MGT 305 (ASSIGNMENT 3)

Question:

Describe job discrimination in detail and offer a critical commentary on it.

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MGT 305 (ASSIGNMENT 3)

“Discrimination”, according to the dictionary discrimination means treatment or

consideration of, or making a distinction in favour of or against, a person or thing based in

the group, class, or category to which that person or thing rather than on individual merit.

This is similar to favouritism; people tend to have a particular personal preference towards

everything. Discrimination happens to almost everyone and everything. Direct discrimination

happens when an employer treats an employee less favorably than someone else due to

personal likings. For example job for drivers are always open to male applicants.

Indirect discrimination is when a working condition or rule disadvantages one group of

people more than another. For example, saying that applicants for a job must be clean shaven

puts members of some religious groups at a disadvantage.

Indirect discrimination is unlawful, whether or not it is done on purpose. It is only allowed if

it is necessary for the way the business works, and there is no other way of achieving it. For

example, the condition that applicants must be clean shaven might be justified if the job

involved handling food and it could be shown that having a beard or moustache was a

genuine hygiene risk.

In Malaysia, discrimination such as age, race and religion, disability, and gender happens

widely. With these issues happening in a workplace it is rather difficult to nurture a

cooperative and comfortable working environment. I will be discussing about these issues

and further making suggestions on how and what can we improve the current society.

A good working environment helps motivate to maintain and participate in group activities,

not only on job but also socializing. Employees need to feel that they are significant in the

company, they too want their hard work to be appreciated and also the sense of security in the

job, with that loyalty builds. Pride in one’s work is expressed through competition with other

parallel sections in the company and between one’s company and other companies in the

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similar line. I personally think that bosses play an important role in creating loyalty.

Demanding but concern bosses are more likely to be chosen over less demanding but

performance oriented bosses. Bosses must not practice intentional discrimination which will

bring negative influence into the working environment. Personal preference or preferential

treatments are not permitted in a healthy working environment. It is rather impossible to

nurture a healthy working environment with discrimination. In terms of hiring, firing,

promotion, training and other terms equitable opportunity is crucial. Discrimination in these

may provoke controversies. There are limited circumstances in which an employer might be

able to make a case for a real occupational requirement for a job. For instance, religious

schools may be restricted to applicants of the same religion.

In Malaysia, discrimination is practiced openly because there is no Act that prohibits

harassment and intentional discrimination in the workplace. Entities tend to employ

candidates who are of the same race and religion or the similar age group or other criteria

depending on the employer’s preference. Malaysia should draw an Act to address to the

situation. For example Section 1981 of the U.S. Code provides additional federal remedies to

deter harassment and intentional discrimination in the workplace.

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MGT 305 (ASSIGNMENT 3)

Age Discrimination

The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are

40 years of age or older from employment discrimination based on age. The ADEA’s

protections apply to both employees and job applicants. Under the ADEA, it is unlawful to

discriminate against a person because of his/her age with respect to any term, condition, or

privilege of employment, including hiring, terminating, promoting, laying off, compensation,

benefits, job assignments and training1.

It is also unlawful to retaliate against an individual for opposing employment practices that

discriminate based on age or for filing an age discrimination charge, testifying, or

participating in any way in an investigation, proceeding, or litigation under ADEA. The

ADEA applies to employers with 20 or more employees, including state and local

government. It also applies to employment agencies and labour organizations, as well as to

the federal government2.

The ADEA generally makes it unlawful to include age preferences, limitations, or

specifications in job notices or advertisements. A job or advertisement may specify manage

limit only in the rare circumstances where age is shown to be a “bona fide occupational

qualification” (BFOQ) reasonably necessary to the normal operation of the business3.

The ADEA does not specifically prohibit an employer from asking an applicant’s age or date

of birth, however, because such inquiries may deter older workers from applying for

employment or may otherwise indicate possible intent to discriminate based on age, requests

for age information will be closely scrutinized to make sure that the inquiry was made for a

lawful purpose, rather than for a purpose prohibited by the ADEA4.

1 http://www.dol.gov/dol/topic/discrimination/agedisc.htm2 http://www.dol.gov/dol/topic/discrimination/agedisc.htm3 http://www.dol.gov/dol/topic/discrimination/agedisc.htm4 http://www.dol.gov/dol/topic/discrimination/agedisc.htm

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The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to

specifically prohibit employers from denying benefits to older employees. Congress

recognized that the cost of providing certain benefits to older workers is greater than the cost

of providing those same benefits to younger workers, and that those greater costs would

create a disincentive to hire older workers. Therefore, in limited circumstance, an employer

may be permitted to reduce benefits based on age, as long as the cost of providing the

reduced benefits to older workers is the same as the cost of providing benefits to younger

workers5.

5 http://www.dol.gov/dol/topic/discrimination/agedisc.htm

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Race Discrimination

It is unlawful to discriminate against any employee or applicant for employment because of

his/her race or colour in regard to hiring, termination, promotion, employee benefits or any

other terms and condition, or privilege of employment6. It is unlawful to discriminate against

any employee or applicant because of the individual's national origin. No one can be denied

equal employment opportunity because of birthplace, ancestry, culture, or linguistic

characteristics common to a specific ethnic group. Equal employment opportunity cannot be

denied because of marriage or association with persons of a national origin group;

membership or association with specific ethnic promotion groups; attendance or participation

in schools, churches, temples or mosques generally associated with a national origin group;

or a surname associated with a national origin group.

Title VII of the Civil Rights Act of l964 protects individuals against employment

discrimination on the basis of national origin as well as race, colour, religion and sex.

Discrimination on the basis of an immutable characteristic associated with race, religion such

as skin colour, hair colour/texture or certain facial features amounts to discrimination, even

though not all members of the race share the same characteristics. This act has violated The

State’s the Civil Rights Act of 1964. The Act prohibits discrimination on the basis of a

condition which predominantly affects one race unless the practices the practice is job related

and consistent with business necessity7.

Racial slurs, racial jokes, offensive or derogatory comments, and other verbal and physical

conduct based on an individual’s race/colour constitutes unlawful harassment if the conduct

6 http://employment.findlaw.com/employment/employment-employee-discrimination-harassment/employment-employee-race-discrimination-top/employment-employee-race-discrimination-facts.html 23th January 20107 http://employment.findlaw.com/employment/employment-employee-discrimination-harassment/employment-employee-race-discrimination-top/employment-employee-race-discrimination-facts.html 25th January 2010

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creates an intimidating, hostile, or offensive working environment, or interferes with the

individual’s work performance.

When minority employees are segregated by physically isolating them from other employees

or from customer contact discrimination happens. The Act prohibits assigning primarily

minorities to predominantly minority establishments or geographic areas8. It is also illegal to

exclude minorities from certain positions or to group or categorize employees or jobs so that

certain jobs are generally held by minorities. Coding applications/resumes to designate an

applicant’s race, by either an employer or employment agency, constitutes evidence of

discrimination where minorities are excluded from employment or from certain positions.

Requesting pre-employment information which discloses or tends to disclose an applicant’s

race suggests that race will be unlawfully used as a basis for hiring. Solicitation of such pre-

employment information is presumed to be used as a basis for making decisions. Therefore, if

member of minority likely to constitute evidence of discrimination. However, employers may

legitimately need information about their employees’ or applications’ race for affirmative

action purposes and/or to track applicant flow. One way to obtain racial information and

simultaneously guard against discriminatory selection is for employers to use “tear-off

sheets” for the identification of an applicant’s race. After the applicant completes the

application and the tear-off portion, the employer separates the tear-off race. After the

applicant completes the application and does not use it in the selection process9.

Malaysia should have an employment discrimination law seek to prevent discrimination

based on race, sex, religion, national origin, physical disability, and age by employers. A

growing body of law also seeks to prevent employment discrimination based on sexual

orientation. Discriminatory practices include bias in hiring, promotion, job assignment,

termination, compensation, retaliation, and various types of harassment.

8 http://employment.findlaw.com/employment/employment-employee-discrimination-harassment/employment-employee-race-discrimination-top/employment-employee-race-discrimination-facts.html9 http://employment.findlaw.com/employment/employment-employee-discrimination-harassment/employment-employee-race-discrimination-top/employment-employee-race-discrimination-facts.html

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An employer must show a legitimate non-discriminatory reason for the denial of employment

opportunity because of an individual's accent or manner of speaking. Investigations will focus

on the qualifications of the person and whether his or her accent or manner of speaking had a

detrimental effect on job performance. Requiring employees or applicants to be fluent in

English may violate Title VII if the rule is adopted to exclude individuals of a particular

national origin and is not related to job performance10.

Harassment on the basis of national origin is a violation of Title VII. An ethnic slur or other

verbal or physical conduct because of an individual's nationality constitute harassment if they

create an intimidating, hostile or offensive working environment, unreasonably interfere with

work performance or negatively affect an individual's employment opportunities.

Employers have a responsibility to maintain a workplace free of national origin harassment.

Employers may be responsible for any on-the-job harassment by their agents and supervisory

employees, regardless of whether the acts were authorized or specifically forbidden by the

employer. Under certain circumstances, an employer may be responsible for the acts of non-

employees who harass their employees at work.

10 http://employment.findlaw.com/employment/employment-employee-discrimination-harassment/employment-employee-national-origin-discrimination-top/

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Disability Discrimination

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 unfavourably because she has a

disability. Disability discrimination also occurs when a covered employer or other entity

treats an applicant or employee less favourably 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)11.

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)12. 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 instance, discrimination against employee due to their spouse’s disability is

illegal.

In Malaysia, there should be laws to forbid discrimination when it comes to any aspect of

employment, including firing, hiring , 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 of his disability, had a disability in the past, or is believed to

have a physical or mental impairment13. Being a disable is already unfortunate, if being

discriminated it will bring more mental stress on the applicant. Harassment can include, for

example offensive marks 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

11 http://www.eeoc.gov/laws/types/disability.cfm 12 http://www.eeoc.gov/laws/types/disability.cfm 13 http://www.eeoc.gov/laws/types/disability.cfm

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environment or when it results in an adverse employment decision (such as the victim being

fired or demoted)14.

14 http://www.eeoc.gov/laws/types/disability.cfm

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Gender discrimination

The United Nations Committee on the Elimination of Discrimination against Women

(CEDAW), an expert body established in 1982, is composed of 23 experts on women's issues

from around the world15.

The Committee's mandate is very specific: it watches over the progress for women made in

those countries that are the States parties to the 1979 Convention on the Elimination of All

Forms of Discrimination against Women. A country becomes a State party by ratifying or

acceding to the Convention and thereby accepting a legal obligation to counteract

discrimination against women. The Committee monitors the implementation of national

measures to fulfil this obligation.

At each of its sessions, the Committee reviews national reports submitted by the States

parties within one year of ratification or accession, and thereafter every four years. These

reports, which cover national action taken to improve the situation of women, are presented

to the Committee by Government representatives. In discussions with these officials, the

CEDAW experts comment on the report and obtain additional information. This procedure of

actual dialogue, developed by the Committee, has proven valuable because it allows for an

exchange of views and a clearer analysis of anti-discrimination policies in the various

countries16.

The Committee also makes recommendations on any issue affecting women to which it

believes the States parties should devote more attention. For example, at the 1989 session, the

Committee discussed the high incidence of violence against women, requesting information

on this problem from all countries. In 1992, the Committee adopted general recommendation

19, which requires national reports to the Committee to include statistical data on the

incidence of violence against women, information on the provision of services for victims,

15 http://www.un.org/womenwatch/daw/cedaw/committee.htm 16 http://www.un.org/womenwatch/daw/cedaw/committee.htm

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and legislative and other measures taken to protect women against violence in their everyday

lives, such as harassment at the workplace, abuse in the family and sexual violence. As of the

end of 2007, the Committee has issued 25 general recommendations17.

As modern society has made clear, women have the ability to perform with equal skill and

success in virtually every endeavour engaged in by men -- including employment, athletics,

academics and politics. Yet discrimination on the basis of sex has a long history in the United

States, and its residual effects still operate to keep women's salaries lower and opportunities

fewer in the employment realm. Although less common, men too can be subjected to

unlawful sex discrimination. No matter what form it takes -- unequal pay, discriminatory job

standards, or failure to promote -- numerous federal and state laws prohibit discrimination on

the basis of sex18.

The essence of sex discrimination is unequal treatment on the basis of sex. The treatment

must not simply be different, but also unequal, and therefore unfair. For example, requiring

women and men to use separate restrooms does not constitute sex discrimination. But it is sex

discrimination to provide different working conditions, salaries, hiring, promotion or bonus

criteria to women and men. A unique form of sex discrimination is sexual harassment.

Women and men have the right to secure and perform their jobs free of unwanted demands

for romantic or sexual relationships, or unwanted communications or behaviours of a sexual

nature that interfere with their ability to work19.

Workplace harassment is another form of unlawful discrimination. Employers must not only

grant women and men equal pay and opportunities, they must also remedy any sexual

harassment situations that are known, or of which the employer should be aware. This

includes both harassment of lower-tier employees by a manager or executive of lower

position, and sexual harassment among co-workers. Harassment involves unwanted sexual

17 http://www.un.org/womenwatch/daw/cedaw/committee.htm 18 http://employment.findlaw.com/employment/employment-employee-discrimination-harassment/employment-employee-sex-discrimination-top/employment-employee-sex-discrimination-overview.html 19 http://employment.findlaw.com/employment/employment-employee-discrimination-harassment/employment-employee-sex-discrimination-top/employment-employee-sex-discrimination-overview.html

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advances, requests for sexual favours, and other verbal or physical conduct of a sexual nature.

It is illegal for an employer to make sexual conduct a condition or term of employment, to

base employment decisions on such conduct, or to permit sexual conduct that unreasonably

interferes with an employee's work performance or creates an intimidating, hostile or

offensive work environment. Lewd comments, unwanted touching, displays of sexual objects

or photographs, or offensive cartoons or drawings may constitute sexual harassment when

they interfere with an individual's work performance20.

In Malaysia, sexual or gender discrimination is practiced widely. As seen in hiring

advertisements, it is clearly stated that a specific gender is preferred for the position. That is

discrimination.

Wage disparities exist in American society. It has been reported that the typical American

working woman is paid 71 cents for each $1 earned by a man. The largest gap is with black

and Hispanic women, who, according to U.S. Census figures, earn 64.2 percent and 53.4

percent, respectively, of what men do.

The federal Equal Pay Act (EPA) prohibits covered employers with two or more employees

from paying unequal wages to male and female employees who perform substantially the

same jobs. For example, a major university was ordered to pay 117 women an award of $1.3

million after a federal court judge ruled that the university paid less money to women on the

faculty than to men in comparable posts21.

While the EPA and the Civil Rights Act of 1964 both prohibit sex discrimination in the

workplace, the EPA applies only to wage inequities between the sexes. Under the Equal Pay

Act, employers are barred from paying women less than men if they are working on jobs that

require equal skill, effort, and responsibility, and if those jobs are performed under similar

working conditions. This includes everyone from hourly workers to salaried employees

20 http://employment.findlaw.com/employment/employment-employee-discrimination-harassment/employment-employee-sex-discrimination-top/employment-employee-sex-discrimination-overview.html

21 http://public.findlaw.com/bookshelf-working-woman/wmnchp4_a.html

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engaged in executive, administrative, and professional functions, such as teachers. The courts

have held that the jobs need not be identical, only "substantially equal." Further, an employer

may not retaliate against a female worker, such as by firing her, because an EPA charge was

initiated22.

Fringe benefits are included in the definition of wages under the law. Thus, employers may

not differentiate with items such as bonuses, expense accounts, profit-sharing plans, or leave

benefits. Under EPA, it is not a defence to a charge of illegality that the costs of such benefits

are greater with respect to women than to men since the law is designed to ensure that women

do not receive lower salaries and benefits than their male counterparts23.

A female worker may seek damages in federal or state court or through the Equal

Employment Opportunity Commission (EEOC), and may obtain a trial by jury when

asserting an EPA violation. Successful litigants are entitled to recover retroactive back pay,

liquidated damages, reasonable attorney fees, and costs. If wilful violations (defined as

reckless disregard for the law) are found, double back pay may be awarded. Employers are

obligated to maintain and save records documenting wages and benefits paid to all

employees. If a complainant shows that she is working in the same place, doing equal work

under similar working conditions, and being paid less than employees of the opposite sex, the

burden shifts to the employer to show an affirmative defence that any wage difference is

justified by a permitted exception. Practices that perpetrate past sexual discrimination are not

accepted as valid affirmative defences24.

To avoid charges of EPA violations, employers are instructed to prepare precise job

descriptions that demonstrate different duties and job responsibilities for different pay. When

offering jobs with different salaries and benefits, companies are instructed to assign those

higher-paying jobs on the basis of factors such as technical skills, additional education, work

experience, and knowledge required, rather than sex.

22 http://public.findlaw.com/bookshelf-working-woman/wmnchp4_a.html 23 http://public.findlaw.com/bookshelf-working-woman/wmnchp4_a.html 24 http://public.findlaw.com/bookshelf-working-woman/wmnchp4_a.html

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For example, in one case, a university wanted to hire a black male assistant professor for a

position with a salary ceiling of $28,000 per year. When the applicant asked for more, the

university offered him the job at $40,000 per annum. A female white assistant professor who

was also hired at the same time at an annual salary of $28,000 filed a lawsuit.

The university argued that the black professor was paid a higher salary because it needed to

hire minorities as part of its affirmative action program. The court ruled that the university

violated the law. It found that the two professors had comparable skills and were hired at the

same time to do the same job. Offering the minority professor a salary that exceeded the

established salary range violated the EPA, with no exceptions. Being denied equal pay

because you are married, have children, or are a victim of gender-based stereotypes violates

the law25.

25 http://public.findlaw.com/bookshelf-working-woman/wmnchp4_a.html

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Conclusion

Discrimination means treating some people differently from others. It is not always unlawful

however there are certain reasons that an employer cannot discriminate against the employee.

Equal opportunities laws aim to create a level playing field so that people are employed, paid,

trained and promoted only because of their skills, abilities and how they do their job.

Discrimination happens when an employer treats one employee less favourably than others. It

could mean a female employee being paid less than a male colleague for doing the same job,

or a minority ethnic employee being refused the training opportunities offered to white

colleagues.

Malaysia should have an employment discrimination law seek to prevent discrimination

based on race, sex, religion, national origin, physical disability, and age by employers. A

growing body of law also seeks to prevent employment discrimination based on sexual

orientation. Discriminatory practices include bias in hiring, promotion, job assignment,

termination, compensation, retaliation, and various types of harassment.

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