempt to analyse the assumptions underlying and effects of, this construction.
Title:Recognition of Unconscious Bias as Actionable Signals Change in Enforcement of Discrimination Statutes in the USA
Panelist:Paul H. Merry, Law Offices of Paul H. Merry, Esq. 50 Congress Street Boston, Massachusetts, USA
Abstract:Most state and federal statutes in the USA aimed at prohibiting discrimination in employment require proof that the alleged discrimination was intentional. Yet some of the most insidious forms of discrimination are unconscious: employers act against employees or potential employees on the basis of unstated, unconscious assumptions about them based on their age, gender, race, disability, religion or other protected characteristics.
However, both state and federal courts in the U.S. have become increasingly receptive to arguments that adverse actions based on unconscious bias are equally actionable as overtly biased actions. In particular, recent decisions have condemned adverse employment actions based on stereotypic thinking about employees or potential employees that precludes individualized consideration of an employee’s capacities. Decisions have held that actions based on stereotypes of mothers of young children as being too absorbed with their families to deserve promotion violate the law. Stereotypic thinking has also been condemned in the race context; and the likelihood exists that unconscious bias will be recognized as actionable in broader areas as well.
The willingness of courts to find unconscious bias actionable represents an advancement for the rights of minorities and other protected classes in the form of a broadening of the concept of the intent that must be shown to succeed in proving that employment discrimination occurred.
Title:Fundamental Issues in Antidiscrimination Law and the Equal Opportunities Commission Bill
Panelist:Tarunabh Khaitan, Fellow in Law, Christ Church, University of Oxford
Abstract:Substantive aspects of antidiscrimination laws concern themselves with four fundamental questions: (i) who ought not to discriminate, (ii) who ought to be protected from discrimination, (iii) in which contexts ought discrimination to be prohibited and (iv) what ought to be the scope of the protection of these laws. As India discusses a comprehensive antidiscrimination law in the form of the draft Equal Opportunity Commission Bill proposed by the Menon Committee, it is important to assess the provisions of this Bill. In this paper, I will focus on the substantive aspects of the Bill, although the regulatory mechanism proposed therein also demands close scrutiny.
The Menon Bill borrows comparative terminology (such as 'direct' and 'indirect' discrimination) that has been developed in jurisdictions which have enforced antidiscrimination laws for decades. In this paper, I will show that the Bill fundamentally misunderstands the manner in which these concepts are applied in those jurisdictions. I will further argue that any coherent response to the fundamental questions in antidiscrimination law is possible only in light of the normative values that we believe should underpin them. I will then propose a positive-autonomy-based normative framework within which a sound antidiscrimination law regime can be contemplated.