We refer to the report 'MAS needs to make CA more effective, says Fong'.
The article said the human resources minister '.. refuted suggestions that MAS discriminated against its women employees, adding that the terms and conditions in its collective agreement were only enforced after the airline reached an agreement with the workers union'.
Interestingly, this report was published a day after another report which quoted the minister for women, family and social development commenting on the discriminatory practices by MAS.
It is indeed worrying that the human resources minister has refuted suggestions that MAS actually discriminates against its women employees. Does the minister mean that any employer can compel their female employees to agree not to become pregnant or risk dismissal?
Or further that the ministry would take the stand that if this were to happen, then it is not discrimination?
The minister does not seem to understand that a contractual term that provides that a person may be discriminated against is no less a discrimination. Whether a term of contract is discriminatory or otherwise is to be tested objectively.
The simple truth is this. Sometimes discrimination is about sameness. That is like must be treated alike and the similarly situated must be treated the same. In other words, persons who are the same deserve the same treatment. This is easy enough to see.
But more often, discrimination is not about being the same but about being different. This is because discrimination often plays on some differences between people. For example, blacks were discriminated against because of the colour of their skin. And the disabled were and in many instances, still are, discriminated against by reason of their disability.
Discrimination is the flip side of equality. What is important here is that we treat people in the manner that will ultimately provide substantive equality for all, that is, equality of results.
Therefore, to sometimes treat women and men in the same way is discriminatory and sometimes treating them differently is also discriminatory. Sometimes to treat the able-bodied and the disabled in the same way is discriminatory and at other times treating them differently is discriminatory.
Now, let us go back to the case at hand. Beatrice was dismissed because she was pregnant. A person can only say this contractual term is fair if he takes the view that if men were to become pregnant, they too would be dismissed under this contractual term. Therefore, as the term then would apply to both men and women it is not discriminatory.
Fortunately most of us realise that whilst both men and women can become parents, the manner in which each becomes a parent is different. So, in this instance, we have a contractual term that looks at the differences between people and penalises one group of people because of that difference.
Here women are punished ie, dismissed from their employment when they become pregnant. Thus we have breached the theory of equality, in other words, we have discriminated against women.
Now that brings us to the second issue at hand. Becoming pregnant is a crucial social function and carries a social value. A function that only women can fulfil. As a matter of public policy, the government must support women fulfilling this function of giving birth.
A government that does not provide protection for women who become pregnant, ie, a government which allows employers to compel women not to become pregnant or else lose their jobs, not only supports discrimination against women but is also indirectly sealing the fate of its country.
Women cannot be put in a position of having to choose between earning a living and becoming pregnant. Therefore, as a matter of public policy, the government must provide every facility to assist women who are pregnant.
Is providing assistance to women who become pregnant discriminatory against men? The reality is that women who become pregnant have to take time off work to deliver their babies. Sometimes surgery may be required. For a man, having a child is less complicated. No time off work and no medical attention is required.
The theory of equality requires all persons to be provided with substantive equality. That is nobody is discriminated against because of their differences. So if no provisions are made for pregnancy, women would suffer loss of income and extra expenditure.
Women have unique reproductive characteristics and responsibilities. Because of this, the theory of equality demands that certain childbirth benefits be given to women. The fact that these benefits are not made available to men is not discriminatory. Because in this context, the theory of equality demands that we must treat men and women differently. Because of their differences.
Recognising differences also means that MAS must re-assign pregnant women to other kinds of work during their pregnancy. MAS like any other employer, must provide women with childbirth leave and benefits.
MAS's answer to the well-known fact that women late into their pregnancy are not suited to work as cabin crew should be to make alternative provisions for such pregnant women such reassignment of duties. The solution to saying that flying is not suitable for pregnant women is not and cannot be dismissal.
The airlines industry, like any other industry, cannot discriminate against women. A minister in charge of human resources cannot support discriminatory acts by employers against women just on the premise that an agreement was signed allowing an employer to discriminate against women.
Here we have an employer which is exempt from providing its employees maternity leave. And an employer which can dismiss its employees for becoming pregnant. Beatrice had been working for MAS for 11 years and she was dismissed for becoming pregnant.
The flurry of reports, letters and opinions generated by this case is indicative that many Malaysians are alarmed and outraged by such an intentional policy of discrimination against women practised by any employer in this country.
How can it be that the minister for human resources fails to see this practice as discriminatory?
The writer is president for the Women's Centre for Change, Penang, acting on behalf of the Joint Action Group against Violence Against Women.