Pregnancy is still a barrier in accessing employment : Valley Vision

 The legislature has failed to take cognisance of the discrimination faced by pregnant persons during employment and provide a remedy for it. 
| Photo Credit: AP

Earlier this month, a Division Bench of the Delhi High Court delivered a decision in Sonu Rajput v. Union of India, which marks a milestone in our quest for substantive equality for working women.

Sonu Rajput, the petitioner, was a young woman who sought to join the Sashastra Seema Bal (SSB) as a ‘Constable (Washer Man)-Female’ under the Other Backward Classes quota. She qualified for the physical endurance test and the physical standard test. However, she failed the medical exam, which was the last step in her appointment. She failed this exam for being overweight (the required BMI is 25). Her medical exam was conducted less than four months after she delivered her child.

The Central Armed Police Forces argued that personnel in the armed forces work under hostile working conditions and therefore, the result of the medical exam should be upheld. Although the Guidelines for Recruitment Medical Examination in Central Armed Police Forces prescribes a re-exam for a woman after she completes six weeks from the time of giving birth, the Court decided that she deserved another opportunity to be re-examined by a medical board. Observing that a period of six weeks was too short to lose the weight gained during pregnancy, the Court found that the Guidelines should prescribe a more reasonable period for women to gain their medical fitness after pregnancy.

But can authorities find any period that is reasonable in all cases, given the physiological differences in the bodies of pregnant persons and differing conditions of pregnancy?

The Faustian bargain

The Faustian bargain refers to a folk legend from Germany where Johann Faust, an alchemist and astrologer, was believed to have received knowledge and magical abilities by selling his soul to the devil. Often referred to as ‘a deal with the devil’, the bargain involves gaining material abilities or gifts in exchange for compromising morality and values. The deal, is after all, with the devil, and so in every iteration of the bargain, the bargainer loses out. Similarly, women, too, lose out in every iteration of the exchange between their personal choice or responsibilities towards family and gaining economic security through employment. But the state need not be the devil in our story. A state, cognisant of the constitutional value of care, through the law, can very much prevent the Faustian bargain. But first we must understand, how does the law create the Faustian bargain?

The Maternity Benefit Act, 1961 (as amended in 2017), is a landmark legislation that recognised maternal benefits of pregnant women, entitling them to 26 weeks of maternity benefits, i.e., leave with pay and all benefits of employment. This legislation, however, does not provide any guidance on how pregnant persons should be treated in relation to pre-conditions for gaining employment or employment benefits such as promotions. There is also no general prohibition for the state of pregnancy being a ground for discrimination in employment. Due to this reason, the court in Sonu Rajput and in examples below had to intervene under writ jurisdiction to uphold the maternity rights of women and ensure that their pregnancy does not act as a barrier to accessing employment and livelihood.

As early as 1990, the Madras High Court in S. Amudha v. Chairman, Neyveli Lignite Corporation struck down Regulation 21 of the Medical Examination Rules as being violative of Article 21 of the Constitution for allowing persons to be declared ‘temporarily unfit’ if they were in advanced stages of pregnancy. The petitioner was 16 weeks pregnant and was for that reason denied permanent appointment as a junior chemist. In Dr. Rani Devi v. Chaudhary Devi Lal University, the Punjab and Haryana High Court similarly held unconstitutional a circular by the Government of Haryana which declared pregnant women ‘temporarily unfit’ if found to be pregnant before appointment to the post of lecturer.

In both the cases, the court noted that the absence of health hazards as a result of pregnancy in the nature of employment was the basis for the court to provide the remedy and allow the pregnant person to the post. In other words, the courts stepped in to make space for pregnant women’s peculiar precarities when the employment rules privileged the male-normative conception of medical fitness.

To the detriment of working women

Notwithstanding these instances of efficacious writ remedies, the Faustian bargain embedded in our legal framework works to the working women’s detriment in two ways. One, without a right against discrimination in their employment and a corresponding right to accommodation of the differences arising out of pregnancy, the law still forces women to bargain their reproductive choice for economic security. Second, the courts are constrained to strike a balance between upholding rights and the avoiding judicial legislation. The courts will have to do what the legislature has not done. Courts continue to hear and provide remedy through writ jurisdiction in cases where women face discrimination or access barriers due to pregnancy in employment. The lack of law to address this is the devil that must be dealt with.

Another lacuna is the absence of considerate and representative institutions within the administration. As the judgment shows, no gynaecology expert was consulted before setting the timeline for examining fitness. A possible alternative lies in adopting the principle of reasonable accommodation in a manner that responds to the physiological realities of pregnant persons. The robust regime under the Rights of Persons with Disabilities Act, 2016, can provide a benchmark from which better bargains can be negotiated for women in workspaces. After all, the answer to abysmal female labour force participation cannot mirror the re-enactment of the farce that lay in the very nomenclature of Rajput’s post, ‘Constable (Washer Man)-Female’. It requires a lot more than adding; it starts from caring for a pregnant person’s specific and differing health needs.

Despite this persisting problem, the legislature has failed to take cognisance of the discrimination faced by pregnant persons during employment and provide a remedy for it. Although such persons can knock the doors of the court, which has historically upheld their right to maternity, there is little reason to force them to, when the law can easily recognise this right.

The legislature must recognise that medical certifications, physical tests and arbitrary disqualification criteria are used to deny pregnant persons their employment opportunities. That such employment opportunities are inextricably part of maternity benefits and positive and anti-discrimination protections against these must be provided by law.