Job seekers need protection

THE government must protect job seekers from discrimination by amending the Employment Act 1955, Sabah Labour Ordinance, and Sarawak Labour Ordinance.

In September 2018, the Human Resources Ministry proposed amending the Employment Act to protect job seekers and employees from discrimination on the basis of gender, religion, race, disability, marital status, pregnancy and language.

However, at the ministry’s public open day on Aug 6, 2019, Women’s Aid Organisation (WAO) learnt that it plans to exclude job seekers from the anti-discrimination provision.

WAO is extremely concerned by this exclusion as it would significantly weaken the anti-discrimination provision, negatively affecting thousands of job-seekers each year. Thus, we urge the ministry to reinstate job seekers into the provision.

Additionally, we learnt that the ministry is considering putting the list of prohibited grounds of discrimination, such as gender, religion, race and disability, in a separate regulation rather than in the actual Employment Act.

We urge the ministry to keep the list of prohibited grounds within the Employment Act, as the prohibited grounds are substantive issues. Moreover, the Act is more permanent than regulations, which are, in contrast, merely procedural.

It is crucial to include job seekers in anti-discrimination laws, as discrimination often happens during recruitment.

About 40% of women surveyed said they had been asked by interviewers if they were pregnant or had plans to become pregnant, according to a WAO survey.

There has also been cases where hotels have banned frontline staff from wearing the tudung. Such discrimination would occur during recruitment, as a Muslim woman wearing a tudung to an interview would not be hired.

Studies and media reports also highlight various forms of discrimination based on race and other factors in job postings and during interviews.

In such cases, discriminated job seekers would have no legal redress unless the ministry includes them in the proposed anti-discrimination provision.

Some may argue that employers have the right to hire whoever they want and that anti-discrimination laws would compromise merit.

In actual fact, anti-discrimination laws help ensure that employees are hired based on their credentials rather than due to bias.

A study by researchers at Cornell University (Ithaca, New York), for example, found that mothers are perceived to be less competent and committed than women without children even when they have similar credentials. This means that bias causes employers to overlook many talented job applicants.

Additionally, the proposed anti-discrimination provision by the ministry also has an exception that allows an employer to hire one applicant over another if the applicant has a characteristic that is an “inherent requirement” of the job.

For example, if a job requires an employee to speak a certain language, then it would not be discriminatory to hire someone based on their fluency in that language. The employer must, however, prove that fluency in that language is an “inherent requirement” of the job.

Another argument against protecting job seekers from discrimination is that the scope of the Employment Act only covers employers and employees, and not prospective employees.

This, however, is a circular argument since there is no reason why the Employment Act cannot be amended to also include prospective employees. In fact, it is absurd for a law on employment to not cover those seeking employment.

Laws protecting job seekers from discrimination are common in other countries. For example, Japan, South Korea, Australia, the United States, Canada and South Africa have employment laws that prohibit various forms of discrimination during both recruitment and employment.

Meanwhile, Hong Kong and the United Kingdom have anti-discrimination laws that protect job seekers and employees from various forms of discrimination.

Malaysia should follow suit and ensure that job seekers are also protected from discrimination.

Human Resources Minister M. Kulasegaran said on Aug 9 that the ministry is keen to consult all stakeholders on the Employment Act. We welcome the minister’s statement and look forward to further engaging with the ministry.

WOMEN’S AID ORGANISATION

Petaling Jaya