BY ARJUN PALERI
AND ANSHU SINGH
The Great Resignation has hastened the pace of changes in the area of employment, and employers are taking a number of
steps to ensure that their employees are reasonably satisfied with the workplace.
The employment benefits package is a way for employers to show their commitment to their employees, attract top talent
and retain employee satisfaction. Several studies around the world have shown that employees are more likely to stay with an
employer who provides a better benefits package. Most of these employee benefits are in addition to the minimum statutory
requirements, and several of these benefits are available to employees and their families.
However, the scope of the family is generally limited to the spouse and minor children of a married employee. This definition
of the family seems anachronistic, and does not seem to have evolved with changing times. For instance, most employers in
India still provide medical insurance only to the heterosexual spouse of an employee and their children, and live-in or same-sex
partners are not covered. This seems to be anomalous with the changing legal landscape, and diversity, equity and inclusion
(‘DE&I') policies becoming the norm worldwide.
In India, legally, marriage is between a biological man and a biological woman; thus, a family unit is the husband, wife and
children. This has been the definition most employers rely on when providing benefits to their employees. But recent court
rulings show that the legal landscape is quickly changing, with several grey areas evolving.
Recently, the Supreme Court of India, in Deepika Singh versus Central Administrative Tribunal & Ors. (2022), observed that
though both legally and socially, the family is an unchanging unit consisting of a mother and father, this needs to change with
changing times, as many families do not fit this straitjacket. The court said that family relationships might take the form of
unmarried domestic partnerships or queer relationships, which should be considered.
Admittedly, this was just an observation made by the court while deciding a case on maternity benefits, and thus does not
change the legal obligations of employers. But read with the court's judgments on the rights of transgender persons, the
decriminalisation of same-sex relationships and the recognition of the rights of live-in partners, it clearly shows the direction in
which the law is evolving in India.
A quick look at the legal landscape of the United States, the United Kingdom and Europe shows that in all these jurisdictions,
the definition of family for the purpose of employee benefits has been widened, and the benefits available to the heterosexual
spouse of an employee are mostly also available to a same-sex spouse or a live-in partner. Anything less may be considered
discrimination and thus declared illegal.
Even if the legal mandate in these jurisdictions does not prescribe inclusionary practices, the employers, under their DE&I
policies, are invariably accepting practices which try to make the workplace more inclusive by not questioning the personal
choices of employees regarding family, and extending the benefits like medical insurance and parental benefits in a non-
discriminatory manner.
With changing times, more and more people are accepting and embracing their identities which may not conform to the
traditionally accepted mores of society. Thus, not providing benefits to employees with personal choices that do not conform to
traditional notions of society takes away the sense of belonging from employees, leading to unhappy employees and higher
attrition rates.
Though there is no statutory requirement for accepting a broader meaning of meaning and extending the benefits, the law
also does not restrict employers from taking this approach. Using a broader definition of family and thus expanding the scope of
employee benefits will make the company more attractive, and thus help hire and retain talent from a more comprehensive set
of people. Several recent surveys show that job seekers prefer companies with inclusive policies and a diverse workforce.
Moreover, a diverse and well-managed workforce with varied experiences and inputs will increase the productivity and, thus, the
profitability of the company. A diverse workforce will help the company understand and connect with customers from different
backgrounds, thus leading to the promotion of business. It may also make the company more attractive to prospective clients in places
like the U.S., Europe and the U.K., where an inclusive workplace is fast becoming a business requirement.
Small changes like allowing medical insurance for a same-sex spouse or live-in partner will not be a significant additional
burden on the employer but go a long way in ensuring that employees from different identity groups do not consider themselves
out of place. It may also reduce the unconscious workplace bias against these employees by sending out the message that
there is nothing unacceptable in their personal choices and that the employer considers them on par with other employees.
Positive social change is the buzzword that most businesses use and try to associate with. Treating their employees with
different personal choices fairly by taking small measures will go a long way in creating this positive social change without
additional costs.
(IPA Service)
