WORKFORCE TREATMENT AND DISCRIMINATION IN WORKPLACE 1.0
INTRODUCTION TO WORK DISCRIMINATION 2.0 DIMENSIONS OF WORK
TREATMENT AND WORK DISCRIMINATION 2.1 FORMAL AND INFORMAL 2.2
POTENTIAL AND ENCOUNTERED 2.3 PERCIEVED AND REAL 3.0 TYPE OF
EMPLOYMENT DISCRIMINATION 3.1 DISABILITY 3.2 AGE 3.3 GENETIC
INFORMATION 3.4 NATIONAL ORIGIN 3.5 PREGNANCY 3.6 RACE/COLOR 3.7
RELIGIOUS 3.8 SEX-BASED 3.9 SEXUAL HARASSMENT 4.0 LEGAL PROTECTION
FOR EMPLOYMENT DISCRIMINATION 5.0 CONCLUSION
Introduction What is Discrimination? Discrimination is the
prejudicial and/or distinguishing treatment of an individual based
on their actual or perceived membership in a certain group or
category, "in a way that is worse than the way people are usually
treated. It involves the group's initial reaction or interaction,
influencing the individual's actual behavior towards the group or
the group leader, restricting members of one group from
opportunities or privileges that are available to another group,
leading to the exclusion of the individual or entities based on
logical or irrational decision making. Discriminatory traditions,
policies, ideas, practices, and laws exist in many countries and
institutions in every part of the world, even in ones where
discrimination is generally looked down upon. In some places,
controversial attempts such as quotas have been used to redress
negative effects of discriminationbut have sometimes been called
reverse discrimination themselves. Work discrimination is defined
here as unfair and negative treatment of workers or job applicants
based on personal attributes that are irrelevant to job
performance. The nature of work discrimination has been addressed
in literature pertaining to oppressed groups such as women; ethnic
minorities; people with disabilities; and lesbian, gay, and
bisexual persons. There is a lack, however, of a framework that
integrates the various conceptualizations of work discrimination.
In response to this deficiency, I discuss and integrate into a
three-dimensional model some important conceptualizations of work
discrimination. A review of literature suggests that work
discrimination is multifaceted. Brown and Ford (1977) discussed two
kinds of work discrimination: "access" (discrimination during
hiring, such as denial of job offer or lower starting salary) and
"treatment"
(discrimination after the person is hired, such as promotion or
salary-raise decisions). Chojnacki and Gelberg (1994) identified
four levels of work discrimination: (a) overt (presence of explicit
formal and informal discriminations), (b) covert (presence of
discrimination in the absence of a formal antidiscrimination
policy), (c) tolerance (presence of formal antidiscrimination
policy, but lacking informal support), and (d) affirmation
(presence of both formal and informal support). Chung (1998)
suggested another dimension of discrimination: direct versus
indirect. Direct discrimination refers to discriminatory practices
against individuals who are known or presumed to be lesbian, gay,
or bisexual. Indirect discrimination refers to a discriminatory or
hostile work atmosphere experienced by lesbian, gay, and bisexual
workers whose sexual identities are neither known nor presumed to
be lesbian, gay, or bisexual. Figure 1 presents a three-dimensional
conceptual model of work discrimination that extends the
aforementioned frameworks.
Workplace discrimination occurs when any individual who is in a
protected classification received adverse employment or hiring
treatment as a member of that group. Workplace discrimination is
forbidden by law for such characteristics as gender, race, age,
religion, sexual orientation, and in employment decisions Two
conceptual models are proposed in this article--one for work
discrimination and the other for discrimination coping strategies
pertaining to lesbian, gay, and bisexual workers. The work
discrimination model includes 3 dimensions (formal vs. informal,
potential vs. encountered, and perceived vs. real). The coping
strategies model outlines methods that deal with potential and
encountered discriminations. It includes vocational choice and work
adjustment strategies; the latter are further categorized under
identity management or discrimination management strategies.
Lesbian, gay, and bisexual persons may be considered "sexual
minorities" because of the pervasive prejudice, social oppression,
and discrimination against them (Croteau, 1996; Elliott, 1993;
Hetherington, Hillerbrand, & Etringer, 1989; Morgan &
Brown, 1991). Many individuals justify their discrimination against
lesbian, gay, and bisexual people on the basis of biased biblical
interpretations or stereotypes that accuse these populations of
being mentally ill, perverts, and child molesters (Levine &
Leonard, 1984). Work discrimination has been a major topic in the
rapidly growing literature concerning vocational issues of lesbian,
gay, and bisexual persons (e.g., Croteau, 1996; Croteau &
Hedstrom, 1993; Driscoll, Kelley, & Fassinger, 1996; Elliott,
1993; Fassinger, 1995, 1996; Griffin, 1992; Hetherington et al.,
1989; Levine & Leonard, 1984; Morgan & Brown, 1991; Orzek,
1992; Pope, 1995, 1996; Worthington, McCrary, & Howard, 1998).
As a contextual factor, it significantiy influences career
development and decision making of such populations. In addition,
researchers are
interested in studying the coping strategies used by lesbian,
gay, and bisexual persons in dealing with work discrimination.
Although different scholars have discussed various
conceptualizations of work discrimination and coping strategies, a
comprehensive conceptual framework that provides an integrative
perspective is lacking. Such integrative conceptual models are much
needed to guide future theoretical and empirical work, as well as
career counseling with lesbian, gay, and bisexual clients (Chung,
1995; Lonborg & Phillips, 1996). The purpose of this article is
to propose conceptual models about work discrimination and coping
strategies pertaining to lesbian, gay, and bisexual persons. These
models were developed by integrating related theoretical and
empirical work in vocational psychology literature with new
conceptualizations. After presenting these two models and their
relation, implications for counseling and research are
discussed.
Formal Versus Informal The first dimension is based on Levine
and Leonard's (1984) framework suggesting two forms of work
discrimination: formal (institutional policies and decisions such
as hiring, firing, promotion, salary decisions, and job
assignments) and informal (interpersonal dynamics and work
atmosphere, such as verbal and nonverbal harassment, lack of
respect, hostility, and prejudice). The aforementioned framework by
Chojnacki and Gelberg (1994) may be subsumed under this dimension
because their four levels of work discrimination can be treated as
combinations of the presence and absence of formal and informal
discrimination. For example, their overt level means the presence
of both formal and informal discriminations, whereas tolerance
level means the presence of regulations against formal
discrimination, but lacking informal support. In addition, Brown
and Ford's (1977) access and treatment discriminations may be
subsumed under formal discrimination. The framework of formal
discrimination is based on institutional policies and decisions
regarding hiring, firing promotion, salary deductions and job
assignments. In contrast, the informal discrimination deals with
interpersonal dynamics and work
atmosphere such as verbal and non-verbal harassments, lack of
respect, hostility and prejudice ( and , 1984). The second
dimension involves the potential and encountered
discriminations. The former deals with actual discrimination in
sexual orientation disclosures, for example. The latter refers to
encountered discriminatory practices. However, the distinction
between the two is subjectivity and objectivity viewed from neutral
terms (, 2001). The third dimension is derived from the concept
occupational opportunity structures of (1980): the ideal, real and
perceived discriminations. In ideal, there is no discrimination.
The comparison between perceived and real discriminations varies
from perception of individuals. The neutral situation may be
interpreted and misinterpreted as a discriminatory practice where
in fact, the situation is just a result of
misconception/misperception.
Disability Discrimination Not everyone with a medical condition
is protected by the law. In order to be protected, a person must be
qualified for the job and have a disability as defined by the law.
A person can show that he or she has a disability in one of three
ways:
A person may be disabled if he or she has a physical or mental
condition that substantially limits a major life activity (such as
walking, talking, seeing, hearing, or learning).
A person may be disabled if he or she has a history of a
disability (such as cancer that is in remission).
A person may be disabled if he is believed to have a physical or
mental impairment that is not transitory (lasting or expected to
last six months or less) and minor (even if he does not have such
an impairment).
Disability discrimination occurs when an employer or other
entity covered by the Americans with Disabilities Act, as amended,
or the Rehabilitation Act, as amended, treats a qualified
individual with a disability who is an employee or applicant
unfavorably because she has a disability. Disability discrimination
also occurs when a covered employer or other entity treats an
applicant or employee less favorably because she has a history of a
disability (such as cancer that is controlled or in remission) or
because she is
believed to have a physical or mental impairment that is not
transitory (lasting or expected to last six months or less) and
minor (even if she does not have such an impairment). The law
requires an employer to provide reasonable accommodation to an
employee or job applicant with a disability, unless doing so would
cause significant difficulty or expense for the employer ("undue
hardship"). The law also protects people from discrimination based
on their relationship with a person with a disability (even if they
do not themselves have a disability). For example, it is illegal to
discriminate against an employee because her husband has a
disability. The law forbids discrimination when it comes to any
aspect of employment, including hiring, firing, pay, job
assignments, promotions, layoff, training, fringe benefits, and any
other term or condition of employment. It is illegal to harass an
applicant or employee because he has a disability, had a disability
in the past, or is believed to have a physical or mental impairment
that is not transitory (lasting or expected to last six months or
less) and minor (even if he does not have such an impairment).
Harassment can include, for example, offensive remarks about a
person's disability. Although the law doesn't prohibit simple
teasing, offhand comments, or isolated incidents that aren't very
serious, harassment is illegal when it is so frequent or severe
that it creates a hostile or offensive work environment or when it
results in an adverse employment decision (such as the victim being
fired or demoted). The harasser can be the victim's supervisor, a
supervisor in another area, a coworker, or someone who is not an
employee of the employer, such as a client or customer. The law
requires an employer to provide reasonable accommodation to an
employee or job applicant with a disability, unless doing so would
cause significant difficulty or expense for the employer. A
reasonable accommodation is any change in the work environment (or
in the way things are usually done) to
help a person with a disability apply for a job, perform the
duties of a job, or enjoy the benefits and privileges of
employment. Reasonable accommodation might include, for example,
making the workplace accessible for wheelchair users or providing a
reader or interpreter for someone who is blind or hearing impaired.
An employer doesn't have to provide an accommodation if doing so
would cause undue hardship to the employer.Undue hardship means
that the accommodation would be too difficult or too expensive to
provide, in light of the employer's size, financial resources, and
the needs of the business. An employer may not refuse to provide an
accommodation just because it involves some cost. An employer does
not have to provide the exact accommodation the employee or job
applicant wants. If more than one accommodation works, the employer
may choose which one to provide. The law places strict limits on
employers when it comes to asking job applicants to answer medical
questions, take a medical exam, or identify a disability. For
example, an employer may not ask a job applicant to answer medical
questions or take a medical exam before extending a job offer. An
employer also may not ask job applicants if they have a disability
(or about the nature of an obvious disability). An employer may ask
job applicants whether they can perform the job and how they would
perform the job, with or without a reasonable accommodation. After
a job is offered to an applicant, the law allows an employer to
condition the job offer on the applicant answering certain medical
questions or successfully passing a medical exam, but only if all
new employees in the same type of job have to answer the questions
or take the exam. Age Discrimination Age discrimination involves
treating someone (an applicant or employee) less favorably because
of his age. The Age Discrimination in Employment Act (ADEA) only
forbids age discrimination against people who are age 40 or older.
It does not protect workers under the age of 40, although some
states do have laws that protect younger workers from age
discrimination. It is not illegal for an employer or other covered
entity to favor an older worker over a younger one, even if
both
workers are age 40 or older. Discrimination can occur when the
victim and the person who inflicted the discrimination are both
over 40. The law forbids discrimination when it comes to any aspect
of employment, including hiring, firing, pay, job assignments,
promotions, layoff, training, fringe benefits, and any other term
or condition of employment.
It is unlawful to harass a person because of his or her age.
Harassment can include, for example, offensive remarks about a
person's age. Although the law doesn't prohibit simple teasing,
offhand comments, or isolated incidents that aren't very serious,
harassment is illegal when it is so frequent or severe that it
creates a hostile or offensive work environment or when it results
in an adverse employment decision (such as the victim being fired
or demoted). The harasser can be the victim's supervisor, a
supervisor in another area, a co-worker, or someone who is not an
employee of the employer, such as a client or customer. An
employment policy or practice that applies to everyone, regardless
of age, can be illegal if it has a negative impact on applicants or
employees age 40 or older and is not based on a reasonable factor
other than age Equal Pay/Compensation Discrimination The Equal Pay
Act requires that men and women in the same workplace be given
equal pay for equal work. The jobs need not be identical, but they
must be substantially equal. Job content (not job titles)
determines whether jobs are substantially equal. All forms of pay
are covered by this law, including salary, overtime pay, bonuses,
stock options, profit sharing and bonus plans, life insurance,
vacation and holiday pay, cleaning or gasoline allowances, hotel
accommodations, reimbursement for travel expenses, and benefits. If
there is an inequality in wages between men and women, employers
may not reduce the wages of either sex to equalize their pay.
Genetic Information Discrimination Genetic information includes
information about an individuals genetic tests and the genetic
tests of an individuals family members, as well as information
about the manifestation of a disease or disorder in an individuals
family members
(i.e. family medical history). Family medical history is
included in the definition of genetic information because it is
often used to determine whether someone has an increased risk of
getting a disease, disorder, or condition in the future. Genetic
information also includes an individual's request for, or receipt
of, genetic services, or the participation in clinical research
that includes genetic services by the individual or a family member
of the individual, and the genetic information of a fetus carried
by an individual or by a pregnant woman who is a family member of
the individual and the genetic information of any embryo legally
held by the individual or family member using an assisted
reproductive technology. The law forbids discrimination on the
basis of genetic information when it comes to any aspect of
employment, including hiring, firing, pay, job assignments,
promotions, layoffs, training, fringe benefits, or any other term
or condition of employment. An employer may never use genetic
information to make an employment decision because genetic
information is not relevant to an individual's current ability to
work. It is also illegal to harass a person because of his or her
genetic information. Harassment can include, for example, making
offensive or derogatory remarks about an applicant or employees
genetic information, or about the genetic information of a relative
of the applicant or employee. Although the law doesn't prohibit
simple teasing, offhand comments, or isolated incidents that are
not very serious, harassment is illegal when it is so severe or
pervasive that it creates a hostile or offensive work environment
or when it results in an adverse employment decision (such as the
victim being fired or demoted). The harasser can be the victim's
supervisor, a supervisor in another area of the workplace, a
co-worker, or someone who is not an employee, such as a client or
customer. It is also unlawful for a covered entity to disclose
genetic information about applicants, employees or members. Covered
entities must keep genetic
information confidential and in a separate medical file.
(Genetic information may be kept in the same file as other medical
information in compliance with the Americans with Disabilities
Act.) There are limited exceptions to this nondisclosure rule, such
as exceptions that provide for the disclosure of relevant
genetic information to government officials investigating
compliance with Title II of GINA and for disclosures made pursuant
to a court order.
National Origin Discrimination National origin discrimination
involves treating people (applicants or employees) unfavorably
because they are from a particular country or part of the world,
because of ethnicity or accent, or because they appear to be of a
certain ethnic background (even if they are not). National origin
discrimination also can involve treating people unfavorably because
they are married to (or associated with) a person of a certain
national origin or because of their connection with an ethnic
organization or group. Discrimination can occur when the victim and
the person who inflicted the discrimination are the same national
origin. The law forbids discrimination when it comes to any aspect
of employment, including hiring, firing, pay, job assignments,
promotions, layoff, training, fringe benefits, and any other term
or condition of employment. It is unlawful to harass a person
because of his or her national origin. Harassment can include, for
example, offensive or derogatory remarks about a persons national
origin, accent or ethnicity. Although the law doesnt prohibit
simple teasing, offhand comments, or isolated incidents that are
not very serious, harassment is illegal when it is so frequent or
severe that it creates a hostile or offensive work environment or
when it results in an adverse employment decision (such as the
victim being fired or demoted). The harasser can be the victim's
supervisor, a supervisor in another area, a coworker, or someone
who is not an employee of the employer, such as a client or
customer.
Pregnancy Discrimination Pregnancy discrimination involves
treating a woman (an applicant or employee) unfavorably because of
pregnancy, childbirth, or a medical condition related to pregnancy
or childbirth. The Pregnancy Discrimination Act (PDA) forbids
discrimination based on pregnancy when it comes to any aspect of
employment, including hiring, firing, pay, job assignments,
promotions, layoff, training, fringe benefits, such as leave and
health insurance, and any other term or condition of employment. If
a woman is temporarily unable to perform her job due to a medical
condition related to pregnancy or childbirth, the employer or other
covered entity must treat her in the same way as it treats any
other temporarily disabled employee. For example, the employer may
have to provide light duty, alternative assignments, disability
leave, or unpaid leave to pregnant employees if it does so for
other temporarily disabled employees. It is unlawful to harass a
woman because of pregnancy, childbirth, or a medical condition
related to pregnancy or childbirth. Harassment is illegal when it
is so frequent or severe that it creates a hostile or offensive
work environment or when it results in an adverse employment
decision (such as the victim being fired or demoted). The harasser
can be the victim's supervisor, a supervisor in another area, a
co-worker, or someone who is not an employee of the employer, such
as a client or customer. An employer may not single out
pregnancy-related conditions for special procedures to determine an
employee's ability to work. However, if an employer requires its
employees to submit a doctor's statement concerning their ability
to work before granting leave or paying sick benefits, the employer
may require employees affected by pregnancy-related conditions to
submit such statements. Race/Color Discrimination Race
discrimination involves treating someone (an applicant or employee)
unfavorably because he/she is of a certain race or because of
personal characteristics associated with race (such as hair
texture, skin color, or certain
facial features). Color discrimination involves treating someone
unfavorably because of skin color complexion. Race/color
discrimination also can involve treating someone unfavorably
because the person is married to (or associated with) a person of a
certain race or color or because of a persons connection with a
race -based organization or group, or an organization or group that
is generally associated with people of a certain color.
Discrimination can occur when the victim and the person who
inflicted the discrimination are the same race or color.
The law forbids discrimination when it comes to any aspect of
employment, including hiring, firing, pay, job assignments,
promotions, layoff, training, fringe benefits, and any other term
or condition of employment. It is unlawful to harass a person
because of that persons race or color. Harassment can include, for
example, racial slurs, offensive or derogatory remarks about a
person's race or color, or the display of racially-offensive
symbols. Although the law doesnt prohibit simple teasing, offhand
comments, or isolated incidents that are not very serious,
harassment is illegal when it is so frequent or severe that it
creates a hostile or offensive work environment or when it results
in an adverse employment decision (such as the victim being fired
or demoted). The harasser can be the victim's supervisor, a
supervisor in another area, a coworker, or someone who is not an
employee of the employer, such as a client or customer. An
employment policy or practice that applies to everyone, regardless
of race or color, can be illegal if it has a negative impact on the
employment of people of a particular race or color and is not
job-related and necessary to the operation of the business. For
example, a no-beard employment policy that applies to all workers
without regard to race may still be unlawful if it is not
job-related and has
a negative impact on the employment of African-American men (who
have a predisposition to a skin condition that causes severe
shaving bumps).
Religious Discrimination Religious discrimination involves
treating a person (an applicant or employee) unfavorably because of
his or her religious beliefs. The law protects not only people who
belong to traditional, organized religions, such as Buddhism,
Christianity, Hinduism, Islam, and Judaism, but also others who
have sincerely held religious, ethical or moral beliefs. Religious
discrimination can also involve treating someone differently
because that person is married to (or associated with) an
individual of a particular religion or because of his or her
connection with a religious organization or group.
The law forbids discrimination when it comes to any aspect of
employment, including hiring, firing, pay, job assignments,
promotions, layoff, training, fringe benefits, and any other term
or condition of employment. It is illegal to harass a person
because of his or her religion. Harassment can include, for
example, offensive remarks about a persons religious beliefs or
practices. Although the law doesnt prohibit simple teasing, offhand
comments, or isolated incidents that arent very serious, harassment
is illegal when it is so frequent or severe that it creates a
hostile or offensive work environment or when it results in an
adverse employment decision (such as the victim being fired or
demoted). The harasser can be the victim's supervisor, a supervisor
in another area, a coworker, or someone who is not an employee of
the employer, such as a client or customer. The law requires an
employer or other covered entity to reasonably
accommodate an employees religious beliefs or practices, unless
doing so would cause more than a minimal burden on the operations
of the employer's
business. This means an employer may be required to make
reasonable adjustments to the work environment that will allow an
employee to practice his or her religion. Examples of some common
religious accommodations include flexible scheduling, voluntary
shift substitutions or swaps, job reassignments, and modifications
to workplace policies or practices. An employer does not have to
accommodate an employees religious beliefs or practices if doing so
would cause undue hardship to the employer. An accommodation may
cause undue hardship if it is costly, compromises workplace safety,
decreases workplace efficiency, infringes on the rights of other
employees, or requires other employees to do more than their share
of potentially hazardous or burdensome work.
Sex-Based Discrimination Sex discrimination involves treating
someone (an applicant or employee) unfavorably because of that
person's sex. Sex discrimination also can involve treating someone
less favorably because of his or her connection with an
organization or group that is generally associated with people of a
certain sex. In addition, lesbian, gay, and bisexual individuals
may bring sex discrimination claims. These may include, for
example, allegations of sexual harassment or other kinds of sex
discrimination, such as adverse actions taken because of the
person's non-conformance with sex-stereotypes. The law forbids
discrimination when it comes to any aspect of employment, including
hiring, firing, pay, job assignments, promotions, layoff, training,
fringe benefits, and any other term or condition of employment. It
is unlawful to harass a person because of that person's sex.
Harassment can include "sexual harassment" or unwelcome sexual
advances, requests for sexual favors, and other verbal or physical
harassment of a sexual nature. Harassment does not have to be of a
sexual nature, however, and can include offensive
remarks about a person's sex. For example, it is illegal to
harass a woman by making offensive comments about women in general.
Both victim and the harasser can be either a woman or a man, and
the victim and harasser can be the same sex. Although the law
doesn't prohibit simple teasing, offhand comments, or isolated
incidents that are not very serious, harassment is illegal when it
is so frequent or severe that it creates a hostile or offensive
work environment or when it results in an adverse employment
decision (such as the victim being fired or demoted). The harasser
can be the victim's supervisor, a supervisor in another area, a
coworker, or someone who is not an employee of the employer, such
as a client or customer. An employment policy or practice that
applies to everyone, regardless of sex, can be illegal if it has a
negative impact on the employment of people of a certain sex and is
not job-related or necessary to the operation of the business.
Sexual Harassment It is unlawful to harass a person (an
applicant or employee) because of that persons sex. Harassment can
include sexual harassment or unwelcome sexual advances, requests
for sexual favors, and other verbal or physical harassment of a
sexual nature. Harassment does not have to be of a sexual nature,
however, and can include offensive remarks about a persons sex. For
example, it is illegal to harass a woman by making offensive
comments about women in general. Both victim and the harasser can
be either a woman or a man, and the victim and harasser can be the
same sex. Although the law doesnt prohibit simple teasing, offhand
comments, or isolated incidents that are not very serious,
harassment is illegal when it is so frequent or severe that it
creates a hostile or offensive work environment or when it results
in an adverse employment decision (such as the victim being fired
or demoted).
The harasser can be the victim's supervisor, a supervisor in
another area, a coworker, or someone who is not an employee of the
employer, such as a client or customer.
answer to the question - Equality to what?. In the context of
most antidiscrimination laws such as Sex Discrimination
legislation, the crucial comparison for sex discrimination to be
proven is that a woman has been treated less favourably than a man
would have been treated on the facts given. Thus equality for women
is judged from the comparison with a male standard or norm.
Feminist theories have in the past addressed the equality debate
for women on the basis of equality of treatment between men and
women. Thus we had the sameness and difference debates: a. either
women were to be accorded equality to men on the basis of their
sameness to men ie that gender alone should not be sufficient
ground for differentiation, or b. that they were worthy of equal
treatment to men although they were different from men and the law
had to accommodate those differences. The problem with both views
for women is as stated by Catharine MacKinnon that, man has become
the measure of all things[25] - the male norm or standard for
judging womens right to equality. The difference argument is
essentialist in nature assuming all women to equally fertile and
desirous of reproduction and thus allowed for protectionist
legislation which had the adverse effect of excluding women from
certain jobs. The sameness argument required women to perform like
men in the workplace in order to succeed. However, it is with
regards to womens reproductive functions and pregnancy in
particular, that the equality debate is unraveled. Clearly a woman
is different from a man when she is pregnant, but how significant
is this difference, and what legal consequences should follow from
it?[26]. There is a discernable move today to acknowledge the
social value of pregnancy and parenthood[27]. Women have and
continue to shoulder the burden of balancing work and family
responsibilities. Conception, birth, child rearing and nurturing
are womens concerns, which have not been recognized nor
accommodated adequately in the workplace. A working woman having
to balance work and family responsibilities is put into the
position where she has to either choose one over the other or
juggle them like a latter-day superwoman. Thus being a good parent
and a good employee have always been in conflict [28]. As a result,
there has been a greater recognition of the need for
family-friendly policies and legislation in other jurisdictions.
The Canadian Supreme Court in the case of Brooks v Canada Safeway
Ltd.[29] noted that that as pregnancy and childbearing are
fundamental social needs, it was discriminatory to place the burden
on only one part of the population. In this case as only women
could be refused employment on the grounds of pregnancy, such a
refusal constituted direct discrimination on the grounds of sex. In
fact, specific pregnancy rights have been developed such as
protection from dismissal or detrimental treatment, maternity
leave, benefits and pay, health rights including time-off for
antenatal care and protection from safety and health risks in the
workplace during pregnancy. This rights approach as opposed to the
equality treatment approach removes the need to find a male
comparator and can exist independently of the need to establish a
finding of equality. One of the earliest examples of how these
pregnancy rights work was seen in the Defrenne IIdecision (ECJ
1976) which basically provided the impetus for the evolvement of
gender equality rules under Article 141 of the Treaty of Rome which
essentially concerned equal pay protection. Gabrielle Defrenne was
a flight attendant with Sabena, the Belgian national airlines.
Until 1966, Sabenas male flight attendants earned higher wages,
were allowed to retire 15 years later and were entitled to a
special pension plan, all benefits that their female counterparts
failed to receive. The job responsibilities of the flight
attendants were identical. In the European Court of Justice or ECJs
second decision in 1976, the Court expanded the scope and purpose
of Article 141 by creating enforceable rights in national courts
regardless of national implementing legislation. Economic and
social justice concerns were both addressed. Discriminatory
national practices came under the purview now of the supranational
powers of the ECJ. As a result there has been much litigation by
women who experienced discrimination in terms of access to or
dismissal from employment on the basis of pregnancy[30]. The next
interesting development was the Dekker case (ECJ 1990a)[31]. Here
the applicant for a job, Mrs. Dekker a Dutchwoman, was found to be
the most
qualified applicant at the job interview and was recommended for
hiring by the hiring committee. As she was three months pregnant at
the time, she was not given the job because the insurer refused to
cover her maternity pay. Mrs.Dekker sued the company, VJV, claiming
discrimination on the basis of her sex. The case was then submitted
to the ECJ under Article 141 and the Equal Treatment Directive. The
court held that discrimination in employment opportunities on the
ground of pregnancy amounted to direct discrimination in violation
of the directive. Here the ECJ considered the disadvantage to women
rather than the comparable treatment with men as the basis for
determining discrimination on the ground of pregnancy. Thus
discrimination was proven if detrimental treatment due to the
pregnancy could be shown. More pertinently to the Beatrice
Fernandez case, was the Hertz case (ECJ1990b) which held that
dismissal of a pregnant employee amounted to discrimination under
EU law. In the UK, the Sex Discrimination Act 1975 makes it
unlawful for an employer to treat a woman less favourably on
grounds of her sex or marital status than a man would have been
treated. Further, under the Pregnancy Discrimination Act 1978 women
affected by pregnancy, childbirth or related medical conditions are
entitled to equal treatment with other persons who are similar in
their ability or inability to work. As a result, the courts have
taken the view that pregnancy discrimination is to be viewed from
the comparison of the treatment of pregnant women with that of ill
men. The courts had therefore drawn an analogy between pregnancy
and illness. The problem with such a test of the ill male
comparator was seen in the case of Webb v EMO Air Cargo (UK)
Ltd.[1992] All E.R.43 which examined the issue of when pregnancy
was to be regarded as the determining factor for discriminatory
treatment. Mrs.Webb who was pregnant had been employed to replace
another pregnant employee. Her employer terminated her indefinite
employment contract when it was discovered that she would be absent
for the same period as the employee she was replacing. At the House
of Lords the employer had argued that the appellant was not
dismissed on account of her being pregnant but because the
pregnancy made her unavailable for work at a critical period
required by the employer. Using the ill male comparator test, the
House of Lords declared that as a man due for a prostrate operation
at the critical time would likewise have been dismissed, there was
no lawful direct
discrimination in this case. However, although the court ruled
that she had no rights under UK law, she could have rights under EU
law. The case was thus referred to the ECJ(1994b) which found that
dismissal of a pregnant worker was direct discrimination on grounds
of sex. Here the court ruled that the need for special protection
of pregnant workers was embodied in the Equal Treatment Directive
and Pregnancy Directive 9, which had not come into force yet when
the case arose. It is interesting to note that the court considered
the defendants argument of hardship as the justification for the
discriminatory treatment and not as the reason for dismissal. In
Webbs case the direct discrimination was not justifiable on grounds
of hardship once it was proven[32]. In India, the Air India v
Nargesh Meerza[33] case popularly known as the Air Hostess case
provides a comparison as to how constitutional equality provisions
are interpreted by the courts. Here, Air India International, a
public sector organization was sued for gender discriminatory
service rules. For instance, an air hostess who joined the service
at 19 years could not marry until four years after completion of
service. If she married after four years, she would lose her job on
her first pregnancy. She had to retire at the age of 35 while her
male counterparts could retire at 58. Article 14 of the Indian
Constitution guarantees equality before the law and equal
protection of the law. Sex discrimination is expressly forbidden
under Articles 15(1), 16(2) and 325. With respect to the issue of
the age of retirement, the Supreme Court held that the different
ages of retirement for male and female staff was in violation of
the right to equality. As a result, the Supreme Court ordered Air
India to change the rules to provide a higher age of retirement for
the air hostesses but did not to give them the same age of
retirement. Interestingly enough, the court merely required the
rule against the first pregnancy as a ground for dismissal to be
changed to the third pregnancy. Such a decision merely delayed the
inevitable an air hostess faced dismissal upon a pregnancy. As
noted by Sathe [34], via its power to lay down subordinate rules of
service, Air India was (indirectly) legislating the age of marriage
and encouraging population control.[35] Note that at the time,
India was promoting family planning with three as the ideal number
of children for each family. For this reason, the court suggested
that a resignation should only be required upon the third
pregnancy.
A corollary to this case was that of Air India Cabin Crew
Association v Yeashawinee Merchant and others[36] in which the
Supreme Court ruled that there was nothing discriminatory if the
airline insisted that women cabin crew members/air hostesses
retired from flying at the age of 50 and opted to work as ground
staff until 58 while their male counterparts could continue to work
until 58. Air India maintained a differential categorization of
male and female cabin crew even though they had the same service
requirements. This was the same argument that was used in Nergesh
Meerzas case. Here, the court in its award noted that Air India is
a [part of the] travel industry. Pleasing appearance, manners and
physical fitness are required for members of the crew of both
sexes. Thus this separate categorization between male and female
cabin crew allowed the airline to argue that working conditions and
remuneration could be different. This was contrary to the earlier
High Court declaration that the lower retirement age for air
hostesses was a discrimination based on Articles 15 and 16 of the
Indian Constitution[37]. However, due to public pressure, the
Ministry of Civil Aviation ordered Air India which is the national
carrier, to increase the retirement age for its air hostesses from
50 to 58 in view of the exigencies of the circumstances and the
interest of the operations of Air India[38]. This was perhaps in
view of the fact that Air India was experiencing difficulties
because of a shortage of air hostesses to the extent that there
were claimed to be flights without even a single air hostess on
board. While the Indian cases concerned the retirement age of
female cabin crew, it is important to note the entrenched gender
bias which shows how discrimination is not just direct but that it
can manifest itself indirectly. It was argued on behalf of the
airline that adopting gender-neutral terms of service and removing
the differential categorization of the male and female crew, would
not be beneficial to the women who due to their falling physical
appearance and need to spend time with their families would prefer
earlier retirement than men. Such an interpretation was surely
discriminatory to the male air stewards, as they too may have
preferred the option of early retirement due to their own failing
physical appearance and desire to spend quality time with their own
families. Forcing the women to retire earlier deprived them of the
remuneration they would otherwise have received had they continued
flying.
In Malaysia, MAS continues to operate on the basis of this
difference categorization. Female cabin crew have to retire at age
40 (female flight supervisors retire at 45) while their male
counterparts can retire at 55 years of age. MAS has also been said
to be practicing indirect family planning as its current policy
only allows maternity leave up to the second child. MAS is not a
private company but a government linked company or GLC which must
uphold its social responsibility as an example of good corporate
social responsibility and good corporate governance. One way is to
incorporate and practice gender equality[39]. Constitutional Rights
and Safeguards Article 8 (1) of the Federal Constitution states
that, all persons are equal before the law and entitled to the
equal protection of the law. As noted by the Federal Court, the
doctrine of classification has been judiciously accepted as an
integral part of the equal protection clause as explained by Tun
Salleh Abbas LP in Malaysian Bar & Anor v Government of
Malaysia [1987] 2 MLJ 165 at page 166: The requirement for equal
protection of the law d oes not mean that that all laws passed by a
legislative must apply equally to all persons and that the laws so
passed cannot create differences as to the persons whom they apply
and the territorial limits within which they are in forceSince
legislation ca n create the differences the question is whether the
differences are constitutional. The classification doctrine of
equal but separate rights was explained by Suffian LP in Datuk Haji
Harun Idris v Public Prosecutor [1977] 2 MLJ 155 on the basis of a
two tier test to decide on the constitutionality of the
classification: the first question we should ask is, is the law
discriminatory, and that the answer should then beif the law is not
discriminatory, it is good law, but if it is discriminatory, then
because the prohibition of unequal treatment is not absolute but is
either expressly allowed by the constitution or is allowed by
judicial interpretation, we have to ask the further question, is it
allowed? If it is, the law is good, and if it is not, the law is
void. In India discriminatory law is good law if it is based on
reasonable or permissible classificationprovided that: i. the
classification is founded on an intelligible differentia which
distinguished persons that grouped together from other left out of
the group; and
ii.
the differentia has a rational relation to the object sought to
be achieved by the law in questionWhat is necessary is that there
must be
a nexus between the basis of classification and the object of
the law in question.[40] As a result of this judicial
interpretation of the equality provision and legislative
classification of the various sections of the population, the
applicability of different laws to each section is legally
sanctioned provided the classification did not fall within the
prohibited grounds of discrimination under Article 8 (2) which
includes gender[41] and secondly, that the classification was
rational and reasonable [42]. Prior to the amendment of Article 8
(2) to include gender as a ground of discrimination, it was noted
that any discrimination on the ground of gender would have been
declared as being unreasonable by the courts under Artic le 8
(1)[43]. Here unreasonableness in state action is determined
according to the test of Wednesbury unreasonableness ie as
something so absurd that no reasonable or sensible person could
have come to that decision[44]. The principle of reasonableness is
an essential element of the equality provision in Article 8(1) and
likened to a brooding omnipresence[45]. In Ong Ah Chuan v Public
Prosecutor [1981] 1 MLJ 64, it was confirmed that the
reasonableness of the dissimilarity of treatment or classification
or differentiation was to be judged against the social object of
the law concerned. Unfortunately as we saw in the Beatrice
Fernandez case, as long as differentiation between male and female
staff is viewed from the perspective of the employer without
considering the alternatives available to accommodate an employees
reproductive role and ignoring the social objectives of legislation
such as the IRA 1967, then any form of discrimination can be
accepted as being reasonable in the circumstances. Within the
Malaysian context, it could be argued that any action by an
employer that results in the dismissal of a female employee on the
ground of her pregnancy, subjects her to unreasonable detrimental
treatment and so should be declared discriminatory, in violation of
her right to equality of treatment under Article 8(1). As only a
woman can conceive, the ECJ ruling in Dekkerthatthe pregnancy
should be viewed from the perspective of the social and economic
disadvantages or hardship that it can bring to a female employee as
compared to a male employee, is particularly relevant in the
Beatrice Fernandez case. Such a view would then remove the Court of
Appeals earlier difficulty in viewing MASs terms
and conditions as being discriminatory simply because under the
classification doctrine, male air stewards did not have such
comparable rights. It is therefore clear that as a result of the
current interpretation of Article 8(1), it is not a valuable
provision from the perspective of gender equality to ensure
fairness and equality of treatment. The current limitations in
relation to the public and private law dichotomy, the
classification doctrine, the non-identification of discriminatory
practices (whether direct or indirect) and non-recognition of the
right to livelihood as a constitutional right under Article 5 (the
right to life and personal liberty), have damaged the efficacy of
the Article 8 (1) right to equality where women are concerned.
Article 8(2) of the Federal Constitution was amended in 2001 to
include gender as a ground of discrimination. This is how Article
8(2) now reads: Except as expressly authorized by this
Constitution, there shall be no discrimination against citizens
only of religion, race, descent, place of birth or gender
in any law or in the appointment to any office or employment
under a public authority or in the administration of any law
relating to the acquisition, holding or disposition of property
or
the establishment or carrying on of any trade, business,
profession, vocation or employment.
While there has been much euphoria over the inclusion of gender
as a basis of discrimination in Article 8 (2), it has been
noted[46] that the following can be considered as limitations to
its application:
the words Except as expressly authorised means that gender
discrimination may be allowed under the express provisions of the
Constitution. Thus if a conflict arises with other constitutional
provisions, there is no guarantee that Article 8 (2) will stand.
For example Article 8 (5) expressly excludes the application of
Article 8 in relation to personal law and Article 11 guarantees
freedom of religion. It has been argued that Article 11 interpreted
together with Article 8 (5) means that Muslim personal laws remain
unaffected by Article 8.
The use of the words employment under a public authority could
limit the application of Article 8 (2) to public sector employment
only. However, the fact
that it then continues to bar discrimination in the
establishment, carrying on of any trade, business, profession,
vocation or employment may have left the door open for its
application in the private sector. This brings to the fore the old
arguments on the applicability of constitutional rights within the
sphere of private law. CEDAW and its Applicability in Malaysia In
the globalised era we live in today, international law is
increasingly becoming a tool for justice to ensure that governments
live up to their legal obligations to their citizens under
international laws, treaties and instruments. Thus while national
constitutions spell out the fundamental rights, guarantees and
freedoms of citizens, these provisions remain as glorified,
abstract principles until and unless they are recognized and
enforced by the relevant authorities as such. International law and
treaties are a form of supranational governance over the laws of
member states ensuring legal integration with internationally
recognized standards and rights. One of the most powerful
international rights to emerge is that of human rights. Womens
rights are human rights. It is interesting to note that when the
Universal Declaration of Human Rights was adopted by the United
Nations in 1948, it was a woman, Eleanor Roosevelt who chaired the
Commission on Human Rights. Article 1 of the Declaration proclaims
that All human beings are born free and equal in dignity and
rights. As a reflection of the Declaration, the Convention on the
Elimination of All Forms of Discrimination Against Women or CEDAW
[47]was adopted by the General Assembly of the United Nations in
1979 and went into force in 1981. It is one of the six core human
rights treaties and in fact the major UN treaty governing womens
rights. It seeks equality for women from the perspectives of equal
opportunities, equal access and equality of results by favouring
positive discrimination. Most importantly, via its due diligence
requirement, it places a positive and legal obligation on
governments to eliminate direct and indirect discrimination. Thus
state parties are accountable for the actions of state and
non-state actors also. The Optional Protocal or OP-CEDAW is an
additional treaty and is designed as an enforcement mechanism for
CEDAW via the communication and the inquiry procedures. Both CEDAW
and OP-CEDAW are the only women specific international complaints
mechanisms aimed at
developing womens rights at national and international levels in
order to eliminate discrimination against women[48]. Article 1
defines discrimination against women as any distinction, exclusion
or restriction made on the basis of sex which has the effect or
purpose of impairing or nullifying the recognition, enjoyment, or
exercise by women irrespective of their marital status on the basis
of equality of men and women, of human rights and fundamental
freedoms in the political, economical, social, cultural, civil or
any other field. Thus it incorporates both direct and indirect
forms of discrimination. Article 11 expressly relates to womens
right to work, equal treatment at the workplace and the same
employment opportunities as men. It prohibits dismissal on the
grounds of pregnancy, in particular. Malaysia as a signatory to
CEDAW ratified it in 1995 but as ours is a dualist system[49] in
that ratification alone is not enough to domesticate the
Convention. Two ways have been identified for incorporating CEDAW
into our domestic laws. One way is through legislative measures
which either expressly enact the convention or impliedly require
domestic laws to be interpreted in accordance with the Convention.
The second method involves the judiciary. Thus via judicial
interpretation of legislation and particularly the Federal
constitution, it is possible to incorporate the provisions of CEDAW
into local law. In this respect, there have been calls for judicial
activism in interpreting fundamental rights in constitutions so as
to expand their scope by incorporating human rights, particularly
CEDAW. One of the most celebrated cases involving the use of CEDAW
in assessing and interpreting discrimination against women was the
case of Unity Dow v The Attorney General of Botswana (1991). A
citizen of Botswana, Unity Dow was a lawyer married to a
non-citizen, whose children had been denied citizenship under a
provision of the Citizenship Act 1984 that conferred citizenship on
a child born in Botswana only if "a) his father was a citizen of
Botswana; or b) in the case of a person born out-of-wedlock, his
mother was a citizen of Botswana." She claimed that this provision
violated her right to equality under the Botswana Constitution and
was discriminatory. The High Court agreed, holding that the
provision infringed the right to liberty, the right not to be
expelled from Botswana, the right not to be subjected to degrading
treatment, and the right not to be discriminated against on the
basis of sex. It concluded that the right to liberty had been
infringed because the provision hampered a woman's
free choice to marry a non-citizen and, in fact, undermined
marriage and that the right not to be expelled from Botswana was
infringed because, if the plaintiff's husbands resident permit was
not renewed she would be forced to leave Botswana if she desired to
stay with her family. Although Botswana had yet to ratify CEDAW,
Judge Martin Horowitz in the High Court accepted the plaintiffs
argument that discrimination against females and treating them less
favourably than males, subjected women to degrading treatment,
which under CEDAW is an offence against human dignity. This
decision was subsequently upheld by the Botswana Court of Appeal
and is a stirling example of the power of the courts in upholding
and defending womens right to equality in a constitutional
framework. From the Malaysian perspective, Dato Gopal Sri Ram,
Court of Appeal Judge, proposed three principles which could be
helpful in a paper on Human Rights: Incorporating International Law
into the Present System[50]. They are as follows: 1. The court must
adopt a broad and liberal approach when interpreting a written
constitution in recognizing it as a living and organic instrument
capable of adapting to changing circumstances. This view was
reflected by Raja Azlan Shah Ag. LP in Dato Menteri Othman bin
Baginda & Anor v Dato Ombi Syed Alwi bin Syed Idrus[51].
Section 4(4) of the Human Rights Commission of Malaysia Act 1999,
it was pointed out by his Lordship, gives scope for the application
of international law as it states that regard shall be had to the
Universal Decla ration of Human Rights 1948 to the extent that it
is not inconsistent with the Federal Constitution. Although CEDAW
is not specifically mentioned, it will be interesting to see if the
judiciary would be willing to incorporate human rights treaties and
conventions as part of domestic law. Todate, the case of Mohd. Ezam
v Inspector General of Police [2002] 4 CLJ 309 by way of obiter
dicta has shown little support for this approach. It has been
suggested by his Lordship Dato Gopal Sri Ram that the reason for
this has been due to counsels lack of proper articulation and
research of arguments on the applicability of international law.
Unfortunately, in the Beatrice Fernandez case, the applicability of
CEDAW was not commented upon by the Federal Court itself. 2.
Statutory interpretation should be differentiated from
interpretation of the
constitution. Suffice to say, the difference between statutory
and constitutional interpretation is summed up in this observation,
that a constitution is a
mechanism under which laws are made while a statute declares
what the law is to be[52]. 3. Interpretation of the Articles of the
Federal constitution as human rights.
The fundamental liberties in Part II of the Federal
constitution, which includes Article 8, are examples of the human
rights. Dato Gopa l Sri Ram calls for a prismatic approach when
interpreting fundamental guarantees under the constitution. Each
fundamental freedom houses a multitude of other rights. There is a
penumbra under which other rights, which although have not been
expressly articulated, yet nonetheless are peripheral rights coming
under the umbrella of the one expressed right. For example the
right to life and personal liberty was held by Suffian LP to
include the right to freedom from unlawful arrest, the right to
counsel upon arrest, the right to be released etc.[53] When viewed
as human rights, his Lordship noted that judges are free to
interpret the constitutional freedoms using international human
rights instruments also, as external aids of interpretation. In
fact, it has been recognized by judges internationally, that the
courts can favour a construction of their domestic laws in
accordance with their governments international obligations having
ratified international treaties and conventions. His Lordship gives
an illustration of this approach in various decisions around the
world. For instance, in Australia, Mason CJ inMinister for
Immigration and Ethnic Affairs v Teoh[54] declared, Parliament
prima facie intended to give effect to Australias obligations under
international law. In Vishaka v State of Rajasthan[55] a group of
NGOs successfully petitioned the Indian Supreme Court after a
social worker had been gang raped and local officials refused to
investigate the complaint. Like Malaysia, there were no laws
expressly prohibiting sexual harassment. In his judgement, Verma
CJI noted that international conventions and norms were to be read
into the fundamental rights of the Constitution in the absence of
enacted domestic law when there was no inconsistency between them.
He maintained that it was now an accepted rule of judicial
construction. In the U.K., Lord Woolf[56] even went a step further
and suggested that a citizen had the right to expect the Government
to act domestically in accordance with the international treaty it
had entered into. These judgements should spur local initiatives as
decisions such as Beatrice Fernadez reflect on the inadequacies of
the legal system to protect the human rights of Malaysian women in
the employment sector.
Conclusion In the context of gender discrimination, the
recognition and protection of womens rights by the law remains
vital. While the right to equality and non-discrimination is
enshrined within the Federal constitution under Article 8 (1) and
(2), its efficacy is called into question when womens rights are
not enforced as such due to the severe limitations that affect its
interpretation. There is always that divide between the written law
and the reality of human existence. Our government has already
shown its commitment over this issue and amended Article 8 (2) to
include gender as a basis of discrimination. It is now up to the
judiciary to show the way forward by interpreting and enforcing
womens right to equality. It can never be denied that all said and
done, it is the judiciary that remains as the last bastion for the
protection of the rights of the citizens. As Cardozo said the great
tides and currents that engulf the rest of men do n ot turn aside
and pass the judges by[57]. So, unless the courts are willing to
take up the challenge and advance the cause of gender justice by
outlawing discriminatory laws, practices and policies by expanding
the scope of the Federal Constitution, then the true value of these
rights will remain as nothing more than the paper they are written
on. Judicial activism and interpretation amplifies the attempt by
the courts to ensure the relevancy of the constitution to best
serve the society it has been created for[58]. Further, Cherie
Blair in her recent Sultan Azlan Shah Law Lecture[59] reflected on
the role of the judiciary in relation to human rights and noted
that the task of the judiciary in reviewing state action was now
set against the benchmark of human rights. Cases such as the recent
A v Secretary of State for Home Department [2004] UKHL 56are an
educational forum as Judges are forced in their judgements to
respond in a way that teaches citizens and governments about the
ethical responsibilities of being in a true democracy committed to
universal human rights standards The other alternative is
legislative intervention. As the Federal Court noted Unless and
until the Employment Act 1955 is amended to expressly prohibit any
term and condition of employment that requires flight stewardesses
to resign upon becoming pregnant clauses such as the one in the
Beatrice Fernandez case remain valid and enforceable. It is time to
seriously consider drafting a Sex Discrimination Act and even a
Pregnancy Discrimination Act more specifically, for all workers
whether in the public or private sectors.
So, while de jure equality can be created by the law and
constitutional reforms, it is the issue of substantive rights or de
facto equality that lags behind. It all boils down to how far
equality rights and gender-linked roles are compatible.
Discrimination is the symptom not the disease[60]. TheBeatrice
Fernandez case is a fine example of how easy it is for employers to
get around the gender equality issue at the workplace even with a
constitutional guarantee under article 8 requiring equality of
treatment to women. The message is clear to women in the private
sector particularly[61], that barring judicial activism in
interpreting constitutional guarantees or legislative intervention
or strong trade union support for womens rights in relation to
collective bargaining for better terms and conditions in their
collective agreements, equality rights will not protect their
gender-linked roles in society. This is why S. Fredman[62] has
noted that women remain segregated in the labour market and
continue to earn proportionally less than men, notwithstanding the
existence of equality laws which should have the effect of leveling
the playing field. Until recently, Malaysia had no legislation
governing employment discrimination, although the Federal
Constitution does state that there shall be no discrimination
against citizens on the ground of religion, race, descent or place
of birth. On September 28, 2001, Article 8(2) of the Federal
Constitution was amended to prohibit gender discrimination through
the Constitution (Amendment) (N2) Act 2001. This, however, has yet
to be encapsulated in any specific legislation. In 2001, the Labor
Department of the Malaysian Ministry of Human Resources issued the
Code of Practice for the Employment of the Disabled in the Private
Sector (Disability Code). The objectives of the Disability Code are
to:
(i) Establish guidelines for the registration and job placement
of the disabled with the private sector;
(ii) Increase the awareness of private sector employers on the
importance of offering employment opportunities to the disabled;
and
(iii) Encourage the disabled to prepare themselves in terms of
ability, qualifications and skill sets to participate in the
development of Malaysia as employees.
Though the Disability Code sets out the certain responsibilities
of both the employer and the disabled employee, like other similar
Codes relating to employment, there are no legal sanctions for
non-compliance.
The Malaysian Government recently passed the Persons With
Disabilities Act 2008 (PDA). It will be the first specific
anti-discrimination law in Malaysia that applies in the workplace.
Under the PDA, employers are now legally required to ensure that
employees with disabilities are accorded just and favourable work
conditions and equal remuneration to those without disabilities.
However, it is not expressly clear whether the PDA will cover both
employees as well as job applicants. At present, the protections
under the PDA only extend to current employees. More detailed
guidelines and standards will presumably be promulgated by the
National Councilfor Persons with Disabilities and/or the Minister
of Human Resources in accordance with the PDA. Pending such
guidelines and standards, the exact impact on the employment
landscape remains to be seen. The Department of Occupational Safety
and Health of the Malaysian Ministry of Human Resources has also
issued a Code of Practice on Prevention and Management of HIV/AIDS
at the Workplace (HIV/AIDS Code) on September 2001 to reduce the
spread of the disease and guide employers and employees in managing
HIV/AIDS issues at the workplace. The objectives of this HIV/AIDS
Code are to:
(i) Provide guidelines to employers and employees on appropriate
and effective ways of preventing and managing HIV/AIDS at the
workplace;
(ii) Promote education and awareness on HIV/AIDS; and (iii)
Promote a non-judgmental, non-discriminatory work environment.
Practical Advice To Employers On Avoiding Employment
Discrimination Problems Generally, employers in Malaysia may be
liable for unfair dismissal pursuant to the employers
discriminatory acts or omissions where they can be construed as
evidencing an intent on the part of the employer to no longer be
bound by the terms of the employment contract. As a first step to
minimize discrimination problems at the workplace, employers should
set up and implement in-house mechanisms as outlined in the
Disability Code, the PDA and the HIV/AIDS Code. Such measures
should be implemented despite
the codes not having the force of law, so as to promote positive
employee relations. More importantly, pursuant to the PDA,
employers should now recognize and endeavour to fulfill their new
legal obligations towards employees with disabilities to ensure
equal and non-discriminatory workplace practices and attitude.
Sexual Harassment Laws On Sexual Harassment Malaysia does not have
any legislation governing workplace harassment. However, in 1999,
the Code of Practice on the Prevention and Eradication of Sexual
Harassment in the Workplace was promulgated (Sexual Harassment
Code). The Sexual Harassment Code is not legally binding, but
companies are expected to adopt its recommendations. The Sexual
Harassment Code contains guidelines for the establishment and
implementation of internal preventive and redress mechanisms for
dealing with sexual harassment. Sexual harassment is defined under
the Sexual Harassment Code as any unwanted conduct of a sexual
nature having the effect of verbal, nonverbal, visual,
psychological, or physical harassment that might, on reasonable
grounds, be perceived by the recipient as: (i) placing a condition
of a sexual nature on her or his employment; or (ii) an offence or
humiliation, or a threat to her or his well-being, but that has no
direct link to her or his employment.This definition is
wide-ranging and covers almost every possible form of sexual
harassment, including verbal statements, gestures and physical
conduct. It also includes employmentrelated sexual harassment that
occurs outside the workplace as a result of employment
responsibilities or employment relationships (e.g., at work-related
social functions, during work-related travel or over the
telephone). Practical Advice To Employers On Avoiding Sexual
Harassment Problems
To successfully combat sexual harassment in the workplace,
employers are encouraged to set up comprehensive in-house
mechanisms.The minimum elements of such a mechanism, as outlined by
the Sexual Harassment Code, include: (i) A policy statement from
management prohibiting sexual harassment in the organization; (ii)
A clear definition as to what constitutes sexual harassment; (iii)
Setting-up a special complaint/grievance procedure; (iv) Clear
stipulation of the disciplinary rules and penalties that will be
imposed against a harasser as well as against those who make false
accusations; (v) Formulation of a set of protective and remedial
measures for the victim; and (vi) Promotional and educational
programs to explain the companys policy on sexual harassment and to
raise awareness of sexual harassment among all employees. Although
it is not legally binding, implementation of the Sexual Harassment
Code and the setting-up of in-house inquiry boards will provide
employees under harassment with an avenue for redress within their
organization.
Conclusion The main patterns of inequality and discrimination
described in this report affect large sections of the population in
Malaysia, defined by characteristics such as race and ethnicity,
indigenous status, gender, religion or belief, sexual orientation,
gender identity, health status, age, disability, citizenship and
political opinion. The inadequate protection against discrimination
in Malaysia is compounded by the existence of many discriminatory
provisions within the countrys legislation.
Some patterns of discrimination on the grounds of race and
ethnicity which are endemic to Malaysia are interwoven with, or
arise from controversial affirmative action policies developed with
the purpose to empower the Ma lay and certain natives, but having
long outlived their justification. Racially discriminatory
practices have been observed in a number of areas, in particular
education, employment, housing, and political participation.
Articles 153 and 89 of the Malaysian Constitution establishing a
privileged position for the Bumiputera fall short of the
international law standards for legitimate positive action
established under the International Convention on the Elimination
of All Forms of Racial Discrimination (ICERD). These provisions are
not time-limited or function-limited. Continuing favourable
treatment of the Bumiputera under these provisions means that race
continues to be a key determinant of a persons life experiences and
of disadvantage in Malaysian society. Gender discrimination is
widespread in respect to marriage and family relations, personal
safety and security, education, employment, health, political
participation, matters of criminal law, freedom of movement and
expression, and citizenship rights. Discrimination against rural
and indigenous women is particularly concerning. Despite Malaysias
accession to the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW) in 1995, the Committee on the
Elimination of Discrimination against Women and the Gender Gap
Index have highlighted that there is still a lot of progress to be
made before Malaysia can confidently state compliance with its
obligations under the Convention. Traditional customs and attitudes
are partly responsible for maintaining a disadvantaged position in
society for women in general. Gender-based violence, including
domestic violence, rape, sexual harassment, and trafficking remains
widespread, and female genital mutilation may also be found.
Despite significant progress regarding gender equality in
education, some categories of women have been left behind.
Indigenous women,
for example, continue to face disadvantage in accessing
education.
The
progress made with regard to access to education has not
translated into improved equality for women in employment. There
continue to be low levels of female participation in the labour
force, particularly in high income and decision making roles. Women
face discrimination with regard to promotions and salary, and also
in relation to health and safety in the workplace. Women also face
unequal access to healthcare. The unequal participation of women in
the political process serves to sustain their unequal position in
other areas of life. Women are discriminated against in their
ability to pass on citizenship and residence rights to their
children and spouses Inequality based on religion or belief is
another big issue for Malaysian society. This is a complex area
ranging from discriminatory limitations of the freedom to manifest,
practise and change ones religion, to financial assistance for
religious institutions and unequal access to justice under Syariah
law. Article 3(1) of the Constitution of Malaysia places Islam in a
privileged position, which is reflected in other provisions of the
Constitution. Despite the dominance of Islam in Malaysia, there is
discrimination not only against Hindus, Christians and other
non-Muslims, but also against Malay Muslims, who are discriminated
in the enjoyment of certain human rights. For example,
discrimination on the basis of religion or belief is practiced
through restrictions of expression. Restrictions have also been
placed on the religious freedoms of adherents to minority Islam
religions, which are considered to be threatening to the position
of Islam, in order to protect the integrity of the official
religion. Non-Muslims are particularly disadvantaged with respect
to the finance of religious schools and religious education. Given
the strong relationship between race and religion in Malaysia, such
actions further compound the challenges identified above in
relation to race discrimination. On the other hand, Muslims face
restrictions which do not apply to other groups, including, most
notably, their right to change religion and their right to engage
in sexual relationships. Finally, there is belief-based
discrimination against all Muslims who express beliefs not approved
by official interpreters of Islam in respect of their right to
participate in cultural life on an equal basis. Malaysia has
therefore been unable to reconcile the position of Islam as the
official religion with its obligation to protect the right to
equality for members of all religions. Discrimination against
persons living with HIV/AIDS has not been successfully eliminated
from
Malaysian life. The evidence suggests that the impact of the
HIV/AIDS epidemic in Malaysia is worsened by the discriminatory
attitudes and actions taken towards persons living with HIV/AIDS,
which hinders access to effective treatment, and can lead to
economic and social isolation.