Anti-Muslim bias in employment must be tackled by law

Perched atop their towers of privilege, many “classical liberals” decry any proposal to remedy or curb the discriminatory practices prevalent in the private sector, the prejudice-laden actions of private individuals. ‘Liberty is an intrinsic value’, they argue, and its instrumental manifestations be damned.  Obnoxious bias- against Muslims, Dalits- endemic, pervasive and deeply entrenched, can flourish, but on no account should the state be allowed to encroach even an inch into the private domain.

In 2004, when the UPA-I government in its Common Minimum Programme included mandatory affirmative action in the private sector, India Inc. was up in arms. Finally, the government was forced to backtrack, and corporate bigwigs promised that they would, as part of their CSR (Corporate Social Responsibility) do their best to help and empower those hailing from historically disadvantaged and oppressed sections of society. That most business houses in India are essentially sole-proprietorship firms, whose “corporate values” are often influenced and governed by the personal values and social and cultural identity of the families, running them, must also be borne in mind.

A good example will be The Hindu, one of the most venerated of newspapers, disallowing non-vegetarian food in all its offices across India last year. The Adani group one of the main sponsors of MasterChefIndia, somehow managed to make it an all-veg show, though people were cagey about a direct attribution. 

This should be the necessary backgrounder to any discussion on Zeeshan Ali Khan, the MBA who was brusquely told off by Hare Krishna Exports Pvt Ltd, a leading diamond business entity. Within moments of sending in his application for a job, Khan was told by the firm’s Mumbai office that Muslims were not welcome as employees.  Leave aside that farce of an “apology”, and the even more farcical company line- that one Muslim name in its rolls shows that the company doesn’t practise communalism.  Also ignore the misguided FIR against the firm, because by invoking IPC provisions regarding hate speech and communal violence, it has itself ensured its demise if at all the case goes to court.

Instead, let’s ask how can there be a legally sound and sustainable way of holding private sector organisations to account when they indulge in blatantly discriminatory practices? Let’s ask what legal recourse can be had, when a corporation discriminates on the grounds of religion, caste, sex, or any of the grounds listed in the constitution. A writ petition is out of the question since there isn’t any fundamental right against discrimination by non-state actors.  A more specific question, extremely germane to the present context is how to stop an individual’s beliefs from dictating corporate policies.

The 19 May ruling in the Ashers Baking Corporation case, from Northern Ireland comes handy. The bakery, swearing by its proprietors’ Catholic beliefs, refused to provide a cake to a gay wedding.  Gareth Lee, the petitioner, wanted the cake to carry a “Support gay marriage” tag. On its part, the bakery claimed ignorance of Lee’s identity and stated that would willingly have made him a cake without a “support gay marriage” graphic and they would equally have refused to make such a cake for a heterosexual customer.  Dismissing this argument and holding that it was a case of direct discrimination, the judge said the correct comparison would have been with a heterosexual person ordering a cake that said “support heterosexual marriage”. She found that Ashers must have known that Lee was gay. And she dismissed the contention that making the cake he had ordered would require Ashers to support gay marriage.

“Much as I acknowledge fully their religious belief is that gay marriage is sinful, they are in a business supplying services to all, however constituted. The law requires them to do just that, subject to the graphic being lawful and not contrary to the terms and conditions of the company. There appears to have been no consideration given to any other measures such as the non-Christian decorator icing the cake or, alternatively, sub-contracting this order.”

But this was possible only because there was a specific legislation prohibiting private businesses from indulging in discrimination. In only the government is subject to such a prohibition, by the constitution. 

In case we look to the United States and Title VII of its Civil Rights Act which prohibits discrimination on grounds of sex and race, there’s reason to be optimistic. Take the case Abercrombie and Fitch, sued by Samantha Elauf, a Muslim teenager, in 2008.  She wore a hijab to the job interview, but the company has a no headgear policy, and rejected her because she didn’t match up to the “casual and preppy” look of its products and what it wanted its employees to project. In February this year, the US Supreme Court heard arguments in the matter. Abercrombie contended that its policy was “neutral”, and thus it was for Elauf to prove anti-Islam prejudice. The bench didn’t seem impressed, and said that it was for the company to prove that it accommodates all religions and religious practices relating to attire, among other things. It is believed that the ruling, due in June, would be a victory not only for Muslims, but people professing other faiths too.

For far too long, deep-seated prejudices of myriad types have been allowed a free rein. A jaundiced view of liberty and liberalism has paved the path for liberal application of discrimination. It is imperative to tear off this cloak of impunity from India Inc.