Is It Legal to Have a 'No Lady Employees' Policy at a Company? Let's Discuss

Hi All, I was interested in knowing if one could have an explicit policy for 'no-lady employees' at a company. Would that be legal?

Regards,

Question on "No Lady Employee" Policy

What is the reason for "No lady employee"? I am curious to know. I don't think this is legal in any part of the world.

I will leave this to an expert to comment.

In my view, no question of legality is involved in such an exclusion. It is the prerogative of the employer of a private enterprise to hire employees of their choice; however, once employed, there should not be any gender-based bias. At the same time, I would support the question raised by Shangeet. Nowadays, it is ubiquitous to find female employees in various sectors, from retail vending outlets to police and defense services. Even multinational corporations, banks, and super healthcare enterprises have female CEOs who are not only successful in crossing the glass ceiling but also reshaping their companies.

When women are employed alongside men, some problems may arise, but they are small in number and can be effectively prevented or resolved. In business promotions, female models are used alongside newly launched products, some of which have no connection with women; in sports and game events, women are employed as cheerleaders. Needless to say, these are from a male perception and a kind of subtle sexual exploitation of women. Therefore, my personal view is that such an explicit 'no female employees' policy adopted by an employer, though it may not be illegal, is indicative of either male chauvinism or managerial fear psychosis and hence undesirable.

In one word, "NO." You cannot regularize this in terms of written documents. The document and its contents shall stand as NULL & VOID.

Adding to others, saying no to female employees falls under the category of discrimination. If you refer to the clause provided by the International Labour Organization, it states, "No person shall be subject to any discrimination in employment, including hiring, salary, benefits, advancement, discipline, termination, or retirement, on the basis of gender, race, religion, age, disability, sexual orientation, nationality, political opinion, or social or ethnic origin." Therefore, implementing a policy as you mentioned could lead to unwanted complications.

If you choose not to hire a female due to the nature of the job, that is a different scenario. However, avoiding hiring females altogether is not fair. I hope you understand the implications of this decision.

Thank you.

Thanks for the answers. I have seen many organizations not employing women, despite being reasonably large ones. With the changing trends in legislation, there have been many instances reported at the workplace where the employer is normally the one to bear the brunt of malicious litigation, especially those where the lady is intelligent enough to bend the law in her favor. Not all are incorrect, but I recall a famous politician stating that he would rather go without a female employee than have one and invite trouble! Managerial fear-psychosis or otherwise, the fact remains that such litigations do cost organizations a lot of time and money—both avoidable. That they come out of it ultimately is possibly the lesser cause of worry.

Hence, the question...

I think this would be highly discriminatory, and I am sure there would be some law proscribing such a practice (a simple Google search may help in finding out the exact law). Otherwise, we would start having private organizations exclusive to certain communities, castes, religions, and regions—discrimination can take several forms. Imagine how horrible it would be to have companies that recruit "no Marathis," "no UPites," "no Hindus," "no Muslims," "no Brahmins," and so on.

There could be certain hazardous industries that may have been legally barred for women, but apart from that, excluding any group of people based on gender, caste, region, religion, etc., would be illegal. Citing the risk of harassment litigation as a reason to discriminate against women candidates is horrible and despicable, whoever does it. It would be better to conduct a few workshops telling everyone about what constitutes harassment and guiding them on what not to do.

Bodhisutra, please state the law... Your views are similar to mine, but it's a legal clarification. In any case, please don't underestimate the cost of legal lawsuits. One thing is knowing what is right; the other is seeking justice from a system. I hope you understand the difference.

Well, I am indeed at a loss to understand how women in the workplace equal increased costs of "legal" lawsuits. It's funny that we talk of excluding women from the workforce while seeking justice for ourselves in the same vein.

Oh, and about costs, I think the cost of excluding 50% of the population from the workforce would be much higher than that of a couple of awareness workshops, which will be enough to prevent most of the normal hot-blooded men from becoming harassers!

My 2 cents.

Legal Reference for Employment Discrimination

And, as for the law, please check: http://www.nishithdesai.com/fileadmi...harassment.pdf

The Equal Remuneration Act (ERA), 1976 expressly prohibits discrimination in employment against women. Quoting from the above, "Taking up the recruitment process, section 5 of the ERA prohibits the employer from devising a hiring process that puts women at a disadvantage on account of their gender."

Prohibition of Discrimination in India

The Constitution of India prohibits discrimination on grounds of religion, race, caste, sex, or place of birth. This is guaranteed as a Fundamental Right to the citizens of India. Article 14 and Article 15 of the Constitution specifically address this.

Article 14 of the Constitution of India states, "14. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."

Article 15(1) of the Constitution of India states, "15. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them."

Furthermore, the Directive Principles of State Policy in the Constitution elaborate further in Article 39, which states, "The State shall, in particular, direct its policy towards securing - (a) that the citizens, men and women equally, have the right to an adequate means of livelihood; .........."

You cannot have an explicitly stated policy that negatively discriminates against women being recruited into an organization.

Regards,
Raju Bhatnagar

I fully agree with you. However, your response indicates that you aren't understanding the question correctly. You are talking about ERA, which applies only if you have male and female employees. We are talking about not having any employees as a policy, not as a practice.

There are many companies that don't employ women as a practice. So, the question is slightly different. As for the cost of lawsuits, I think you need to research the cost of that before you comment.

Regards,

I am not sure I understand your comment about this being a right conferred by the state and not by a private agency. The Constitution applies to both state and private agencies. It is, in fact, a right that is conferred on a citizen. Maybe if you elaborate on the response you have posted, I could offer a more specific response.

Regards,
Raju Bhatnagar

Non-Discrimination in Recruitment Policies

Whether policy, practice, or any other guise, you cannot make any discrimination against women during recruitment, irrespective of the existing gender mix (or lack of it) of your current workforce or the color of the walls in your office.

Reproducing Section 5

(Note that it does not exclude any policy, practice, gender mix, or whatever we can dream of):

"5. No discrimination to be made while recruiting men and women workers. -- On and from the commencement of this Act, no employer shall, while making recruitment for the same work or work of a similar nature, or in any condition of service subsequent to recruitment such as promotions, training, or transfer, make any discrimination against women except where the employment of women in such work is prohibited or restricted by or under any law for the time being in force:

Provided that the provisions of this section shall not affect any priority or reservation for scheduled castes or scheduled tribes, ex-servicemen, retrenched employees of any other class, or category of persons in the matter of recruitment to the posts in an establishment or employment."

Source: http://labour.gov.in [<link fixed>]

Let us not get into what you or I should research before posting a comment. Let us leave that to admins/mods.

Constitutional Articles on Discrimination

Constitution Articles 14 and 15 address discrimination by the "State," meaning the government cannot discriminate. However, these articles do not specify whether private entities can discriminate or not.

I am not an HR person or an expert on the laws in India (as I have been based in the UK for the past 4 decades). I am rather surprised that such a question was raised without giving sufficient background, and people are airing their views without asking for a specific scenario.

Discrimination Laws in the UK

In the UK, discrimination based on sex, among other things, is illegal. I searched the web and have provided a couple of links:

- Men only: Bristol recruitment agency in trouble for sexual discrimination | Bristol Post (Search On Cite | Search On Google)
- http://equalityhumanrights.com

India's Legal Framework on Discrimination

India is also a signatory to Human Rights Conventions, and I presume it also will legislate specific laws if it has not done so. I read an interesting case at Arati Durgaram Gavandi vs Mrs. Shakuntala A. Mudbidri For ... on 6 October, 2008 that sheds light on sexual discrimination at the workplace. We Indians are meek when it comes to using the law to establish our rights, which is slowly changing for the good.

Please forgive me if I have touched on anyone's sensitive nerves.

I am afraid that the discussion may tend to falter due to the arguments and counter-arguments being exchanged by the Questioner and other learned members with a legal perspective on the matter, and at times among the same group of individuals with legal insight themselves. Bodhisutra, whose argument strongly relies on the provisions of the Equal Remuneration Act, 1976, finds Raju Bhatnagar's argument originating from the Constitution of India untenable and therefore unacceptable.

Objective of the Equal Remuneration Act, 1976

The objective of the ER Act 1976, as stated in its preamble, is to ensure the payment of equal remuneration to men and women and to prevent discrimination based on sex against women in employment matters and related issues. While Bodhisutra's argument based on Section 5 of the Act is valid and commendable, unfortunately, the Central Government has not yet issued any notifications regarding the establishments or employments in which the extent of women's employment can be recommended by the Advisory Committee under Section 6(1).

Constitutional Provisions and Social Norms

Regarding Bhatnagar's argument rooted in Constitutional provisions, it is a well-known fact that no writ can be filed against a private individual not entrusted with any public duty. Therefore, the appropriate approach to the question, in my opinion, should be based on social norms. The underlying question is whether a policy explicitly stating "No female employees" for the organization would be generally acceptable. When Walt Whitman initially wrote a poem about love (apologies for forgetting the title), the line he first penned was "We, man and woman, let us love one another or die." Upon deeper contemplation of the message he intended to convey, he later revised the line to "We, man and woman, let us love one another AND die." Thus, I reiterate my previous point that such a policy is entirely undesirable even in the absence of legal restrictions.

Thank you.

No sensitive nerves were touched by Simhan. It was just a legal clarification, and Umakanthan has provided the clarification. Thanks a lot. I am not a supporter of this myself, but as a management consultant, I need to understand if my interpretation of the law is correct. Hence, the question.

Appreciate your reply, sir. The central question, however, still remains— is it legally allowed or not? The Constitution argument doesn't hold. The question is, if I am a woman and told that I can't apply for a job because of my gender or am not recruited for being a woman— can I sue the company?

My view is that (please correct me if I am wrong) despite the preamble only saying, "Equal remuneration" and despite no notification as you say, Article 5 of the ERA clearly makes it illegal to discriminate against women in recruitment, and the offending company can be sued. Please clarify if this is the correct interpretation— your insights would be very valuable because of your having been the Labour Commissioner.

I really appreciate your argument. Essentially, Labour Jurisprudence is an offshoot of Civil Jurisprudence. So, to determine the degree of compliance or contravention of a particular aspect or provision of any Labour Law would be dependent on the explicit subject matter that is made enforceable by the follow-up provisions. Even though incidental to the main object of securing equal pay for equal work irrespective of sex, the determination of the extent of employment in any establishment, i.e., the ratio of women employees, is not a negligible one. As such, I do agree with you that the pre-employment process of recruitment of women employees is well within the scope of the E.R Act, 1976. However, my point is that you cannot resort to the legal remedies provided in the Statute in the absence of the determination of the ratio of recruitment. You can easily find that some of the amended provisions in the I.D Act, 1947 have not been given effect so far. The reasons are obvious. That's why, keeping the legal aspect aside, I gave an answer that revolves around the fulcrum of social norms.