Rights and obligations of employers: Women in the workplace

Rights and obligations of employers: Women in the workplace

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The legal framework underpinning D&I in Asia has continued to make positive advances. However, there is much more to be done, especially in the areas of anti-harassment & discrimination, pay equity, and gender diversity in the boardroom.

In this article, authors Laure de Panafieu, Head of Asia Employment & Incentives; Samantha Cornelius, Head of Hong Kong Employment & Incentives; and Stephanie Lok, Hong Kong Employment & Incentives Associate - all from Linklaters - summarise the current guidelines, while urging employers to continue strengthening their D&I framework. Read on for the full piece.

Diversity and inclusion (D&I) has become increasingly important in the workplace, reshaping the employment world in recent years.

Across many Asian economies, consumers and employees alike have come to expect a level of recognition and action on gender parity issues. Investors are increasingly assessing companies on D&I metrics, and regulatory developments across the region have heightened the urgency for companies to effectively address gender diversity issues.

Yet gender inequality across Asia’s labour markets remains a persistent trend. Women continue to face a host of challenges relating to wage parity, employment security, working conditions and discrimination. Statistics from Singapore’s Ministry of Manpower indicate that full-time female employees aged 25 to 54 earned 14% less than their male counterparts in 2020, although this had narrowed from 16% in 2018. At the current relative pace, the World Economic Forum estimates that it will take over 100 years to close the gender gap in Asia.

As an increasing number of companies strive to create more diverse and inclusive workplaces, it will be crucial to go beyond being compliant with the relevant local employment, regulatory and remuneration requirements to bring D&I to life and ensure that women are given truly equal opportunities at work and in the boardroom.

Legal framework underpinning D&I in Asia

Countries across Asia Pacific have made some positive advances to strengthen the legal framework around diversity issues to improve gender parity in the workplace, but overall progress has been modest, and the results are uneven. Efforts can be seen on multiple fronts, including legislation to ensure the workplace is free from discrimination and harassment, as well as regulatory guidelines on increasing representation of women on company boards and in managerial roles, but a significant amount of work remains to be done on all of these areas.

Anti-harassment and discrimination

Most jurisdictions in Asia have established some form of protection against workplace harassment towards women. Although not specifically employment-related, Singapore’s Protection from Harassment Act, for instance, lists workplace harassment as an example of unlawful harassment and criminalises sexual harassment.

While there are no specific laws in Singapore which directly regulate workplace discrimination at present, the Singapore Government is expected to enact legislation to enshrine the Tripartite Guidelines on Fair Employment Practices into law and to establish a new tribunal to address workplace discrimination claims. Once enacted, more robust enforcement powers and penalties are expected to ensure compliance with workplace anti-discrimination obligations by employers.

Turning to Hong Kong SAR, the Sex Discrimination Ordinance seeks to render unlawful discrimination on the grounds of sex, marital status, pregnancy or breastfeeding, as well as sexual harassment and harassment of breastfeeding women.

Regulators and policymakers in Hong Kong and across the region are encouraging employers to proactively establish workplace policies and provide anti-discrimination and anti-harassment training. The stark reality, however, is that those issues are still very much prevalent in the workplace and significantly under-reported for fear of retaliation, career limitations and/or inaction.

Pay equity

The World Bank’s Women, Business and the Law 2021 report notes that legally mandating employers to provide men and women who perform work of equal value with the same remuneration is critical to tackling the gender pay gap. Yet fewer than half of economies worldwide have mandated “equal pay for equal work”.

In Hong Kong, it is unlawful to discriminate in the terms and conditions of employment or access to benefits, facilities or services, and employers should maintain the principle of equal pay for equal work. That is, a female employee is entitled to equal pay when she is doing "like work" or the same work as that of a man. Indirect discrimination is also unlawful. For example, if an employer imposes certain requirements before employees are eligible for a benefit and it can be proved that female employees would be less likely to satisfy those requirements, the employer’s policy could be considered discriminatory.

Gender diversity in the boardroom

We have observed a greater commitment from employers and regulators to increasing representation of women on company boards and in managerial roles. With the business case for diversity having now been widely made and accepted, one would expect it to be easier for recalcitrant all-male boards to finally get on “board” the diversity journey. Yet again, the results are still painfully lagging behind, with none of the listed companies in Asia having hit the 20% mark of women on boards in 2021, when their European counterparts were, on average, exceeding a 30% representation.

Without the workplace culture and environments which effectively support and enable women to build a thriving career alongside, and as true equals to, their male colleagues, initiatives by regulators in Asia to impose or recommend gender diversity might end up being quotas or guidelines that are simply missed.

What lies ahead

As a further twist, the COVID-19 pandemic has made the challenge even greater for companies to bridge the gender gap. So for those readers now thinking it’s time to give up, not just yet… Research conducted during the pandemic has demonstrated that women were rated significantly more positively than men in leadership effectiveness during this crisis, not just on the soft interpersonal skills (e.g. “inspires and motivates”, “communicates powerfully” and “collaboration/teamwork”) but also on the hard business competencies (e.g. “champions change”, “makes decisions”, “takes initiatives” and “drives for result”).

The answer is therefore not to give up, but to plough on.

The good news is that corporate leaders can undertake a series of workplace policy changes to forge a stronger, long-term commitment to diversity. This should include setting a D&I strategy, identifying priorities and actionable D&I targets, and being transparent about D&I disclosures and progress, to engage the workforce and bring it to life.

Photo / 123RF

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