Types of Discrimination in Workplace in Malaysia

Workplace discrimination which is an unfair practice can be occurred in a number of situations such as pregnancy discrimination, religion issues, bias of gender, discrimination against people with disabilities, as well as different of national origin.

As women, pregnancy is part of the identity for them which having reproductive capacity. Thus, pregnant women should not be discriminated especially during employment. It can be aware that the discriminatory practices often occur during hiring, job assignment, promotion, termination, compensation and harassment. Although Malaysia has ratify to Convention of the Elimination of all forms of Discrimination against Women (CEDAW) and added the word ‘gender’ into Article 8(2) of the Federal Constitution to prohibit from discrimination, however there are still discrimination cases occurring nowadays. Refers to Beatrice A/P At Fernandez v Sistem Penerbangan Malaysia & Ors case, Beatrice was a flight stewardess for Malaysian Airlines System. As per the collective agreement, it stated that all stewardesses shall be resign once get pregnant. Beatrice refused to resign when she became pregnant and was terminated by Sistem Penerbangan Malaysia. She filed a legal suit at the High Court and Court of Appeal, claiming that the collective agreement were discriminatory to the pregnant workers and thus contravened the Article 8 of the Federal Constitution of Malaysia. This is a case where the Court of Appeal decided that it is better for the applicant's application to be dismissed at this stage (Court of Appeal) to save her from incurring more legal fees unnecessarily, due to the court noted that Article 8(1) only applies for an individual under the law and the collective agreement was governed by the private law, thus Article 8 could not be applied for this case. Another case is Noorfadilla Binti Ahmad Saikin v Chayed Bin Basirun & Others. This case was about a person who had accepted the offer to be a temporary teacher at a government school. The moment when the employer knew that she was pregnant, the employer voided the offer of employment. Noorfadilla appealed to the court for interests, damages and costs. The parties who were being sued included the officer, Federal Government, Education Minister and Education Director General. According to the Convention of the Elimination of all forms of Discrimination against Women (CEDAW), this case comprises of direct discrimination which uses pregnancy to stop women from working and indirect discrimination whereby men and women are not treated equally. From the two cases, we can viewed that there is a law which may guarantee everyone equality but in some circumstances, discrimination problems among men and women may still exists in our modern society. Employers are required to handle pregnancy in the proper way as pregnancy-based discrimination is illegal.

Dress code is ‘a set of applications set by the company to help providing their employees with guidance on appropriate application and the responsibilities falls on employers in establishing the standard’. A right dress code in an employment could able to protect employees from discrimination, establishing a work culture as well as suit for the working environment. Some of the employers are required to have a business dress code due to health and safety standards. However, employers should ensure that their dress codes are not discriminating against any employee. There was a case where Malaysian Association of Hotels (MAH) defended the policy of some hotels which prohibiting their frontline staff from wearing the hijab or headscarf and claimed it is an international practice that followed a standard operating procedure and policy. The argument raised was more on discriminatory and does not exist in international standard operating procedure which deter the Muslim women to impose hijab. There is no connection between the hijab ban and the employee’s ability to perform her job competently or effectively. Thus, wearing of hijab has not related with the employee’s performance at work.

Being a multi-racial country with citizens who hold various religious beliefs, the freedom of religion forms part of the fundamental rights under Article 11 of the Federal Constitution, which stated that “every person has the right to profess and practice his religion”. However, it was found that one of the sport wear retailer, JD Sports Malaysia - outlet supervisor was prohibiting Muslim employees from prayers and the outlet supervisor has been fired. The retailer immediately apologised and clarified that they were treating this issue seriously and respecting all forms of religious and cultural beliefs. As refers to an article which reported in FMT news, the Malaysian Employers Federation (MEF) Executive Director, Datuk Hj Shamsuddin Bardan stated that “Muslim employees should not see fulfilling their religious requirements as constraints to do their jobs, while employers should adopt some form of flexibility.” He also suggested that the Muslim employees should compensate the time of spent for praying by extending their working hours while employer shall be more flexi in allowing employees to have their lunch at later times so that they may perform prayer during the lunch hours. It is illegal for employers to discriminate based on an individual's religious customs and beliefs, as long as doing so does not brings excessive negative consequences for the employer.

Discrimination against women is categorized as gender discrimination. If a company does not provide equal opportunities to its employees then it has committing gender discrimination. It is unfair, unequal treatment in employment opportunities especially through a woman. The employment opportunities include promotions, salary increment, decision making, participation of a project, benefits as well as differences in wages. Additionally, transgender are also the target of gender discrimination in the workplace. The achievement of women nowadays in various career fields is no longer doubtful, as their ability to compete with men has been proven. However, women are still not fully trusted by certain organizations, due to they are considered weak from the negative perception of gender and also incapable of being a leader as well as men. This causes women not to be given a promotion opportunity especially when they work in technical fields. Gender discrimination not only affects the employee's productivity but also mental peace, quality of work life, relationships at home as well as at workplace too. Hora (2014) mentioned that women not only denied for superior leadership positions, but also stopped from availing to higher education which will make them more developed in terms of skills, and also gives them with lot of experience in learning and applying managerial decision-making methods, help them in enhancing their self-confidence in holding and controlling leadership positions. According to the data from Department of Statistics Malaysia, 2018, Malaysia was reported that labour force participation rate (LFPR) for women was recorded 55.2% and men 80.4%. In overall of the age groups, male labour force participation rate was still higher than female. Apart from that, employers shall be prohibited basis on gender discrimination when paying salary to men and women of the same qualifications, responsibility, skills level, and position. They shall also prohibit from lowering one gender's salary in order to equalize pay between men and women.

Discrimination against people with disabilities (PWD) is not a new issue in the society. Discrimination is an on-going challenge that all people with disabilities encounter and hope to overcome. (40) The right to work is fundamentally significant to all persons, no matter whether the person is normal or has a disability. The ability to obtain job allows a person to improve his or her individual economic status, self-esteem, participate socially, as well as gain knowledge and skills. Unfortunately, those persons with disabilities were facing unemployment which becomes a global issue nowadays. In Malaysia, the government has enacted Persons with Disabilities Act 2008 to provide equal opportunity and workforce diversity to those persons with disabilities. According to Malaysia Persons with Disabilities Act of 2008 (Act 685), “persons with disabilities include those who have long-term physical, mental, intellectual, or sensory impairments which in interaction with various barriers, may hinder their full and effective participation in society”. Those people with disability who willing active participate in the workforce is beneficial to both individuals and society. With the Persons with Disabilities Act of 2008, equal employment opportunities for people with disability would able to improve their quality of life, enable them to integrate into society, thereby contributing to feelings of self-worth and self-assurance. Furthermore, being able to work and support themselves and their families would empower them with a sense of self-sustenance. In fact, in Malaysia, the proportion of people with disabilities in the workforce is significantly lower than that of people without disability. There are seven categories of disability, which are hearing impairment, vision impairment, speech impairment, learning disabilities, physical disabilities, mental, and multiple disabilities. There are few corporations or enterprises that hired persons with disabilities as employees, which are Starbucks Malaysia, Autism Café Project, McDonald’s Malaysia, Giant Hypermarkets, Kentucky Fried Chicken (KFC), Dialogue in the Dark, AEON Malaysia, and so on. Nowadays, many employers are still afraid to employ people with disabilities in their organization as well as not given chances for them to apply for any job vacancy. Despite there are many regulations stated that people with disabilities should be given equal opportunities for them to be employed in an organization, but they still often facing significant barriers in employment, such as employer lack of understanding the needs of employees with disabilities where workplace are not disability-friendly, employers and working colleagues facing difficulties to understand their needs and feelings which may slow down for a project, miscommunication between employees with disabled and non-disabled especially people with the hearing impaired as well as misunderstanding on the tasks assigned to them. The main issue that the employees with disabilities were facing at the workplace are attitudes and stereotypes among superior and colleagues. They may felt helpless when the working hours are longer than other colleagues; works overloaded and increase in work pressure. Thus, resulting in poorer labour force participation, higher unemployment rates, and lower wages compared to non-disabled workers.

For over the past decade, Malaysia has over dependence on the foreign workers causes the numbers of foreign workers increase gradually in Malaysia. As the rapid expansion of the manufacturing sector and small and medium-sized industries, both industries created an increased demand of skilled and semi-skilled industrial workers in various manufacturing industries, such as textiles, food, electrical goods, furniture and others. Besides, the rapid urbanisations also increase the demand for foreign workers maids in the industry of hotels, restaurants and other enterprises in the hospitality industry. The demands of migrant workers mostly are sourced from Indonesia, Nepal, Bangladesh, India, Pakistan, Vietnam, Cambodia, Thailand, and the Philippines. Thus, all workers should be treated with fairness, dignity and equality. Migrant workers shall be treated the same employment rights and benefits enjoyed by other local workers as well. According to Chong Wah Plastics Sdn. Bhd. & Ors v Idris Ali & Ors, the Industrial Court stated inter alia, that ‘if the country has to employ foreign workers both the law and equity, and good conscience demand that they be given their legal rights and this includes the payment of same wages as local workers.’ All forms of exploitation and abusive practices against workers in the workplace shall be prohibited by both the international and national instruments and all forms of forced labour and slavery are prohibited in Malaysia as well. As per the Federal Constitution of Article 6(1) provides that ‘no person shall be held in slavery’, which indicated that no local nor migrant workers shall be held in slavery or any form of servitude and Article 6(2) provides that ‘all forms of forced labour are prohibited’. Hence, inhumane treatment on migrant workers such as physically abusing that causing hurt shall be prohibited accordingly.