Diversity and inclusion in employer policies essentially entail fostering non-discriminatory workplaces through various programmes, strategies, and practices. Diversity encompasses a broad range of distinctions among individuals in any environment, such as differences in race, ethnicity, nationality, gender, sexual identity, disability, and more. On the other hand, inclusion focuses on creating an environment where those who are considered ‘diverse’ genuinely feel secure, accepted, and embraced. Any workplace that does not embrace inclusion in its true spirit may be discriminatory from a legal standpoint.

Laws that prohibit discrimination at work

Discrimination as cited by the Supreme Court of India may be direct or indirect. As per the court, discrimination can take many forms, not just through unfair actions but also through doing nothing. Therefore, It's important to investigate how the systems and cultures within organizations affect everyday interactions and decision-making in this regard.

India has not framed a full-fledged comprehensive legislation dealing with discrimination and inclusion in all workplaces. Nevertheless, Article 14, 15(1) and 16 of the Indian Constitution ensures equality before the law. Prohibition of discrimination by the State on the grounds only of religion, race, caste, sex, place of birth or any of them and equal opportunity in public employment, and Article 19 assures the citizens the right to profess the profession, trade, occupation or business of their choice. 

It is also worth mentioning certain statutory mandates to ensure  equal opportunity and non-discrimination at workplaces, such as:

Equal Opportunity Policy: Some establishments are required to notify their equal opportunity policy. This policy must outline the steps taken to accommodate individuals with disabilities and ensure that their infrastructure is accessible to disabled individuals, as per the Rights of Persons with Disabilities Act 2016.

Non-Discrimination for Transgender Persons: The Transgender Persons (Protection of Rights) Act 2019 contains provisions to prevent discrimination against transgender individuals.

Gender Diversity in Company Boards: The Companies Act 2013 mandates certain companies to ensure gender diversity in the composition of their board of directors.

Equal Remuneration: Under the Equal Remuneration Act, 1976, employers must provide equal pay for men and women who perform the same work, without any discrimination during the recruitment process.

Non-Discrimination Against Women: The Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017, ensures that women are not discriminated against in matters such as recruitment, training, transfers, promotions, and wages.

Occupational Safety and Health: The proposed Code on Occupational Safety, Health, and Working Conditions in 2020 includes provisions for separate accommodations like bathing areas, restrooms, and locker rooms for transgender individuals.

These legal measures are in place to create a fair and inclusive work environment where equal opportunities are provided to all individuals, regardless of their gender or disability status. Additionally, Indian courts have often highlighted the requirement for anti-discriminatory actions of employers. Some notable judgements include:

• The rights of HIV patients to equal treatment in employment under the HIV/AIDS Act 2017.
• Courts have recognized the concept of "reasonable accommodation" at the workplace, aligning with the CRPD.
• India's commitment to CRPD signifies an open, inclusive, and accessible work environment for persons with disabilities.
• The courts have declared restrictions on women working night shifts as unconstitutional.
• Discrimination based on sexual orientation is seen as a grave affront to an individual's dignity.
• Maternity leave is a fundamental human right, and its denial is viewed as an assault on the dignity of women employees.

Ensuring authentic diversity and inclusion 

It is largely seen that most company policies focus on diversity and inclusion through the lens of gender. However, the policies must also strive to ensure myriad forms of diversity such as sexual orientation, ethnic background, physically challenged disabilities, racial background, demographics, cultural background, religion, geographical etc., as denial of an opportunity to a person without a valid ground may not be justifiable. 

Although hiring and HR personnel are vital in the employee engagement process, they might unknowingly harbour unconscious biases and stereotypes. Therefore, implementing sensitization training and workshops is essential to raise awareness and foster consideration for the challenges and aspirations of potential job seekers, ensuring they have a fair opportunity within the organization.

Furthermore, it's crucial to emphasize that diversity and inclusion should be ingrained as long-term commitments within workplaces, going beyond mere legal compliance. This approach is necessary to effectively uphold the fundamental rights and freedoms of all citizens.

Conclusion

While emphasising the requirement for a non-discriminatory work environment, the Supreme Court observed that the duty of constitutional courts in such a scenario would not just be to strike down the discriminatory practices and compensate for the harm hitherto arising out of them; but also structure adequate reliefs and remedies that facilitate social redistribution by providing for positive entitlements that aim to negate the scope of future harm.

In light of the aforementioned, it is essential for employers to ensure non-discriminatory and inclusive workplaces by mandating certain affirmative actions and proactive employee-friendly policies.