Despite the many years that have passed since independence, India still lacks a single, comprehensive anti-discrimination law that addresses appraisal discrimination for all private sector employees. In the government sector, there are clear guidelines for salary hikes, such as those from the 8th pay commission, among others. However, for private sector employees, gender-based appraisal discrimination exists and that’s the reality.In this article, private sector employees can learn about the legal protections available and how courts typically handle cases of appraisal discrimination (excluding gender-related issues).What the law provides Malak Bhatt, Founding Partner, Chambers of Malak Bhatt explained to ET Wealth Online what the law provides:Article 14 and 15 of the Constitution of India guarantee equality before law and prohibit discrimination on the basis of religion, race, caste, sex, and place of birth. However, these protections can be employed only when discrimination is made by a state or government body. Most cases are filed against the state. Discrimination claims are rarely filed against private parties.Code on Wages, 2019: Prohibits wage discrimination on the basis of gender. Under the Equal Remuneration Act, equal pay must be paid for the same work or work of a similar nature, irrespective of gender. However, this does not cover performance-based appraisal discrimination unrelated to gender.The Industrial Disputes Act, 1947 covers "unfair labour practices," which includes victimization and differential treatment of similarly placed workmen.Constitutional Principle — Equal Pay for Equal Work: In Randhir Singh v. Union of India (1982) 1 SCC 618, the Supreme Court established coverage of equal pay in both public and private sectors. Courts have since reiterated this, but primarily in the context of workers doing identical roles being paid different amounts, and not in the context of merit-based appraisal decisions.Also read: Minimum 2% annual salary increment for these employees as per Rule 185 of Central Government’s new labour code rules; Know the detailsPrivate sector companies have wide discretion in determining increments and appraisalsThe law provides the weakest protection for private sector employees. Bhatt says that employers in India have wide discretion in determining increments and appraisals. According to Bhatt, the Supreme Court has ruled that unless there is complete and wholesale identity between the two groups, there is no claim for equal pay, and the equation of posts and determination of pay scales is the primary function of the Executive and not of the Judiciary.Courts do not generally sit in review of management's commercial and HR decisions, especially for appraisals.However, Bhatt says discrimination claims become stronger when:The differential treatment is based on a protected characteristic (gender, caste, religion, disability).similarly placed employees with identical roles, qualifications, and responsibilities are consistently treated better.The employer's own internal policies promise certain increments linked to performance criteria, and those criteria were selectively applied.Also read: Can you be fired from job despite achieving your annual target? Know what the labour law saysAccording to Bhatt, the employee faces an uphill climb from proving appraisal discrimination unless they can establish:A comparator: That another employee in an identical or near-identical role who received recognition/increment while the claimant did not, despite the claimant's superior or equal performance.A protected ground: The differential treatment was based on gender, caste, religion, or disability.A written record: Performance reviews, emails, task completion records, or manager communications showing the extra work was acknowledged but unrewarded.According to Bhatt, the doctrine of equal pay for equal work, as applied judicially, means discrimination based on gender only arises when men and women perform the same work or work of a similar nature. For differences in educational qualifications or for those relating to responsibility, reliability or confidentiality, the said principle would not apply.Bhatt says that for non-gender based performance discrimination (i.e., a colleague gets an increment for the same work purely due to favouritism), legal remedies in the private sector are limited. Bhatt says: “An employee can file a grievance internally and, if that fails, approach the Labour Court for unfair labour practices, but proving subjective bias in appraisals is evidentially very difficult.”Also read: Asked to work beyond office hours? Know your rights under new Labour CodeThe employer can argue:Increments are merit-based and within management's discretion.The comparator employee had qualifications, tenure, or performance metrics that justified differential treatment.There is no legal obligation to reward extra work beyond what is contractually specified.What courts generally doAccording to Bhatt, courts generally entertain the argument if it is framed around a protected characteristic (gender, caste, disability) or an unfair labour practice under the IDA. For pure performance favouritism without a protected ground, historically, the courts have been reluctant to interfere with management's appraisal decisions. That said, employers bear the burden of justifying any wage differentials, and such justifications must be based on factors other than gender, such as qualifications, experience, or responsibilities. Bhatt says: “Courts do require employers to show an objective basis for pay differences.”