Implementation of DE&I: Legal position in India
(Arjun Paleri & Jaya Ramachandran)
With many companies consciously focusing on diversity, equity and inclusion (“DE&I”) practices like never before, it has become increasingly evident that DE&I at workplace not only rectifies discriminatory behaviour and helps in creating a culture of respect and integrity, but it also has a commercial impact on organisations. Companies are seriously considering different DE&I strategies that best suit their organization and that can be practically implemented. Simultaneously, over the years laws have also become increasingly progressive by imposing several responsibilities on employers.
And while organisations may put their best foot forward in preparing a DE&I strategy that match their business objectives and put in place a DE&I policy that clearly shows their commitment towards it, they should be careful to ensure that their DE&I initiative is consistent with local, state and federal laws.
Especially for organisations that have a global presence and hence take a global approach in implementing DE&I, it is imperative to understand that the DE&I needs for each market may vary and the legal nuances for these jurisdictions also have to be understood. So, while the overall DE&I strategy may be led by an organisation’s global headquarter, the organisation will have to some extent “localise” their global approach to ensure effectiveness and compliance with local laws.
Laws governing DE&I
In India, there is no comprehensive legislation that specifically deals with diversity, equity and inclusion nor is there a statutory requirement to implement a DE&I programme; however, there are certain legislations in place that acknowledge lack of equity and inclusion and therefore recognizes the need to hire and act fairly when dealing with employees.
Many of these anti-discrimination legislations in India have come into force in the last few years, highlighting the increasing need to have in place anti-discriminatory policies and processes to have a safe and inclusive work environment.
Also, it is noteworthy to mention that the new labour codes that are yet to come into effect and be implemented also recognise the need to face-lift existing practices and legislations. The Equal Remuneration Act, 1976 (“Equal Remuneration Act”) is one of the 29 central legislations that will be subsumed by labour code once they come into effect. While the Equal Remuneration Act places a duty on employers only with respect to men and women and no other genders, the labour codes take this forward and mandates employers to not discriminate between recruits and potential employees of any gender, thereby ensuring that individuals that do not strictly identify as men or women are also not discriminated against.
The Indian judiciary has also time and again acknowledged the need to change the mindset of the society. In a recent landmark judgment by the Madras High Court (S. Sushma Versus the Commissioner of Police, W.P. No. 7284 of 2021), the Madras High Court issued directions and guidelines for handling issues faced by LGBTQIA+. Additionally, the court suggested the Government of India & Tamil Nadu conduct sensitization programs for various stakeholders, including public and private workplaces.
Legislative stand on DE&I data
There is no specialised regulation in India governing the collection and processing of DE&I Data. However, there are data protection laws governing the collection, storage, processing and/ or transfer of ''Personal Information" and "Sensitive Personal Data or Information" of individuals which will apply to organisations for collecting or processing DE&I data.
Additionally, organisations also need to check whether any of the anti-discriminatory legislations or any of the legislations that require affirmative actions by the employer impose any additional obligation and responsibilities with respect to collection of DE&I data over and above the requirements mandated by data protection laws.
Things to consider:
Have in place DE&I and anti-discrimination policies to bring about positive cultural and strategic changes and also to address the local statutory requirements.
While collecting or processing DE&I data, organizations should ensure that its data protection practices are in accordance with the requirements of the applicable laws to collect or process such data.