GMUL5063 EMPLOYMENT LAW: EMPLOYMENT

DISCRIMINATION

1.0 INTRODUCTION

1.1 What is Employment?

Employment means work or service performed by an individual to the task at hand for

another person or entity in exchange for wages or other remuneration.

1.2 What is Employment Law?

Employment Law is the law which regulates the operation of the labour market in general

and the employment relationship between employers and employees in particular. For

examples include hiring process, suspension from work, maternity rights, layoff and

wages. The obligations and rights of an employment contract are covered by the

Employment law. When an offer for employment is made by an employer to an

employee, the law governing the relationship between an employee and an employer

begins.

1.3 What is Discrimination?

Longman’s Dictionary of American English defines discrimination as treating different

things or people in different ways. This suggests that differential treatment of people can

become a potentially controversial and volatile issue if the treatment is perceived to be

better or worse. Furthermore, the term discrimination is used to imply any limitation in

access to resources based on any number of factors such as ethnicity, gender or age.

While ethnicity or race- based discrimination tends to receive frequent media coverage,

other bases of discrimination include religion, national origin, age, gender, sexual

orientation and physical disability.

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In today’s growing and diverse workplaces, discrimination is a major problem in

various industries. Discrimination may occur in sex, racial and age discrimination in all

industry. There is a wide range of cases of discrimination in many countries.

Workplace discrimination occurs when an individual is treated unfairly due to his

race, national origin, gender, religion, age, veteran status, disability or other classes

protected by law. Those who report workplace discrimination are also protected.

Discrimination can be either direct or indirect.

1.3.1 Direct discrimination

Direct discrimination occurs when a person is treated less favourably than another in a

comparable situation because of their racial or ethnic origin, religion or belief, disability,

age or sexual orientation.

An example of direct discrimination is a job advert, which says “no disabled

people need to apply.” However, in reality discrimination often takes more delicate

forms. That’s why indirect discrimination is also covered.

1.3.2 Indirect discrimination

Indirect discrimination occurs when an apparently neutral provision, criterion or practice

would disadvantage people on the grounds of racial or ethnic origin, religion or belief,

disability, age or sexual orientation unless the practice can be objectively justified by a

legitimate aim.

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An example of indirect discrimination is requiring all people who apply for a

certain job to sit a test in a particular language, even though that language is not

necessary for the job. The test might exclude more people who have a different mother

tongue.

2.0 EMPLOYMENT DISCRIMINATION

Employment discrimination refers to discriminatory employment practices such as bias in

hiring, promotion, job assignment, termination, and compensation, and various types of

harassment. In many countries, laws prohibit employers from discriminating on the basis

of race, colour, sex, religion, national origin, physical or mental disability, or age. There

is also a growing body of law preventing or occasionally justifying employment

discrimination based on sexual orientation or gender identity. Some jurisdictions within

countries implement their own non-discrimination laws.

Therefore, employment discrimination occurs when an employer unfavourably

solitary out employees or applicants on the basis of age, race, gender, sexual orientation,

disability, religion and other reasons. Employment Discrimination is part of the

Employment Law practice, as well as Whistleblower, Workers’ Compensation, and

Workplace Safety.

Laws often prohibit discrimination on the basis of:

 Race/colour

 Ethnicity/ National origin

 Sex/Gender

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 Pregnancy

 Religion/ Creed

 Political affiliation

 Language abilities

 Disability (physical, mental, or emotional)

 Age

 Sexual Orientation

Some jurisdictions prohibit employment discrimination against other social group

that has legal protections. They include discrimination or harassment based on

socioeconomic class, height or weight if not relevant to employment, and

provincial/regional origin.

2.1 How employee is discriminated against?

2.1.1 Lay- off

Finding and keeping work is getting harder for Asians. In the competition for

employment, people with national origin background have fared less well than others.

“James Sum was a long- time Ameritech employee and executive. Now he is un

employed and seeking $18 million in damages from Ameritech”.

In this case, numbers from Ameritech revealed an unreasonably high number of

Asian people were let go”, Eblin said. “There’s always the tendency” to consider Asian

minorities first in cutting employment because they often are the most recently hired,

explained David Bar clay, Hughes vice president of work force diversity. “That is why we

have to oversee the process and look for ways to protect them”.

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2.1.2 Promotion

There is a remark that “the managerial promotion is different for Asian Americans and

white Americans”. Asians in management experience statistical discrimination, meaning

that they are viewed with suspicion and that their commitment and competence are over-

tested. Specifically, “effort expended on paid work was more positively associated with

promotion for white Americans than for Asian Americans.

2.1.3 Wage

Hard as it is to believe, Asians are still clashing employers over equal pay for equal work.

Salary in equity is one of the most common forms of racial discrimination on the job.

Employers are paying Asians wages at a rate less than the rate at which employers pay

wages to employees of the other races for equal work on jobs.

2.1.4 Hiring

Which criteria usually require hiring goals for Asian minorities? The answer is

“performance assessments are a fairer process” than minority quota and the performance

assessments “have concrete criteria on which everyone is judged”. According to a study,

discrimination also occurs at the hiring level when employers refuse to hire Asian

minorities for “open” positions. Educational background, work experience, age,

citizenship, physical conditions, availability, fluency in English, dress, height, weight,

and salary desired are characteristics relevant to employer’s decisions during the hiring

process. These types of factors could lead to large amounts of disparate treatment from

random events such as an employer’s bad mood.

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2.1.5 Training

Mr. Yamashita, a Japanese American won his commission after proving that he was the

target of vicious racial and ethnic harassment during his 10 week officer training

programme in the Marine Corps. According to the Marine records, Marine Corps

instructors criticized Mr. Yamashita about his legacy and at one point told him: “We do

not want your kind around here. Go back to your own country”. The significance of Mr.

Yamashita’s case ex tends far beyond his personal plight. His challenge prompted the

Marine Corps to discover, during the review in 1993, that members of minorities drop out

of its officer training programme at higher rates than white candidates.

2.1.6 Early Retirement

Andrew Chang was eight months away from retirement when his employment was

terminated, the complaint stated. Wanting to preserve his retirement, Lee Kim was

offered work in several other jobs for which he was qualified. He was also offered work

at a reduced salary, but here fused both offers, according to the complaint.

2.1.7 Harassment

Employers also have a responsibility to maintain a workplace free of national origin

harassment. Harassment based on ethnic origin is destruction. An ethnic insult or other

verbal or physical conduct because of an individual’s nationality constitutes harassment if

it creates a threatening, hostile or offensive working environment, unreasonably interferes

with work performance or negatively affects an individual’s employment opportunities.

For example, an Asian employee, Tam Phan, is segregated by physically isolating her

from other employees or from customer contact.

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2.2 Bona Fide Occupational Qualifications (BFOQ)

The bona fide occupational qualification (BFOQ) operates as a defence to a suit for

discrimination with regard to religion, national origin, gender and age. The first three

defences are found in Title VII, while the age BFOQ is found in the Age Discrimination

in Employment Act. The courts have narrowly construed this defence, limiting it to job

requirements that are essential to the job or are at the core purpose of the business. Mere

job relatedness is not sufficient.

Religious organizations are permitted to discriminate as long as the position

relates to the promotion of the religion. Religious belief is considered a bona fide

occupational qualification.

3.0 RACIAL DISCRIMINATION

Racial discrimination exists where employees of one race are favoured by the employer

over another. Usually it is white race favoured over the black race, but they are also many

instances of Hispanics, Orientals, Asians and American Indians being subjected to racial

discrimination. There even isolated instances of white people being victimized as well.

3.1 Racial Harassment

Racial harassment in the workplace exists when conduct by co-workers, superiors, or the

company itself has created a hostile work environment in which the victimized

employee’s ability to do his or her job has been impaired. Evidence of the severity of the

incidents is equally as important as the frequency.

When an employee claims that he or she is being racially harassed by a co-

worker, the employee must notify the employer. The employer must not condone this

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activity and must investigate the complaint in a timely fashion. When the harassment

originates with the employer itself, then no notification is needed. The employer will be

held liable.

3.2 Colour Discrimination

Title VII prohibits discrimination against colour in addition to race. Colour could apply to

people of mixed races, as well as to the different colour of pigmentation of people of the

same race.

3.3 Issue/Case

Through, the Race Discrimination Bill racial discrimination in the workplace has been

made illegal.

Hong Kong already has specific laws against discrimination by gender, family status, and

disability. This Bill targets 6 different areas and which focuses on the provisions

concerning employment. Main Acts in the Workplace outlawed under the Bill

a) Discrimination against Job Applicants

It is unlawful for an employer to discriminate against a job applicant on racial

ground

(i) In arrangements which the employer makes for the purpose of determining

who should be offered that employment;

(ii) In the terms on which the employer offers that other person employment;

(iii) By refusing, or deliberately omitting to offer, the other person that

employment.

b) Discrimination against Employees

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It is also unlawful for an employer to discriminate against an employee on racial

ground:

(i) In the terms of employment which the employer affords that employee;

(ii) In the way the employer affords the employee access to opportunities for

promotion, transfer or training, or to any other benefits, facilities or services,

or by refusing or deliberately omitting to afford the employee access to them;

or

(iii)By dismissing the employee, or subjecting him or her to any other detriment.

4.0 SEX DISCRIMINATION

Sex was considered a bona fide occupational qualification. Stereotypes ruled. Men were

physicians, lawyers, construction workers, and policemen. Women were nurses, flight

attendants, secretaries, and teachers. This arrangement had the effect of discriminating

against men and women in certain job classifications. The effect on women, particularly

with regard to higher- paying positions, was noticeable. Women and men must be treated

equally in all aspects of employment, hiring, compensation, training, transfer and

promotions. Prescribing limits for lifting or caring weight or for working before or after

childbirth is prohibited; any provisions or benefits must be provided to both sexes. Job

requirements must be the same for male and female candidates.

4.1 Sex plus Discrimination

Discrimination may occur against an individual not solely because of him or her gender,

but that fact coupled with another may be its cause. Women with small children, women

is child-bearing years, and women taking care of elderly parents are all examples.

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Some companies endeavour to discover if a female applicant has small children.

In addition, many employers believe if the child because ill or gets hurt, the mother will

leave work immediately. This behaviour can be disruptive to the workplace. For that

reason, the company may nonchalantly ask the female applicant where her children go to

school. The response will indicate whether the woman has children and, if so, what their

ages are. The company can then generally refuse her or deny her for another reason. This

is discriminatory behaviour.

4.2 Equal Pay

The Equal Pay Act of 1963 is an amendment to the Fair Labour Standards Act, which

regulates child labour, minimum wage, and overtime pay. The Equal Pay Act prohibits

the payment of different wages to men and women who are performing the same job.

This Act covers all types of job categories from clerical to executive. The jobs must be

equal with regard to skill, knowledge, or experience and the conditions under which the

work is performed must be similar. For example, a person working overseas is entitled to

a pay differential for the same job performed domestically.

4.3 Comparable Worth

Comparable Worth is an attempt to assign values to male-dominated and female-

dominated jobs based on worth. Where the values are equated, equal pay would be

required. The theory behind this doctrine was that most female-dominated jobs pay less

than male-dominated job. This arguments has not found favour with the courts because

assigning values is arbitrary and interferes with payments based on supply and demand.

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4.4 Issue/Case

Gender Discrimination: Beatrice Fernandez v. Sistem Penerbangan Malaysia & Anor

2004 [CA].

The appellant started working as a flight stewardess, Salary Grade B, with the first

respondent on 14 October 1980. The terms and conditions of the service were governed

by the collective agreement dated 3 May 1988. Article 2(3) of the First Schedule to the

collective agreement requires the appellant to resign on becoming pregnant. In the event

she fails to resign the company shall have the right to terminate her services. Upon the

appellant becoming pregnant and refusing to resign, the first respondent terminated her

services.

The attention was also drawn to the provision of s. 40 of the Employment Act

1955 and we were urged to give a purposive interpretation as provided by s. 17A of the

Interpretation Acts 1948 and 1967. With respect, we are unable to see the relevance of s.

40 of the Employment Act 1955. That section only requires a female employee who is

leaving her employment to give four months notice to her employer about her pregnancy

failing which she would not be entitled to any maternity allowance. We fail to see what

kind of “purposive interpretation” could be given to the provision to render the provisions

of the collective agreement null and void. This ground too has no merits.

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5.0 SEXUAL HARASSMENT

Sexual harassment encompasses the request for sexual favours as well as touching, joking,

commenting, or distributing material of a sexual nature that an employee has not

consented to and finds offensive. The aggrieved individual may initiate a lawsuit against

the individual personally or may proceed against the company. If there was unpermitted

touching, this gives rise to the torts of civil assault and battery. If there were sexual

comments made with a particular individual in mind, which would constitute slander. If

sexual comments were return or sexual pictorials were drawn, it would be libel. If generic

comment were made that degraded the gender and individual could claim the tort of

infliction of emotional distress.

5.1 Quid Pro Quo

There are two distinct situations for which the company may be liable; Quid Pro Quo and

hostile work environment. Quid Pro Quo means “this for that.” It involves situations in

which a superior is eliciting sexual favours from a subordinate in written for some form

of sexual activity.

5.2 Hostile work Environment

Hostile work Environment is intimidating and offensive conduct perpetrated by a

superior or co-worker against an employee. The Hostile action must be severe and

pervasive so as to interfere with the performance of the employee’s work. Touching,

joking, commenting, and distributing material of a sexual nature all fall within the

confines of a Hostile work Environment.

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5.3 Issue/Case

Projek Lebuhraya Utara Selatan Bhd. v. Azahar Ahmad, 1998

An interesting sexual harassment case that shows how the court deals with the factual

issues involved. The applicant, a supervisor, claimed that his dismissal, on the ground

that he had sexually molested one of the company's female employees, was unfair. There

were no other witnesses to substantiate the employee’s allegation. The employee testified

that she had only reported the matter to the company two months later as she was

confused and had suffered extreme embarrassment.

Where female employees are working, especially during the night, employers

should prevent behaviour of the present nature and have the duty to maintain strict

discipline at the workplace. The applicant had breached his duty as supervisor as he was

supposed to protect the young girls who had to work during the night shift. The claimant's

action has tarnished the company's reputation and his action was bound to affect the

company adversely. The company employed a large number of female workers during all

hours. Their supervisors should therefore be of good reputation and integrity.

The applicant made a ridicule of office discipline by suggesting that the company

should not have taken any action against him if the complainant had consented to the

acts. Employees cannot commit indecent and immoral acts at the workplace during

working hours even if both parties agree.

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6.0 FAMILY LEAVE AND PREGNANCY DISCRIMINATION

Pregnancy most often leads to the birth of child. Although a child is precious, its birth

may temporarily halt the employment of the mother and the father because of the love

and care required by the new born. This raises two issues.

First, a women must not be discriminated against because of a desire to become

pregnant, her pregnancy, or because she has a child. The Pregnancy Discrimination Act of

1978 protects women against these forms of discrimination. There is doubt that an

employee’s pregnancy may be disruptive to the workplace. But with regard to

employment, pregnancy is a temporarily disability and, as such, is no more disruptive to

the workplace than disability due to sickness, accident or injury.

Second, to accommodate the parents’ desire to bond with their newborn, twelve

week of unpaid must be granted to the mother and father if they have worked for a

company with 50 or more employees for one year and have accrued at least 1250 hours of

work time during that year. The Family and Medical Leave Act of 1991 guarantee this.

The act also extends that guarantee when a serious health condition befalls a spouse,

child, or parent.

6.1 Pregnancy Discrimination

In 1978, discrimination on the basis of pregnancy became illegal in the United States,

with passage of the Pregnancy Discrimination Act, an amendment to Title VII of the 1964

Civil Rights Act.

Pregnant women must be treated the same as other applicants or employees. They

must be judges by their ability to perform rather than on their physical condition.

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6.2 Issue/Case

Sistem Penerbangan Malaysia v. Noor Azlina Ariffin, 1997

The claimant was employed as an air stewardess at the time of her dismissal. The

collective agreement stipulated that an air stewardess would be automatically dismissed if

she gave birth and had less than seven years service. The claimant had served the

company for less than seven years but had given birth and was dismissed immediately.

She was not asked to give a show cause letter nor was a domestic inquiry held.

The court held that the collective agreement was not an unlawful restraint of marriage. It

was only an undertaking that female employees in the particular category of the claimant,

air stewardess, should not become pregnant within the stipulated period otherwise they

had to resign. There is no prohibition against pregnancy if the stipulated time is served.

The collective agreement was held to not contravene any provision of the Employment

Act 1955 or the Industrial Relations Act 1967 and to therefore be valid. The dismissal

was held to be just.

7.0 SEXUAL ORIENTATION

The Civil Rights Act does not prohibit employers from refusing to hire or subsequently

firing someone because he or she is a homosexuals. Although there is no federal law,

state and local laws do exist in select jurisdictions. The term most commonly used is

sexual orientation. Many cities also disallow discrimination, but only few of them extent

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it to employment. There is also no federal law protecting transsexuals and those

undertaking gender corrective surgery.

7.1 Homosexual Partners

Currently gays and lesbians do not have the right to include their partners under their

health coverage. Since homosexual marriages are not legally sanctioned except in

Vermont, which permits two people of the same sex to enter into a civil union, partners

are considered mere friends who are not qualified for coverage. Family leave policies for

sickness and death do not extent to gays and lesbians.

7.2 Issue/Case

The first real move the Malaysian Government took to addressing transsexual issues was

in 1986 when Datuk Abu Hassan Omar was the Welfare Minister. A transsexuals

association, called the Federal Territory Maknyah Association was registered at the same

time and it conducted dialogues with Ministry officials but ended up with little success.

Dara said only by classifying transsexuals as “women” the authorities would be rid of

social problems which came about as a result of discrimination against the group. She

said most transsexuals were qualified to hold other jobs but were turned away because of

their identification cards and appearances. “As a result many went underground as sex

workers while the fortunate few like me ended up in the entertainment world, “she said.

Ann Lee, the chairman of Pink Triangle, an NGO dedicated to HIV prevention,

said the ministry could look into issues affecting transsexuals. “The ministry should take

into account issues of sexuality which have an influence on the way women carry out

their work and life,” she added.

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8.0 RELIGIOUS DISCRIMINATION

The First Amendment to the United States Constitution provides for freedom of religion.

It also states that Congress shall not establish a national religion, thus ensuring the right

of individuals to engage in whatever religious practises they wish. These practices must

not, however, violate other laws such as criminal laws prohibiting sacrificial offerings.

The First Amendment applies directly to the federal government and to the states true the

Fourteenth Amendment.

While the constitution protects individual from governmental infringement, Title

VII protects them from employment discrimination. Religious Affiliation is one of the

classes protected under Title VII from invidious discrimination. Employers may not

refuse to hire an individual because he or she is a member of a particular religion.

9.0 NATIONAL ORIGIN

Individuals are protected from discrimination based on national origin under Title VII of

the Civil Service Rights Act and the Immigration Reform and Control Act of 1986.

National Origin refers to a person’s roots, that is, the country in which the person or the

person’s ancestors were born. The four-step test for national origin discrimination is as

follows:

1. Employee belongs to the protected class.

2. Employee wanted to retain or obtain the position.

3. Employee was terminated or applicant was refused employment

4. Termination or refusal to hire occurred because of employee’s or applicant’s national

origin.

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10.0 AGE DISCRIMINATION

The Age Discrimination in Employment Act of 1967 (ADEA) was enacted to promote the

employment of individuals over 40 years of age. Later it was amended to discontinue

mandatory retirement, thereby shifting the requirement for employment from age to

ability. There are exceptions, companies can force executive in high policy-making

positions to retire at 65 and universities can require tenured professors to retire at 70.

10.1 Issue/Case

Age seems to be more of a common issue in the workplace than racism or sexism.

Approximately 20% of all complaints filed with the Federal Equal Employment

Opportunity Commission (EEOC) are for age discrimination, settlements and jury awards

are substantially higher in age related cases than in those for race, sex or disability

discrimination (Age Discrimination, 1999). Generally older people are accused of lacking

energy and flexibility, while young people lack experience and want it all. Many people

do not get the opportunity to show whether or not they have what it takes because of their

age. These people are being discriminated against and therefore, robbed of their

employment opportunities.

11.0 DISABILITY DISCRIMINATION

In 1990, Congress passed the Americans with Disability Act (ADA). The ADA has a

profound effect on the many millions of Americans who life with some type of disability.

The ADA requires employers with 15 or more employees to refrain from discriminating

against any individual who has an impairment that limits major life activities, such as

impairment to sight, speech, hearing, walking, and learning. Also included are people

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with cancer, heard conditions, AIDS, and disfigurement, as well as people recovering

from substance abuse.

The four largest categories of this abilities are physical (prosthetic, wheelchair,

carpal tunnel), disease (heard, lung, cancer, AIDS), sensory (sight, speech, hearing) and

mental (retarded, emotionally disable, chemical dependency). The examples given are all

inclusive. Physical and disease represent a much larger proportion than sensory or

mental.

11.1 Issue/Case

Different jurisdictions have approached in different ways and with varying results. We

have to look at our own situation. Is it that there are other healths issues which give rise

to the stigma and discrimination that we recognise arise in the HIV scenario? If that is so,

then the approach could be that we formulate anti-discrimination legislation generally, or

we attempt to attack the issue regarding AIDS. However, what we would like to bring to

our attention, if most people don’t already know, is that the National AIDS Committee

did make submissions to the Joint Select Committee of Parliament when they were

considering the Charter of Rights to state that there should be no discrimination on the

basis of health cases in general. Also, we are attempting to put in place legislation to deal

with discrimination. A further effort is being made to amend the constitution generally

because, as it now stands, there is no provision which says that there ought to be no

discrimination on the grounds of health.

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12.0 CONCLUSION

In fact, working with diversity issues is the most critical issue to the organization’s

employees. Organizations must focus on using diversity to accomplish both individual

and organizational goals. The successful companies of the future will be “those that re

make their co-operate cultures so that women, blacks, immigrants and white males can

get along comfortably and productively”. Organizations that seek to correct a company

bias against a particular group may define diversity more narrowly, according to their

specific needs. Employers as the person responsible for making a company profitable

should hire the best people whether they are of minority or majority ethnic background.

In addition, for various reasons, small companies as well as large companies need to

bring Asians into the work force.

On the other hand, organizations that do not manage diversity effectively will not

be able to use the full potential of their workers, nor survive and grow under increasingly

complex and competitive business conditions.

Besides, organizations must provide employees with skills for operating in a

multicultural society, so that employees can understand their own as well as other

cultures, values, beliefs, attitudes, behaviours, and strengths and weaknesses. Helping

employees understand the need for valuing diversity and providing the skills necessary

for working in diverse work teams makes sense.

Work is important for everyone, not just as means of making money but to give a

sense of purpose and a sense of worth. Everybody is part of the diversity that should be

valued and has equal chance for employment.

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