Gender, Disability and Discrimination at Work
by Vivian Kuan and Hannah Nanneri Nanggai
(A) Background
Siti Nur (pseudonym) is an engineer and a patient with comorbidities stemming from a rare disease. Her medical condition impacts both her physical and mental health. As her family’s breadwinner, Siti Nur requires close check-ups by a team of medical specialists to ensure that she is able to function effectively at work.
Siti Nur’s workplace comprises mainly women but the management is led by a team of men. According to Siti Nur, her department is rife with toxic positivity and sexism. Siti Nur’s medical condition was known to her senior management. Due to the impact of her medical condition on her physical and mental health, she often stayed longer hours at work battling her depression and fatigue to complete her workload. Despite her commitment to work in her specific medical condition, the management team commented that she was not visible compared to other managers, and asked her to display more enthusiasm and energy.
When Siti Nur eventually left on study leave to pursue her Master’s degree (approved by the company’s Occupational Health Doctor, Head of Department, Head of Unit, and with the support of her team), she ensured that she had met the requisite key performance indicators (KPIs) and was eligible for the performance review. However, she was not contacted for the performance review.
Though she had been reviewed very positively the preceding year, she was unfairly evaluated this time around by her Team Leader. Siti Nur lodged a complaint with the Human Resource (HR) personnel, who mediated two sessions to address her complaint. Siti Nur was blamed for not having initiated the performance review (as she was on unpaid leave), for failing to show initiative in handling her work, and (unfairly, she alleges) for her programme audit results. Upon Siti Nur’s return to work in 2020, she was offered a severance package, which she did not accept.
She then applied for an in-house position but, at the time of writing, has yet to be offered a placement, and is left “floating” within the company. She notes that the discrimination between genders is insidious, and affects the confidence of female employees who are in constant fear of possible retrenchment.
(B) Situational Analysis
Siti Nur is a professional who is employed in a team comprising mainly women led by a team of men. The immediate superiors and the management team comprising men have in the past made lewd remarks and jokes in the official work WhatsApp group chat, which eventually led to Siti Nur leaving the group chat. Based on her account, it appears that her disability is disregarded, and her performance at work is unfairly reviewed.
Non-discrimination policy does not necessarily mean treating every individual equally but, rather, not discriminating against an individual based on, for example, a physical or mental impediment. In Siti Nur’s case, it is evident that her medical needs were known to her senior management team, and her study leave had been approved. Despite these circumstances Siti Nur was offered a severance package, apparently for failing to meet performance standards.
Based on Siti Nur’s account, the following is clear in respect of her workplace:
(1) There is inadequate recognition of the challenges faced by persons with disabilities;
(2) There is little to no protection against discrimination faced by persons with disabilities; and
(3) There is no protection against sexual harassment.
(C) Status of State Interventions
(C1) UN Convention on Rights of Persons with Disabilities (CRPD)[1]
The CRPD entered into force on 3 May 2008.
In ratifying the CRPD on 19 July 2010, Malaysia made the following declaration:
Malaysia acknowledges that the principles of non-discrimination and equality of opportunity as provided in articles 3 (b), 3 (e) and 5 (2) of the said Convention are vital in ensuring full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity, which shall be applied and interpreted on the basis of disability and on equal basis with others.
Malaysia declares that its application and interpretation of the Federal Constitution of Malaysia pertaining to the principles of non-discrimination and equality of opportunity shall not be treated as contravening articles 3 (b), 3 (e) and 5 (2) of the said Convention.
Malaysia recognizes the participation of persons with disabilities in cultural life, recreation and leisure as provided in article 30 of the said Convention and interprets that the recognition is a matter for national legislation.[2]
Malaysia reserved article 15 (freedom from torture or cruel, inhuman or degrading treatment or punishment) and article 18 (liberty of movement and nationality).
Malaysia recognises and acknowledges the rights of persons with disabilities to live a life free from discrimination. This right of enjoyment also extends to work and the workplace. The CRPD includes various substantive rights for persons with disabilities such as those relating to right to life, respect for privacy, equality under the law, education and employment, health, and freedom from exploitation and abuse.
Article 8(2) of the Federal Constitution of Malaysia needs to be amended to include disability as a ground for non-discrimination.
(C2) Persons with Disabilities Act 2008 (PWD Act)
The PWD Act was enacted as part of Malaysia’s effort to ratify the CRPD, and is a significant step forward. However, the PWD Act has attracted criticism that it is in no way comprehensive nor sufficiently inclusive.
After ratification of the CRPD in 2010, the Malaysian Government has still not harmonised our domestic legislation with the CRPD.
From the review of the PWD Act by the Harapan OKU Law Reform Group, several weaknesses and omissions in the Act have been identified, as follows:
(a) No rules or regulations have been developed for implementing the PWD Act, and no efforts have been made by the Ministry of Women, Family and Community Development or by the National Council established under the Act.
(b) No mechanism has been established for enforcing the PWD Act.
(c) Disability issues within the Ministry of Women, Family and Community Development are handled by a Department (Jabatan Pembangunan Orang Kurang Upaya) under a Department (Jabatan Kebajikan Masyarakat).
The PWD Act only incorporates selected objectives from the CRPD, and needs to be updated and harmonised with the CRPD.[3]
In particular, sections 29(2) and 29(3) of the PWD Act address issues in respect of access to employment, as follows (emphases added):
(2) The employer shall protect the rights of persons with disabilities, on equal basis with persons without disabilities, to just and favourable conditions of work, including equal opportunities and equal remuneration for work of equal value, safe and healthy working conditions, protection from harassment and the redress of grievances.
(3) The employer shall in performing their social obligation endeavour to promote stable employment for persons with disabilities by properly evaluating their abilities, providing suitable places of employment and conducting proper employment management.
In the case of Siti Nur, the above provisions are applicable in the event she were to seek legal redress. However, the provisions themselves are insufficient in that they fail to address the issue or provide for a remedy in the event of an employer’s failure to comply.
(C3) Employment Act 1955
In 2018, the Ministry of Human Resource proposed amendments to the Employment Act 1955 to include disability as a category of non-discrimination against jobseekers pre-employment, and during employment.[4] However, in 2019 the Ministry excluded disability as one of the categories for non-discrimination.[5]
This is highly concerning, as there is a clear and evident gap in the Employment Act 1955, which does not address discriminatory acts nor penalise discrimination against persons with disabilities.
(C4) Sexual Harassment Bill
On 12 September 2021, the Women, Family and Community Development Minister Datuk Seri Rina Mohd Harun stated that an Anti-Sexual Harassment Bill is being drafted collectively and is expected to be tabled in Parliament in 2021.[6]
(C5) C111 — Discrimination (Employment and Occupation) Convention, 1958 (No. 111)
In respect of discrimination, Malaysia is not a State Party or member State to international instruments that require measures to be taken to ensure a working environment without discrimination. Malaysia has not ratified a fundamental convention of the ILO, namely C111 — Discrimination (Employment and Occupation) Convention, 1958 (No. 111).[7]
Article 2 of C111 clearly provides that member States must “undertake to pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view of eliminating any discrimination in respect thereof” (emphasis added).
Article 5 specifically provides that any special measures for special protection or assistance (such as for those with disablement) shall not be deemed to be discrimination.
Ratification of C111 may provide Malaysia with the space to enact specific legislation to meet the needs of persons with disabilities without such measures being branded as discriminatory.
(D) Recommendations
(1) Towards harmonisation of the PWD Act with the CRPD, it is proposed that the following measures be taken on an urgent basis:
(a) Strengthen the comprehensiveness and update the definition of disability to permit inclusion of groups such as persons with dementia, ageing-related disabilities, rare diseases, psychosocial disabilities, neurodiversity, and temporary disabilities;
(b) Include definitions of discrimination and harassment;
(c) Establish remedies for those affected by discrimination and/or harassment;
(d) Introduce penalties for non-compliance with the provisions of the PWD Act;
(e) Introduce rules and regulations for the implementation of the spirit and intent of the PWD Act and the CRPD, including the following:
(i) Introduce redressal mechanisms for enforcement of the rights of PWDs, including by establishment of a tribunal, which would be accessible without the need for legal representation, be more cost-effective and provide swifter access to justice. Members of the proposed tribunal would be specialists in disability-related issues;
(ii) Repeal all ouster clauses, including but not limited to sections 41 and 42 of the PWD Act that prevent and protect government and public servants from being sued when they claim to have acted in good faith;
(iii) Establish an independent Disability Commission with powers to mainstream, and investigate disability-related issues, as well as provide legal advice.
(2) Amend the Employment Act 1955 to prohibit discrimination against persons with disabilities.
(3) Develop mandatory guidelines that include a complaint mechanism for compliance with section 29 of the PWD Act.
(4) Sign and ratify the Optional Protocol to the CRPD.
(5) Ratify and accede to C111 — the International Labour Organization’s Discrimination (Employment and Occupation) Convention, 1958 (No. 111).
Endnotes
[1] “United Nations Convention on the Rights of Persons with Disabilities”. United Nations. https://www.un.org/disabilities/documents/convention/convention_accessible_pdf.pdf.
[2] United Nations. “15. Convention on the Rights of Persons with Disabilities”. United Nations Treaty Collection. https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-15&chapter=4&clang=_en#EndDec.
[3] “Press Release | Holistic Review of the Persons with Disabilities Act 2008: Essential to the Rights of Persons with Disabilities”. Malaysian Bar. 19 September 2019. https://www.malaysianbar.org.my/article/news/press-statements/press-statements/press-release-holistic-review-of-the-persons-with-disabilities-act-2008-essential-to-the-rights-of-persons-with-disabilities.
[4] “Libat Urus Awam Cadangan Pindaan Akta Kerja 1955 dan Akta Standard-Standard Minimum Perumahan dan Kemudahan Pekerja 1990”. Ministry of Human Resources. 28 September 2018. https://www.mohr.gov.my/index.php/ms/?option=com_content&view=article&id=887.
[5] Shang, Lay. “Anti-Discrimination Provisions in Employment Act Must Extend to Job Seekers and Include Disability Status”. Women’s Aid Organisation (WAO). 3 November 2020. https://wao.org.my/anti-discrimination-provisions-in-employment-act-must-extend-to-job-seekers-and-include-disability-status/.
[6] “Anti-Sexual Harassment Bill to be tabled this year, says minister”. Malay Mail. 12 September 2021. https://www.malaymail.com/news/malaysia/2021/09/12/anti-sexual-harassment-bill-to-be-tabled-this-year-says-minister/2004950.
[7] “C111 - Discrimination (Employment and Occupation) Convention, 1958 (No. 111)”. International Labour Organization. https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312256:NO.