Based on witness testimonies by Leslie (pseudonym), Siti Nur (pseudonym) and Latha (pseudonym)

 

1. Background

 

1.1 The experiences of women at work require serious consideration. The testimonies shared by eight women at the Women’s Tribunal illustrate a range of circumstances where women workers experience varying types of harassment and intimidation, and find themselves in positions that affect their livelihoods, health and general wellbeing.

 

1.2 While the eight women gave accounts of the human rights violations they experienced at work, the findings and recommendations in this paper focus on the testimonies of three witnesses: Leslie (pseud.), Siti Nur (pseud.), and Latha (pseud.). The rest are addressed under the papers on Contract Workers, and Domestic Workers.

 

1.3 The differing contexts of these three women involve a range and diversity of cruel and degrading treatment, harassment and intimidation. Their ill-treatment and discrimination on the basis of sex constitute a violation of their fundamental right to equality under the Federal Constitution, other rights under Malaysian laws, and under international obligations of the state.

 

2. Findings

 

2.1 Issues of concern

 

(a) Lack of diversity in senior management positions on the basis of sex

 

2.1.1 Siti Nur is a professional employed in a team comprising mainly women led by a team of men. Her experience is of office practices that are not conducive for upward mobility of female staff as such opportunities are not transparent. For example, these opportunities are usually discussed when male colleagues socialise among themselves, thus excluding women workers.

 

2.1.2 There are instances when the capacities and achievements of women workers are not acknowledged or rewarded and instead they are made to assist male supervisors who are less capable but need to look good. Such discriminatory practices thus happen despite women being capable, or even more capable than men. Lesson learned: discrimination can occur because of institutional practices. It is not always that there will be an individual victim and an individual perpetrator.

 

(b) Toxic sexist work environment and prevalence of harassment at work

 

2.1.3 Male colleagues making offensive and sexist remarks or jokes in the workplace happens especially if men outnumber women in senior positions. This is a result of a work environment that does not consciously bring women into decision-making posts.

 

2.1.4 In the case of Leslie, a sports coach, work meetings are always held in the boss’s house and an uneasy environment is created because of the rape jokes he makes. He further invites her to socialise, eat and drink at his house, and to sleepover. He goes into a rage if she refuses. This harassment has even extended to her parents.

 

(c) Non-recognition or lack of acceptance of women who excel in male-dominated spheres

 

2.1.5 Not only was Leslie constantly verbally harassed, bullied, belittled by her boss, and subjected to degrading treatment, she was also denied opportunities to exercise her full potential as a sports coach. She was only given minor assignments or the coaching of female players or youth, before eventually being withdrawn from coaching and assigned irrelevant work.

 

2.1.6 The attempt here appears focused on putting women like Leslie in their place so that they do not venture into male-dominated areas, and do not have high aspirations at work. It is also likely the consequence of Leslie not responding to the advances of her boss.

 

(d) Lack of reasonable accommodation of special needs (e.g. disabilities) of individual workers

 

2.1.7 Siti Nur has health issues, which constitutes a form of disability that requires reasonable accommodation in terms of time for health care. Instead, this is used against her and she is denied positions or opportunities that she has applied for, even though she fulfils all her Key Performance Indicators (KPIs). The fact that the time that she requires for her health appointments is used against her constitutes direct discrimination.

 

(e) Intergenerational and intersectional poverty

 

2.1.8 Early childhood deprivation dictates life choices. An example of this is intergenerational poverty as seen in the case of Latha. The death of her father when she was five years old, her mother’s inability to make ends meet as a single mother, and the decision of her brother that she should stop schooling contributed to Latha being thrust into child labour at the age of 13 and child marriage at age 15. All these were detrimental to her wellbeing and potential.

 

2.1.9 Latha went out to work as a child after dropping out of school, married a security guard at her place of work, had frequent pregnancies, and suffered abuse at the hands of her husband who provided no support for her and the children. She was finally deceived and coerced into sex work by her brother-in-law — an option she accepted out of desperation in the interests of her survival and that of her children. Literally destitute, she was then exploited and raped by pimps and brothel owners.

 

2.1.10 Development policies and programmes in the country do not aim to break the cycle of poverty that contributes to intergenerational poverty as in the case of Latha.  Children born in disadvantaged families are denied equal opportunities: their chances of achieving a decent standard of living as adults are significantly diminished by the mere fact that their parents are poor.[1]

 

2.1.11 For women, this is further compounded by the prevalence of an ideology of gender inequality and the patriarchal mindset of the family and society, which deny them the opportunities that men of their communities may have. As shown, this is the case of Latha whose life chances were set in motion by her brother when he decided she should not continue schooling when she was only 13 years old.

 

2.1.12 People in poverty face systemic discrimination in societies that remain deeply segregated by wealth and gender brought about by discriminatory public policies and individual behaviour. Systemic remedies are thus needed to overcome inherited divisions.[2]

 

(f) Precarious conditions of work

 

2.1.13 Latha’s testimony clearly outlines the discrimination, stigma, dehumanisation and injustices that sex workers experience on the basis of their work. She faced violence from clients, exploitation by brothel owners, was made to work unreasonably long hours even when menstruating, had her wages withheld, and had no access to health services because of the stigma attached to sex work and the prejudice of service providers. She also experienced police abuse and was subjected to degrading treatment (e.g. made to strip naked).

 

2.1.14 The lack of recognition of sex work as work exacerbates the precariousness of the experiences of sex workers as they are unable to access social, economic and legal protection, including health, housing, employment and social benefits, and other services. Worse, the laws in Malaysia are used to penalise the work that they do. Criminalisation of various aspects of sex work render these workers vulnerable to further exploitation and violence by a range of actors including the police, clients, brothel owners, and family members.[3]

 

2.2 Rights denied and standards not met

 

2.2.1 Separately and collectively, Leslie, Siti Nur and Latha have been denied a number of rights under both national and international laws. For example, the right to decent work and livelihood guaranteed under article 5.1 of the Federal Constitution (the right to life and liberty);[4] and articles 8.1 and 8.2 (the right to equality and non-discrimination).

 

2.2.2 Other rights denied include the (a) right to be treated with dignity; (b) right to be free of cruel inhuman and degrading treatment; (c) right to mental and emotional wellbeing; (d) right to reasonable accommodation of special needs; (e) right to a safe workplace, adequate healthcare, housing, social protection and services; (f) access to justice, including legal protection; (g) right to remedy; and (h) right to protection from sexual harassment.

 

2.2.3 Besides the Federal Constitution, these rights are provided for under the Employment Act 1955, the Industrial Relations Act 1967, and the Person with Disabilities Act 2008.

 

2.2.4 At the global level, they are upheld by the Universal Declaration of Human Rights as well as the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and the UN Convention on the Rights of Persons with Disability (CRPD), which Malaysia has ratified.

 

2.2.5 The relevant CEDAW provisions include article 2f (requiring the Government to “take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women”); article 4 (on temporary special measures); and article 11 (on eliminating discrimination against women in the field of employment). The CEDAW Committee has also elaborated on these provisions in its General Recommendations (GR), namely GR 19 on ‘Violence Against Women’; GR 20 on ‘Reservations to the Convention’; and GR 35 on ‘Gender-Based Violence’.

 

2.3 Failure of duty bearers (state)

 

2.3.1 The accounts of Leslie, Siti Nur and Latha reveal how the Malaysian Government has failed to uphold the rights of women at work. The following are some of the state failures that can be identified.

 

2.3.2 The legal framework for equality and non-discrimination as guaranteed in article 8 of the Federal Constitution is inadequate and not in compliance with state obligation under CEDAW. It does not bind both public and private sectors and persons. It does not define discrimination and does not impose obligation on the duty bearer to ensure equality of outcomes. The right to equality in the Federal Constitution is merely declaratory and does not obligate the practical realisation of the principle of equality as required under CEDAW article 2a.

 

2.3.3 There are no government laws or regulations to enforce positive duties on all employers, to put in place policies on and definitions of appropriate workplace behaviour, and prohibition of inappropriate behaviour, or procedures for addressing inappropriate behaviours when it occurs in the workplace.

 

2.3.4 There are no government regulations to compel employers to enact a policy and plan on equality of opportunity and results that will include targets for increasing women in management and senior positions and closing sex-based gaps in wages and positions. In other words, there is no compliance with article 8 of the Federal Constitution and inadequate compliance with international equality obligations under CEDAW for the practical realisation of equality (article 2a).

 

2.3.5 Disability is not one of the prohibited grounds for discrimination in the Federal Constitution and in the Employment Act 1955.[5] Hence, there is little to no protection against discrimination faced by persons with disability in the workplace. Further, the Persons with Disabilities Act 2008 contains no provisions for enforcement.

 

2.3.6 The Government has not required employers to adopt regulations for protection against sexual harassment at the workplace. There is no standalone law on sexual harassment, and the Employment Act 1955 does not define discrimination in the workplace nor does it prohibit discrimination. There are only procedures for addressing discrimination when it occurs.

 

2.3.7 Decriminalisation of sex work is not a reform priority of the Malaysian Government. Yet this has a positive impact in reducing stigma and violence against sex workers, corruption and impunity by law enforcement agencies and other state actors; increasing access to healthcare; and reducing the prevalence of HIV, among others.

 

2.3.8 The Government has failed to make the lived realities of sex workers central to developing a constructive evidence and human rights-based response to the multiple forms of discrimination and violations they face. This includes the failure to address the structural inequalities and systematic exclusion that produces the cycles of exploitation and violence that pushes them into sex work.

 

2.3.9 Malaysia’s development policies aimed at eradicating poverty have no goals to break the intergenerational cycle of poverty, and there is a lack of gender sensitivity in existing programmes. Single mothers’ programmes in development plans end up as handouts and often fail to empower these women.

 

2.3.10 Further, poverty eradication strategies see poverty as unidimensional and focus on lack of income as the main cause of poverty. These strategies do not recognise the need for a multidimensional approach that combine strategies to eradicate a range of deficits inter alia in the areas of education, health, housing, nutrition, autonomy, and decision-making and access to public services, that compound and entrench intergenerational poverty.

 

2.4 Victim impact

 

2.4.1 Underpinning the toxic work environment for women or not providing for their special needs such as in situations of disability, is misogyny, and the hostility of men towards sharing public spaces with women on an equal basis. This is especially so if a woman performs what is perceived as a male job.

 

2.4.2 The treatment is not just some unpleasant male behaviour that can be brushed aside; it can have serious consequences for women such as being denied opportunities to demonstrate their ability to succeed in their chosen profession. They may resign and lose their job, the stress they experience takes a toll on their mental and physical health, they feel demeaned and unworthy, or they live in fear because of the intimidation directed at them.

 

2.4.3 Leslie, the sports coach, stated that the harassment she experienced undermined her confidence, and made her reserved and scared to speak to or interact with people. It caused her mental health to deteriorate to a point where it affected her everyday life and social connections. She eventually quit her job. Likewise, Siti Nur’s health also suffered and drastically deteriorated until she was no longer fully functional due to the discriminatory and toxic office environment.

 

2.4.4 In the absence of adequate laws to protect women from sexual harassment, the perpetrator(s) takes a sadistic pleasure in dominating the women and displaying their power over them. This is done with impunity because the system offers the victim no means of relief. Since laws to address such contexts are lacking, women are never taken seriously. Sometimes they are silent because they need the job and fear losing it. In most instances there does not seem to be an avenue to stop the harassment or to seek redress. Women may just resign from their job or seek mental health treatment because of the intense stress they go through. Without any remedy, they may be traumatised by their victimisation, harassment, bullying and job insecurity.

 

2.4.5 Living in substandard conditions or in locations underserved by public services may also have significant impact on one’s ability to escape poverty. This is made worse since people experiencing poverty rarely have a chance to change their trajectories due to the low coverage of social protection mechanisms. In turn, poor access to healthcare services and exposure to risk factors can jeopardise one’s health.

 

2.4.6 Access to quality education is also often more difficult for families on low-incomes, and educational achievement is significantly impeded by circumstances faced in early childhood. Employment prospects are also weaker for reasons linked to socioeconomic disadvantage during childhood.

 

3. Recommendations

 

(a) Reform of the legal framework for equality

 

3.1 CEDAW must be incorporated into the domestic legal order through an act of Parliament so that universal and international standards for equality and non-discrimination are applicable in Malaysia.

 

3.2 Concomitantly, amendments must be made to the Federal Constitution to reflect the international standard for equality and non-discrimination, which will include a definition of discrimination as direct and indirect discrimination as well as a model of substantive equality.

 

(b) Legal reform and institutional transformation

 

3.3 Discrimination must be defined according to international standards, and prohibited in the Employment Act 1955.

 

3.4 Discrimination and violations in all its forms and against various groups of women, must be monitored and prohibited. An intersectional approach is needed.

 

3.5 The Gender Equality Act (GE Act) and the Sexual Harassment Act must be speedily adopted. Within the GE Act, there have to be provisions to enforce positive duties on all employers, to put in place a policy on, and definition of, appropriate workplace conditions. In addition, provisions to compel employers to enact a policy and plan on equality of opportunity and results, which will include targets for increasing women in management and senior positions, closing sex-based gaps in wages and positions.

 

3.6 Disability must be made one of the prohibited grounds for discrimination in the Federal Constitution and in the Employment Act 1955.

 

3.7 The Persons with Disabilities Act 2008 must have provisions for enforcement.

 

3.8 Sex work must be decriminalised in line with the CEDAW Committee’s 2017 GR 35 on ‘Gender-Based Violence against Women’.[6] This must be accompanied by measures to ensure that those in the industry have labour rights and access to basic services, rather than rely only on a ‘rescue and rehabilitate’ approach.

 

(c) Eliminating harassment and violations at work

 

3.9 The capacity of labour departments must be developed to monitor and act against companies and employers that permit harassment or do not have a policy to create a harassment-free workplace.

 

3.10 Police abuse of sex workers must be stopped, and police protection given to sex workers against exploitation and abuse by clients/pimps/brothel owners.

 

3.11 NGOs to raise the issue of harassment and violations of women workers with the Universal Periodic Review (UPR), CEDAW and the UN Human Rights Council especially since Malaysia currently has a seat in this body.

 

(d) Enhancing the upward mobility of women in the labour market

 

3.12 The enhancement and upward mobility of women’s labour force participation must be advocated for even if it may not be an explicit goal in the 12th Malaysia Plan. This requires that the ideology of sex-stereotyping is broken and job-segregation eradicated.

 

3.13 Government to create a diversity of job opportunities for women, especially in non-traditional fields and include this as a goal in the five-year Malaysia Plans.

 

3.14 Advocating for enhancing women’s labour force participation alone as women’s groups do is inadequate. More women are also needed in senior positions and positions of decision-making on an equal basis with men, and this must be gradually normalised. Further, the quality of women’s labour force participation and fair remuneration, also known as equal pay for work of equal value,[7] even if they are holding jobs seen as women’s work, has to be an aim. This should be monitored and trends established.

 

(e) Eradicating intergenerational poverty and reform of development policies

 

3.15 People in poverty face systemic discrimination in societies that remain deeply segregated by wealth: this calls for systemic remedies to overcome inherited divisions. The cycles perpetuating poverty need to be broken by making this a goal within poverty eradicating strategies of Malaysia’s five-year development plans. A multidimensional, gender-sensitive, intersectional, and interagency approach also needs to be adopted to eradicate poverty.

 

3.16 Hence, when making strategic development policy decisions, the Government must ensure that development policies pay ‘due regard’ to how they can reduce inequalities of outcome caused by socioeconomic disadvantage.[8] Specifically, due regard must be paid to the gender impact of such intergenerational poverty situations.

 

3.17 The Sustainable Development Goal 10 requires inequality to be reduced within countries and a pledge was made by governments to ensure that the incomes of the bottom 40 per cent of income earners increase faster than average.[9] This pledge must be incorporated into the implementation of the 12th Malaysia Plan and monitored.

 

(f) International obligations

 

3.18 The Government must develop a concrete plan for the implementation of the CEDAW Committee’s 2018 Concluding Observations through a multi-sectoral mechanism.

 

3.19 Key relevant International Labour Organization (ILO) conventions must be ratified:

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• C111 Discrimination in respect of (Employment and Occupation) Convention 1958

• C190 Violence and Harassment Convention 2019

 

3.20 Other international human rights treaties to be ratified:

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• International Covenant on Economic, Social and Cultural Rights (ICESCR)

• International Covenant on Civil and Political Rights (ICCPR)

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Endnotes

[1] United Nations (2021). Report of the Special Rapporteur on Extreme Poverty and Human Rights, Olivier De Schutter. A/76/177. 19 July.

[2] ibid.

[3] The Penal Code (section 372(3)) defines “prostitution” as the “act of a person offering that person’s body for sexual gratification for hire whether in money or in kind”. Section 372B in particular is used against sex workers on charges related to “soliciting for purposes of prostitution”. Further, all State Syariah enactments and acts penalise sex work. Section 21(1) of the Syariah Criminal Offences (Federal Territories) Act 1997 (Act 559) also criminalises “prostitution” under offences relating to decency.

[4] With regards to article 5.1, “Every person has a right to life and liberty. A person's life or personal liberty cannot be taken away unless it is in accordance with law”, the courts have interpreted the right to life to include a right to livelihood and quality of life (See ‘My Constitution: Fundamental liberties and citizenship’. Malaysian Bar website. 11 February 2011. Available at: https://www.malaysianbar.org.my/article/about-us/committees/constitutional-law-committee/my-constitution-fundamental-liberties-and-citizenship.

[5] Women’s Aid Organisation and others (WAO) (2020). ‘Anti-Discrimination Provisions in Employment Act Must Extend to Job Seekers and Include Disability Status’. WAO website. 3 November. Available at https://wao.org.my/anti-discrimination-provisions-in-employment-act-must-extend-to-job-seekers-and-include-disability-status/.

[6] This calls on States to repeal all customary, religious and indigenous legal provisions that are discriminatory against women and thereby enshrine, encourage, facilitate, justify or tolerate any form of gender-based violence, including provisions that criminalise women in prostitution (para. 29(c)(i)).

[7] The principle of equal pay for work of equal value is introduced by International Labour Organization via Convention 100. (1997) and is ratified by Malaysia.

[8] United Nations (2021). Report of the Special Rapporteur on Extreme Poverty and Human Rights, Olivier De Schutter. A/76/177. 19 July.

[9] United Nations Resolution 70/1, para. 27.

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