This is the third in a four-part series on the interaction between Indian Muslim women and the law in India in the recent past. Collectively, they seek to examine issues of criminal law, employment, work practices and educational opportunities, and ask whether Muslim women have equal status before the law.
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IN In the first part, I focused on how the criminal justice system worked in the Bilkis Bano case. In Part II, we covered the world of digital crimes and how Muslim women are targeted. In the next two parts, I turn away from crimes towards indicators of development, ie employment and education.
In this part, I wonder about the equality of employment and educational spaces for Muslim women.
Declining female labor force
According to the World Bank, the female labor force in India has fallen from 26.7% in 2005 to 20.3% in 2021. This rate has been exacerbated during COVID-19, the Deputy Governor of the Reserve Bank of India, Dr MD Patra, stating that the “The participation of women in the labor market in India is among the lowest in the world and continues to decline”. Within this framework, data from the National Survey Organization show that Muslim women have the the lowest Labor force participation rate.
The decline in the female labor force and more particularly the representation of Muslim women in the labor force has negative effects on the country’s economy. Economics and business research think tank McKinsey Global Institute suggests that India loses $770 billion of its gross domestic product by failing to advance women’s equality.
There is a need to restructure the Indian workforce in terms of gender parity; and making Muslim women visible in the labor market for the benefit of India economically. This can be done in three ways, suggests the McKinsey Global Institute:
- increase the participation rate of women in the labor market,
- increase the number of paid work hours for women (part-time or full-time jobs), and
- increase women’s productivity relative to men’s by adding more women to higher productivity sectors
Read also : The pursuit of practical equality for women
Intersectional discrimination
Muslim women face intersectional discrimination on the axes of gender and religion in employment. Many studies, articles and reports attribute the low representation of Muslim women to internal factors – religious conservatism, low literacy rates or family restrictions. However, I urge that discrimination not be limited to internal factors alone, but extend to societal stereotypes, stigma and prejudice regarding Muslim women that affect their employment opportunities.
The low representation of Muslim women is usually blamed on internal factors – religious conservatism, low literacy rates or family restrictions. However, I urge that discrimination not be limited to internal factors alone, but extend to societal stereotypes, stigma and prejudice regarding Muslim women that affect their employment opportunities.
A recent study by the non-profit organization LedBy Foundation showed the systemic bias present in hiring. Two equally qualified profiles, “Habiba Ali” and “Priyanka Sharma”, were created according to market standards. No images have been used to depict any level of religious practice. Over an 8-month period, these profiles were used to apply for 1,000 entry-level jobs by both Ali and Sharma. The response showed the following net discrimination rate:
- The net discrimination rate was 47.1%, with the Hindu woman receiving 208 positive responses, while the Muslim woman received half (103). This was evident across all industries.
- were more cordial towards the Hindu candidate; 41.3% of recruiters had communicated with Sharma by phone, while only 12.6% had spoken with Ali by phone.
- North India had a lower rate of discrimination (40%) compared to jobs located in West (59%) and South India (60%).
The study is important because it uncovered the external reasons. This ecosystem echoes the stigma and stereotype regarding Muslim women in India, who are both religiously and gender disadvantaged.
Read also : Instead of discussing why India needs more women to work, let’s look at how India undervalues women’s work.
Prioritize a representative hiring process
The right to work has been vehemently claimed as the inalienable right of all human beings. It is enshrined in international and national law.
India ratified the Convention on the Elimination of Discrimination against Women in July 1993 and as such is bound to provide protection against discrimination, including in the context of the right to work ( Article 11 of the Convention).
Recent studies show that it is possible to apply equality provisions under Article 15(2) to the private sector. Additionally, a separate legislature can be enacted to ensure intersectional equality within the private sector.
In the Constitution, the equality provisions (Articles 14, 15 and 16) provide for equal opportunity and non-discrimination. Within the private sector, however, there is an undeniable void in the statutory domain. This shows the lack of protection afforded to women, and more specifically to Muslim women, who face intersectional discrimination. To implement substantive equality in employment for Muslim women, positive measures should be taken by the state.
The LedBy Foundation study recommends diversity goals. By defining one, organizations can prioritize a representative hiring process and make diversity a priority. Similar practices have been observed in the United States of America, the European Union and the United Kingdom (“UK”).
Under the UK Equality Act 2010, a Public Sector Equality Duty (“PSED”) applies to public bodies. According to the DESP, public authorities must give due consideration to the need to eliminate discrimination, advance equality of opportunity and foster good relations. In addition, there is an obligation to publish equality information and objectives. Additionally, Sec. 158 of the Equality Act allows an employer who reasonably believes that a protected group is at a disadvantage or has special needs to be offered proportionate affirmative action to meet the relevant needs, reduce the disadvantage and increase participation.
In the United States, Title VII of the Civil Rights Act of 1964 deals with discrimination in the workplace. American civil rights lawyer and scholar of critical race theory Kimberlé Crenshaw, in her seminal work on intersectionality, examined Title VII judgments of American courts – DeGraffenreid vs. General Motors (1976), Moore vs. Hughes Helicopter, Inc. (1983) and Payne v. Travenol Laboratories, Inc. (1976). In each of these cases, Crenshaw showed how discrimination affected black women differently from black men or white women. There is now a growing case law on the recognition of intersectional discrimination with respect to Title VII claims in America.
Read also : The Evolution of Forms of Economic Gender Discrimination: Are Indian Courts Ready to Meet the Challenges of Algorithmic Bias?
A similar position can be taken in India. Justice Dr. DY Chandrachud, in the landmark Supreme Court judgment in Navtej Singh Johar & Ors. against the Union of India (2018) allowed an exhaustive reading of article 15 of the Constitution. Contrary to Air India v Nergesh Meerza & Ors. (1981), in which the Supreme Court authorized a strict formal interpretation of Article 15, emptying the prohibition of discrimination of its essential content, Navtej Singh Johar implements the interpretation of substantive equality. This precedent should be used to acknowledge the multiple and intersectional discrimination against Muslim women in employment opportunities.
Moreover, recent studies show that it is possible to apply the equality provisions under Article 15(2) to the private sector. Additionally, a separate legislature can be enacted to ensure intersectional equality within the private sector. Several attempts have been made in India to introduce such a bill.
If the employment law can be fine-tuned to take positive measures for employment opportunities, Muslim women will have better prospects not only to significantly improve their quality of life, but also to contribute to the economic growth of the India.
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