INTRODUCTION:
Workplace gender parity can occur in many different forms, but usually it means that an employee or a job applicant is treated contrarily or less favorably because of their gender. Sometimes workers experience discrimination because of their gender along with something else, like their race or ethnicity or color ¹. For example, a woman of color may experience a lot more discernment at her workplace than her male co-worker of colour. She may be harassed, paid less, assessed more bleakly, or be denied promotion because of the combination of her sex and her race. Pay parity at work is a major contributor towards gender inequality at work. In 2020, it was concluded that women make only $0.81 for every dollar a man makes². The fight for gender neutrality at work has been going on since decades and once such example is the famous case of 1981 which was fought between Air India and their female employee Nergesh Meerza.
CASE FACTS AND CHALLENGES :
The case Air India v. Nergesh Meerza, 1981 was filed to because of the inequality imposed by Regulations 46 and 47 of the Air India Employees Service Regulations. The regulations promoted a significant degree of inequality between a male cabin crew (flight pursers) and a female cabin crew (Air hostesses) on multiple grounds such as promotional boulevards, differential sequestration ages and many more such unequal, orthodox and patriarchal regulations. For example, according to Regulation 46 where the flight pursers have a retirement age of 58 years, Air hostesses were required to retire at 35 years of age or to marry (if they were married within four years of entering the service) or to have their first baby, whichever occurred sooner ³. This regulation was acting as a big barrier between female cabin crew members’ careers. They were being asked to revolve their lives around the rules created by their employers, but the male cabin crew members were exempted from all this. Being catechised to retire because of marriage or because they were pregnant showed the extend of gender disparity. Females were asked to retire at the age of 35 because according to the policy makers of Air India, after 35 years of age females ‘start to shred their beauty’ thus not making them look ‘like an ideal air hostess as approved by the ‘society’. Furthermore, a more matter-of-fact question was regarding the unrestricted powers of the Managing Director who under Regulation 47 could increase the age of retirement as per his own directive. An aspect which is contested by the petitioners as being haphazard. This regulation
Itself was capable enough to increase the level of existing gender parities at work. The regulations violated Articles such as 14,15, 16 of the Constitution of India. Article 14 of the Indian constitution provided for equality before law. Article 15(1) specifically stands against discrimination of anyone on the grounds of their gender, caste, creed etc. Article 16 talks about equal opportunities at workplace irrespective of employees’ caste, creed, gender, etc. The regulations imposed were clearly biased towards the male employees thus violating the basic fundamental right that is right to equality. To overcome these challenges a case was filed in the Supreme court with a bench of 2 judges (Judge FAZALALI and Judge SYED MURTAZA) overseeing it.
JUDGEMENT AND ANALYSIS:
The judgement from Supreme court of India on this matter came on 28th August 1981. The court held the clauses regarding retirement and pregnancy as unconstitutional and thus ordered for them to be struck down furthermore, Regulation 47 experienced a similar fate, for it was found that the said regulation suffered from excessive delegation of powers without any reasonable guidelines to police the same ⁴. The age for retiring was also made 45 years with a further mandatory extension of 10 year, in place of the 35-year clause which was there before. The judgement become a turning point for the position of women in their workplaces. The judgement was criticized by some because a few parts of the judgement were not exactly contributing to the cause of reducing gender parity but most of the judgement was strongly in favor of bridging the gender parity at work gap. The judgement constituted the male and female employees as distinct classes and accordingly came to the conclusion that different terms of service were valid for disregarded the fact that they themselves constituted either of them. The Court used the fact that the necessities of service for women were secondary to those for men. On the speculation going around about regulation 46 of Air India Employees Service Regulations violating Article 14 of the Indian constitution the court responded by saying that article 14 only stands against inimical discrimination and not against reasonable classification of regulations. To justify this aspect further the judgment relied on a recitation of previous judgments which stated that “people belonging to a particular class in view of their special attributes, qualities, mode of recruitment and the like, are differently treated in public interest to advance and boost members belonging to backward classes, such a classification would not amount to discrimination under Article 14”. Thus, the regulation 46 for the concerned matter was considered not violative in whole or part of Article 14. This part of the judgement spooked a lot of controversy. ideologue by stating that were. The court rejected violation of article 16 by stating that it prohibits discrimination on the grounds of gender, but it never prohibits ‘the state’ from discriminating on such grounds. The court surmised that absence for a long period of time could also be due to death in family or illness in the family or any other emergency situation and when such a situation happens the employee comes back to work after absenteeism and not retire thus wanting females to retire after first childbirth before of their absenteeism for a few months post childbirth was ruled to be baseless. A different pregnancy clause was proposed by the court to be made where in retirement upon the birth of third child should be introduced in place of the existing, illogical and biased clause. As for regulation 47 the court said that by bestowing unrestricted and unguided control to the managing director to grant an extension on retirement the real intent of the regulation makers was being back seated. Granting more than ample power to the managing director could lead to possible cases of increased discriminatory and biased practices. This concluded that regulation 47 clearly violated Article 14 thus causing an immediate removal of such a regulation by the court. Excessive delegation of power was likely to result in unequal treatment by managing directors towards their employees thus violating the basic fundamental right of equality. The removal of pregnancy clause and regulation 47 became a beginning for a movement for women to speak up for their rights at their workplaces. The required beauty standards for being an air hostess were shaken for good during this case giving a lot of women hopes of becoming an air hostess in future without being worried to fall into a checklist of ‘supposed beauty standards’ which were set only for women and not men. This case gave us a brief idea of how gender parity and pay parity at work have been a constant social evil in our society. The Articles and fundamental rights placed there to provide people with equality will not be implemented by itself. Like Nergesh Meerza and her co-workers standing up against the inequality and discrimination experienced at workplace can result in a much equal working space for the future generation. The increase in retirement age by almost 10 years for female employees in Air India and the removal of pregnancy clause and the other barriers resulted in a much fairer and more unbiased workplace for the future air hostesses. There is still a long path to cover for gender disparity to be demolished from the society but this case in particular started the journey to that path.
References:
- Gender parity in detail available at https://www.equalrights.org
- Pay parity in detail available at https://www.payscale.com/data/gender-pay-gap
- More in detail about regulations available at https://www.legalbites.in/case-air-india-v-nargesh-meerza
- IP Leaders Blog
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