Employers Warned Not to Use Language as Cover for Discrimination

Discrimination is a severe issue in a multicultural country such as Malaysia. Employers must be fair when it comes to hiring as well as managing staff from different background. But how can employers understand discrimination?

The best place to start is by understanding Malaysia's labour law.

Malaysian law on discrimination

Under Article 8 (1) of Malaysia's Federal Constitution, each person shall be equal under the law and have equal protection of the law.

In Article 8(2), there shall be no discrimination against a citizen on the ground only of religion, race, gender, descent, or place of birth in any law or in the appointment to any office or employment under public authority.

The Article offers limited protection against discrimination in terms of individual types, which it seeks to protect and the scope of protection it provides.

Language requirement as a cover for discrimination

The Malaysian Employers Federation (MEF) recently said that language criteria are fair in hiring, but it needs monitoring to ensure it is not used as a cover for discrimination by employers.

The organisation's executive director Shamsuddin Bardan stated that in these situations, the authorities should require organisations to explain the reason for their language requirements to ensure there is a valid reason for it.

"We can't put people in straitjackets and say that because they have a language preference, the company is seen as racist.

"That language requirement serves a specific purpose, such as the company wants a specific language proficiency to deal with clients or prospective clients," Shamsuddin said.

MEF said that language requirement is acceptable, but it should not be used as a cover for discrimination.

But, he said this could be used as a method to exclude certain races and proposed there must be proper oversight to ensure any such requirement is warranted.

He said that a party needs to monitor and ask why a specific language is necessary when posting job advertisements. He cited an example that if an employer says that the language requirement is used to employ Malays only, the employer should be hauled up.

Shamsuddin agreed with other panellists' proposals that companies should be more transparent when including language requirements in job postings, explaining their reason more clearly.

Workplace discrimination protection

For an employee to allege unfair discrimination, the following elements must exist:

There must be some form of discrimination: Discrimination occurs only when equals are treated unequally or when those who are unequal are treated equally.
The discrimination must be unfair: Discrimination must be followed by an element of harshness or unfairness or unjust or unfair bias in favour of one and against another.
There must be resultant harm of injury recognised by law: for example, monetary or non-monetary loss.

The Employment Act (EA) 1955 also protect against discrimination. Section 60L of the EA 1955 specifies that the director-general may inquire into any complaint from a local employee that there is discrimination against a foreign employee.

What should employers do?

An employer who receives an internal complaint of discrimination should manage it effectively by:

Formalise the complaint,
Conduct an internal investigation,
Interview witnesses,
Issue a show-cause letter against the perpetrator (if needed)
Terminate the perpetrator if found guilty.

Employers must remember to take these actions only after legal consultation.

Employers can also take proactive measures to reduce the risk of workplace discrimination which includes creating policies against workplace discrimination, training and making changes to the recruitment process.

By being sensitive to these issues, employers also ensure they are employee-sensitive, and this improves their ability to stay competitive when attracting the best candidates to their company.

Sources: FMT, The Sun Daily

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