December 12, 2019
The Transgender Persons (Protection of Rights) Bill, 2019 was passed by Lok Sabha on 5 August, 2019 and Rajya Sabha on 26 November, 2019 (“Law”). Even though the Rules have not been formulated and the President has not given assent yet, this Law (in some form or the other) is bound to be a reality soon. The Law, in its current form, states that “No establishment shall discriminate against any transgender person in any matter relating to employment.” Clause 18 states “whoever harms or injures or endangers the life, safety, health or well-being, whether mental or physical, of a transgender person shall be punishable with imprisonment.” The term could be 6 months or extend to 2 years and fine. Speaking on this matter, Shivangi Prasad, Corporate Lawyer & Partner, POSH at Work, said that, “It’s time that organizations look at workplaces once again – and from a completely new lens this time. To begin with, before attempting to change the society, it is important that we first identify the challenges and unconscious biases that we, ourselves, may have. A transgender person could easily be stereotyped by many of us as confused, abnormal, scary, outcast etc. Hence, it is important to first identify and clear our own biases.” Employers can do several things to rethink gender binary workplaces and make it more inclusive.
Ms. Shivangi Prasad, Corporate Lawyer & Partner, POSH at Work
The policies of several organizations contain words such as, “We are an equal opportunity employer” followed by words such as ‘He’ or ‘She’. Shivangi stated that “As first steps, perhaps they could be replaced with more inclusive words such as ‘They’, ‘Them,’ ‘Their’ and ‘person’ or ‘individual’. Check if policies exist for workplace harassment & bullying”. It is also highly imperative to check the language in forms and whether knowing the gender of the applicant is an important factor. If yes, having a cover letter/disclaimer with the form reiterating the non-discrimination/non-retaliation policy of the organization and stating that all details are strictly confidential will be beneficial.
To facilitate change, the recruitment processes need to be checked as often unconscious biases lead to discrimination during recruitment as well. Let’s say an individual checked on the box ‘male’ while applying for a job and qualifies for the next round. On background check, it is discovered that they have changed their gender identity. The recruiter might respond negatively. Biases may make or break this person’s career and organization may lose out on great talent. Processes may need to be developed to deal with such challenges so that the right questions are asked in the right manner ensuring they don’t seem sarcastic, insensitive, biased or outright offensive.
Greater awareness needs to be created as it is quite common to end up joking about things we find ‘different’ from the ‘normal'. Biased and stereotypical jokes or banter often lead to discrimination and even retaliation such as singling out, ganging up etc. These could not only be punishable by Law but also create a really hostile and unhealthy work environment. In fact, these are the kind of concerns that the complaints officer (mentioned under this Law) may have to handle.
Keeping in line with this, Shivangi said that, “A high number of clients approach POSH at Work, with grievances about hostility and harassment faced at the workplace due to people’s deep-seated prejudices. A discriminatory workplace is extremely harmful to a person’s physical and/or mental health and stringent protocols must be established at workplaces to prevent such incidents.”
Implementing the above-mentioned changes could be very effective and may go a long way in slowly making the workplace much more inclusive.