DISCRIMINATION implies an unfair treatment of two or more persons or subjects on grounds, such as race, gender, disability, age and religious belief.
Gender discrimination exists when women, for example, are treated less favourably or suffer detrimental treatment at the workplace, as a result of unreasonable differential treatment between men and women.
The International Labour Organisation (ILO) considers discrimination as a differential and less favourable treatment of certain individuals because of characteristics, such as sex, race and religion, regardless of their ability to fulfil the requirements of the job.
The United Nations Universal Declaration of Human Rights 1948 provides that all human beings are born free, and equal in dignity and rights.
Discriminatory practices in the workplace, in terms of promotion, job assignment and requirement, leave entitlement and termination, among others, are prohibited by the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
CEDAW, which is based on the principles of equality and non-discrimination, has been ratified by more than 180 countries.
The ILO has also taken steps to eliminate discrimination at the workplace, mainly to give effect to the principle that “poverty anywhere constitutes a danger to prosperity everywhere”, in the 1944 Declaration of Philadelphia.
Two significant conventions of the ILO that address discrimination, in respect of employment and occupation, are the Convention on Equal Remuneration No. 100 and Discrimination (Employment and Occupation) Convention No. 111.
To remove barriers faced by women in their participation in the workforce, many countries have enacted sex discrimination statutes, for example, the UK Sex Discrimination Act 1975, New Zealand’s Human Rights Act 1993 and Australian Sex Discrimination Act 1984.
In Malaysia, the basic concept of equality before the law and equal protection of the law is contained in Article 8(1) of the Federal Constitution. The article generally prohibits discrimination against a person or class of persons, unless there is a rational basis for such discrimination.
The word “gender” was inserted in Article 8(2) to comply with Malaysia’s obligations under CEDAW, to reflect the view that women were not discriminated.
As persons can be classified in many aspects, such as age, education, ability and occupation, varying needs of these persons often require separate treatment and, hence, the doctrine of classification was held constitutional.
In fact, Article 8(2) begins with the exclusion clause of “Except as expressly authorised by this Constitution”, which demonstrates that certain kinds of discrimination may be allowed under the express provisions of the Constitution.
The landmark gender discrimination case in the Malaysian context is the Federal Court’s decision in Beatrice A.T. Fernandez v Sistem Penerbangan Malaysia & Anor, where the Federal Court held, inter alia, that the constitutional law, as a branch of public law, only addresses the contravention of an individual’s rights by a public authority.
However, when the rights of a private individual are infringed by another private individual, constitutional law will take no recognisance of it.
The more recent case on gender discrimination at the workplace is the case of AirAsia Berhad v Rafizah Shima Mohamed Aris, where the Court of Appeal held that clause 5.1(4) of the training agreement entered into between the appellant and the respondent, which provides, inter alia, that the respondent must not get pregnant during the duration of the training period, was a lawful contract between private parties and, thus, the agreement did not violate Article 8 of the Constitution.
In light of the superior court’s decision on gender discrimination in the context of Article 8, it is submitted that the Malaysian legislature should consider enacting a gender or sex discrimination law based on the concept of gender discrimination, as defined under the Convention on the Elimination of All Forms of Discrimination against Women.
The law is required to ensure a workplace free from any forms of gender or sex discrimination.
Prof Dr Ashgar Ali Ali Mohamed
Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia