Académique Documents
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DISCRIMINATION
1.0 INTRODUCTION
Employment means work or service performed by an individual to the task at hand for
Employment Law is the law which regulates the operation of the labour market in general
and the employment relationship between employers and employees in particular. For
examples include hiring process, suspension from work, maternity rights, layoff and
wages. The obligations and rights of an employment contract are covered by the
employee, the law governing the relationship between an employee and an employer
begins.
things or people in different ways. This suggests that differential treatment of people can
better or worse. Furthermore, the term discrimination is used to imply any limitation in
access to resources based on any number of factors such as ethnicity, gender or age.
While ethnicity or race- based discrimination tends to receive frequent media coverage,
other bases of discrimination include religion, national origin, age, gender, sexual
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various industries. Discrimination may occur in sex, racial and age discrimination in all
race, national origin, gender, religion, age, veteran status, disability or other classes
protected by law. Those who report workplace discrimination are also protected.
Direct discrimination occurs when a person is treated less favourably than another in a
comparable situation because of their racial or ethnic origin, religion or belief, disability,
people need to apply.” However, in reality discrimination often takes more delicate
would disadvantage people on the grounds of racial or ethnic origin, religion or belief,
disability, age or sexual orientation unless the practice can be objectively justified by a
legitimate aim.
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certain job to sit a test in a particular language, even though that language is not
necessary for the job. The test might exclude more people who have a different mother
tongue.
hiring, promotion, job assignment, termination, and compensation, and various types of
harassment. In many countries, laws prohibit employers from discriminating on the basis
of race, colour, sex, religion, national origin, physical or mental disability, or age. There
solitary out employees or applicants on the basis of age, race, gender, sexual orientation,
Workplace Safety.
Race/colour
Sex/Gender
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Pregnancy
Religion/ Creed
Political affiliation
Language abilities
Age
Sexual Orientation
provincial/regional origin.
Finding and keeping work is getting harder for Asians. In the competition for
employment, people with national origin background have fared less well than others.
“James Sum was a long- time Ameritech employee and executive. Now he is un
Asian people were let go”, Eblin said. “There’s always the tendency” to consider Asian
minorities first in cutting employment because they often are the most recently hired,
explained David Bar clay, Hughes vice president of work force diversity. “That is why we
have to oversee the process and look for ways to protect them”.
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2.1.2 Promotion
There is a remark that “the managerial promotion is different for Asian Americans and
that they are viewed with suspicion and that their commitment and competence are over-
tested. Specifically, “effort expended on paid work was more positively associated with
2.1.3 Wage
Hard as it is to believe, Asians are still clashing employers over equal pay for equal work.
Salary in equity is one of the most common forms of racial discrimination on the job.
Employers are paying Asians wages at a rate less than the rate at which employers pay
2.1.4 Hiring
Which criteria usually require hiring goals for Asian minorities? The answer is
“performance assessments are a fairer process” than minority quota and the performance
discrimination also occurs at the hiring level when employers refuse to hire Asian
and salary desired are characteristics relevant to employer’s decisions during the hiring
process. These types of factors could lead to large amounts of disparate treatment from
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2.1.5 Training
Mr. Yamashita, a Japanese American won his commission after proving that he was the
target of vicious racial and ethnic harassment during his 10 week officer training
programme in the Marine Corps. According to the Marine records, Marine Corps
instructors criticized Mr. Yamashita about his legacy and at one point told him: “We do
not want your kind around here. Go back to your own country”. The significance of Mr.
Yamashita’s case ex tends far beyond his personal plight. His challenge prompted the
Marine Corps to discover, during the review in 1993, that members of minorities drop out
Andrew Chang was eight months away from retirement when his employment was
terminated, the complaint stated. Wanting to preserve his retirement, Lee Kim was
offered work in several other jobs for which he was qualified. He was also offered work
at a reduced salary, but here fused both offers, according to the complaint.
2.1.7 Harassment
For example, an Asian employee, Tam Phan, is segregated by physically isolating her
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The bona fide occupational qualification (BFOQ) operates as a defence to a suit for
discrimination with regard to religion, national origin, gender and age. The first three
defences are found in Title VII, while the age BFOQ is found in the Age Discrimination
in Employment Act. The courts have narrowly construed this defence, limiting it to job
requirements that are essential to the job or are at the core purpose of the business. Mere
relates to the promotion of the religion. Religious belief is considered a bona fide
occupational qualification.
Racial discrimination exists where employees of one race are favoured by the employer
over another. Usually it is white race favoured over the black race, but they are also many
instances of Hispanics, Orientals, Asians and American Indians being subjected to racial
discrimination. There even isolated instances of white people being victimized as well.
Racial harassment in the workplace exists when conduct by co-workers, superiors, or the
company itself has created a hostile work environment in which the victimized
employee’s ability to do his or her job has been impaired. Evidence of the severity of the
worker, the employee must notify the employer. The employer must not condone this
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activity and must investigate the complaint in a timely fashion. When the harassment
originates with the employer itself, then no notification is needed. The employer will be
held liable.
Title VII prohibits discrimination against colour in addition to race. Colour could apply to
people of mixed races, as well as to the different colour of pigmentation of people of the
same race.
3.3 Issue/Case
Through, the Race Discrimination Bill racial discrimination in the workplace has been
made illegal.
Hong Kong already has specific laws against discrimination by gender, family status, and
disability. This Bill targets 6 different areas and which focuses on the provisions
concerning employment. Main Acts in the Workplace outlawed under the Bill
ground
(i) In arrangements which the employer makes for the purpose of determining
(ii) In the terms on which the employer offers that other person employment;
employment.
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ground:
(i) In the terms of employment which the employer affords that employee;
(ii) In the way the employer affords the employee access to opportunities for
or
(iii)By dismissing the employee, or subjecting him or her to any other detriment.
Sex was considered a bona fide occupational qualification. Stereotypes ruled. Men were
physicians, lawyers, construction workers, and policemen. Women were nurses, flight
attendants, secretaries, and teachers. This arrangement had the effect of discriminating
against men and women in certain job classifications. The effect on women, particularly
with regard to higher- paying positions, was noticeable. Women and men must be treated
promotions. Prescribing limits for lifting or caring weight or for working before or after
childbirth is prohibited; any provisions or benefits must be provided to both sexes. Job
Discrimination may occur against an individual not solely because of him or her gender,
but that fact coupled with another may be its cause. Women with small children, women
is child-bearing years, and women taking care of elderly parents are all examples.
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In addition, many employers believe if the child because ill or gets hurt, the mother will
leave work immediately. This behaviour can be disruptive to the workplace. For that
reason, the company may nonchalantly ask the female applicant where her children go to
school. The response will indicate whether the woman has children and, if so, what their
ages are. The company can then generally refuse her or deny her for another reason. This
is discriminatory behaviour.
The Equal Pay Act of 1963 is an amendment to the Fair Labour Standards Act, which
regulates child labour, minimum wage, and overtime pay. The Equal Pay Act prohibits
the payment of different wages to men and women who are performing the same job.
This Act covers all types of job categories from clerical to executive. The jobs must be
equal with regard to skill, knowledge, or experience and the conditions under which the
work is performed must be similar. For example, a person working overseas is entitled to
dominated jobs based on worth. Where the values are equated, equal pay would be
required. The theory behind this doctrine was that most female-dominated jobs pay less
than male-dominated job. This arguments has not found favour with the courts because
assigning values is arbitrary and interferes with payments based on supply and demand.
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4.4 Issue/Case
2004 [CA].
The appellant started working as a flight stewardess, Salary Grade B, with the first
respondent on 14 October 1980. The terms and conditions of the service were governed
by the collective agreement dated 3 May 1988. Article 2(3) of the First Schedule to the
collective agreement requires the appellant to resign on becoming pregnant. In the event
she fails to resign the company shall have the right to terminate her services. Upon the
appellant becoming pregnant and refusing to resign, the first respondent terminated her
services.
The attention was also drawn to the provision of s. 40 of the Employment Act
1955 and we were urged to give a purposive interpretation as provided by s. 17A of the
Interpretation Acts 1948 and 1967. With respect, we are unable to see the relevance of s.
40 of the Employment Act 1955. That section only requires a female employee who is
leaving her employment to give four months notice to her employer about her pregnancy
failing which she would not be entitled to any maternity allowance. We fail to see what
kind of “purposive interpretation” could be given to the provision to render the provisions
of the collective agreement null and void. This ground too has no merits.
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Sexual harassment encompasses the request for sexual favours as well as touching, joking,
consented to and finds offensive. The aggrieved individual may initiate a lawsuit against
the individual personally or may proceed against the company. If there was unpermitted
touching, this gives rise to the torts of civil assault and battery. If there were sexual
comments made with a particular individual in mind, which would constitute slander. If
sexual comments were return or sexual pictorials were drawn, it would be libel. If generic
comment were made that degraded the gender and individual could claim the tort of
There are two distinct situations for which the company may be liable; Quid Pro Quo and
hostile work environment. Quid Pro Quo means “this for that.” It involves situations in
which a superior is eliciting sexual favours from a subordinate in written for some form
of sexual activity.
superior or co-worker against an employee. The Hostile action must be severe and
joking, commenting, and distributing material of a sexual nature all fall within the
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5.3 Issue/Case
An interesting sexual harassment case that shows how the court deals with the factual
issues involved. The applicant, a supervisor, claimed that his dismissal, on the ground
that he had sexually molested one of the company's female employees, was unfair. There
were no other witnesses to substantiate the employee’s allegation. The employee testified
that she had only reported the matter to the company two months later as she was
Where female employees are working, especially during the night, employers
should prevent behaviour of the present nature and have the duty to maintain strict
discipline at the workplace. The applicant had breached his duty as supervisor as he was
supposed to protect the young girls who had to work during the night shift. The claimant's
action has tarnished the company's reputation and his action was bound to affect the
company adversely. The company employed a large number of female workers during all
The applicant made a ridicule of office discipline by suggesting that the company
should not have taken any action against him if the complainant had consented to the
acts. Employees cannot commit indecent and immoral acts at the workplace during
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Pregnancy most often leads to the birth of child. Although a child is precious, its birth
may temporarily halt the employment of the mother and the father because of the love
and care required by the new born. This raises two issues.
pregnant, her pregnancy, or because she has a child. The Pregnancy Discrimination Act of
1978 protects women against these forms of discrimination. There is doubt that an
Second, to accommodate the parents’ desire to bond with their newborn, twelve
week of unpaid must be granted to the mother and father if they have worked for a
company with 50 or more employees for one year and have accrued at least 1250 hours of
work time during that year. The Family and Medical Leave Act of 1991 guarantee this.
The act also extends that guarantee when a serious health condition befalls a spouse,
child, or parent.
In 1978, discrimination on the basis of pregnancy became illegal in the United States,
with passage of the Pregnancy Discrimination Act, an amendment to Title VII of the 1964
Pregnant women must be treated the same as other applicants or employees. They
must be judges by their ability to perform rather than on their physical condition.
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6.2 Issue/Case
The claimant was employed as an air stewardess at the time of her dismissal. The
she gave birth and had less than seven years service. The claimant had served the
company for less than seven years but had given birth and was dismissed immediately.
She was not asked to give a show cause letter nor was a domestic inquiry held.
The court held that the collective agreement was not an unlawful restraint of marriage. It
was only an undertaking that female employees in the particular category of the claimant,
air stewardess, should not become pregnant within the stipulated period otherwise they
had to resign. There is no prohibition against pregnancy if the stipulated time is served.
The collective agreement was held to not contravene any provision of the Employment
Act 1955 or the Industrial Relations Act 1967 and to therefore be valid. The dismissal
The Civil Rights Act does not prohibit employers from refusing to hire or subsequently
state and local laws do exist in select jurisdictions. The term most commonly used is
sexual orientation. Many cities also disallow discrimination, but only few of them extent
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Currently gays and lesbians do not have the right to include their partners under their
health coverage. Since homosexual marriages are not legally sanctioned except in
Vermont, which permits two people of the same sex to enter into a civil union, partners
are considered mere friends who are not qualified for coverage. Family leave policies for
7.2 Issue/Case
The first real move the Malaysian Government took to addressing transsexual issues was
in 1986 when Datuk Abu Hassan Omar was the Welfare Minister. A transsexuals
association, called the Federal Territory Maknyah Association was registered at the same
time and it conducted dialogues with Ministry officials but ended up with little success.
Dara said only by classifying transsexuals as “women” the authorities would be rid of
social problems which came about as a result of discrimination against the group. She
said most transsexuals were qualified to hold other jobs but were turned away because of
their identification cards and appearances. “As a result many went underground as sex
workers while the fortunate few like me ended up in the entertainment world, “she said.
Ann Lee, the chairman of Pink Triangle, an NGO dedicated to HIV prevention,
said the ministry could look into issues affecting transsexuals. “The ministry should take
into account issues of sexuality which have an influence on the way women carry out
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The First Amendment to the United States Constitution provides for freedom of religion.
It also states that Congress shall not establish a national religion, thus ensuring the right
of individuals to engage in whatever religious practises they wish. These practices must
not, however, violate other laws such as criminal laws prohibiting sacrificial offerings.
The First Amendment applies directly to the federal government and to the states true the
Fourteenth Amendment.
VII protects them from employment discrimination. Religious Affiliation is one of the
classes protected under Title VII from invidious discrimination. Employers may not
Individuals are protected from discrimination based on national origin under Title VII of
the Civil Service Rights Act and the Immigration Reform and Control Act of 1986.
National Origin refers to a person’s roots, that is, the country in which the person or the
person’s ancestors were born. The four-step test for national origin discrimination is as
follows:
origin.
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The Age Discrimination in Employment Act of 1967 (ADEA) was enacted to promote the
mandatory retirement, thereby shifting the requirement for employment from age to
ability. There are exceptions, companies can force executive in high policy-making
positions to retire at 65 and universities can require tenured professors to retire at 70.
10.1 Issue/Case
Age seems to be more of a common issue in the workplace than racism or sexism.
Approximately 20% of all complaints filed with the Federal Equal Employment
Opportunity Commission (EEOC) are for age discrimination, settlements and jury awards
are substantially higher in age related cases than in those for race, sex or disability
discrimination (Age Discrimination, 1999). Generally older people are accused of lacking
energy and flexibility, while young people lack experience and want it all. Many people
do not get the opportunity to show whether or not they have what it takes because of their
age. These people are being discriminated against and therefore, robbed of their
employment opportunities.
In 1990, Congress passed the Americans with Disability Act (ADA). The ADA has a
profound effect on the many millions of Americans who life with some type of disability.
The ADA requires employers with 15 or more employees to refrain from discriminating
against any individual who has an impairment that limits major life activities, such as
impairment to sight, speech, hearing, walking, and learning. Also included are people
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with cancer, heard conditions, AIDS, and disfigurement, as well as people recovering
The four largest categories of this abilities are physical (prosthetic, wheelchair,
carpal tunnel), disease (heard, lung, cancer, AIDS), sensory (sight, speech, hearing) and
mental (retarded, emotionally disable, chemical dependency). The examples given are all
inclusive. Physical and disease represent a much larger proportion than sensory or
mental.
11.1 Issue/Case
Different jurisdictions have approached in different ways and with varying results. We
have to look at our own situation. Is it that there are other healths issues which give rise
to the stigma and discrimination that we recognise arise in the HIV scenario? If that is so,
we attempt to attack the issue regarding AIDS. However, what we would like to bring to
our attention, if most people don’t already know, is that the National AIDS Committee
did make submissions to the Joint Select Committee of Parliament when they were
considering the Charter of Rights to state that there should be no discrimination on the
basis of health cases in general. Also, we are attempting to put in place legislation to deal
with discrimination. A further effort is being made to amend the constitution generally
because, as it now stands, there is no provision which says that there ought to be no
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12.0 CONCLUSION
In fact, working with diversity issues is the most critical issue to the organization’s
and organizational goals. The successful companies of the future will be “those that re
make their co-operate cultures so that women, blacks, immigrants and white males can
get along comfortably and productively”. Organizations that seek to correct a company
bias against a particular group may define diversity more narrowly, according to their
specific needs. Employers as the person responsible for making a company profitable
should hire the best people whether they are of minority or majority ethnic background.
In addition, for various reasons, small companies as well as large companies need to
On the other hand, organizations that do not manage diversity effectively will not
be able to use the full potential of their workers, nor survive and grow under increasingly
multicultural society, so that employees can understand their own as well as other
cultures, values, beliefs, attitudes, behaviours, and strengths and weaknesses. Helping
employees understand the need for valuing diversity and providing the skills necessary
Work is important for everyone, not just as means of making money but to give a
sense of purpose and a sense of worth. Everybody is part of the diversity that should be
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