With child, without job: Pregnant Malaysian women and workplace discrimination

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Source: NST Online

DISCRIMINATION: Being pregnant should be the happiest time in a woman’s life. Unfortunately, many have to choose between family and career, because having a bun in the oven could get you passed over for a promotion, sidelined or even fired. While mothers and wives continue to help out with the family finances and fulfil their household duties, most are still getting the short end of the stick, writes Audrey Vijaindren.

FINDING their positions redundant, being denied promotions, being placed on prolonged probation, demotion and even getting sacked — these are among the unenviable positions many Malaysian women have found themselves in, especially when they are with child.

Shocking as it may seem in this day and age, a recent Workplace Discrimination Survey by the Women’s Aid Organisation (WAO) revealed that more than 40 per cent of women polled have experienced job discrimination due to their pregnancy.

The online survey of 222 women polled from across the country revealed that the top five ways employers discriminated against pregnant women were by making their positions redundant, denying them promotions, placing them on prolonged probation, demoting them, and firing them.

WAO launched the survey to promote respect, protection and equal rights for women in the workplace, specifically for pregnant mothers.

A woman should be free to choose if and when to have children, says Sumitra Visvanathan, executive director of WAO.

“She should not have to fear losing her job because she has a baby. Malaysian policymakers must ensure that employers do not discriminate against pregnant women. Terminating, demoting, or failing to hire or promote a woman because she is pregnant is gender discrimination.

“The Federal Constitution and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) prohibit gender discrimination. When employers penalise women for having children, they are violating their human rights. Specifically, their right to have a family if they choose, their right to work, and their right to be appropriately appraised and remunerated,” Sumitra adds.

According to the survey, employers also discriminated against pregnant women by the questions they asked during the job application process.

Almost 40 per cent of women polled were asked by interviewers if they were pregnant or had plans to become pregnant in the near future.

It’s discriminatory for a prospective employer to ask questions about a woman’s marital status, pregnancy status or plans, sexual orientation or age during the job application process.

Human resource consultant Peter Kanagaraj is of the same opinion.

“In certain manufacturing and production companies, conditions are difficult for women, more so if she is pregnant.

“So, what happens when women are employed in these industries and are required to work unless they’re given medical leave or required on medical grounds to be on light duty? Inevitably, she would be on unpaid leave should her entitlement for medical leave run out.

“Also, when an employee is on sick leave, hospitalisation leave, Socso leave (due to an industrial accident), paid annual leave, should there be a public holiday in between, this public holiday would be replaced.

“However, if you were on maternity leave and there was a public holiday during this period, you will lose out on it as it will not be replaced. Pre-1989, if you were on maternity leave and there was a public holiday or a holiday declared, it would be replaced. After Feb 9, 1989, all that changed.”

The Employment Act 1955 Section 60D(1B) pre-1989, states: “Where any of the said ten gazetted public holidays or any other day substituted therefore as provided in subsection (1) or (1A) falls within the period during which an employee is on maternity leave, sick leave or annual leave to which the employee is entitled under this Act, or falls during the period of temporary disablement under the Workmen’s Compensation Ordinance 1952, or under the Employees Social Security Act 1969, the employer shall grant another day as a paid holiday in substitution for such public holiday or the day substituted therefore”.

However, effective Feb 9, 1989, under the Employment (Amendment) Act 1989, the words “maternity leave” is deleted.

Kanagaraj also finds it alarming that Malaysia has the lowest entitlement to maternity leave among all countries in Southeast Asia.

“While most countries in Southeast Asia provide at least 90 days maternity leave, in Malaysia, it’s still 60 days.”

Pregnant women losing their jobs for no reason other than the fact that they’re pregnant is very unfortunate, he adds.

“As it is, going through pregnancy is not easy, now the added stress of being unemployed may severely affect the woman or the pregnancy.

“But, I do have to admit, the Employment Act 1955 does, to a certain extent, ensure protection for women during pregnancy and the subsequent confinement period, but many have taken advantage of it by committing fraud, conflict of interests and other misconduct.

“But, due to the restrictions of the Employment Act 1955, companies find it difficult to take terminal or severe disciplinary action, but some are prepared to bite the bullet,” he says.

“In any case, losing out on promotions for not just women, but men, as well, is very subjective.

“However, since we do not have any laws on discrimination and, in most cases, promotions are at the discretion of the management, it would be hard to file any complaint without the risk of being sued for defamation.

“There may be a handful of women and men who do not have any idea of what to do when they encounter situations of discrimination.

“There are several places they could go to, namely the nearest Labour Department and the Industrial Relations Department (IRD). There are organisations out there that can advise these people, including law firms specialising in labour matters.”

Kanagaraj says any person who considers himself or herself as being dismissed from employment can file a claim for reinstatement at the IRD.

“If their case has merits, then the matter should be referred to the Industrial Court (IC) for arbitration. Therefore, if any person is dismissed without just cause and excuse, they should file a claim for reinstatement at the nearest IRD, within 60 days of the date of dismissal.”

The WAO survey revealed that approximately 20 per cent of women have had their job applications rejected or job offers revoked after disclosing their pregnancy.

Survey results also showed that 30 per cent of women delay their pregnancy plans because they fear losing their job or chances at promotion.

Currently, Malaysia does not have laws which ban discriminatory interview questions, says Sumitra.

“Countries such as the United States adopt the Pregnancy Discrimination Act (PDA) to protect women’s rights in the workplace. This Act ensures that employers treat pregnant women in the same manner as other employees with similar abilities or inabilities.

“PDA also forbids employers from discriminating against pregnant women in terms of pay, job assignments, promotions, layoffs, training, and so on. Malaysia needs to work towards this direction — awareness as a start and, eventually a statute.”

According to the survey, only one in eight women who had lost their jobs or promotions due to pregnancy actually lodged formal complaints.

“This is an issue because many women do not know their rights. They may not know the available platforms to seek justice.

“And, even if they do, they may fear backlash and harassment for speaking up. In any case, both the Employment Act 1955 and the Industrial Relations Act 1967 provide very minimal relief, if any,” says Sumitra.

Although Malaysia ratified CEDAW in 1995, Malaysia has not adopted many elements of the convention into domestic legislation, Sumitra says.

“Currently, there are no means to enforce these provisions in Malaysia. There have been court cases that decided the equality provision of the Federal Constitution only applies to public sector employees.

“We have yet to see any progress in the private sector. We urgently need a Gender Equality Act that would protect all women employees, including those in the private sector.”

Although Kanagaraj agrees with Sumitra, he believes Malaysia might not be ready for such a law.

“I believe that it’s time for laws that govern discrimination to be enacted.

“However, I also believe that our nation is not ready. It will not be fair to only introduce discriminatory laws for pregnant women as that would also reflect discrimination. If laws on discrimination are to be enacted, it should involve not just pregnancy, but also, age, gender, ethnicity, religion, marital status and other issues.

“If you want to look at it deeper, we could also say that choosing employees based on educational qualifications may also be discriminatory. Who is to say that a highly educated person would make a better employee than a person who has less or no higher education? So, where do we draw the line?”

It’s unfortunate, Kanagaraj adds, that some families now have to prioritise whether to focus on family or career.

“Many large companies have very good policies when dealing with female employees, especially pregnant employees. They also employ people based on talent, experience and qualifications.

“Employment should not be a factor in dictating the course of nature. There are many unmarried women who are pregnant or who want to have a child, and women who become widows during pregnancy who may not be able to afford having a child without being employed. Therefore, the situation now becomes harder.

“This would lead to a large gap between one generation and the next, which may lead to other social problems.

“Therefore, the question still remains — would the implementation of discrimination laws allay fears of women getting pregnant without losing their jobs, promotions and other benefits?

“At this stage, due to the current economic and cultural diversity, I very much doubt so,” he adds.