MGT 305-Job Discrimination

MGT 305 (ASSIGNMENT 3)
Question:
Describe job discrimination in detail and offer a critical commentary on it.
Page 1 of 16
“Discrimination”, according to the dictionary discrimination means treatment or

consideration of, or making a distinction in favour of or against, a person or thing based in
the group, class, or category to which that person or thing rather than on individual merit.
This is similar to favouritism; people tend to have a particular personal preference towards
everything. Discrimination happens to almost everyone and everything. Direct discrimination
happens when an employer treats an employee less favorably than someone else due to
personal likings. For example job for drivers are always open to male applicants.
Indirect discrimination is when a working condition or rule disadvantages one group of

people more than another. For example, saying that applicants for a job must be clean shaven
puts members of some religious groups at a disadvantage.
Indirect discrimination is unlawful, whether or not it is done on purpose. It is only allowed if

it is necessary for the way the business works, and there is no other way of achieving it. For
example, the condition that applicants must be clean shaven might be justified if the job
involved handling food and it could be shown that having a beard or moustache was a
genuine hygiene risk.
In Malaysia, discrimination such as age, race and religion, disability, and gender happens
widely. With these issues happening in a workplace it is rather difficult to nurture a
cooperative and comfortable working environment. I will be discussing about these issues
and further making suggestions on how and what can we improve the current society.
A good working environment helps motivate to maintain and participate in group activities,
not only on job but also socializing. Employees need to feel that they are significant in the
company, they too want their hard work to be appreciated and also the sense of security in the
job, with that loyalty builds. Pride in one’s work is expressed through competition with other
parallel sections in the company and between one’s company and other companies in the
Page 2 of 16
similar line. I personally think that bosses play an important role in creating loyalty.
Demanding but concern bosses are more likely to be chosen over less demanding but
performance oriented bosses. Bosses must not practice intentional discrimination which will
bring negative influence into the working environment. Personal preference or preferential
treatments are not permitted in a healthy working environment. It is rather impossible to
nurture a healthy working environment with discrimination. In terms of hiring, firing,
promotion, training and other terms equitable opportunity is crucial. Discrimination in these
may provoke controversies. There are limited circumstances in which an employer might be
able to make a case for a real occupational requirement for a job. For instance, religious
schools may be restricted to applicants of the same religion.
In Malaysia, discrimination is practiced openly because there is no Act that prohibits

harassment and intentional discrimination in the workplace. Entities tend to employ
candidates who are of the same race and religion or the similar age group or other criteria
depending on the employer’s preference. Malaysia should draw an Act to address to the
situation. For example Section 1981 of the U.S. Code provides additional federal remedies to
deter harassment and intentional discrimination in the workplace.
Page 3 of 16
Age Discrimination
The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are
40 years of age or older from employment discrimination based on age. The ADEA’s
protections apply to both employees and job applicants. Under the ADEA, it is unlawful to
discriminate against a person because of his/her age with respect to any term, condition, or
privilege of employment, including hiring, terminating, promoting, laying off, compensation,
benefits, job assignments and training1.
It is also unlawful to retaliate against an individual for opposing employment practices that
discriminate based on age or for filing an age discrimination charge, testifying, or
participating in any way in an investigation, proceeding, or litigation under ADEA. The
ADEA applies to employers with 20 or more employees, including state and local
government. It also applies to employment agencies and labour organizations, as well as to
the federal government2.
The ADEA generally makes it unlawful to include age preferences, limitations, or

specifications in job notices or advertisements. A job or advertisement may specify manage
limit only in the rare circumstances where age is shown to be a “bona fide occupational
qualification” (BFOQ) reasonably necessary to the normal operation of the business3.
The ADEA does not specifically prohibit an employer from asking an applicant’s age or date
of birth, however, because such inquiries may deter older workers from applying for
employment or may otherwise indicate possible intent to discriminate based on age, requests
for age information will be closely scrutinized to make sure that the inquiry was made for a
lawful purpose, rather than for a purpose prohibited by the ADEA4.
1
http://www.dol.gov/dol/topic/discrimination/agedisc.htm
2
3
4
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The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to
specifically prohibit employers from denying benefits to older employees. Congress
recognized that the cost of providing certain benefits to older workers is greater than the cost
of providing those same benefits to younger workers, and that those greater costs would
create a disincentive to hire older workers. Therefore, in limited circumstance, an employer
may be permitted to reduce benefits based on age, as long as the cost of providing the
reduced benefits to older workers is the same as the cost of providing benefits to younger
workers5.
5
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Race Discrimination
It is unlawful to discriminate against any employee or applicant for employment because of

his/her race or colour in regard to hiring, termination, promotion, employee benefits or any
other terms and condition, or privilege of employment6. It is unlawful to discriminate against
any employee or applicant because of the individual's national origin. No one can be denied
equal employment opportunity because of birthplace, ancestry, culture, or linguistic
characteristics common to a specific ethnic group. Equal employment opportunity cannot be
denied because of marriage or association with persons of a national origin group;
membership or association with specific ethnic promotion groups; attendance or participation
in schools, churches, temples or mosques generally associated with a national origin group;
or a surname associated with a national origin group.
Title VII of the Civil Rights Act of l964 protects individuals against employment
discrimination on the basis of national origin as well as race, colour, religion and sex.
Discrimination on the basis of an immutable characteristic associated with race, religion such
as skin colour, hair colour/texture or certain facial features amounts to discrimination, even
though not all members of the race share the same characteristics. This act has violated The
State’s the Civil Rights Act of 1964. The Act prohibits discrimination on the basis of a
condition which predominantly affects one race unless the practices the practice is job related
and consistent with business necessity7.
Racial slurs, racial jokes, offensive or derogatory comments, and other verbal and physical
conduct based on an individual’s race/colour constitutes unlawful harassment if the conduct
6
http://employment.findlaw.com/employment/employment-employee-discrimination-
harassment/employment-employee-race-discrimination-top/employment-employee-race-
discrimination-facts.html 23th January 2010
7
discrimination-facts.html 25th January 2010
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creates an intimidating, hostile, or offensive working environment, or interferes with the

individual’s work performance.
When minority employees are segregated by physically isolating them from other employees
or from customer contact discrimination happens. The Act prohibits assigning primarily
minorities to predominantly minority establishments or geographic areas8. It is also illegal to
exclude minorities from certain positions or to group or categorize employees or jobs so that
certain jobs are generally held by minorities. Coding applications/resumes to designate an
applicant’s race, by either an employer or employment agency, constitutes evidence of
discrimination where minorities are excluded from employment or from certain positions.
Requesting pre-employment information which discloses or tends to disclose an applicant’s

race suggests that race will be unlawfully used as a basis for hiring. Solicitation of such pre-
employment information is presumed to be used as a basis for making decisions. Therefore, if
member of minority likely to constitute evidence of discrimination. However, employers may
legitimately need information about their employees’ or applications’ race for affirmative
action purposes and/or to track applicant flow. One way to obtain racial information and
simultaneously guard against discriminatory selection is for employers to use “tear-off
sheets” for the identification of an applicant’s race. After the applicant completes the
application and the tear-off portion, the employer separates the tear-off race. After the
applicant completes the application and does not use it in the selection process9.
Malaysia should have an employment discrimination law seek to prevent discrimination

based on race, sex, religion, national origin, physical disability, and age by employers. A
growing body of law also seeks to prevent employment discrimination based on sexual
orientation. Discriminatory practices include bias in hiring, promotion, job assignment,
termination, compensation, retaliation, and various types of harassment.
8
discrimination-facts.html
9
discrimination-facts.html
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An employer must show a legitimate non-discriminatory reason for the denial of employment
opportunity because of an individual's accent or manner of speaking. Investigations will focus
on the qualifications of the person and whether his or her accent or manner of speaking had a
detrimental effect on job performance. Requiring employees or applicants to be fluent in
English may violate Title VII if the rule is adopted to exclude individuals of a particular
national origin and is not related to job performance10.
Harassment on the basis of national origin is a violation of Title VII. An ethnic slur or other
verbal or physical conduct because of an individual's nationality constitute harassment if they
create an intimidating, hostile or offensive working environment, unreasonably interfere with
work performance or negatively affect an individual's employment opportunities.
Employers have a responsibility to maintain a workplace free of national origin harassment.

Employers may be responsible for any on-the-job harassment by their agents and supervisory
employees, regardless of whether the acts were authorized or specifically forbidden by the
employer. Under certain circumstances, an employer may be responsible for the acts of non-
employees who harass their employees at work.
10
harassment/employment-employee-national-origin-discrimination-top/
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Disability Discrimination
Disability discrimination occurs when an employer or other entity covered by the Americans
with Disabilities Act, as amended, or the Rehabilitation Act, as amended, treats a qualified
individual with a disability who is an employee or applicant unfavourably because she has a
disability. Disability discrimination also occurs when a covered employer or other entity
treats an applicant or employee less favourably because she has a history of a disability (such
as cancer that is controlled or in remission) or because she is believed to have a physical or
mental impairment that is not transitory (lasting or expected to last six months or less) and
minor (even if she does not have such an impairment)11.
The law requires an employer to provide reasonable accommodation to an employee or job

applicant with a disability, unless doing so would cause significant difficulty or expense for
the employer (undue hardship)12. The law also protects people from discrimination based on
their relationship with a person with a disability (even if they do not themselves have a
disability). For instance, discrimination against employee due to their spouse’s disability is
illegal.
In Malaysia, there should be laws to forbid discrimination when it comes to any aspect of
employment, including firing, hiring , pay, job assignments, promotions, layoff, training ,
fringe benefits, and any other term or condition of employment. It is illegal to harass an
applicant or employee because of his disability, had a disability in the past, or is believed to
have a physical or mental impairment13. Being a disable is already unfortunate, if being
discriminated it will bring more mental stress on the applicant. Harassment can include, for
example offensive marks about a person’s disability. Although the law doesn’t prohibit
simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment
is illegal when it is so frequent or severe that it creates a hostile or offensive work
11
http://www.eeoc.gov/laws/types/disability.cfm
12
13
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environment or when it results in an adverse employment decision (such as the victim being
fired or demoted)14.
14
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Gender discrimination
The United Nations Committee on the Elimination of Discrimination against Women

(CEDAW), an expert body established in 1982, is composed of 23 experts on women's issues
from around the world15.
The Committee's mandate is very specific: it watches over the progress for women made in
those countries that are the States parties to the 1979 Convention on the Elimination of All
Forms of Discrimination against Women. A country becomes a State party by ratifying or
acceding to the Convention and thereby accepting a legal obligation to counteract
discrimination against women. The Committee monitors the implementation of national
measures to fulfil this obligation.
At each of its sessions, the Committee reviews national reports submitted by the States
parties within one year of ratification or accession, and thereafter every four years. These
reports, which cover national action taken to improve the situation of women, are presented
to the Committee by Government representatives. In discussions with these officials, the
CEDAW experts comment on the report and obtain additional information. This procedure of
actual dialogue, developed by the Committee, has proven valuable because it allows for an
exchange of views and a clearer analysis of anti-discrimination policies in the various
countries16.
The Committee also makes recommendations on any issue affecting women to which it
believes the States parties should devote more attention. For example, at the 1989 session, the
Committee discussed the high incidence of violence against women, requesting information
on this problem from all countries. In 1992, the Committee adopted general recommendation
19, which requires national reports to the Committee to include statistical data on the
incidence of violence against women, information on the provision of services for victims,
15
http://www.un.org/womenwatch/daw/cedaw/committee.htm
16
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and legislative and other measures taken to protect women against violence in their everyday
lives, such as harassment at the workplace, abuse in the family and sexual violence. As of the
end of 2007, the Committee has issued 25 general recommendations17.
As modern society has made clear, women have the ability to perform with equal skill and
success in virtually every endeavour engaged in by men -- including employment, athletics,
academics and politics. Yet discrimination on the basis of sex has a long history in the United
States, and its residual effects still operate to keep women's salaries lower and opportunities
fewer in the employment realm. Although less common, men too can be subjected to
unlawful sex discrimination. No matter what form it takes -- unequal pay, discriminatory job
standards, or failure to promote -- numerous federal and state laws prohibit discrimination on
the basis of sex18.
The essence of sex discrimination is unequal treatment on the basis of sex. The treatment
must not simply be different, but also unequal, and therefore unfair. For example, requiring
women and men to use separate restrooms does not constitute sex discrimination. But it is sex
discrimination to provide different working conditions, salaries, hiring, promotion or bonus
criteria to women and men. A unique form of sex discrimination is sexual harassment.
Women and men have the right to secure and perform their jobs free of unwanted demands
for romantic or sexual relationships, or unwanted communications or behaviours of a sexual
nature that interfere with their ability to work19.
Workplace harassment is another form of unlawful discrimination. Employers must not only
grant women and men equal pay and opportunities, they must also remedy any sexual
harassment situations that are known, or of which the employer should be aware. This
includes both harassment of lower-tier employees by a manager or executive of lower
17
18
harassment/employment-employee-sex-discrimination-top/employment-employee-sex-
discrimination-overview.html
19
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position, and sexual harassment among co-workers. Harassment involves unwanted sexual
advances, requests for sexual favours, and other verbal or physical conduct of a sexual nature.
It is illegal for an employer to make sexual conduct a condition or term of employment, to
base employment decisions on such conduct, or to permit sexual conduct that unreasonably
interferes with an employee's work performance or creates an intimidating, hostile or
offensive work environment. Lewd comments, unwanted touching, displays of sexual objects
or photographs, or offensive cartoons or drawings may constitute sexual harassment when
they interfere with an individual's work performance20.
In Malaysia, sexual or gender discrimination is practiced widely. As seen in hiring

advertisements, it is clearly stated that a specific gender is preferred for the position. That is
discrimination.
Wage disparities exist in American society. It has been reported that the typical American
working woman is paid 71 cents for each $1 earned by a man. The largest gap is with black
and Hispanic women, who, according to U.S. Census figures, earn 64.2 percent and 53.4
percent, respectively, of what men do.
The federal Equal Pay Act (EPA) prohibits covered employers with two or more employees
from paying unequal wages to male and female employees who perform substantially the
same jobs. For example, a major university was ordered to pay 117 women an award of $1.3
million after a federal court judge ruled that the university paid less money to women on the
faculty than to men in comparable posts21.
While the EPA and the Civil Rights Act of 1964 both prohibit sex discrimination in the
workplace, the EPA applies only to wage inequities between the sexes. Under the Equal Pay
Act, employers are barred from paying women less than men if they are working on jobs that
20
21
http://public.findlaw.com/bookshelf-working-woman/wmnchp4_a.html
Page 13 of 16
require equal skill, effort, and responsibility, and if those jobs are performed under similar
working conditions. This includes everyone from hourly workers to salaried employees
engaged in executive, administrative, and professional functions, such as teachers. The courts
have held that the jobs need not be identical, only "substantially equal." Further, an employer
may not retaliate against a female worker, such as by firing her, because an EPA charge was
initiated22.
Fringe benefits are included in the definition of wages under the law. Thus, employers may
not differentiate with items such as bonuses, expense accounts, profit-sharing plans, or leave
benefits. Under EPA, it is not a defence to a charge of illegality that the costs of such benefits
are greater with respect to women than to men since the law is designed to ensure that women
do not receive lower salaries and benefits than their male counterparts23.
A female worker may seek damages in federal or state court or through the Equal
Employment Opportunity Commission (EEOC), and may obtain a trial by jury when
asserting an EPA violation. Successful litigants are entitled to recover retroactive back pay,
liquidated damages, reasonable attorney fees, and costs. If wilful violations (defined as
reckless disregard for the law) are found, double back pay may be awarded. Employers are
obligated to maintain and save records documenting wages and benefits paid to all
employees. If a complainant shows that she is working in the same place, doing equal work
under similar working conditions, and being paid less than employees of the opposite sex, the
burden shifts to the employer to show an affirmative defence that any wage difference is
justified by a permitted exception. Practices that perpetrate past sexual discrimination are not
accepted as valid affirmative defences24.
To avoid charges of EPA violations, employers are instructed to prepare precise job
descriptions that demonstrate different duties and job responsibilities for different pay. When
offering jobs with different salaries and benefits, companies are instructed to assign those
22
23
24
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higher-paying jobs on the basis of factors such as technical skills, additional education, work
experience, and knowledge required, rather than sex.
For example, in one case, a university wanted to hire a black male assistant professor for a
position with a salary ceiling of $28,000 per year. When the applicant asked for more, the
university offered him the job at $40,000 per annum. A female white assistant professor who
was also hired at the same time at an annual salary of $28,000 filed a lawsuit.
The university argued that the black professor was paid a higher salary because it needed to
hire minorities as part of its affirmative action program. The court ruled that the university
violated the law. It found that the two professors had comparable skills and were hired at the
same time to do the same job. Offering the minority professor a salary that exceeded the
established salary range violated the EPA, with no exceptions. Being denied equal pay
because you are married, have children, or are a victim of gender-based stereotypes violates
the law25.
25
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Conclusion
Discrimination means treating some people differently from others. It is not always unlawful
however there are certain reasons that an employer cannot discriminate against the employee.
Equal opportunities laws aim to create a level playing field so that people are employed, paid,
trained and promoted only because of their skills, abilities and how they do their job.
Discrimination happens when an employer treats one employee less favourably than others. It
could mean a female employee being paid less than a male colleague for doing the same job,
or a minority ethnic employee being refused the training opportunities offered to white
colleagues.
Malaysia should have an employment discrimination law seek to prevent discrimination

based on race, sex, religion, national origin, physical disability, and age by employers. A
growing body of law also seeks to prevent employment discrimination based on sexual
orientation. Discriminatory practices include bias in hiring, promotion, job assignment,
termination, compensation, retaliation, and various types of harassment.
Page 16 of 16

MGT 305-Job Discrimination

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MGT 305 (ASSIGNMENT 3)

Describe job discrimination in detail and offer a critical commentary on it.

“Discrimination”, according to the dictionary discrimination means treatment or

Indirect discrimination is when a working condition or rule disadvantages one group of

Indirect discrimination is unlawful, whether or not it is done on purpose. It is only allowed if

In Malaysia, discrimination is practiced openly because there is no Act that prohibits

The ADEA generally makes it unlawful to include age preferences, limitations, or

It is unlawful to discriminate against any employee or applicant for employment because of

creates an intimidating, hostile, or offensive working environment, or interferes with the

Requesting pre-employment information which discloses or tends to disclose an applicant’s

Malaysia should have an employment discrimination law seek to prevent discrimination

Employers have a responsibility to maintain a workplace free of national origin harassment.

The law requires an employer to provide reasonable accommodation to an employee or job

The United Nations Committee on the Elimination of Discrimination against Women

In Malaysia, sexual or gender discrimination is practiced widely. As seen in hiring

Malaysia should have an employment discrimination law seek to prevent discrimination

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