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Posted by Esha Goyal

Pervasive social norms around us continue to place the burden of child bearing and rearing on cis-het women and trans men, thus making living their lives on their terms nothing less than a battle. However, for the specific purpose of this article, the term women will hereafter be used in reference for cis women. The Maternity Benefit Act, 1961 (hereinafter ‘the Act’) provides women with 12 weeks of paid maternity leave, later increased to 26 weeks by the 2017 amendment, in addition to nursing breaks and crèche facilities. The new Code on Social Security, 2020 also echoes these provisions.

As per the last national census, women constitute 20.5% of the organised sector employees. The State has instituted a number of women-centric policies with the intent of preventing discrimination at work on the basis of one’s gender, a significant one being the provision for maternity leave. These policies are based on the twin objectives of ensuring women empowerment and gender equity at work, and securing income and employment during maternity theoretically goes a long way in achieving these goals.

The Maternity Benefit Act, 1961 (hereinafter ‘the Act’) provides women with 12 weeks of paid maternity leave, later increased to 26 weeks by the 2017 amendment, in addition to nursing breaks and crèche facilities. The new Code on Social Security, 2020 also echoes these provisions.

Also read: Institutionalising Period Leaves: Does ‘Equal’ Mean ‘Identical’?

However, the first problem with India’s maternity leave model is that it follows the Employer Liability approach by placing the full economic liability for maternity payments on the employer, without any contribution from the employees or the State. This in turn, serves to de-incentivise employers from formally employing, retaining and promoting women in the first instance itself to avoid the cost of maternity in the future.

The second major drawback is the legislation’s bias towards the formal sector and the exclusion of all women who are not permanent workers with a clearly defined employer. As it currently stands, the Act benefits a mere 3% of ‘working’ women in India. However, women working as contract workers instead of full time employees as well as all women working in the unorganised sector are excluded from the maternity benefits provided under the Act. Not only do they risk being fired from or demoted at their job on announcing their pregnancy, these women would also lose out on income during maternity in addition to heightened chances of unemployment when they do return to the market.

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Women working as contract workers instead of full time employees as well as all women working in the unorganised sector are excluded from the maternity benefits provided under the Act. Image Source: Indus Scrolls

However, the Act has some upsides to it as well, the most important part being a well compensated maternity leave of optimal length, which enables the new mother to spend time with her infant without losing her job. This is significant because an extremely short leave would risk the new mother dropping out of the labour market by having to prioritise childcare over paid work. On the other hand, an extremely long leave could have the paradoxical effect of dampening women’s employment by reinforcing the belief that women would prioritise home over work and therefore reducing employment rates.

Similarly, the fact that the Act compensates the woman at the same rate as employment during maternity leave is vital because a poorly compensated leave not only affects gender relations within the household but also serves to lower maternal employment by making it economically unattractive. Thus, though the act covers very few women, it does seem to significantly benefit those it does. 

The same can be said about menstrual leaves provided by some companies, with Zomato being the latest, even though the attempt at a much more progressive legislation did not succeed. Provisions for menstrual leave help dissipate the stigma traditionally associated with menstruation by acknowledging the biological differences of women and serving to normalise them, beginning with the workplace. Yet, the question of both maternity and menstrual leave raises some pertinent questions about women’s role in the workplace.

On the one hand, the express acknowledgement by a major corporate that institutions need to accommodate different biological realities is undoubtedly a major step in moving away from the universal conception of the ‘economic man’. On the other, parts of that same announcement which urge women to only apply for leave if they are really unable to work and expressly ask them not to abuse the entitlement reinforce the idea that women are weak, emotional beings susceptible to their biological failings and unable to work in the corporate environment.

Also read: Women, Work & Migration: Why Is India’s Female Labour Force Participation So Low

Yet, that is the whole point. Women do not ‘fit in’ at the workplace because the workplace itself has been made for the ideal economic man. The ideal 40-hour workweek was designed for a male industrial worker who only had to worry about his work and let his wife take care of the children and the household. This man did not have any socially defined duties of childcare or housework. He did not menstruate, he did not experience cramps or need sanitary products once a month, or risk ever getting pregnant. If he did, then these natural processes wouldn’t be seen as failings. Yet man doesn’t, woman does, and treating the ‘Economic Man’ as the standard for neutrality erases women’s identities by forcing them to adapt to typically male spaces by becoming more like the economic man.

Even today, the main reason why women are often seen as unreliable workers is because most of them have to limit their working hours to fulfil their care duties at home. However, in an environment where working overtime is conflated with effectiveness, employees (men) working longer hours earn a higher wage per hour than those who don’t (women). Add in times when women being unable to work is inevitable, like during maternity and menstruation for some and it is evident that most women would have to, and do, bear considerable pain to fit into the job description of the organised sector or give up work altogether.

Failing to account for this reinforces patriarchal norms of gendered division of labour even in women-centric policies like the Maternity Benefit Act or the child-care leave provided in the Central Government which reinforce the notion that housework and childcare is solely a woman’s job. 

Instead of changing institutions to look at women as the ideal template of a worker, women are being asked to change to accommodate institutions, without acknowledging the biological and cultural limitations on women’s participation or the additional caregiving tasks socially imposed upon them.

Not only is the workplace designed to suit men, sometimes it actively promotes a gendered division of labour at work, which can effect the division of labour at home as well. The economic man is independent of all social constraints, but woman isn’t. Failing to account for this reinforces patriarchal norms of gendered division of labour even in women-centric policies like the Maternity Benefit Act or the child-care leave provided in the Central Government which reinforce the notion that housework and childcare is solely a woman’s job. 


Esha Goyal is currently a third Year law student at National Law School of India University, Bangalore. Her areas of interest include family law, jurisprudence and feminist historiography. She can be found on Instagram, Twitter and LinkedIn.

Featured Image Source: Science

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