(Roshni Mulchandani is a fourth year student at NALSAR University of Law, Hyderabad)

Featured Illustration – ‘Young Woman on the Shore’ by Edvard Munch

INTRODUCTION

While there are different forms of discriminations practiced around us, discrimination in employment stands as one of the oldest forms of discrimination practiced in India. This particular long-standing area of law can be seen to be addressed through various statutes in place for countries across the globe. And in the Indian context, this is addressed through the Constitution. With emerging dimensions of discrimination and growing jurisprudence in this area of law, we also see various newer grounds of discrimination that tend to fall analogous to the pre-existing established grounds prohibited by the Constitution. Therefore, the question that arises is whether the courts tend to weave such newer grounds in an interpretive fashion while dealing with such pre-established grounds of discrimination. To analyze the same, this article seeks to revisit the judgment delivered by the Apex Court in Air India v. Nergesh Meerza & Ors. which failed to take a nuanced approach to the contentious issue it was faced with; and highlight upon the specific issue of how the court dealt with the distinction in the retirement age of the male and female in-flight cabin crew positioned in Air India.

ISSUES BEFORE THE COURT

The issue brought before the court dealt with Regulation 46 and 47 of the Air India Employees Service Regulation which showcased significant disparity in the promotion and payment avenues amongst the male and female in-flight cabin crew of Air India.  One of the biggest contentions dealt with the massive disparity in the mandated retirement age of employees of the company. While the retirement age of male cabin crew (referred to as Flight Pursers by the company) was 58, the Air Hostesses according to Regulation 46 were to retire upon attaining 35 years of age, or on marriage (if it takes place within 4 years of service), or on first pregnancy whichever occurs earlier. Regulation 47 on the other hand, provided that this period of retirement of female cabin crew could be extended subject to the absolute discretion of the Managing Director. The court was approached with questions of Article 14 (equality before law), of Article 15(1) (non-discrimination on the grounds of sex) and with Article 16 (2) (i.e. non-discrimination on grounds of sex in public employment).

QUESTIONING THE DIFFERENTIAL CLASSIFICATION BETWEEN AIR FLIGHT PURSERS AND AIR HOSTESSES –

The contention of fixing differential classification on the retirement age, recruitment conditions and promotional avenues was addressed by the court by delving into the contentious point of what actually segregates the two seemingly similar work posts of Air hostesses and Air Flight Pursers. The court, prima facie termed these two positions in the company to be different classes (similar to cadres) and ruled out the question of discrimination among them at the initial stage itself. This crucial observation by the court seems flawed as while there are cadres within a same department in order to streamline people into doing similar kind of work into a single category for their own recruitment cycles, promotional avenues, etc, here the cadre was itself based on sex. And hence a classification as such in this case looks discriminatory when compared to other cadres such as observed amongst civil servants which are specifically drawn on the basis of particular tasks performed and other related factors.

 The court also did not even delve into the question of determining whether this classification of only women being eligible for Air Hostesses and only men being able to serve as Air Flight Pursers, stands the test of Article 14, 15 and 16, and rather went ahead and declared them as separate classes to be legitimately treated separately. This was bolstered by placing reliance on the Government declaration (under Section 16 of Equal Remuneration Act) which stated that “terms and conditions of employment of Air Hostesses and Flight Stewards, and the difference in regard to pay, etc. of these categories of employees are based on different conditions of service and not on the difference of sex” and thus held that “the declaration by the Central Government, therefore, completely concludes the matter.”

This seems flawed to the extent that it effectively renders the guarantees of non-discrimination under Article 15 and 16 useless and paves the way of initially creating classes and dividing workforces under the grounds of sex, caste, class, etc. and eventually treating them separately as different “cadres.” The judgements itself allows for it when it states that “where the class or categories of service are essentially different in purport and spirit, Article 14 cannot be attracted as Article 14 forbids hostile discrimination but not reasonable classification.” And in this case, the court failed to explain as to why this classification seemed reasonable to it even after noting that the performative tasks and work essentially overlapped for the two categories of Air hostesses and Air Flight Pursers.

JUSTIFYING THE CLASSIFICATION

The court, while justifying the classification so imposed, discussed the factors that display how the two sexes are not subjected to the same standards in a workplace even where their performative tasks are essentially similar. By simply terming both the categories as different the court did not even delve upon the question of whether the grounds of such classification itself stand as opposed to the discrimination laws of the country.

In this way the court unknowingly highlighted the gendered discrimination by endorsing the same stereotypes that the discrimination law had wished to obliterate. By going at length to discuss why termination on the first pregnancy would not be unconstitutional and identifying standards with respect to the marriage being crucial for “health” and “family planning” of such women, the court emphasised on the gendered layers of differential classification that deep rootedly exists in our employment system.

IGNORING THE QUESTION OF STRUCTURAL DISCRIMINATION IN THE INDUSTRY

The court conveniently side-stepped the question of extending the age of retirement of the Air-hostesses, as the petitioners had not asked for equating the age of retirement to that of the Air Flight Pursers. Therefore, the court dodged the bigger question of whether such an equated bar on the age of retirement is even needed when it comes to this specific industry.

The court however, dealt with it in a peripheral manner when it assessed that the avenues with respect to age of retirement, promotion, etc. shall differ for the two classes as they form separate “cadres.” Hence this argument also seems flawed in the light of the questions imposed on the classification of the two categories of Air Flight Pursers and Air Hostesses itself. It also poses a bigger question on the direct effect of such classifications on the age of retirement, differential perks and other related avenues

REVIEWING THE FLAWED APPROACH –

Equality is a wide enough concept to be capable of multiple meanings such as structural (group, class) and individual. Discrimination on the other hand is a tag-along concept which needs to be tied up with various conception of equality, liberty, fraternity. As Tarunabh Khaitan in his article Prelude to a Theory of Discrimination Law acutely observes, that Article 16 of the Indian Constitutions fails to successfully tie up the idea of discrimination with equality together, especially in the context of employment law in India. He recognizes it to be a failure to theorize discrimination and suggests that there should be a set of principles that help us identify discrimination across all spectrums and forms which are even beyond what is recognized by the Constitution.

However, both discrimination law and labour law have the commonality of concentrating on individual issues rather than the structural problem. They tend not to concentrate on the harm that is beyond an immediate disadvantage. Hence when examined by the courts, these issues suffer from a myopic understanding. As in this case, the judge by stating that as the petition itself does not ask for an equated retirement age between both the cadres, it shall not even delve into the structural problem. And therefore, the court conveniently ignored the bigger structural debate around the discriminatory practices in labour law.

It is noteworthy, that the court in the case of Navtej Johar v. Union of India recognised this problematic approach taken in Nergesh Meerza and rather called for an interpretive shift from “only” the grounds mentioned under Article 15(1) to “other considerations” that can have a disparate impact on certain categories of individuals. The court moved away from a formalistic interpretation of discrimination under Article 15. It called for bringing in the lens of “analogous grounds” that tie in with the pre-established grounds of discrimination and help us understand the intersectional nature of discrimination which cannot be said to operate in “isolation of other identities, especially from the socio-political and economic context.” Therefore, the dictum in Nergesh Meerza could have had been enhanced to address the discrimination from a contextual and intersectional lens if the courts had recognised how the discrimination on the basis of pre-established grounds can have an incidental effect on other classifications so imposed,

SUGGESTING A NUANCED APPROACH

The biggest point of consideration lies in the fact whether discrimination is seen as an individual or as a group disadvantage. Hence what needs to be done is to locate the individual instances of discrimination in the structural discrimination that exists. To approach this contention, both discrimination law and labour law can bring their learning to one another. labour law needs to be structured in a manner wherein individual instances of discrimination are looked in a particular structural context. A harmonized approach needs to be adopted which helps cater the encompassing discrimination that exits. And through this structural approach, the root cause of such individual instances of discrimination can be abated.

A narrow interpretation like that in Nergesh Meerza, fails to acknowledge the effect of discriminatory provisions of differential classification and how it can structurally impact the functioning of labour law. Such larger systemic biases in employment laws stand as the root cause for individual acts of discrimination. And hence the larger harm that cases like Nergesh Meerza do is that by not even realizing the existence of such systemic biases, they further discriminatory practices in labour law and employment that still need to be addressed.

POINTS TO BE CONSIDERED: CRITICAL ANALYSIS –

Discrimination Law in the Indian context is firmly rooted in the obligations of the State and its functions towards the citizens. But when we talk about labour law, which has an amalgamation of both public and private spheres, the debate enlarges. It is also noteworthy that labour law is firmly located at the fringes of inequality because the conceptual premise of labour law is that of subordination. It is an unequal but contractual relationship between an employer and an employee. It also has features of commodification, where the employer treats its employees as factors of production, indifferent to their characteristics. As Tristin K Green in her article ‘The Laundered Workplace’ points out, that it is when the employer, infected by bias, starts to characterize these factors of production (as per their attributes), it is then that the discrimination starts to creep in and exercise a disparate impact. These biases are also a reflection of societal norms that hinder in attributing an equal treatment to individuals.

And this is exactly what the court erred in taking account of, when rather than locating the potential of an employee in a market, it rather placed regard to qualities like “pleasing attributes” and “young and attractive” and held how an older age of retirement would therefore diminish such qualities. It shifted the focus away from the potential of such factors by placing reliance on attributes that are not necessary or directly related to a particular field of work. As Green puts it, “instead, such employers get distracted by workers’ unrelated human particularities, disrespecting them as market actors.” Therefore, when discrimination is observed on such features or characteristics of individuals, lines start to blur.

Noah D Zatz in this regard, alludes to the identification of the ‘essence of age discrimination’ in his article, ‘Discrimination and Labour Law: Locating the Market in Maldistribution and Subordination’^[1] and points out how the US Supreme court observed in the case of Hazen Paper Co v Biggins by highlighting how reliance on ‘inaccurate and stigmatizing stereotype[s]’, such as the notion that ‘productivity and competence decline with old age’ must not be placed. Instead an employer must assess such factors directly rather than relying on age as a proxy for an employee’s remaining characteristics, such as productivity. An astute example of this stands the age-based distinction of retirement in the armed forces where physical attributes of efficiency of the workforce directly impact the work and not any other desk-related job. And this draws a direct relation to the attributes an individual must be assessed for a task rather than relying on societal and other peripheral characteristics.

CONCLUSION

Judgements like Nergesh Meerza help bring the focus on the debate which stands at the core of discrimination law and one is forced to confront whether labour law is concerned exclusively and constitutively with market-specific dysfunctions. As Noah acutely puts it, “employment Discrimination Law, however, reminds us that even in labour law’s core institutional setting of conventional employment, economists’ market concepts provide neither a complete description of how work is organised nor a complete diagnosis of how it may go awry.” Hence what is needed is structural revamping than individual and myopic lens of how we address questions of discrimination in labour law. And this requires addressing the structural issues by not only the judges, but also by the labour market players and the consumers as well.

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^[1] Noah D. Zatz, Discrimination and Labour Law: Locating the Market in Maldistribution and Subordination, PHILOSOPHICAL FOUNDATIONS OF LABOUR LAW 156, 161 (Hugh Collins, Gillian Lester & Virginia Mantouvalou, Ed. 2019).