In the August 2021 National Day Rally, Prime Minister Lee Hsien Loong stated that Singapore would be taking steps to enshrine into law the current workplace anti-discrimination guidelines.
To date, there are only guidelines regarding fair treatment in the workplace by the Tripartite Alliance for Fair & Progressive Employment Practices (TAFEP). Singapore does not currently have any legislation which expressly prohibits discrimination per se.
Companies that do not follow the guidelines are usually counselled by TAFEP to change their practices. At the most, obstinate employers face administrative penalties from the Ministry of Manpower in terms of their ability to obtain work permits for foreign employees.
Yet, this is set to change as the government has decided to enshrine the TAFEP guidelines in law. This would help to expand the range of measures that could be taken against errant companies.
The new law is not intended to make corporate compliance more difficult. It is simply intended to enforce anti-discrimination practices more strictly in the workplace and allow employees to likely be able to take legal action directly against their employers’ workplace discrimination. The new legislation will protect employees not only on the grounds of nationality or race but also on other grounds covered by the TAFEP guidelines including sex, age, race, religion and disabilities.
The passage of such legislation would also bring Singapore in line with the rest of the world. According to a global study published by researchers at the University of California, Los Angeles, as of 2020, most countries prohibit discrimination based on gender (89%), disability (79%), religion (77%), and race or ethnicity (76%).
Is it, however, sufficient to simply make the TAFEP guidelines law? Not quite.
While a promising first step, the guidelines only prohibit direct discrimination or discriminatory employment practices. It does not go far enough in addressing the social and structural factors that contribute to disparities in employment outcomes.
According to a recent article in The Straits Times, the definition and coverage of direct discrimination will be a key consideration for legislators. However, we believe that comprehensive workplace equality legislation should also take into account and prohibit indirect discrimination, as well as provide for an employee’s right to reasonable accommodation.
While many Singaporeans may be unfamiliar with these concepts, they are international obligations that the Singapore government agreed to when it signed on to the United Nations (UN) conventions on women’s rights and disability rights.
The new workplace anti-discrimination legislation is admirable, but it falls far short of enshrining the TAFEP guidelines in law. Only by comprehensively addressing all forms of employment discrimination can we ensure that every Singaporean is able to pursue their ambitions and contribute to our economy solely on the basis of their merit.
Disentangling indirect discrimination
When we think of discrimination, we frequently think of direct discrimination. This refers to situations in which a person is treated unfairly, unjustly, or unfavourably in comparison to other people in a similar situation because of a protected characteristic.
For example, a logistics company is deciding between two candidates to work as a driver for their company. Mark is one of the drivers, and Kendell is the other. Mark is hired by the employer. According to the employer’s correspondence with Kendell, the hiring manager decided not to hire her because the manager believed women are involved in more traffic accidents than male drivers. Kendell was discriminated against because of her gender in this case. The reality, however, is frequently more complicated than this hypothetical situation because most employers would not explicitly inform applicants of the reasons for their hiring decisions.
For example, department store guidelines frequently prohibit employees from wearing any form of headwear or headdress to maintain their corporate image. The guidelines are neutral in that they do not explicitly target a specific group of people. Yet, such policies disproportionately affect people wearing headdresses for religious reasons. Therefore, such policies may constitute indirect discrimination based on religion.
The new law on discrimination in the workplace should prohibit both direct and indirect discrimination. In many cases, companies have policies and practices that are not intentionally discriminatory, but that have a discriminatory impact on a particular group. By prohibiting discrimination in both forms, we can aim to maintain formal and material equality in the Singapore workplace.
From a legal standpoint, indirect discrimination is not always unacceptable if the employer has good reason to impose such a policy. It strikes a balance between maintaining the principle of equality and the reality of business needs. For example, a warehouse may have a policy requiring employees to be able to physically lift at least 20 kilograms of cargo. Such policies can have a disproportionate impact on women and older workers who may not be able to meet this requirement. Yet, such indirect discrimination may be justified by the company’s business needs as it is part of the employee’s job to carry heavy items. However, even if a company can justify indirect discrimination from a legal point of view, it should first strive to provide reasonable accommodation to its employees. Failure to do this would also constitute discrimination under the new law.
According to the United Nations Convention on the Rights of Persons with Disabilities, “reasonable accommodation” refers to necessary and appropriate modifications and adjustments which do not impose a disproportionate or undue burden, where needed in a particular case. This aims to provide persons with disabilities the enjoyment or exercise of all human rights and fundamental freedoms with others on an equal basis.
For example, Leon is visually impaired and has just graduated from law school. When applying for a position in a law firm, Leon requests his law firm to purchase and install a screen reader on his work computer to address his obstacles in performing his duties. Screen readers are not overly expensive, so such adjustments can be considered reasonable. On the other hand, if Leon asks the law firm to hire an assistant who only reads the documents and his computer screen, this may translate to an “unbalanced or unreasonable burden” for the employer.
Currently, SG Enable’s Open Door Programme (ODP) offers the Job Redesign Grant to support employers in the redesigning of jobs (such as the purchase of equipment and workplace modification) to meet the needs of employees with disabilities. SG Enable defines employment services as helping people with disabilities perform important professional functions. However, beyond the Job Redesign Grant, the employer has no legal obligation to provide reasonable accommodation to employees upon request. This can make it difficult for employees to seek and receive the support they need to succeed at work.
According to the Ministry of Labour, less than one-third of Singapore’s disabled people are employed or are actively looking for jobs. Engaging employees with disabilities with the right to reasonable accommodation to combat the severe unemployment and under-employment of Singaporeans would allow those with disabilities to pursue their ambitions like anyone else.
We also support efforts to increase investments in technology, accelerate capacity-building activities and other structural changes, and reshape the employment landscape across multiple industries.
Singapore with less bias
Equality and achievement are two values that have underpinned Singapore’s progress over the last few decades. With the passage of new laws on discrimination in the workplace, these principles should finally be achieved.
However, if the law only prohibits direct discrimination and does not address indirect discrimination or refusal of reasonable accommodation, it misses an opportunity. Such a comprehensive workplace anti-discrimination law would eventually help Singapore stand with other developed countries to promote a fairer and more comprehensive workplace. This will be the next chapter in our history of building a Singapore for everyone, regardless of race, age, religion, nationality or disability.
This article is written by Nadia Moynihan, Director at August Law Corporation; and Petrissia Teo from Asia Law Network.
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.
