Workforce Treatment and Discrimination in Workplace

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WORKFORCE TREATMENT AND DISCRIMINATION IN WORKPLACE 1.0 INTRODUCTION TO WORK DISCRIMINATION 2.0 DIMENSIONS OF WORK TREATMENT AND WORK DISCRIMINATION 2.1 FORMAL AND INFORMAL 2.2 POTENTIAL AND ENCOUNTERED 2.3 PERCIEVED AND REAL 3.0 TYPE OF EMPLOYMENT DISCRIMINATION 3.1 DISABILITY 3.2 AGE 3.3 GENETIC INFORMATION 3.4 NATIONAL ORIGIN 3.5 PREGNANCY 3.6 RACE/COLOR 3.7 RELIGIOUS 3.8 SEX-BASED 3.9 SEXUAL HARASSMENT 4.0 LEGAL PROTECTION FOR EMPLOYMENT DISCRIMINATION 5.0 CONCLUSION

Transcript of Workforce Treatment and Discrimination in Workplace

WORKFORCE TREATMENT AND DISCRIMINATION IN WORKPLACE 1.0 INTRODUCTION TO WORK DISCRIMINATION 2.0 DIMENSIONS OF WORK TREATMENT AND WORK DISCRIMINATION 2.1 FORMAL AND INFORMAL 2.2 POTENTIAL AND ENCOUNTERED 2.3 PERCIEVED AND REAL 3.0 TYPE OF EMPLOYMENT DISCRIMINATION 3.1 DISABILITY 3.2 AGE 3.3 GENETIC INFORMATION 3.4 NATIONAL ORIGIN 3.5 PREGNANCY 3.6 RACE/COLOR 3.7 RELIGIOUS 3.8 SEX-BASED 3.9 SEXUAL HARASSMENT 4.0 LEGAL PROTECTION FOR EMPLOYMENT DISCRIMINATION 5.0 CONCLUSION

Introduction What is Discrimination? Discrimination is the prejudicial and/or distinguishing treatment of an individual based on their actual or perceived membership in a certain group or category, "in a way that is worse than the way people are usually treated. It involves the group's initial reaction or interaction, influencing the individual's actual behavior towards the group or the group leader, restricting members of one group from opportunities or privileges that are available to another group, leading to the exclusion of the individual or entities based on logical or irrational decision making. Discriminatory traditions, policies, ideas, practices, and laws exist in many countries and institutions in every part of the world, even in ones where discrimination is generally looked down upon. In some places, controversial attempts such as quotas have been used to redress negative effects of discriminationbut have sometimes been called reverse discrimination themselves. Work discrimination is defined here as unfair and negative treatment of workers or job applicants based on personal attributes that are irrelevant to job performance. The nature of work discrimination has been addressed in literature pertaining to oppressed groups such as women; ethnic minorities; people with disabilities; and lesbian, gay, and bisexual persons. There is a lack, however, of a framework that integrates the various conceptualizations of work discrimination. In response to this deficiency, I discuss and integrate into a three-dimensional model some important conceptualizations of work discrimination. A review of literature suggests that work discrimination is multifaceted. Brown and Ford (1977) discussed two kinds of work discrimination: "access" (discrimination during hiring, such as denial of job offer or lower starting salary) and "treatment"

(discrimination after the person is hired, such as promotion or salary-raise decisions). Chojnacki and Gelberg (1994) identified four levels of work discrimination: (a) overt (presence of explicit formal and informal discriminations), (b) covert (presence of discrimination in the absence of a formal antidiscrimination policy), (c) tolerance (presence of formal antidiscrimination policy, but lacking informal support), and (d) affirmation (presence of both formal and informal support). Chung (1998) suggested another dimension of discrimination: direct versus indirect. Direct discrimination refers to discriminatory practices against individuals who are known or presumed to be lesbian, gay, or bisexual. Indirect discrimination refers to a discriminatory or hostile work atmosphere experienced by lesbian, gay, and bisexual workers whose sexual identities are neither known nor presumed to be lesbian, gay, or bisexual. Figure 1 presents a three-dimensional conceptual model of work discrimination that extends the aforementioned frameworks.

Workplace discrimination occurs when any individual who is in a protected classification received adverse employment or hiring treatment as a member of that group. Workplace discrimination is forbidden by law for such characteristics as gender, race, age, religion, sexual orientation, and in employment decisions Two conceptual models are proposed in this article--one for work discrimination and the other for discrimination coping strategies pertaining to lesbian, gay, and bisexual workers. The work discrimination model includes 3 dimensions (formal vs. informal, potential vs. encountered, and perceived vs. real). The coping strategies model outlines methods that deal with potential and encountered discriminations. It includes vocational choice and work adjustment strategies; the latter are further categorized under identity management or discrimination management strategies. Lesbian, gay, and bisexual persons may be considered "sexual minorities" because of the pervasive prejudice, social oppression, and discrimination against them (Croteau, 1996; Elliott, 1993; Hetherington, Hillerbrand, & Etringer, 1989; Morgan & Brown, 1991). Many individuals justify their discrimination against lesbian, gay, and bisexual people on the basis of biased biblical interpretations or stereotypes that accuse these populations of being mentally ill, perverts, and child molesters (Levine & Leonard, 1984). Work discrimination has been a major topic in the rapidly growing literature concerning vocational issues of lesbian, gay, and bisexual persons (e.g., Croteau, 1996; Croteau & Hedstrom, 1993; Driscoll, Kelley, & Fassinger, 1996; Elliott, 1993; Fassinger, 1995, 1996; Griffin, 1992; Hetherington et al., 1989; Levine & Leonard, 1984; Morgan & Brown, 1991; Orzek, 1992; Pope, 1995, 1996; Worthington, McCrary, & Howard, 1998). As a contextual factor, it significantiy influences career development and decision making of such populations. In addition, researchers are

interested in studying the coping strategies used by lesbian, gay, and bisexual persons in dealing with work discrimination. Although different scholars have discussed various conceptualizations of work discrimination and coping strategies, a comprehensive conceptual framework that provides an integrative perspective is lacking. Such integrative conceptual models are much needed to guide future theoretical and empirical work, as well as career counseling with lesbian, gay, and bisexual clients (Chung, 1995; Lonborg & Phillips, 1996). The purpose of this article is to propose conceptual models about work discrimination and coping strategies pertaining to lesbian, gay, and bisexual persons. These models were developed by integrating related theoretical and empirical work in vocational psychology literature with new conceptualizations. After presenting these two models and their relation, implications for counseling and research are discussed.

Formal Versus Informal The first dimension is based on Levine and Leonard's (1984) framework suggesting two forms of work discrimination: formal (institutional policies and decisions such as hiring, firing, promotion, salary decisions, and job assignments) and informal (interpersonal dynamics and work atmosphere, such as verbal and nonverbal harassment, lack of respect, hostility, and prejudice). The aforementioned framework by Chojnacki and Gelberg (1994) may be subsumed under this dimension because their four levels of work discrimination can be treated as combinations of the presence and absence of formal and informal discrimination. For example, their overt level means the presence of both formal and informal discriminations, whereas tolerance level means the presence of regulations against formal discrimination, but lacking informal support. In addition, Brown and Ford's (1977) access and treatment discriminations may be subsumed under formal discrimination. The framework of formal discrimination is based on institutional policies and decisions regarding hiring, firing promotion, salary deductions and job assignments. In contrast, the informal discrimination deals with interpersonal dynamics and work

atmosphere such as verbal and non-verbal harassments, lack of respect, hostility and prejudice ( and , 1984). The second dimension involves the potential and encountered

discriminations. The former deals with actual discrimination in sexual orientation disclosures, for example. The latter refers to encountered discriminatory practices. However, the distinction between the two is subjectivity and objectivity viewed from neutral terms (, 2001). The third dimension is derived from the concept occupational opportunity structures of (1980): the ideal, real and perceived discriminations. In ideal, there is no discrimination. The comparison between perceived and real discriminations varies from perception of individuals. The neutral situation may be interpreted and misinterpreted as a discriminatory practice where in fact, the situation is just a result of misconception/misperception.

Disability Discrimination Not everyone with a medical condition is protected by the law. In order to be protected, a person must be qualified for the job and have a disability as defined by the law. A person can show that he or she has a disability in one of three ways:

A person may be disabled if he or she has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning).

A person may be disabled if he or she has a history of a disability (such as cancer that is in remission).

A person may be disabled if he is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment).

Disability discrimination occurs when an employer or other entity covered by the Americans with Disabilities Act, as amended, or the Rehabilitation Act, as amended, treats a qualified individual with a disability who is an employee or applicant unfavorably because she has a disability. Disability discrimination also occurs when a covered employer or other entity treats an applicant or employee less favorably because she has a history of a disability (such as cancer that is controlled or in remission) or because she is

believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if she does not have such an impairment). The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer ("undue hardship"). The law also protects people from discrimination based on their relationship with a person with a disability (even if they do not themselves have a disability). For example, it is illegal to discriminate against an employee because her husband has a disability. The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment. It is illegal to harass an applicant or employee because he has a disability, had a disability in the past, or is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment). Harassment can include, for example, offensive remarks about a person's disability. Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that aren't very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim's supervisor, a supervisor in another area, a coworker, or someone who is not an employee of the employer, such as a client or customer. The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer. A reasonable accommodation is any change in the work environment (or in the way things are usually done) to

help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment. Reasonable accommodation might include, for example, making the workplace accessible for wheelchair users or providing a reader or interpreter for someone who is blind or hearing impaired. An employer doesn't have to provide an accommodation if doing so would cause undue hardship to the employer.Undue hardship means that the accommodation would be too difficult or too expensive to provide, in light of the employer's size, financial resources, and the needs of the business. An employer may not refuse to provide an accommodation just because it involves some cost. An employer does not have to provide the exact accommodation the employee or job applicant wants. If more than one accommodation works, the employer may choose which one to provide. The law places strict limits on employers when it comes to asking job applicants to answer medical questions, take a medical exam, or identify a disability. For example, an employer may not ask a job applicant to answer medical questions or take a medical exam before extending a job offer. An employer also may not ask job applicants if they have a disability (or about the nature of an obvious disability). An employer may ask job applicants whether they can perform the job and how they would perform the job, with or without a reasonable accommodation. After a job is offered to an applicant, the law allows an employer to condition the job offer on the applicant answering certain medical questions or successfully passing a medical exam, but only if all new employees in the same type of job have to answer the questions or take the exam. Age Discrimination Age discrimination involves treating someone (an applicant or employee) less favorably because of his age. The Age Discrimination in Employment Act (ADEA) only forbids age discrimination against people who are age 40 or older. It does not protect workers under the age of 40, although some states do have laws that protect younger workers from age discrimination. It is not illegal for an employer or other covered entity to favor an older worker over a younger one, even if both

workers are age 40 or older. Discrimination can occur when the victim and the person who inflicted the discrimination are both over 40. The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

It is unlawful to harass a person because of his or her age. Harassment can include, for example, offensive remarks about a person's age. Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that aren't very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer. An employment policy or practice that applies to everyone, regardless of age, can be illegal if it has a negative impact on applicants or employees age 40 or older and is not based on a reasonable factor other than age Equal Pay/Compensation Discrimination The Equal Pay Act requires that men and women in the same workplace be given equal pay for equal work. The jobs need not be identical, but they must be substantially equal. Job content (not job titles) determines whether jobs are substantially equal. All forms of pay are covered by this law, including salary, overtime pay, bonuses, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits. If there is an inequality in wages between men and women, employers may not reduce the wages of either sex to equalize their pay. Genetic Information Discrimination Genetic information includes information about an individuals genetic tests and the genetic tests of an individuals family members, as well as information about the manifestation of a disease or disorder in an individuals family members

(i.e. family medical history). Family medical history is included in the definition of genetic information because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. Genetic information also includes an individual's request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual, and the genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology. The law forbids discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. An employer may never use genetic information to make an employment decision because genetic information is not relevant to an individual's current ability to work. It is also illegal to harass a person because of his or her genetic information. Harassment can include, for example, making offensive or derogatory remarks about an applicant or employees genetic information, or about the genetic information of a relative of the applicant or employee. Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so severe or pervasive that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim's supervisor, a supervisor in another area of the workplace, a co-worker, or someone who is not an employee, such as a client or customer. It is also unlawful for a covered entity to disclose genetic information about applicants, employees or members. Covered entities must keep genetic

information confidential and in a separate medical file. (Genetic information may be kept in the same file as other medical information in compliance with the Americans with Disabilities Act.) There are limited exceptions to this nondisclosure rule, such as exceptions that provide for the disclosure of relevant

genetic information to government officials investigating compliance with Title II of GINA and for disclosures made pursuant to a court order.

National Origin Discrimination National origin discrimination involves treating people (applicants or employees) unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not). National origin discrimination also can involve treating people unfavorably because they are married to (or associated with) a person of a certain national origin or because of their connection with an ethnic organization or group. Discrimination can occur when the victim and the person who inflicted the discrimination are the same national origin. The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment. It is unlawful to harass a person because of his or her national origin. Harassment can include, for example, offensive or derogatory remarks about a persons national origin, accent or ethnicity. Although the law doesnt prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim's supervisor, a supervisor in another area, a coworker, or someone who is not an employee of the employer, such as a client or customer.

Pregnancy Discrimination Pregnancy discrimination involves treating a woman (an applicant or employee) unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. The Pregnancy Discrimination Act (PDA) forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment. If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. For example, the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees. It is unlawful to harass a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer. An employer may not single out pregnancy-related conditions for special procedures to determine an employee's ability to work. However, if an employer requires its employees to submit a doctor's statement concerning their ability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements. Race/Color Discrimination Race discrimination involves treating someone (an applicant or employee) unfavorably because he/she is of a certain race or because of personal characteristics associated with race (such as hair texture, skin color, or certain

facial features). Color discrimination involves treating someone unfavorably because of skin color complexion. Race/color discrimination also can involve treating someone unfavorably because the person is married to (or associated with) a person of a certain race or color or because of a persons connection with a race -based organization or group, or an organization or group that is generally associated with people of a certain color. Discrimination can occur when the victim and the person who inflicted the discrimination are the same race or color.

The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment. It is unlawful to harass a person because of that persons race or color. Harassment can include, for example, racial slurs, offensive or derogatory remarks about a person's race or color, or the display of racially-offensive symbols. Although the law doesnt prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim's supervisor, a supervisor in another area, a coworker, or someone who is not an employee of the employer, such as a client or customer. An employment policy or practice that applies to everyone, regardless of race or color, can be illegal if it has a negative impact on the employment of people of a particular race or color and is not job-related and necessary to the operation of the business. For example, a no-beard employment policy that applies to all workers without regard to race may still be unlawful if it is not job-related and has

a negative impact on the employment of African-American men (who have a predisposition to a skin condition that causes severe shaving bumps).

Religious Discrimination Religious discrimination involves treating a person (an applicant or employee) unfavorably because of his or her religious beliefs. The law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have sincerely held religious, ethical or moral beliefs. Religious discrimination can also involve treating someone differently because that person is married to (or associated with) an individual of a particular religion or because of his or her connection with a religious organization or group.

The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment. It is illegal to harass a person because of his or her religion. Harassment can include, for example, offensive remarks about a persons religious beliefs or practices. Although the law doesnt prohibit simple teasing, offhand comments, or isolated incidents that arent very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim's supervisor, a supervisor in another area, a coworker, or someone who is not an employee of the employer, such as a client or customer. The law requires an employer or other covered entity to reasonably

accommodate an employees religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer's

business. This means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion. Examples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices. An employer does not have to accommodate an employees religious beliefs or practices if doing so would cause undue hardship to the employer. An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.

Sex-Based Discrimination Sex discrimination involves treating someone (an applicant or employee) unfavorably because of that person's sex. Sex discrimination also can involve treating someone less favorably because of his or her connection with an organization or group that is generally associated with people of a certain sex. In addition, lesbian, gay, and bisexual individuals may bring sex discrimination claims. These may include, for example, allegations of sexual harassment or other kinds of sex discrimination, such as adverse actions taken because of the person's non-conformance with sex-stereotypes. The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment. It is unlawful to harass a person because of that person's sex. Harassment can include "sexual harassment" or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and can include offensive

remarks about a person's sex. For example, it is illegal to harass a woman by making offensive comments about women in general. Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex. Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim's supervisor, a supervisor in another area, a coworker, or someone who is not an employee of the employer, such as a client or customer. An employment policy or practice that applies to everyone, regardless of sex, can be illegal if it has a negative impact on the employment of people of a certain sex and is not job-related or necessary to the operation of the business.

Sexual Harassment It is unlawful to harass a person (an applicant or employee) because of that persons sex. Harassment can include sexual harassment or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a persons sex. For example, it is illegal to harass a woman by making offensive comments about women in general. Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex. Although the law doesnt prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

The harasser can be the victim's supervisor, a supervisor in another area, a coworker, or someone who is not an employee of the employer, such as a client or customer.

answer to the question - Equality to what?. In the context of most antidiscrimination laws such as Sex Discrimination legislation, the crucial comparison for sex discrimination to be proven is that a woman has been treated less favourably than a man would have been treated on the facts given. Thus equality for women is judged from the comparison with a male standard or norm. Feminist theories have in the past addressed the equality debate for women on the basis of equality of treatment between men and women. Thus we had the sameness and difference debates: a. either women were to be accorded equality to men on the basis of their sameness to men ie that gender alone should not be sufficient ground for differentiation, or b. that they were worthy of equal treatment to men although they were different from men and the law had to accommodate those differences. The problem with both views for women is as stated by Catharine MacKinnon that, man has become the measure of all things[25] - the male norm or standard for judging womens right to equality. The difference argument is essentialist in nature assuming all women to equally fertile and desirous of reproduction and thus allowed for protectionist legislation which had the adverse effect of excluding women from certain jobs. The sameness argument required women to perform like men in the workplace in order to succeed. However, it is with regards to womens reproductive functions and pregnancy in particular, that the equality debate is unraveled. Clearly a woman is different from a man when she is pregnant, but how significant is this difference, and what legal consequences should follow from it?[26]. There is a discernable move today to acknowledge the social value of pregnancy and parenthood[27]. Women have and continue to shoulder the burden of balancing work and family responsibilities. Conception, birth, child rearing and nurturing are womens concerns, which have not been recognized nor

accommodated adequately in the workplace. A working woman having to balance work and family responsibilities is put into the position where she has to either choose one over the other or juggle them like a latter-day superwoman. Thus being a good parent and a good employee have always been in conflict [28]. As a result, there has been a greater recognition of the need for family-friendly policies and legislation in other jurisdictions. The Canadian Supreme Court in the case of Brooks v Canada Safeway Ltd.[29] noted that that as pregnancy and childbearing are fundamental social needs, it was discriminatory to place the burden on only one part of the population. In this case as only women could be refused employment on the grounds of pregnancy, such a refusal constituted direct discrimination on the grounds of sex. In fact, specific pregnancy rights have been developed such as protection from dismissal or detrimental treatment, maternity leave, benefits and pay, health rights including time-off for antenatal care and protection from safety and health risks in the workplace during pregnancy. This rights approach as opposed to the equality treatment approach removes the need to find a male comparator and can exist independently of the need to establish a finding of equality. One of the earliest examples of how these pregnancy rights work was seen in the Defrenne IIdecision (ECJ 1976) which basically provided the impetus for the evolvement of gender equality rules under Article 141 of the Treaty of Rome which essentially concerned equal pay protection. Gabrielle Defrenne was a flight attendant with Sabena, the Belgian national airlines. Until 1966, Sabenas male flight attendants earned higher wages, were allowed to retire 15 years later and were entitled to a special pension plan, all benefits that their female counterparts failed to receive. The job responsibilities of the flight attendants were identical. In the European Court of Justice or ECJs second decision in 1976, the Court expanded the scope and purpose of Article 141 by creating enforceable rights in national courts regardless of national implementing legislation. Economic and social justice concerns were both addressed. Discriminatory national practices came under the purview now of the supranational powers of the ECJ. As a result there has been much litigation by women who experienced discrimination in terms of access to or dismissal from employment on the basis of pregnancy[30]. The next interesting development was the Dekker case (ECJ 1990a)[31]. Here the applicant for a job, Mrs. Dekker a Dutchwoman, was found to be the most

qualified applicant at the job interview and was recommended for hiring by the hiring committee. As she was three months pregnant at the time, she was not given the job because the insurer refused to cover her maternity pay. Mrs.Dekker sued the company, VJV, claiming discrimination on the basis of her sex. The case was then submitted to the ECJ under Article 141 and the Equal Treatment Directive. The court held that discrimination in employment opportunities on the ground of pregnancy amounted to direct discrimination in violation of the directive. Here the ECJ considered the disadvantage to women rather than the comparable treatment with men as the basis for determining discrimination on the ground of pregnancy. Thus discrimination was proven if detrimental treatment due to the pregnancy could be shown. More pertinently to the Beatrice Fernandez case, was the Hertz case (ECJ1990b) which held that dismissal of a pregnant employee amounted to discrimination under EU law. In the UK, the Sex Discrimination Act 1975 makes it unlawful for an employer to treat a woman less favourably on grounds of her sex or marital status than a man would have been treated. Further, under the Pregnancy Discrimination Act 1978 women affected by pregnancy, childbirth or related medical conditions are entitled to equal treatment with other persons who are similar in their ability or inability to work. As a result, the courts have taken the view that pregnancy discrimination is to be viewed from the comparison of the treatment of pregnant women with that of ill men. The courts had therefore drawn an analogy between pregnancy and illness. The problem with such a test of the ill male comparator was seen in the case of Webb v EMO Air Cargo (UK) Ltd.[1992] All E.R.43 which examined the issue of when pregnancy was to be regarded as the determining factor for discriminatory treatment. Mrs.Webb who was pregnant had been employed to replace another pregnant employee. Her employer terminated her indefinite employment contract when it was discovered that she would be absent for the same period as the employee she was replacing. At the House of Lords the employer had argued that the appellant was not dismissed on account of her being pregnant but because the pregnancy made her unavailable for work at a critical period required by the employer. Using the ill male comparator test, the House of Lords declared that as a man due for a prostrate operation at the critical time would likewise have been dismissed, there was no lawful direct

discrimination in this case. However, although the court ruled that she had no rights under UK law, she could have rights under EU law. The case was thus referred to the ECJ(1994b) which found that dismissal of a pregnant worker was direct discrimination on grounds of sex. Here the court ruled that the need for special protection of pregnant workers was embodied in the Equal Treatment Directive and Pregnancy Directive 9, which had not come into force yet when the case arose. It is interesting to note that the court considered the defendants argument of hardship as the justification for the discriminatory treatment and not as the reason for dismissal. In Webbs case the direct discrimination was not justifiable on grounds of hardship once it was proven[32]. In India, the Air India v Nargesh Meerza[33] case popularly known as the Air Hostess case provides a comparison as to how constitutional equality provisions are interpreted by the courts. Here, Air India International, a public sector organization was sued for gender discriminatory service rules. For instance, an air hostess who joined the service at 19 years could not marry until four years after completion of service. If she married after four years, she would lose her job on her first pregnancy. She had to retire at the age of 35 while her male counterparts could retire at 58. Article 14 of the Indian Constitution guarantees equality before the law and equal protection of the law. Sex discrimination is expressly forbidden under Articles 15(1), 16(2) and 325. With respect to the issue of the age of retirement, the Supreme Court held that the different ages of retirement for male and female staff was in violation of the right to equality. As a result, the Supreme Court ordered Air India to change the rules to provide a higher age of retirement for the air hostesses but did not to give them the same age of retirement. Interestingly enough, the court merely required the rule against the first pregnancy as a ground for dismissal to be changed to the third pregnancy. Such a decision merely delayed the inevitable an air hostess faced dismissal upon a pregnancy. As noted by Sathe [34], via its power to lay down subordinate rules of service, Air India was (indirectly) legislating the age of marriage and encouraging population control.[35] Note that at the time, India was promoting family planning with three as the ideal number of children for each family. For this reason, the court suggested that a resignation should only be required upon the third pregnancy.

A corollary to this case was that of Air India Cabin Crew Association v Yeashawinee Merchant and others[36] in which the Supreme Court ruled that there was nothing discriminatory if the airline insisted that women cabin crew members/air hostesses retired from flying at the age of 50 and opted to work as ground staff until 58 while their male counterparts could continue to work until 58. Air India maintained a differential categorization of male and female cabin crew even though they had the same service requirements. This was the same argument that was used in Nergesh Meerzas case. Here, the court in its award noted that Air India is a [part of the] travel industry. Pleasing appearance, manners and physical fitness are required for members of the crew of both sexes. Thus this separate categorization between male and female cabin crew allowed the airline to argue that working conditions and remuneration could be different. This was contrary to the earlier High Court declaration that the lower retirement age for air hostesses was a discrimination based on Articles 15 and 16 of the Indian Constitution[37]. However, due to public pressure, the Ministry of Civil Aviation ordered Air India which is the national carrier, to increase the retirement age for its air hostesses from 50 to 58 in view of the exigencies of the circumstances and the interest of the operations of Air India[38]. This was perhaps in view of the fact that Air India was experiencing difficulties because of a shortage of air hostesses to the extent that there were claimed to be flights without even a single air hostess on board. While the Indian cases concerned the retirement age of female cabin crew, it is important to note the entrenched gender bias which shows how discrimination is not just direct but that it can manifest itself indirectly. It was argued on behalf of the airline that adopting gender-neutral terms of service and removing the differential categorization of the male and female crew, would not be beneficial to the women who due to their falling physical appearance and need to spend time with their families would prefer earlier retirement than men. Such an interpretation was surely discriminatory to the male air stewards, as they too may have preferred the option of early retirement due to their own failing physical appearance and desire to spend quality time with their own families. Forcing the women to retire earlier deprived them of the remuneration they would otherwise have received had they continued flying.

In Malaysia, MAS continues to operate on the basis of this difference categorization. Female cabin crew have to retire at age 40 (female flight supervisors retire at 45) while their male counterparts can retire at 55 years of age. MAS has also been said to be practicing indirect family planning as its current policy only allows maternity leave up to the second child. MAS is not a private company but a government linked company or GLC which must uphold its social responsibility as an example of good corporate social responsibility and good corporate governance. One way is to incorporate and practice gender equality[39]. Constitutional Rights and Safeguards Article 8 (1) of the Federal Constitution states that, all persons are equal before the law and entitled to the equal protection of the law. As noted by the Federal Court, the doctrine of classification has been judiciously accepted as an integral part of the equal protection clause as explained by Tun Salleh Abbas LP in Malaysian Bar & Anor v Government of Malaysia [1987] 2 MLJ 165 at page 166: The requirement for equal protection of the law d oes not mean that that all laws passed by a legislative must apply equally to all persons and that the laws so passed cannot create differences as to the persons whom they apply and the territorial limits within which they are in forceSince legislation ca n create the differences the question is whether the differences are constitutional. The classification doctrine of equal but separate rights was explained by Suffian LP in Datuk Haji Harun Idris v Public Prosecutor [1977] 2 MLJ 155 on the basis of a two tier test to decide on the constitutionality of the classification: the first question we should ask is, is the law discriminatory, and that the answer should then beif the law is not discriminatory, it is good law, but if it is discriminatory, then because the prohibition of unequal treatment is not absolute but is either expressly allowed by the constitution or is allowed by judicial interpretation, we have to ask the further question, is it allowed? If it is, the law is good, and if it is not, the law is void. In India discriminatory law is good law if it is based on reasonable or permissible classificationprovided that: i. the classification is founded on an intelligible differentia which distinguished persons that grouped together from other left out of the group; and

ii.

the differentia has a rational relation to the object sought to be achieved by the law in questionWhat is necessary is that there must be

a nexus between the basis of classification and the object of the law in question.[40] As a result of this judicial interpretation of the equality provision and legislative classification of the various sections of the population, the applicability of different laws to each section is legally sanctioned provided the classification did not fall within the prohibited grounds of discrimination under Article 8 (2) which includes gender[41] and secondly, that the classification was rational and reasonable [42]. Prior to the amendment of Article 8 (2) to include gender as a ground of discrimination, it was noted that any discrimination on the ground of gender would have been declared as being unreasonable by the courts under Artic le 8 (1)[43]. Here unreasonableness in state action is determined according to the test of Wednesbury unreasonableness ie as something so absurd that no reasonable or sensible person could have come to that decision[44]. The principle of reasonableness is an essential element of the equality provision in Article 8(1) and likened to a brooding omnipresence[45]. In Ong Ah Chuan v Public Prosecutor [1981] 1 MLJ 64, it was confirmed that the reasonableness of the dissimilarity of treatment or classification or differentiation was to be judged against the social object of the law concerned. Unfortunately as we saw in the Beatrice Fernandez case, as long as differentiation between male and female staff is viewed from the perspective of the employer without considering the alternatives available to accommodate an employees reproductive role and ignoring the social objectives of legislation such as the IRA 1967, then any form of discrimination can be accepted as being reasonable in the circumstances. Within the Malaysian context, it could be argued that any action by an employer that results in the dismissal of a female employee on the ground of her pregnancy, subjects her to unreasonable detrimental treatment and so should be declared discriminatory, in violation of her right to equality of treatment under Article 8(1). As only a woman can conceive, the ECJ ruling in Dekkerthatthe pregnancy should be viewed from the perspective of the social and economic disadvantages or hardship that it can bring to a female employee as compared to a male employee, is particularly relevant in the Beatrice Fernandez case. Such a view would then remove the Court of Appeals earlier difficulty in viewing MASs terms

and conditions as being discriminatory simply because under the classification doctrine, male air stewards did not have such comparable rights. It is therefore clear that as a result of the current interpretation of Article 8(1), it is not a valuable provision from the perspective of gender equality to ensure fairness and equality of treatment. The current limitations in relation to the public and private law dichotomy, the classification doctrine, the non-identification of discriminatory practices (whether direct or indirect) and non-recognition of the right to livelihood as a constitutional right under Article 5 (the right to life and personal liberty), have damaged the efficacy of the Article 8 (1) right to equality where women are concerned. Article 8(2) of the Federal Constitution was amended in 2001 to include gender as a ground of discrimination. This is how Article 8(2) now reads: Except as expressly authorized by this Constitution, there shall be no discrimination against citizens only of religion, race, descent, place of birth or gender

in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or

the establishment or carrying on of any trade, business, profession, vocation or employment.

While there has been much euphoria over the inclusion of gender as a basis of discrimination in Article 8 (2), it has been noted[46] that the following can be considered as limitations to its application:

the words Except as expressly authorised means that gender discrimination may be allowed under the express provisions of the Constitution. Thus if a conflict arises with other constitutional provisions, there is no guarantee that Article 8 (2) will stand. For example Article 8 (5) expressly excludes the application of Article 8 in relation to personal law and Article 11 guarantees freedom of religion. It has been argued that Article 11 interpreted together with Article 8 (5) means that Muslim personal laws remain unaffected by Article 8.

The use of the words employment under a public authority could limit the application of Article 8 (2) to public sector employment only. However, the fact

that it then continues to bar discrimination in the establishment, carrying on of any trade, business, profession, vocation or employment may have left the door open for its application in the private sector. This brings to the fore the old arguments on the applicability of constitutional rights within the sphere of private law. CEDAW and its Applicability in Malaysia In the globalised era we live in today, international law is increasingly becoming a tool for justice to ensure that governments live up to their legal obligations to their citizens under international laws, treaties and instruments. Thus while national constitutions spell out the fundamental rights, guarantees and freedoms of citizens, these provisions remain as glorified, abstract principles until and unless they are recognized and enforced by the relevant authorities as such. International law and treaties are a form of supranational governance over the laws of member states ensuring legal integration with internationally recognized standards and rights. One of the most powerful international rights to emerge is that of human rights. Womens rights are human rights. It is interesting to note that when the Universal Declaration of Human Rights was adopted by the United Nations in 1948, it was a woman, Eleanor Roosevelt who chaired the Commission on Human Rights. Article 1 of the Declaration proclaims that All human beings are born free and equal in dignity and rights. As a reflection of the Declaration, the Convention on the Elimination of All Forms of Discrimination Against Women or CEDAW [47]was adopted by the General Assembly of the United Nations in 1979 and went into force in 1981. It is one of the six core human rights treaties and in fact the major UN treaty governing womens rights. It seeks equality for women from the perspectives of equal opportunities, equal access and equality of results by favouring positive discrimination. Most importantly, via its due diligence requirement, it places a positive and legal obligation on governments to eliminate direct and indirect discrimination. Thus state parties are accountable for the actions of state and non-state actors also. The Optional Protocal or OP-CEDAW is an additional treaty and is designed as an enforcement mechanism for CEDAW via the communication and the inquiry procedures. Both CEDAW and OP-CEDAW are the only women specific international complaints mechanisms aimed at

developing womens rights at national and international levels in order to eliminate discrimination against women[48]. Article 1 defines discrimination against women as any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment, or exercise by women irrespective of their marital status on the basis of equality of men and women, of human rights and fundamental freedoms in the political, economical, social, cultural, civil or any other field. Thus it incorporates both direct and indirect forms of discrimination. Article 11 expressly relates to womens right to work, equal treatment at the workplace and the same employment opportunities as men. It prohibits dismissal on the grounds of pregnancy, in particular. Malaysia as a signatory to CEDAW ratified it in 1995 but as ours is a dualist system[49] in that ratification alone is not enough to domesticate the Convention. Two ways have been identified for incorporating CEDAW into our domestic laws. One way is through legislative measures which either expressly enact the convention or impliedly require domestic laws to be interpreted in accordance with the Convention. The second method involves the judiciary. Thus via judicial interpretation of legislation and particularly the Federal constitution, it is possible to incorporate the provisions of CEDAW into local law. In this respect, there have been calls for judicial activism in interpreting fundamental rights in constitutions so as to expand their scope by incorporating human rights, particularly CEDAW. One of the most celebrated cases involving the use of CEDAW in assessing and interpreting discrimination against women was the case of Unity Dow v The Attorney General of Botswana (1991). A citizen of Botswana, Unity Dow was a lawyer married to a non-citizen, whose children had been denied citizenship under a provision of the Citizenship Act 1984 that conferred citizenship on a child born in Botswana only if "a) his father was a citizen of Botswana; or b) in the case of a person born out-of-wedlock, his mother was a citizen of Botswana." She claimed that this provision violated her right to equality under the Botswana Constitution and was discriminatory. The High Court agreed, holding that the provision infringed the right to liberty, the right not to be expelled from Botswana, the right not to be subjected to degrading treatment, and the right not to be discriminated against on the basis of sex. It concluded that the right to liberty had been infringed because the provision hampered a woman's

free choice to marry a non-citizen and, in fact, undermined marriage and that the right not to be expelled from Botswana was infringed because, if the plaintiff's husbands resident permit was not renewed she would be forced to leave Botswana if she desired to stay with her family. Although Botswana had yet to ratify CEDAW, Judge Martin Horowitz in the High Court accepted the plaintiffs argument that discrimination against females and treating them less favourably than males, subjected women to degrading treatment, which under CEDAW is an offence against human dignity. This decision was subsequently upheld by the Botswana Court of Appeal and is a stirling example of the power of the courts in upholding and defending womens right to equality in a constitutional framework. From the Malaysian perspective, Dato Gopal Sri Ram, Court of Appeal Judge, proposed three principles which could be helpful in a paper on Human Rights: Incorporating International Law into the Present System[50]. They are as follows: 1. The court must adopt a broad and liberal approach when interpreting a written constitution in recognizing it as a living and organic instrument capable of adapting to changing circumstances. This view was reflected by Raja Azlan Shah Ag. LP in Dato Menteri Othman bin Baginda & Anor v Dato Ombi Syed Alwi bin Syed Idrus[51]. Section 4(4) of the Human Rights Commission of Malaysia Act 1999, it was pointed out by his Lordship, gives scope for the application of international law as it states that regard shall be had to the Universal Decla ration of Human Rights 1948 to the extent that it is not inconsistent with the Federal Constitution. Although CEDAW is not specifically mentioned, it will be interesting to see if the judiciary would be willing to incorporate human rights treaties and conventions as part of domestic law. Todate, the case of Mohd. Ezam v Inspector General of Police [2002] 4 CLJ 309 by way of obiter dicta has shown little support for this approach. It has been suggested by his Lordship Dato Gopal Sri Ram that the reason for this has been due to counsels lack of proper articulation and research of arguments on the applicability of international law. Unfortunately, in the Beatrice Fernandez case, the applicability of CEDAW was not commented upon by the Federal Court itself. 2. Statutory interpretation should be differentiated from interpretation of the

constitution. Suffice to say, the difference between statutory and constitutional interpretation is summed up in this observation, that a constitution is a

mechanism under which laws are made while a statute declares what the law is to be[52]. 3. Interpretation of the Articles of the Federal constitution as human rights.

The fundamental liberties in Part II of the Federal constitution, which includes Article 8, are examples of the human rights. Dato Gopa l Sri Ram calls for a prismatic approach when interpreting fundamental guarantees under the constitution. Each fundamental freedom houses a multitude of other rights. There is a penumbra under which other rights, which although have not been expressly articulated, yet nonetheless are peripheral rights coming under the umbrella of the one expressed right. For example the right to life and personal liberty was held by Suffian LP to include the right to freedom from unlawful arrest, the right to counsel upon arrest, the right to be released etc.[53] When viewed as human rights, his Lordship noted that judges are free to interpret the constitutional freedoms using international human rights instruments also, as external aids of interpretation. In fact, it has been recognized by judges internationally, that the courts can favour a construction of their domestic laws in accordance with their governments international obligations having ratified international treaties and conventions. His Lordship gives an illustration of this approach in various decisions around the world. For instance, in Australia, Mason CJ inMinister for Immigration and Ethnic Affairs v Teoh[54] declared, Parliament prima facie intended to give effect to Australias obligations under international law. In Vishaka v State of Rajasthan[55] a group of NGOs successfully petitioned the Indian Supreme Court after a social worker had been gang raped and local officials refused to investigate the complaint. Like Malaysia, there were no laws expressly prohibiting sexual harassment. In his judgement, Verma CJI noted that international conventions and norms were to be read into the fundamental rights of the Constitution in the absence of enacted domestic law when there was no inconsistency between them. He maintained that it was now an accepted rule of judicial construction. In the U.K., Lord Woolf[56] even went a step further and suggested that a citizen had the right to expect the Government to act domestically in accordance with the international treaty it had entered into. These judgements should spur local initiatives as decisions such as Beatrice Fernadez reflect on the inadequacies of the legal system to protect the human rights of Malaysian women in the employment sector.

Conclusion In the context of gender discrimination, the recognition and protection of womens rights by the law remains vital. While the right to equality and non-discrimination is enshrined within the Federal constitution under Article 8 (1) and (2), its efficacy is called into question when womens rights are not enforced as such due to the severe limitations that affect its interpretation. There is always that divide between the written law and the reality of human existence. Our government has already shown its commitment over this issue and amended Article 8 (2) to include gender as a basis of discrimination. It is now up to the judiciary to show the way forward by interpreting and enforcing womens right to equality. It can never be denied that all said and done, it is the judiciary that remains as the last bastion for the protection of the rights of the citizens. As Cardozo said the great tides and currents that engulf the rest of men do n ot turn aside and pass the judges by[57]. So, unless the courts are willing to take up the challenge and advance the cause of gender justice by outlawing discriminatory laws, practices and policies by expanding the scope of the Federal Constitution, then the true value of these rights will remain as nothing more than the paper they are written on. Judicial activism and interpretation amplifies the attempt by the courts to ensure the relevancy of the constitution to best serve the society it has been created for[58]. Further, Cherie Blair in her recent Sultan Azlan Shah Law Lecture[59] reflected on the role of the judiciary in relation to human rights and noted that the task of the judiciary in reviewing state action was now set against the benchmark of human rights. Cases such as the recent A v Secretary of State for Home Department [2004] UKHL 56are an educational forum as Judges are forced in their judgements to respond in a way that teaches citizens and governments about the ethical responsibilities of being in a true democracy committed to universal human rights standards The other alternative is legislative intervention. As the Federal Court noted Unless and until the Employment Act 1955 is amended to expressly prohibit any term and condition of employment that requires flight stewardesses to resign upon becoming pregnant clauses such as the one in the Beatrice Fernandez case remain valid and enforceable. It is time to seriously consider drafting a Sex Discrimination Act and even a Pregnancy Discrimination Act more specifically, for all workers whether in the public or private sectors.

So, while de jure equality can be created by the law and constitutional reforms, it is the issue of substantive rights or de facto equality that lags behind. It all boils down to how far equality rights and gender-linked roles are compatible. Discrimination is the symptom not the disease[60]. TheBeatrice Fernandez case is a fine example of how easy it is for employers to get around the gender equality issue at the workplace even with a constitutional guarantee under article 8 requiring equality of treatment to women. The message is clear to women in the private sector particularly[61], that barring judicial activism in interpreting constitutional guarantees or legislative intervention or strong trade union support for womens rights in relation to collective bargaining for better terms and conditions in their collective agreements, equality rights will not protect their gender-linked roles in society. This is why S. Fredman[62] has noted that women remain segregated in the labour market and continue to earn proportionally less than men, notwithstanding the existence of equality laws which should have the effect of leveling the playing field. Until recently, Malaysia had no legislation governing employment discrimination, although the Federal Constitution does state that there shall be no discrimination against citizens on the ground of religion, race, descent or place of birth. On September 28, 2001, Article 8(2) of the Federal Constitution was amended to prohibit gender discrimination through the Constitution (Amendment) (N2) Act 2001. This, however, has yet to be encapsulated in any specific legislation. In 2001, the Labor Department of the Malaysian Ministry of Human Resources issued the Code of Practice for the Employment of the Disabled in the Private Sector (Disability Code). The objectives of the Disability Code are to:

(i) Establish guidelines for the registration and job placement of the disabled with the private sector;

(ii) Increase the awareness of private sector employers on the importance of offering employment opportunities to the disabled; and

(iii) Encourage the disabled to prepare themselves in terms of ability, qualifications and skill sets to participate in the development of Malaysia as employees.

Though the Disability Code sets out the certain responsibilities of both the employer and the disabled employee, like other similar Codes relating to employment, there are no legal sanctions for non-compliance.

The Malaysian Government recently passed the Persons With Disabilities Act 2008 (PDA). It will be the first specific anti-discrimination law in Malaysia that applies in the workplace. Under the PDA, employers are now legally required to ensure that employees with disabilities are accorded just and favourable work conditions and equal remuneration to those without disabilities. However, it is not expressly clear whether the PDA will cover both employees as well as job applicants. At present, the protections under the PDA only extend to current employees. More detailed guidelines and standards will presumably be promulgated by the National Councilfor Persons with Disabilities and/or the Minister of Human Resources in accordance with the PDA. Pending such guidelines and standards, the exact impact on the employment landscape remains to be seen. The Department of Occupational Safety and Health of the Malaysian Ministry of Human Resources has also issued a Code of Practice on Prevention and Management of HIV/AIDS at the Workplace (HIV/AIDS Code) on September 2001 to reduce the spread of the disease and guide employers and employees in managing HIV/AIDS issues at the workplace. The objectives of this HIV/AIDS Code are to:

(i) Provide guidelines to employers and employees on appropriate and effective ways of preventing and managing HIV/AIDS at the workplace;

(ii) Promote education and awareness on HIV/AIDS; and (iii) Promote a non-judgmental, non-discriminatory work environment.

Practical Advice To Employers On Avoiding Employment Discrimination Problems Generally, employers in Malaysia may be liable for unfair dismissal pursuant to the employers discriminatory acts or omissions where they can be construed as evidencing an intent on the part of the employer to no longer be bound by the terms of the employment contract. As a first step to minimize discrimination problems at the workplace, employers should set up and implement in-house mechanisms as outlined in the Disability Code, the PDA and the HIV/AIDS Code. Such measures should be implemented despite

the codes not having the force of law, so as to promote positive employee relations. More importantly, pursuant to the PDA, employers should now recognize and endeavour to fulfill their new legal obligations towards employees with disabilities to ensure equal and non-discriminatory workplace practices and attitude. Sexual Harassment Laws On Sexual Harassment Malaysia does not have any legislation governing workplace harassment. However, in 1999, the Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace was promulgated (Sexual Harassment Code). The Sexual Harassment Code is not legally binding, but companies are expected to adopt its recommendations. The Sexual Harassment Code contains guidelines for the establishment and implementation of internal preventive and redress mechanisms for dealing with sexual harassment. Sexual harassment is defined under the Sexual Harassment Code as any unwanted conduct of a sexual nature having the effect of verbal, nonverbal, visual, psychological, or physical harassment that might, on reasonable grounds, be perceived by the recipient as: (i) placing a condition of a sexual nature on her or his employment; or (ii) an offence or humiliation, or a threat to her or his well-being, but that has no direct link to her or his employment.This definition is wide-ranging and covers almost every possible form of sexual harassment, including verbal statements, gestures and physical conduct. It also includes employmentrelated sexual harassment that occurs outside the workplace as a result of employment responsibilities or employment relationships (e.g., at work-related social functions, during work-related travel or over the telephone). Practical Advice To Employers On Avoiding Sexual Harassment Problems

To successfully combat sexual harassment in the workplace, employers are encouraged to set up comprehensive in-house mechanisms.The minimum elements of such a mechanism, as outlined by the Sexual Harassment Code, include: (i) A policy statement from management prohibiting sexual harassment in the organization; (ii) A clear definition as to what constitutes sexual harassment; (iii) Setting-up a special complaint/grievance procedure; (iv) Clear stipulation of the disciplinary rules and penalties that will be imposed against a harasser as well as against those who make false accusations; (v) Formulation of a set of protective and remedial measures for the victim; and (vi) Promotional and educational programs to explain the companys policy on sexual harassment and to raise awareness of sexual harassment among all employees. Although it is not legally binding, implementation of the Sexual Harassment Code and the setting-up of in-house inquiry boards will provide employees under harassment with an avenue for redress within their organization.

Conclusion The main patterns of inequality and discrimination described in this report affect large sections of the population in Malaysia, defined by characteristics such as race and ethnicity, indigenous status, gender, religion or belief, sexual orientation, gender identity, health status, age, disability, citizenship and political opinion. The inadequate protection against discrimination in Malaysia is compounded by the existence of many discriminatory provisions within the countrys legislation.

Some patterns of discrimination on the grounds of race and ethnicity which are endemic to Malaysia are interwoven with, or arise from controversial affirmative action policies developed with the purpose to empower the Ma lay and certain natives, but having long outlived their justification. Racially discriminatory practices have been observed in a number of areas, in particular education, employment, housing, and political participation. Articles 153 and 89 of the Malaysian Constitution establishing a privileged position for the Bumiputera fall short of the international law standards for legitimate positive action established under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). These provisions are not time-limited or function-limited. Continuing favourable treatment of the Bumiputera under these provisions means that race continues to be a key determinant of a persons life experiences and of disadvantage in Malaysian society. Gender discrimination is widespread in respect to marriage and family relations, personal safety and security, education, employment, health, political participation, matters of criminal law, freedom of movement and expression, and citizenship rights. Discrimination against rural and indigenous women is particularly concerning. Despite Malaysias accession to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 1995, the Committee on the Elimination of Discrimination against Women and the Gender Gap Index have highlighted that there is still a lot of progress to be made before Malaysia can confidently state compliance with its obligations under the Convention. Traditional customs and attitudes are partly responsible for maintaining a disadvantaged position in society for women in general. Gender-based violence, including domestic violence, rape, sexual harassment, and trafficking remains widespread, and female genital mutilation may also be found. Despite significant progress regarding gender equality in education, some categories of women have been left behind. Indigenous women,

for example, continue to face disadvantage in accessing education.

The

progress made with regard to access to education has not translated into improved equality for women in employment. There continue to be low levels of female participation in the labour force, particularly in high income and decision making roles. Women face discrimination with regard to promotions and salary, and also in relation to health and safety in the workplace. Women also face unequal access to healthcare. The unequal participation of women in the political process serves to sustain their unequal position in other areas of life. Women are discriminated against in their ability to pass on citizenship and residence rights to their children and spouses Inequality based on religion or belief is another big issue for Malaysian society. This is a complex area ranging from discriminatory limitations of the freedom to manifest, practise and change ones religion, to financial assistance for religious institutions and unequal access to justice under Syariah law. Article 3(1) of the Constitution of Malaysia places Islam in a privileged position, which is reflected in other provisions of the Constitution. Despite the dominance of Islam in Malaysia, there is discrimination not only against Hindus, Christians and other non-Muslims, but also against Malay Muslims, who are discriminated in the enjoyment of certain human rights. For example, discrimination on the basis of religion or belief is practiced through restrictions of expression. Restrictions have also been placed on the religious freedoms of adherents to minority Islam religions, which are considered to be threatening to the position of Islam, in order to protect the integrity of the official religion. Non-Muslims are particularly disadvantaged with respect to the finance of religious schools and religious education. Given the strong relationship between race and religion in Malaysia, such actions further compound the challenges identified above in relation to race discrimination. On the other hand, Muslims face restrictions which do not apply to other groups, including, most notably, their right to change religion and their right to engage in sexual relationships. Finally, there is belief-based discrimination against all Muslims who express beliefs not approved by official interpreters of Islam in respect of their right to participate in cultural life on an equal basis. Malaysia has therefore been unable to reconcile the position of Islam as the official religion with its obligation to protect the right to equality for members of all religions. Discrimination against persons living with HIV/AIDS has not been successfully eliminated from

Malaysian life. The evidence suggests that the impact of the HIV/AIDS epidemic in Malaysia is worsened by the discriminatory attitudes and actions taken towards persons living with HIV/AIDS, which hinders access to effective treatment, and can lead to economic and social isolation.