The discrimination dilemma: Opinion
Source: Business Times
Article Date: 02 May 2023
Anti-discrimination laws function as an external force to correct conscious or subconscious biases. They are a positive force telling us what not to do.
When Rachel applied for jobs as a fresh graduate, she was repeatedly asked if she had plans to get married and start a family. When an Upper Bukit Timah condominium issued a tender for security services, it required Chinese-speaking guards who were below the age of 60.
These are not unique examples, and the odds are people you know have had similar experiences. Last year, Aware-Milieu found that half of those surveyed in Singapore had experienced some form of discrimination at work, with ageism and sexism taking the second and third spots respectively. Nationality-based discrimination – as opposed to racism per se – took top spot.
Singapore will be addressing this with robust anti-discrimination laws. In its February 2023 interim report, which set out recommendations for those laws, the Tripartite Committee on Workplace Fairness proposed to prohibit workplace discrimination on the basis of (i) age; (ii) nationality; (iii) sex, marital status, pregnancy status and caregiving responsibilities; (iv) race, religion, and language; and (v) disability and mental health conditions – the ‘protected characteristics’.
So far so progressive, but some potential pitfalls need to be addressed.
Drawing the line on discrimination
Let’s first consider the impetus behind anti-discrimination laws.
Life is a series of races, and we all stand at different starting lines. The competition could be for a spot in a good school, or a promotion at work. Our traits, both within and outside our control, will impact how we are assessed.
Anti-discrimination laws function as an external force to correct conscious or subconscious biases.
They are a positive force telling us what not to do. They prescribe characteristics in colleagues or prospective hires which we should be blind to, so that a person is assessed solely on merit.
This ensures equal opportunity, and aims to place us all at the same starting line.
Two recommendations in the interim report invite debate though. Should there be any exceptions to anti-discrimination laws? And is it ever acceptable to give some individuals a headstart over others?
The tripartite committee recommends allowing employers to “discriminate” on a protected characteristic when it is a “genuine and reasonable job requirement”. For example, allowing a spa with predominantly female customers to prefer hiring women spa therapists.
This may not be unreasonable, because anti-discrimination laws should account for business needs. However, what constitutes a “genuine” and “reasonable” job requirement is open to interpretation, and less scrupulous employers could use this exception to game the system.
For example, a racist business owner could hire only Chinese employees as customer relations managers, and argue that this is needed for his Chinese-speaking customers. Similarly, a massage parlour whose male patrons prefer attractive female masseuses could make being young and female a job requirement.
This exception must not become a shield for discriminatory behaviour. What constitutes a “genuine and reasonable job requirement” must be clearly defined and robustly enforced, and businesses relying on this exception should have the burden to prove that it was justified.
Affirmative action: A nicer label for reverse discrimination?
The committee also recommends permitting employers to favour the disabled and seniors (those 55 years of age and older) over equally or even more qualified candidates, if they meet baseline job requirements.
This is a form of affirmative action. Affirmative action has been adopted globally in different forms, but with the same objective – to help traditionally disadvantaged groups by favouring individuals with protected characteristics, levelling them up.
It serves a good intention but must be carefully executed. To start with, does affirmative action have a place in Singapore’s meritocratic society at all?
Meritocracy is the backbone of Singapore’s education system, workforce, and choice of leadership. The Singapore President reiterated this in her recent parliamentary speech, but also alluded to a new meritocratic construct: if meritocracy is there to ensure equal opportunities, then it must be applied more inclusively.
However, the committee’s recommendation would allow an employer to favour a 55-year-old who just meets baseline job requirements, over a 30- or 40-something who far exceeds expectations for the job. This seems to fly in the face of meritocracy.
A more measured alternative could be to mirror the UK Equality Act, which only permits employers to consider protected characteristics in a “tie-breaker” situation, where two individuals are “as qualified” as each other.
The perils of tokenism
Taken too far, affirmative action – where an individual is hired or promoted over a more qualified candidate – could lead to tokenism.
Persons in protected classes could be dismissed as having achieved their success because they have the “protected characteristics”, and not due to their hard work and capabilities. This would discredit and diminish the achievements of those who have the same characteristics, reducing all of them to mere ticked diversity boxes.
This is a point of contention in Singapore’s long-running debate on whether quotas should be set for women in boardrooms, which many female leaders have opposed, saying this reduces them and their peers to token “skirts” in the boardroom. And ironically, affirmative action in favour of age could secure the positions of fusty old men hanging on to their board sinecures, when often they are the ones who are not contributing.
More broadly, tokenism could run counter to the spirit of anti-discrimination laws, which is to encourage assessing individuals for what they contribute. A company making token hires of older or disabled employees without considering their suitability and skills could end up depriving these individuals of the resources they need to be upskilled or integrated into their workplace. This could then perpetuate existing negative biases, and breed resentment.
Affirmative action could also lead to reverse discrimination. This is the case for my friend BL, who works for a large multinational and is resigned to standing less of a chance of getting the promotion he wants – because he is a Chinese male, and not a minority race female. In extreme cases, litigation may ensue where deserving individuals are passed over for jobs and promotions in favour of less capable protected classes. We see this happening in the US and UK.
The bottom line
The call for fairness in the workplace cannot exist in a vacuum. We must consider impact on business costs and productivity. Will the new rules require that a less able senior be paid the same as a more productive co-worker? If so, businesses will be underwriting the economic cost, which will reduce buy-in from the corporate world for a worthy cause.
The lines in Singapore have not been drawn yet, and consultations remain open. Which way should Singapore go with this? There are no easy answers, but we say two things.
First, if employers are allowed to take into account protected characteristics for a “genuine and reasonable job requirement”, then there must be very clear guidelines as to what this means. Unscrupulous employers must not be allowed to game the system.
And second, despite all the potential problems, we can and should have affirmative action for the disabled and seniors. These groups deserve our protection, especially as Singapore’s population ages while life expectancies go up. It must however be implemented carefully, and in a manner which continues to uphold meritocracy.
Easier said than done of course. Singapore needs a new model of meritocracy, but affirmative action must affirm the correct people and values, and be a call to the right sort of action.
The writers are from TSMP Law Corporation. Ian Lim is a partner, and Elizabeth Tan, a senior associate, of the firm.
Source: Business Times © SPH Media Limited. Permission required for reproduction.