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Legislate a 'workplace discrimination law'

Ashgar Ali Ali Mohamed

COMMENT | Workplace discrimination, which includes discrimination against jobseekers, ought to be viewed seriously as it is common in many organisations and sectors.

It arises due to several factors such as age, disability, race, religion, national origin, political opinion or affiliation, gender, marital status and sexual orientation, among others.

Undoubtedly, workplace discrimination is a bitter experience that demoralises workers, who normally feel their services to the organisation is not appreciated and this inevitably affects their work performance.

There are many international instruments that promote equal rights to both men and women and the prohibition of workplace discrimination such as the United Nations Universal Declaration of Human Rights and the United Nations Convention on the Elimination of All Forms of Discrimination against Women. The International Labour Organisation has designated two conventions to address workplace discrimination.

In hiring workers, an employer would need the best possible candidate and this requires scrutinising the prospective employee’s past experience, capability in handling a particular job, and ability to work as a team, among others.

There is, however, no restriction or limitation imposed on a company in advertising a job vacancy on the social media or other publication provided that such an invitation must be genuine and not misleading or deceptive and further, not discriminatory to any particular race or religious group.

However, refusing to employ a person by reasons of race, religion or religious attires, discriminating against a prospective employee on the terms and conditions in the offer of employment, and a woman granted maternity leave being excluded when it comes to promotion among others, ought to be prohibited.

Many countries have enacted discrimination law, including at the workplace and those involving a job seeker.

For example, the Australian Human Rights Commission Act 1986 prohibits inter alia, discrimination in employment because of a person’s religion, political opinion, national extraction, nationality, social origin, medical record, criminal record or trade union activity. Likewise, the New Zealand Human Rights Act 1993 prohibits discrimination on a wide variety of grounds in areas of public life, including employment.

In Malaysia, while the basic concept of equality before the law and equal protection of the law is enshrined in the Federal Constitution Article 8(1), this provision according to the Federal Court in Beatrice AT Fernandez v Sistem Penerbangan Malaysia & Anor, only addresses the contravention of an individual's rights by a public authority.

But when the rights of a private individual are infringed by another private individual, the above constitutional provision will take no recognisance of it.

It is the responsibility of every employer to ensure their employees and people who apply for a job with them are treated fairly and are not subjected to discrimination.

It is high time for the country to roll out a workplace discrimination law that prohibits workplace discrimination, including those involving the jobseekers.

ASHGAR ALI ALI MOHAMED is a law professor at the International Islamic University Malaysia.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.

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