Beyond the Maternity Benefit Act of 1961, India
It was in May 2020, just after COVID struck and India was going through its first lockdown. It was a time of uncertainty, doubt and fear among everyone – we were not sure what hit us, what was about to happen, and how our lives would turn out. I had just quit my job in March 2020, hoping to take a small break and start looking for a new job. It was then I realised that being a 29 year old, married woman was not a good place to be in when one is job hunting; at least that was how I was made to feel. Until then, I had never experienced it because I took my previous job just before I got married.
I will never forget an interview I had given over the phone to a manager of a reputed non-profit organisation. After explicitly asking details about when I got married, who I live with etc., she continued to ask me if I planned to have children in the next five years and how I should “understand” her hesitancy in wanting to hire me. That was the most enraged, disappointed, and downcast that I had felt in a very long time. It was clear that I would be looked at as a liability. Alongside the impact COVID-19 had on the job market, it became impossible to keep up hope.
Months later, I went on to take a job with a company that made a point of ensuring the interview process was non-discriminatory in nature – there were no questions about marital, financial status or any other personal details. This commitment to creating an inclusive workplace was a key factor in my decision to take the job. Throughout my working life in India, I mostly worked with smaller organisations that did not follow strict protocols or have mandated HR policies and, as a result, it became very common to be asked about family background, marital status and other personal information as part of the interview process. Once I joined a workplace that had non-discriminatory hiring practices, I began to appreciate how important it was for women to feel like equals, and how easy it was for them to feel like second class citizens in their own workplace. I saw women availing maternity leave without any feelings of guilt and employers being genuinely happy to give the time off required (and mandated) for their staff to take time to build their families.
In a country where people are discriminated against based on caste, creed, race and gender, women are further discriminated against based on marital status, duration of marriage, perceived reproductive age and existing children. Most of us have grown up around male members of the family joking about how the (very few) women in their workplace are enjoying and ‘eating’ up their salary in the name of maternity and sick leave. There is also an inherent patriarchal mindset that is prevalent in most Indian workplaces that believes that a woman’s income is only to supplement the husband’s main income, that she doesn’t have to actually work unlike her male colleagues who are the main breadwinners of the family. Comments like these undermine the emotional, physical and domestic labour that a woman puts into giving birth to and raising children while managing household work and a full time job in a patriarchal system.
India has done a good job mandating compulsory 26-week maternity leave for women, however the law has been widely criticised for several reasons. Firstly, men are mandated paternity leave only in Central Government appointments. Also, this law is only applicable to permanent employees at workplaces with over 10 employees meaning that, in reality, less than 1% of Indian women are able to avail this benefit due to high levels of participation in the informal sector. This means that the most privileged women in the country working government and corporate jobs will benefit whilst the rest, and those most vulnerable, are forced to take unpaid leave or are fired from their position.
This law also does not protect women from unconscious bias in the hiring process and many workplaces and employers consider maternity leave to be a liability when hiring women. The resistance towards paid maternity leave, but not other benefits such as paid sick leave, health insurance and retirement benefit, reveals a clear gender bias and imbalance where the specific needs and requirements of women are not considered important enough to be addressed.
There are many employers and companies that argue that the government has to take responsibility in providing these benefits, as providing a six month paid leave to women is costly and finding a temporary employee in the place of the employee on leave is difficult. There are others that say that India is not in a position to provide generous paternal leave akin to many developed countries owing to the fact that there are simply not enough resources or bandwidth for the country and the employers to be able to afford that. In such arguments, it is important for employers and policy-makers to take a step back and think of possible repercussions of insufficient maternity leave and the absence of child care support at workplaces. By failing to offer sufficient maternity leave we are discouraging women from coming back to work and building a weak economic infrastructure by forcing potentially half of the workforce to stay at home.
To build an equitable workplace and ensure that everyone feels welcome, the need of the hour is gender sensitisation, non-discriminatory hiring practices and on-the-ground implementation of fair workplace policies to ensure that women actually get to avail the maternity leave benefits and other gender specific benefits provided.
Written by Usha Kiran
Thrive Law Changer, India