Maternity leave rule could worsen pregnancy discrimination
In a landmark bill passed on March 9 in the Lok Sabha, lower house of the Indian Parliament, maternity leave for women in the organized sector has been increased from 12 weeks to 26, the third-longest period after Canada (50 weeks) and Norway (44 weeks) for paid maternity leave.
Although even before the bill was passed companies such as Airtel had already introduced 22-week leave, Flipkart 24 weeks with work-from-home and flex-time facilities, and Microsoft India the same, looking at the bigger picture some critics expressed fears that longer maternity leave could mean more pregnancy discrimination against women.
Pregnancy discrimination is an issue faced by women the world over, but in India it is probably more rampant and with much less legal effort to stop it than in other progressive countries.
In 2012 a young journalist working for one of the biggest television channels in India, who had been doing a good job judging by her appraisals and increments, got a rude jolt when she informed her bosses about her pregnancy. She was handed a termination letter within a month claiming that she was not doing her job well. She realized that the real reason was that her pregnancy meant a maternity leave that the company was not willing to grant her.
But the woman decided to take her case to court. As reported in The Hoot, the Labour Court of Mumbai and the Industrial Court of Mumbai, dated April 11, 2014, and February 13, 2015, respectively, granted her interim relief.
Upholding those lower courts’ decisions, Justice N M Jamdar of the Bombay High Court said in his ruling: “The right of protection of service during the maternity period is essential to ensure equality at the workplace for a woman employee. The right of maternity protection is envisaged under various International Human Rights and Labour Conventions, and it is statutorily implemented in India through the Act of 1961.”
Pregnancy discrimination involves treating a woman (an applicant or employee) unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.
Although there are laws and acts in place in many countries to ensure that women are not discriminated against in the workplace because they need to take maternity leave, this kind of discrimination is rampant in India because very few women challenge it legally. In the US, 3,000 cases alleging pregnancy discrimination were filed in 2012, and in the UK more than 9,000 such claims have been brought against employers since 2007.
Participating in the debate in the Lok Sabha, Congress member of Parliament Sushmita Dev rightly said that once amendments raised the period of maternity leave to 26 weeks from 12, it could act as a deterrent for the private sector to employ women. “Since the employer has to pay the salary during the leave period, the amendment might turn out to be counterproductive,” Dev said.
In India the number of women at entry-level positions constitutes about 25% of the workforce. At mid-level positions the number drops to 16%. At the senior management level the number goes down further, to 4%.
Indian work culture thrives on the perception that the moment a woman becomes pregnant her productivity in the workforce becomes impaired. This could start with a complicated pregnancy when rest is needed and means that the company will have to grant her leave more often.
Debashish Das, head of human resources at a multinational in Kolkata, said: “In my experience I have seen, apart from health issues, women usually end up accumulating all their paid holidays and end up taking around two months of leave before childbirth. Post-childbirth they take the mandatory leave and then often extend it, citing further health complications. So anyway she is absent for more than six months.”
S Jalan, who owns a business in Bangalore, said: “I think women make extremely efficient employees but I have seen most often they don’t want to rejoin work after the maternity-leave period. So it costs the company heavily, since she takes all her paid leave and then leaves. I think 26 weeks of paid leave will make the situation worse for us employers. We will have to pay more now without expecting returns.”
A long absence of a woman during childbirth often leads to a sense of resentment in the team she is working with because they feel they have to shoulder all their responsibilities when she is away.
One woman said on condition of anonymity: “I was psychologically manipulated by my boss to get back to work within two months because we had a small team. My boss, who was herself a mother of two and had taken [much] less maternity leave, told me that my long absence would prove I was actually not needed in the company and they might terminate my contract. I have seen the same thing happening to other women in our company. Even if she is allowed the entire leave, she has to work from home or be on call 24 hours.”
Anisha Roy, a risk-management executive, said: “We have a women’s council in our office to push for our rights, but women usually are scared to speak up because they feel they might lose [their] job or ruin future chances of a raise and promotion. But as soon a woman gets pregnant the perception is she will be absent for long and then again after joining she will be asking for work-from-home arrangement or taking leave when the baby gets unwell or [the] maid doesn’t turn up, and she would refuse to work late nights.”
Nurseries a better option
The bill also requires every establishment with 50 or more employees to provide nursery facilities within a prescribed distance. The woman will be allowed four visits to the nursery in a day. This will include her rest period.
This step would actually go a long way toward helping women integrate in the Indian workforce. In the absence of good professional childcare facilities, working women are often dependent on maids or their parents or in-laws to help them bring up the child while they are away at work. Having a nursery under the aegis of her own company where she can leave her child while at work would be very helpful in reducing her stress and increasing her productivity.
In fact, women who are pressured to leave their jobs because of their need for adequate support to raise their children would look at this as a welcome move.
Malia Sen, who had to leave her job in the media because she could not rely on maids who failed to turn up every other day, said: “If there had been a [nursery] near my office where I could have left my two sons and checked on them four times a day I wouldn’t have had to leave my well-paying job.”
Sushmita Dev also felt that an innovative step would be to bring in paternity benefits. In nuclear families today men are often involved in child-rearing duties as much as women are. Hence paternity leave, which is mandatory for a month for civil-service employees in India and ranges between three and 15 days according to different private-company policies, could go a long way toward have an equalizing effect on the workforce.
Ratna De Nag of the Trinamool Congress political party also pointed out that paternity benefits of 30 days were being provided by the West Bengal state government already.
Paternity leave would help debunk the perception that it’s women only who get child-rearing leave. It would also shift the onus on to the father and establish the fact that having a child is the responsibility of both parents who are members of the workforce.