Author: Thirisha S, School of Excellence in Law
INTRODUCTION
Global digitization is accelerating and the world is driving towards a transformative economic revolution that impacts the people work and are employed in the future. As per the International Labour Organization’s (ILO) 2021, World Employment and Social Outlook Report, the number of digital labour platforms has surged fivefold over the last decade. The term “Gig work” originates from the West, often referred to as the sharing economy, free and flexible jobs in the Indian context it refers to all app-based work (delivery, home-based services etc) has been grown exponentially in the recent years driven by technological advancements and shifting societal norms. Uber, Lyft, TaskRabbit, and Fiverr have provide flexible work opportunities to millions of individuals worldwide, giving them the ability to work as independent contractors. Since the gig economy offers huge benefits, such as flexible hours and autonomy, it also leads to discrimination and inequality.
ABSENCE OF COMPREHENSIVE LABOUR LAWS FOR GIG WORKERS
Traditional labour laws were intended for long-term, full-time employment relationships, and most of these laws do not adequately address the challenges faced by the gig workers. But it’s quite opposite in the world of gig workers, as they are short-term, flexible jobs that are usually facilitated through internet-based platform. Unorganized sectors are classified as independent contractors rather than employees, which implies that they do not have access to the same legal protections and safeguards as traditional employees. This lack of legal protection leads to discrimination which are often contingent on the employment relationship. Whereas gig workers enjoy flexibility, they are also adhered to the terms and conditions established by platform operators, most of the time the operators ban the users without due process. This disparity often endangers the lives of the gig workers through various forms of discrimination including bias related to race, gender, age, disability etc.,
THE GIG ECONOMY AND ITS IMPACT ON DISCRIMINATION
The designation of gig workers as independent contractors instead of employees has major implications for their legal rights, especially concerning discrimination protections. Since they are not classified as employees, gig workers often miss out on several legal safeguards, including:
Protections under anti-discrimination laws: They are typically not covered by these laws in many regions because they are not recognized as employees.
The ability to unionize and engage in collective bargaining: Gig workers lack the legal framework to form unions or negotiate collectively to combat discrimination and other workplace issues.
Access to benefits and statutory entitlements: Without employee status, they generally do not qualify for benefits such as paid sick leave, minimum wage protections, or parental leave.
VARIOUS FORMS OF DISCRIMINATION:
1.Racial and Gender Bias in the Gig Economy
One of the most significant concerns regarding discrimination in the gig economy is the prevalence of racial and gender bias. Studies have shown that gig workers are often subject to bias based on their name, appearance, or gender.
Racial Bias in the Gig Economy
In ride-hailing services like Uber and Lyft, racial bias has been documented in the form of lower ratings for drivers of colour, especially Black drivers. Research has found that Black drivers tend to receive lower ratings from passengers compared to their white counterparts, even when they provide comparable levels of service. This disparity can result in fewer job opportunities, less favourable ratings, and ultimately lower earnings for Black workers. For example, a study by the National Bureau of Economic Research found that Black Uber drivers earn less than white drivers due to bias in the rating system, which affects their ability to receive future ride requests. While platform companies have introduced measures to mitigate discrimination, such as anonymizing the names of drivers and passengers, these efforts have not eliminated the issue entirely.
2. Gender Bias
Gender discrimination is also prevalent in gig platforms. Female workers, particularly in traditionally male-dominated fields like driving and delivery, may face challenges in securing jobs or earning equal pay. In addition to overt bias, women may be subjected to sexual harassment by passengers or customers, an issue that has been reported in ride-hailing and other gig economy platforms.
In the 2018 study by Uber revealed that women in their platform often face harassment from riders, including verbal abuse and unwanted advances. While Uber has taken steps to address this issue by adding safety features such as the “panic button” and a dedicated safety hotline, the risks for female drivers remain substantial.
2.Algorithmic Discrimination
Many gig platforms rely on algorithms to assign tasks, determine pay, and rate workers. However, these algorithms can unintentionally perpetuate discrimination based on historical biases present in the data.
For eg., an algorithm that matches workers to jobs may disproportionately favour certain demographic groups over others. If the algorithm is trained on biased data such as previous customer reviews or ratings, it may systematically disadvantage workers from marginalized groups. This can result in lower job opportunities, poorer treatment by customers, and ultimately, reduced earnings.
In 2018, the non-profit organization Upturn published a report warning that algorithms used in platforms like Uber and TaskRabbit could have biased outcomes, particularly if they were not designed with fairness in mind. The report called for greater transparency in algorithmic decision-making and for platform operators to ensure that their systems are free from discriminatory bias.
LEGAL PROTECTIONS AND CHALLENGES FOR GIG WORKERS:
United StatesIn the U.S., the primary challenge faced by gig workers is the lack of employee status. As independent contractors, gig workers are not automatically covered by federal anti-discrimination laws, which are generally limited to employees. This means that gig workers must seek protection under other legal frameworks, such as:
State-level anti-discrimination laws: Some states, like California, have expanded protections for gig workers by enacting laws that include independent contractors under anti-discrimination provisions.
Title VII of the Civil Rights Act of 1964: While Title VII does not directly apply to independent contractors, workers who can demonstrate that they are effectively employees rather than independent contractors may be able to seek protection under this law.
Federal and state-level lawsuits: In some instances, gig workers have successfully filed lawsuits against platform companies for discriminatory practices. For example, in 2020, several Black Uber drivers in California filed a lawsuit against the company, alleging that it had failed to prevent racial discrimination by passengers.
European Union:
In the European Union, gig workers are also often excluded from anti-discrimination protections. However, the European Court of Justice has recently ruled that certain gig economy workers—particularly those working for platforms like Uber—should be classified as employees rather than independent contractors, thereby granting them access to a range of labour protections, including protection from discrimination.
The ruling in Uber v. Aslam (2021) is significant in that it could set a precedent for other gig economy companies, especially in Europe. This decision could lead to expanded legal protections for gig workers, including anti-discrimination laws and access to benefits such as sick leave and pensions.
India:
Who Are Gig and Platform Workers?
According to the Code on Social Security, 2020 (which is not yet fully implemented), gig workers are individuals who perform work outside the traditional employer-employee relationship, while platform workers are a subset of gig workers who earn their income through online platforms or apps.
While gig work provides flexibility and independence, it often lacks essential protections such as stable wages, health benefits, insurance, and mechanisms to address grievances—protections typically available to regular employees.
Historically, Indian labor laws have not specifically addressed gig or platform work, leaving gig workers outside the scope of laws like the Industrial Disputes Act, 1947, or the Factories Act, 1948.
The Code on Social Security, 2020, represents a step forward by proposing:
The establishment of a social security fund for gig and platform workers,
Mandatory registration of gig workers through a central portal,
Contributions from platform aggregators based on their annual turnover.
However, this law is ambiguous and without clear enforcement guidelines or dedicated budgets, these provisions remain largely theoretical.
Rajasthan’s Landmark Legislation: The Platform-Based Gig Workers (Registration and Welfare) Act, 2023
Mandatory registration for both gig workers and platform companies,
The creation of a Welfare Board and a Social Security Fund supported by contributions from aggregators,
Issuance of identity cards to gig workers and access to welfare schemes.
Although this law sets a significant precedent, its success will depend on consistent enforcement, ongoing oversight, and active collaboration among stakeholders.
Piyush Pandey vs. Unacademy:
In this case, a gig worker at Unacademy claimed employee status to receive labour protections. The court decided against this, emphasizing that the worker was an independent contractor. The decision was based on the level of control the platform exercised specifically, the worker had the freedom to choose work hours and assignments, indicating a high degree of independence. This ruling highlights how control and autonomy are crucial factors in determining employment status and illustrates the difficulty of applying traditional employment laws to gig work.
Foodpanda Case (Delhi High Court, 2019):
Similarly, Foodpanda delivery personnel sought to be recognized as employees to benefit from labour laws. The court ruled that they were independent contractors due to their flexible work schedules and the lack of direct oversight by Foodpanda over their daily tasks. This case underscores the challenges of fitting gig workers into existing legal frameworks, which often rely on notions of control and supervision.
CONCLUSION
The gig economy provides many benefits, like flexibility and autonomy, but it also have significant challenges in terms of discrimination and inequality. Gig workers, particularly those from marginalized groups, face discrimination based on race, gender, age, and other characteristics. Existing legal frameworks are often inadequate to address these issues, as they were designed with traditional employment relationships in mind. To ensure fair treatment for gig workers, reforms are necessary. These reforms should include the reclassification of gig workers as employees, greater transparency in algorithmic decision-making, and the expansion of anti-discrimination laws to cover independent contractors.
FAQS
What is the gig economy?
The gig economy refers to a labor market where temporary, flexible jobs are common, and companies tend to hire independent contractors or freelancers instead of full-time employees. Examples include ride-sharing drivers, food delivery workers, and freelance professionals.
Are gig workers protected under discrimination laws?
It depends on the jurisdiction. In many countries, traditional anti-discrimination protections apply primarily to employees, not independent contractors. However, some jurisdictions have begun expanding protections to include gig workers under specific conditions or through legislative reforms.
Can platforms like Uber or Swiggy be held responsible for discrimination?
Responsibility depends on whether the platform is considered an employer. If the worker is classified as an independent contractor, the platform may argue limited liability. However, courts in some jurisdictions have held platforms accountable for discriminatory practices under consumer protection or equality legislation.
How can discrimination be proved in the gig economy?
Evidence may include Communication (texts, emails),Pattern analysis (e.g., consistent lower ratings for certain profiles),Statistical data, Testimony from other gig workers, Platform algorithms, if accessible.
Are algorithms used by gig platforms discriminatory?
Potentially, yes. If algorithms rate or assign tasks based on race, gender, or other protected characteristics directly or indirectly they may constitute unlawful discrimination. Transparency in algorithmic decision-making is a growing legal issue.
How can a gig worker file a complaint about discrimination?
Internal complaint mechanisms on the platform
Labor tribunals or equality commissions
Court proceedings under applicable civil or human rights law
Trade unions may also offer assistance.
