Our Constitution prohibits discrimination against citizens, but it applies to the public sector only.
IT was recently reported that frontline staff working in certain hotels are forbidden to wear the headscarf (hijab).
Many have criticised the “hijab ban”, stating that the practice is discriminatory.
According to the president of the Malaysian Association of Hotels, the hijab ban is not discriminatory but the standard operating procedure (SOP) in the industry. It was also said that this is a “uniform policy” that has been in practice in international hotel chains for a long time.
The donning of the hijab is generally believed to be in accordance with the religious beliefs of Muslims. A Muslim woman who wears the hijab does so usually because of her faith.
Any policy or rule which results in a restriction or disadvantage to a person because of her religious beliefs would amount to discrimination.
If such a policy is discriminatory, the next question to be asked is whether the policy can be justified. Is there any reasonable ground for the hijab ban?
It is not enough to say that the hijab ban is a regular practice and usual policy in the hotel industry. To say that it is the SOP is not enough. The reasons given must be reasonable.
It is difficult to see the connection between the hijab ban and the employee’s ability to perform her job competently or effectively. The hijab should have nothing to do with the employee’s performance at work.
From this perspective, the hijab ban is unfair discrimination.
There is discrimination which can be objectively justified. Not all discrimination is unfair.
For example, a policy that prefers members of a marginalised community would not be unfair. Such policies are needed in order to give members of these groups the opportunities which they would not normally have access to.
It is important to understand the distinction between fair and unfair discrimination. In practice, however, it is not easy to ascertain whether discrimination is unfair or not.
The Federal Constitution prohibits discrimination against citizens on grounds of religion, race descent, place of birth or gender.
However, the provisions of the Federal Constitution cannot be relied on in situations where the discrimination is in the private sector and not by a public body. This was what has been decided by the Federal Court; constitutional provisions are not applicable in cases between individuals.
There is no specific legislation to deal with unfair discrimination. As such, female hotel employees who are affected by the hijab ban do not appear to have legal recourse.
The calls for an anti-discrimination law have long been made. It is needed not just in employment, but also in areas where there is unfair discrimination.
Such a law, however, must not only seek to punish discrimination. The law must seek to encourage and promote equality and to eradicate unfair discrimination.
Unfair discrimination is unfortunately prevalent in our society. The time is ripe for the Government to take steps to enact a law to deal with unfair discrimination.
Syahredzan Johan is a partner of a legal firm in Kuala Lumpur with an interest in the laws that shape our country. He can be reached at firstname.lastname@example.org. The views expressed here are entirely the writer’s own.