The pregnant woman recently concluded her employment contract and had been on her feet to secure a job ever since. Unfortunately, despite attending many interviews, she was not offered any jobs due to being pregnant.
I’m now 5 months pregnant. The delivery is due in November. Even for part-time jobs, people don’t want to hire me because I’m pregnant. – An expectant mother who sought help.
The refusal of employers to hire pregnant women is not alien in Malaysia. In 2011, Noorfadila was awarded RM300,000 in damages for the breach of constitutional rights to gender equality under Article 8(2) of the Federal Constitution.
The landmark win for Noorfadila stemmed from Hulu Langat Education District Office revoking her job offer as a temporary teacher in a government school. Despite government servants being protected under the constitution, Noorfadila is yet to receive her compensation.
The defendant appealed against the damages awarded to Noorfadilla and the hearing of her case has been delayed since 2016.
Undeniably the ruling sparked hope for zero-tolerance policies on discriminating against employment opportunities for expectant mothers. However, women who are working with private entities remain unprotected.
It was in 2012 when May Lee, 36, lost her job due to her second pregnancy. May was due to join her new company in a few months but they discovered that she was pregnant. She declared this to the HR personnel in advance, but the response she received from the personnel was dismaying.
Sorry to inform you that our Management has decided not to proceed with the offer. – Text message received by May Lee
May Lee proceeded to file a complaint to the Industrial Relations Office and was offered RM 10,000 by the company. Instead of blindly accepting the money, she decided to fight on and subsequently filed a Civil Suit at the Magistrate Court.
I felt ‘degraded’ by the way the entire situation was handled. As a working professional who is always committed and delivers on professionalism, and at that time, being at the peak of my career, I felt that accepting the monetary compensation would imply an ‘acceptance of the discriminative situation’ (and more people may eventually face the same situation in the future). – May Lee, survivor of pregnancy discrimination
A similar provision of legal protection on pregnancy discrimination in the Employment Act 1955 is not available for the private sector.
Unfortunately, there was no legal protection on pregnancy discrimination in the Employment Act 1955 for the private sector. This protection is only made available for the public sector, as outlined in our Constitution Article 8(2).
The only thing I hung on to was that Malaysia is a signatory to the Convention on the Elimination of All Form of Discrimination Against Women (CEDAW). That wasn’t enough for me to win my case in court. I had lost my legal battle. – May Lee, survivor of pregnancy discrimination
Unnecessary Line Of Questioning
Sometimes, pregnancy discrimination can take a more subtle tone. At least 40% of women in 2016 were asked questions pertaining to their future pregnancy during their job interview.
It is 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. – Sumitra Visvanathan, Women’s Aid Organisation executive director
In response to the act of refusing pregnant employers a job, we reached out to Human Resources personnel who shared some companies’ stances on hiring pregnant or soon-to-be pregnant candidates.
Yes, it will cause a mild HR headache because we would need to plan for replacement when the employee goes on leave. But if the candidate is right for the job, the skill she brings will far outweigh the days she will be on maternity leave. It comes down to merit, experience and skill. – A HR personnel at a multinational company
There are also circumstances that major companies look into before deciding to hire an expectant mother.
If the candidate is visibly pregnant, sometimes it depends on the role and if there is a major deliverable or project going live that happens at the same time she will be on leave, then we will need to consider that. – A HR personnel at a multinational company
But discriminating against pregnant mothers during the hiring process is only the start.
A survey carried out by the Women’s Aid Organisation (WAO) in 2016 found that the top five ways employers discriminate against pregnant women include making their positions redundant, denying them promotions, placing them on prolonged probation, demoting them and the worst is terminating them.
History Of Pregnancy Leaving A Dent On Performance Appraisal
I was supposed to be promoted to E1 position in 2004-2005 but instead I got promoted in 2008. Once, I had an Indian manager. I asked him to justify his reason for not promoting me and he claimed it was because of the company’s quota (the company’s policy only allows every department to promote 20 percent of its employees annually).
But what made me angry was when he said that the second reason was because I fell pregnant every year (in 2002, 2004 and 2005). – Ms Nor, an engineer who was denied promotion
Women in Malaysia are long held back from career progression due to family-related barriers and sexist performance appraisal practices.
WAO’s survey found that 31% of respondents reported that women’s opportunities and chances to join new projects have been affected following maternity leave. Another 27% of women were subjected to comments or questions about their abilities while on the job during their pregnancy.
There have also been instances when women are penalised based on the assumption that having more children distracts them from their professional life.
The sexist outlook has deterred at least 57% of Malaysian women from re-entering the job market following maternity leave.
Our Federal Constitution and the Convention on the Elimination of All Forms of Discrimination against Women (Cedaw) prohibits gender discrimination. When employers penalise women for having children, they are violating women’s 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 Visvanathan, WAO executive director
A woman should be free to choose if and when to have children. She should not have to fear losing her job because she has a baby. – Sumitra Visvanathan, WAO executive director
At least 49% of women in the workforce feared losing their jobs or being sidelined because of their pregnancy. To some, it was a fear that came true.
A former Malaysia Airlines flight stewardess, Beatrice Fernandez was fired after she became pregnant and refused to resign. However, she lost the battle as private companies are not held liable for breach of constitutional rights.
A recent example is in October 2022. A local parental media outlet, theAsianParent, published an anonymous confession on their Facebook page of a woman who was fired from her job because her employer could not pay her while she was on maternity leave.
At a time when the priority of a new mother is to recuperate, being hit by termination or being fired from a job only adds to their stress.
My boss sent me a WhatsApp message yesterday night, it was painful to read. He apologised and said he had to let me go from my work, reason being that he did not have enough backup staff while I’m on leave, and two months is way too long. – Anonymous post on theAsianParent Facebook page
For now, the instances of pregnancy discrimination amongst employees in the private sector may have a case under the principles of unfair dismissal. However, most pregnancy discrimination cases are swept under the rug as only 13% have reported, complained or taken action against their employers.
Recent Developments On Workplace Gender Equality
In March 2022, Malaysia passed amendments to the Employment Act 1955. Some of the notable changes include the restrictions on the termination of pregnant women in a move to improve gender equality and more family-friendly policies in the workplace. The amendments will take full force in January 2023.
The amendments are the fruits of the labour of a long-term collaboration between May Lee and WAO since 2016. After a lunch session with the executive director of WAO, Sumitra, the WAO team and May Lee laid the foundation to raise awareness of pregnancy and workplace discrimination.
But, to May Lee, there’s more to be done as the amendments would only help pregnancy discrimination that leads to terminating women in the workforce.
There are many more women who have been revoked from employment or were not hired due to their pregnancy.
There have been cases of women who have had their job offers retracted once they’d informed their prospective employers that they were pregnant. – May Lee, a victim of pregnancy discrimination
The Employment Act amendments also extend female employees’ maternity leave from 60 to 98 days – in line with the International Labour Organisation (ILO). It also sees the approval of 7-day paid paternity leave for married male employees for each confinement, up to a total of five confinements.
However, the supposed move in the right direction may lead to more rampant workplace discrimination against women.
The Malaysian Employers’ Federation (MEF) has long pushed back on such initiatives, citing the potential costs borne by employers. Firms do this by choosing not to hire married or pregnant women (or women in general) or choose not to retain or promote them. – Lee Min Hui, an analyst at the Institute of Strategic and International Studies (ISIS) Malaysia
Without proper implementation of the amendments on the ground to support workplaces, women would only be penalised further for their personal choices of venturing into motherhood.
The amendments to the Employment Act 1955 also lack the necessary provisions to prevent pre-employment discrimination. Jobseekers, especially women, are at a disadvantage when perceived as “assuming” caregiving responsibilities later in their career. – Lee Min Hui, an analyst at the Institute of Strategic and International Studies (ISIS) Malaysia
The journey to put a stop to pregnancy discrimination in the workplace is far from over. The amendments that emphasise on gender equality in the workplace could work on paper.
However, it needs reinforcement in terms of reducing the caregiver burden on women, especially in the private sector and most importantly, the long-standing patriarchal stereotypes in society on the role women play.
We have a part to play in ensuring that pregnancy discrimination or unfair dismissal at the workplace should be highlighted.
If you or your loved ones faced pregnancy or other forms of gender discrimination, or unfair dismissal at the workplace, reach out to the Labour Department (Jabatan Tenaga Kerja) at 03-8000 8000 or firstname.lastname@example.org.
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