At the 2021 National Day Rally, Prime Minister Lee Hsien Loong announced that the government would enshrine the Tripartite Guidelines on Fair Employment Practices. These guidelines were developed by the Tripartite Alliance for Fair & Progressive Employment Practices (TAFEP) to ensure the fair treatment of employees but ‘lack teeth’ to deter businesses from discriminatory employment practices.
Currently, companies who do not comply with the guidelines usually end up being counselled by TAFEP to change their practices; at worst, recalcitrant employers face administrative penalties from the Ministry of Manpower in terms of their ability to obtain work passes for foreign employees.
The new law would presumably impose stiffer penalties, including fines and possibly compensation to victims of employment discrimination.
Singapore has long resisted enacting legislation to tackle discrimination in the workplace out of fear that such a law may discourage employers from setting up shop in Singapore. It may also have the unintended effect of deterring businesses from hiring individuals from protected groups for fear of being accused of discrimination.
Advocates, members of parliament (MP) from the labour movement, and opposition politicians MPs have made repeated calls for such anti-discrimination legislation, and the arrival of this new law is a welcome move by many.
The enactment of such a law would also bring Singapore in line with the rest of the world. A global study published by researchers at the University of California, Los Angeles found that as of 2020, most countries prohibit discrimination based on gender (89%), disability (79%), religion (77%), and race or ethnicity (76%).
But is it enough to simply enshrine the TAFEP guidelines as law? Not quite.
While a promising first step, the guidelines only prohibit direct discrimination or discriminatory employment practices. It does not go far enough to address the social and structural determinants that drive disparities in employment outcomes.
A recent article in The Straits Times highlighted that the definition and coverage of direct discrimination would be a key consideration for legislators. However, we believe that comprehensive workplace equality legislation should also consider and prohibit indirect discrimination and provide for an employee’s right to reasonable accommodation
While these concepts may not be familiar to many Singaporeans, they are, in fact, international obligations that the Singapore government had agreed to when it signed on to the United Nations (UN) conventions on women’s rights and disability rights.
The new workplace discrimination legislation is commendable but wholly inadequate to enshrine the TAFEP guidelines into law. Only by comprehensively addressing employment discrimination in all its forms can we ensure that every Singaporean can pursue their ambitions and contribute to our economy solely based on their merit.
Unpacking indirect discrimination
Often, when we think of discrimination, we are thinking of direct discrimination. This refers to instances where a person is treated unjustly, prejudicially, or less favourably than other persons in a similar situation because of a protected characteristic.
For example, a logistics company is deciding between two candidates to work for their company as a driver. One of the drivers is Ken, and the other is Karen. The employer hires Ken. In the employer’s correspondence with Karen, it was mentioned that the hiring manager chose not to hire her because women get into more traffic accidents than male drivers.
In this case, Karen has been discriminated against on the basis of her gender.
However, the reality is often more complicated than this hypothetical situation since most employers would not explicitly inform applicants of the reasons for their hiring decisions.
In reality, most cases of discrimination come in the form of indirect discrimination. This refers to policies or practices that appear neutral but disproportionately negatively impact persons with protected characteristics.
For instance, the uniform policy at a department store prohibits employees from wearing head coverings to maintain their corporate image. The policy is neutral in that it does not explicitly target any particular group of people. Yet, in practice, such a policy would disproportionately affect individuals who wear head coverings for religious purposes.
Such a policy may therefore constitute indirect discrimination based on religion.
The new workplace discrimination legislation should prohibit both direct and indirect discrimination. Often, companies may enact policies or practices that are not intentionally discriminatory but have a discriminatory effect on certain groups.
By outlawing both types of discrimination, we can ensure that there is formal and substantive equality in the workplace in Singapore.
Also, from a legal perspective, indirect discrimination is not always impermissible in cases where an employer has a legitimate justification for imposing such a policy. This strikes a balance between upholding the principle of equality and the realities of business needs.
For instance, a warehouse may impose a policy requiring employees to lift loads of at least 20 kilograms. Though such a policy may disproportionately affect women and older workers who may lack the strength to fulfil this requirement, such indirect discrimination may be justified by the company’s business needs because its workers need to carry heavy objects as part of their duties.
However, even if the company can justify indirect discrimination from a legal perspective, it should try to provide reasonable accommodation to its employees first. Failure to do so should constitute discrimination under the new law as well.
According to the UN Convention on the Rights of Persons with Disabilities*, reasonable accommodations refer to “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden to ensure persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”.
For example, Leon is blind and has just obtained a law degree. When applying for a job at a law firm, Leon requests that his firm purchase and install a screen reader in his work computer to accommodate his disability to carry out his duties. Such accommodation may be considered reasonable since a screen reader is not prohibitively expensive.
In contrast, if Leon were to request that the law firm hire an assistant whose sole duty is to read out documents and his computer screen to him, this would arguably impose a “disproportionate or undue burden” on the employer.
Currently, SG Enable’s Open Door Programme (ODP) provides a Job Redesign Grant to support employers in redesigning jobs to accommodate the needs of employees with disabilities, such as purchases of equipment and workplace modifications.
SG Enable defines job accommodation as something that helps persons with disabilities perform essential job functions. However, they should not cause undue hardship to the employer or employee or change the fundamental nature of the business.
Beyond the Job Redesign Grant, employers have no legal requirement to provide employees with reasonable accommodation when requested. This can make it difficult for employees to ask for and receive the support they need to flourish in their jobs.
According to the Ministry of Manpower, less than a third of persons with disabilities in Singapore are employed or actively seeking employment. By providing employees with disabilities a right to reasonable accommodation, we can address the severe unemployment and under-employment of Singaporeans with disabilities and ensure that they can pursue their ambitions just like everyone else.
Furthermore, it will catalyse efforts for greater investments in technologies, capacity-building activities, and other structural changes to support job redesign efforts across multiple industries.
A less prejudiced Singapore
Equality and meritocracy are two values that have underpinned Singapore’s progress over the past decades. The enactment of the new workplace discrimination legislation will finally enshrine these principles in law.
However, it would be a missed opportunity if the law only prohibits direct discrimination but fails to address indirect discrimination and the denial of reasonable accommodation.
We must go beyond the TAFEP guidelines to also address other forms of discriminatory employment practices that unfairly exclude and disadvantage some members of our community based on a core aspect of their identity.
With such comprehensive workplace discrimination legislation, Singapore will finally join the rest of the advanced economies in fostering fairer and more inclusive workplaces. This will mark the next chapter in our country’s history of building a Singapore for everyone, regardless of race, age, religion, nationality, and disability.