An Equal Opportunity Commission?

The Madhav Menon Committee Report on the establishment of an Equal Opportunity Commission submitted recently to the government recommends outlawing discrimination against ‘deprived groups’ in the public as well as private sector. The ‘deprived groups’ must be defined on ‘grounds beyond their control’ and must satisfy an objective (and evolving) deprivation index to be protected from discrimination.

Any doubts about the existence of discrimination in the private sector can be set to rest after reading the empirical findings of this paper by Sukhdeo Thorat, not to mention various other newspaper clippings of individual cases of discrimination, especially in schools and housing societies.

I have reviewed the Bill here and think it is a good first step to deal with discrimination in the private sector. Some of the features of the Bill are summarised:
1. It does not deal with reservations – its only purpose is to outlaw discrimination in public and private sector.
2. There is an open ended, but objectively-determined, list of protected groups, reviewable by the proposed Commission rather than the politicians. Presumbaly, this list will be subject to judicial review.
3. It addresses both direct and indirect discrimination. Indirect discrimination occurs when a facially neutral provision has a disproportionate impact on a deprived group – there is no requirement to prove a discriminatory motive for this.
4. The initial focus will be employment and education sector, although there are strong reasons to include the housing sector as a priority sector as well.
5. The enforcement mechanism is weak. There is no attempt to deal with every individual case of discrimination. The Commission is empowered to take up example-setting cases, but its main task is to direct policy and advocacy.

Written by
Tarunabh Khaitan
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  • As far as private enterprise is concerned, I have considerable difficulty buying your equality-over-liberty argument. If I am running a business, I ought to be able to hire someone not only on the basis of whether he or she can do the job but also on the basis of whether consumers would want to see him/her in that position and whether or not I am comfortable working with him/her. If I am running a mom-and-pop store or a chain of stores, I ought to be free to employ, say other members of my own family not necessarily because they offer superior talent but because in the social situation, I find them more likely to be understanding of my work ethic and are easier to deal with, not the least because they are more willing than an outsider to take a deferred paycheck should the situation warrant it. And yes, they would happen to be from my own caste/community/region/language etc. Should the state have a mandate to interfere with this?

    In certain situations, consumers may expect the employees of a business to have certain attributes of sex, sexual orientation, age etc. A Hooters joint with flat-chested waitresses having facial deformities is unlikely to be financially viable. Likewise, should a gentleman’s club dedicated to heterosexual men, in order to satisfy equality requirements, be forced to balance its hiring of shapely young women with old, obese transexuals for pole dancing?

    Many educational institutions are owned and operated by various associations that have their own mission and agenda. They expect everyone they hire to also share that wordview and beliefs to carry it forward. A christian missionary college may not wish to hire a devout atheist because in their view, he cannot satisfy the essential requirements of that job, namely, making academic inquiries and resolving his students’ queries from a believer’s perspective. And if parents who send their wards expect teachers to impart moral views that are influenced by particular religious beliefs, a private institution which is perfectly entitled to do so is unable to fulfil this aspiration. There are also numerous caste/community organizations in our country that appoint paid office bearers to administer the properties they own. Again, in line with the mission of the organization, they naturally choose their own caste/community men/women who have established proficiency in the same. All of these preferences carry considerable potential to favor certain sex/language/caste/religions over others (indirect discrimination in other words). So, should all of these freedoms be taken away in the name of equality? Or, will an exception be made if the birth attributes are integral to the job description? If so, will that not defeat the exercise itself?

    Economists generally argue that the marketplace favors diversity over uniformity because of its ability to harness superior talent from a wider pool. If this was the only factor, discrimination would have died a long time ago which is however not the case. This is in part owing to the assumption that incorporating diversity has no untoward consequences and managing it is relatively easy and straightforward. In fact, it may well be neither. It requires managers to be astute enough to recognize communication gaps, misunderstandings and expectations from a cross-section of cultures. While multinational firms with highly paid MBAs may have the resources and the expertise to do this to some extent (by the way, they too have faced major problems apart from regular skirmishes over minor things; one finds out all the kinds of minor irritants by merely talking to IT employees), not every two-bit firm in an Indian city may find this notion feasible. A Vokkaliga lawyer catering to a largely caste-specific clientele may find it easier to to manage the show if he hires underlings who are both familiar with and comfortable with the mannerisms and expectations of his community. Likewise, a significant number of women prefer female obstetricians to conduct their deliveries. While economic theory that such inherent prejudices will lower competence may well be true, in practice, it is really a balance where competence is only one (albeit an important one) amongst other things (including the need for coherence in mission/vision/goals and values) that go towards making a firm successful.

    If lower caste candidates, despite having all the qualifications on paper are not finding sufficient jobs because, as Thorat and colleagues correctly suggest, they lack those additional skills not acquired through a college degree (such as language, mannerisms and cultural experiences that entail a better fit into an ‘elitist’ environment), the answer ought to be to train them in those skills, not forcing companies to change their hiring practices under the threat of sanctions. In fact, these practices are all constantly undergoing change; as comfort levels in cross-cultural settings rise (which is the case in an increasingly globalized world), discrimination can head only downwards. While discrimination undoubtedly persists, in urban India at least, I suspect it is far less today than it was at the time of independence which would be testimony to this fact.

    The same principle applies to housing as well. Is it unfair for, say all Tamilians, to want to live together in an apartment complex simply because they happen to share many things and can eat, chat and partake in communal activities together? And what is wrong with vegetarians wanting to live with other vegetarians, or an owner wanting to keep restrict tenancy strictly to non-smokers (even if indirectly discriminates against smokers or communities where smoking is not religiously proscribed)? For the state to start restricting all of these things is to intrude profoundly into the private domain, a particularly unjustified violation especially when it has contributed virtually nothing towards its construction or maintenance.

    Coming to the bill, it is broadly worded and carries considerable potential for abuse. No details are mentioned making it hard to decide who it will exactly apply to or what the criteria for deciding violation will be.

    1. First of all, who will it apply to – all employers or only those above a certain number of employees?

    2. The commission will presumably ask for the castewise/genderwise breakdown of its employee configuration and compare these numbers to numbers from those communities graduating as well as their general share of the population to determine discrimination. How will it take into account the preferences of those groups (for example, studies in the US showing that women physicians prefer less strenuous specialties has been explained as owing to a choice to devote greater time for traditional social preoccupations such as child rearing. If certain castes in India prefer certain occupations more than others or government to private jobs, would these factors be taken into account in assessing discrimination?) Will it even consider the possibility that the requirements of the business may not be met by individuals of that community in the absence of additional training? In practice, will the only way to satisfy the commission’s requirements end up being through a caste based quota?

    3. To what extent will regional disparities be factored into the scoring indices (Regional commissioners are not expected to be appointed right away and there are only five of them for the whole country)?

    4. The bill does not limit itself to education and employment (sec. 22(i) and 23(b)(ii). In fact the report insists that this is only being done initially (para 4.7), Exclusive associations for men and women, colleges for women, nudist clubs (believe it or not, there are a few even in India) etc. have always existed. So are they all going to become things of the past suddenly in light of politically correct norms?

    5. The enforcement mechanism is weak but the potential to harass is strong. The bill certainly vests the commission with wide authority to investigate complaints. All it takes is a complaint filed by a favored organization to set the ball rolling (para 8.8(a)of the report reads: The Commission can recognize any organization such as an NGO, a Trade Union or a movement group as its associate and provide it a special status for purposes of filing complaints). No clear mechanism of follow-through is laid out. It is anyone’s guess what explanations the commission would find acceptable, in which instances it will ‘negotiate’ a compromise and where it will ‘dispose off the matter in accordance with the law’. Whether different evidentiary requirements will be applied to complaints coming from NGOs with special status versus those without it is also not known.

    6. Para 8.8(b) of the report reads: The Commission can associate any media organization or media person with its inquiries and accept any media report as if it is a preliminary inquiry conducted by the Commission. This is a recipe for witch hunting based on stories planted by commerical/business rivals. Should the requirement be so lax?

    In para 8.4 of the report , it says: 8.4 A Commission of the kind envisaged here should comprise of professionals or activists from fields such as education, personnel management, trade union or similar organizations, law, public administration, journalism and social sciences. The actual bill only mentions one full time member each from law and social sciences but is silent on the rest. I mention this because the total failure to mention including anyone with real experience of administering a private organization speaks of this committee’s innate bias.

    One last comment on a somewhat related issue. In your Frontline article, you pointedly mention that race or caste has no relation to one’s ability to perform. While no major study on caste-based differences has been conducted, with respect to race, biological evidence has led to this view being questioned. Read this blog that came out when the James Watson controversy was at its peak.

  • Dear Dilip

    Thank you for your comments. The following respond to some of the questions you raise:

    1. Certainly there are cases where a ‘genuine occupational need’ requires a firm to discriminate on one of the prohibited grounds. This is a widely recognised exception in almost all anti-discrimination legislations around the world, except race discrimination in the US where no exception whatsoever is allowed. Of course, this category is much narrower than the cases you suggest and many of them would not qualify as a genuine occupational need. The idea of this narrow exception is that discrimination should be exceptional, and the onus to justify it on the discriminator.

    2. Regarding vicarious discrimination by employer who is herself not prejudiced but has to discriminate to accomodate prejudiced customer choices – for example, refusing to employ a Muslim shop-attendant in a very prejudiced Hindu locality might be ‘rational’ for the employer. But the idea of anti-discrimination is to tackle discrimination not only of employers but also of consumers. Such discrimination can exist only because consumers can exercise that leverage. In a dynamic context, after an effective anti-discrimination law, this problem would, at least theoretically, fade away. Experiences with race discrimination in the US certainly vindicate this claim.

    3. Now to your most important critique – what is wrong with private discrimination. Or, in other words, why should equality interest override freedom of association. I tried making this argument in my Frontline piece (rather unsuccessfully it seems) that what is at conflict here is not equality v. liberty but two forms of liberty (of two different groups). Your analysis seems to ignore the liberty interest of the discriminated group. Since I have failed to make this point clearly in the past, I will quote extensively from one of the finest phisolophical arguments on this point – Stuart White, ‘Freedom of Association and the Right to Exclude’, 5(4) The Journal iof Political Philosophy (1997), p. 373:
    “Though sincere and thoughtful individuals may differ profoundly in their religious and/or philosophical views, [basic interests] are interests which they have in common, and which, therefore, they can reasonably appeal to for purposes of public discussion about the proper boundaries of individual and associational luiberty in a pluralist society characterised by deep disagreement over religious and philosophical issues.

    Two sets of interests seem especially important. Firstly, there are what we may term ‘integrity’ interests. Integrity interests are related to the individual’s physical security, and, more broadly, to his/her freedom to shape and live authentically in accordance with a distinctive ethical personality…Secondly, individuals have what we may term ‘opportunity’ interests. These relate centrally, though not exclusively, to having fair access to income and wealth, and to other goods, like education and employment, which have a clear instrumental value in enabling the individual to realise his/her ethical personality.
    In the context of a pluralist society, we may say that a practice is harmful, and therefore possibly something we should restrict or regulate, if it damages integrity and/or opportunity interests in a significant way. More precisely, we may say that: it is always a strong consideration in favour of restricting or regulating a practice, X, that those engaged in X thereby damage the integrity and/or opportunity interests of others in a significant way.”

    Admittedly, teh above quote in itself does not go far enough to clarify the point. It was merely to give a flavour of the argument, and White makes teh same argument that Gardner does (referenced in my Frontline article) – that what is at stake in private discrimination is liberty at both sides – liberty of the discriminator and liberty of the discriminated. If you hold liberty dear, you have to take both of these liberties seriously and decide how to balance them. You cannot completely ignore one side of the scale.
    I can send you both Gardner and White articles if you want and I really recommend reading them if you want to see the point made in a much better way than I have managed.

    But the bottomline is that I support anti-discrimination laws as a devout liberal, and there is no contradiction in this stand. Almost all liberal democracies of the world prohibit private sector discrimination – if anything, India is joining the club three decades too late!

  • A matching excerpt which makes the point that discrimination violates liberty interest in John Gardner, ‘On the Grounds of her Sex(Uality)’ Oxford Journal Of Legal Studies (1998):
    “… once it becomes endemic, discrimination on the basis of an immutable status or a fundamental choice is peculiarly prone to rob people of autonomous lives. Thanks to endemic discrimination, black people, women, and disabled people in the North Atlantic post-industrial countries of today are still, in disproportionate numbers, stuck with lives which are too little structured by their own successive choices, or which, if structured by their own successive choices, are too often structured for the worse because so many of the options among which they have to choose are base or demeaning rather than valuable….protection against discrimination shouldbe reserved for groups systematically disadvantaged in their access to an adequaterange of valuable options by discrimination on grounds of the immutable statusor fundamental choice of their members.”

  • I read the article in Frontline but yet to read the full report.
    The points raised in the discussion
    are interesting.In some instances like allowing minority institutions to admit 50% of students from minority communities
    discrimination is permitted although some may object that when they are funded 100% by state such
    discrimination is bad.Yet such a discrimination has been upheld.
    I think it will be interesting to
    list such legally accepted
    discriminatory practices and identify how they affect the
    principle of non-discrimination
    in practice.Of course some discrimination is not open
    but is a known secret. In some
    christian institutions only
    a christian can become a head.
    Although there may be no written
    rule this has been the practice.

    The ideal may be non-discrimination
    and equality but whether all will
    agree to that ideal is doubtful.
    Because people may fear that equality as a principle can result in the unequals treated as
    equals. One problem is measures that give effect to some form of
    positive discrimination could
    end up as permanent fixtures
    in the absence of sunset clauses
    or periodical reviews.Given the
    diversity and multiplicity
    of identities in India i think
    even identifying/defining
    discrimination is a herculean
    task. Many contractors prefer
    labor from outside the state in
    which the project is located
    and will this amount to discrimination against locals.
    One reads about construction
    workers from Bihar employed in
    large numbers in Karnataka and
    migrant labor from Karnataka
    employed in sugar factories
    in Maharastra.Can these be
    considered as discrimination
    as labor for such work is
    available in Karnataka itself.

  • “For the state to start restricting all of these things is to intrude profoundly into the private domain, a particularly unjustified violation especially when it has contributed virtually nothing towards its construction or maintenance.”
    Well, even if it has contributed something should such intrusions
    be considered as desirable.

    Coming to gender based discrimination, if a temple is open only to women, can the state or the Commission force that the temple is open to men as well.This is not a hypothetical question as I
    understand that there is atleast
    one such temple in Kerala.I am
    aware of a ritual in Kerala in
    which women alone participate,
    that too in massive numbers.
    Can such practices be deemed
    to be discriminatory.