Proposed workplace fairness legislation in Singapore leaves LGBTQI+ employees unprotected

Remy Choo
Remy Choo Chambers, Singapore
remy.choo@rclc.com.sg

Donaven Foo
Remy Choo Chambers, Singapore
donaven.foo@rclc.com.sg

Introduction

The Singapore government has recently announced that it will introduce a workplace anti-discrimination legislation in Parliament in the second half of 2024. Unfortunately, the proposed anti-discrimination legislation excludes prohibitions against discrimination on the basis of sexual orientation, gender identity, gender expression and sex characteristics (SOGIESC).

The current state of workplace discrimination protections under Singapore Law

At present, Singapore does not have workplace anti-discrimination legislation. The current framework for anti-discrimination safeguards takes the form of non-binding guidelines to encourage employers to adopt fair and merit-based employment practices. These guidelines are known as the Tripartite Guidelines on Fair Employment Practices (‘Fair Employment Guidelines’).

While the Fair Employment Guidelines broadly prohibit all workplace discriminatory policies and practices by employers, it only expressly enumerates the following six categories of characteristics where workplace discrimination is impermissible: (1) age; (2) race; (3) gender; (4) religion; (5) marital status and family responsibilities; and (6) disability.

At present, workplace discrimination based on SOGIESC is not expressly proscribed under the Fair Employment Guidelines, although statements by ministers in Parliament, as well as the preamble to the Fair Employment Guidelines, suggest that the principles of non-discrimination are non-exhaustive and universal – that is, all workplace discrimination, including discrimination based on SOGIESC, would be impermissible under the Fair Employment Guidelines.

The Fair Employment Guidelines do not have the force of law, but employers who engage in discriminatory practices in the workplace may be liable to administrative penalties levied against them by Singapore’s Ministry of Manpower, such as being debarred from hiring foreign employees.

Proposed workplace fairness legislation

The Singapore government has committed to introducing workplace anti-discrimination legislation (currently known as the ‘Workplace Fairness Legislation’) in Parliament by the second half of 2024. The proposed Workplace Fairness Legislation, in contradistinction to the Fair Employment Guidelines, is expected to provide employees with specific causes of action and access to damages for workplace discrimination. It is also anticipated that the Workplace Fairness Legislation will provide specific enforcement mechanisms for the Government to impose penalties for companies that engage in Workplace Discrimination.

Disappointingly, workplace discrimination on the basis of SOGIESC will not be covered under the proposed Workplace Fairness Legislation and, instead, will have to be dealt with under the existing non-binding Fair Employment Guidelines.

The Workplace Fairness Legislation will prohibit discrimination in the workplace in respect of the following characteristics (collectively, the ‘protected characteristics’): (1) age; (2) nationality; (3) sex; marital status, pregnancy status and care-giving responsibilities; (4) race, religion and language; and (5) disability and mental health conditions. These largely mirror the six specifically enumerated categories under the Fair Employment Guidelines. The Fair Employment Guidelines will continue to apply to all workplace discrimination not covered by Workplace Fairness Legislation.

Calls for reconsideration

LGBTQI+ groups in Singapore (such as Q Chamber) have argued that limiting the protections afforded by the upcoming anti-discrimination legislation to the categories of protected characteristics suggested is under-inclusive, and they have called for SOGIESC to be included as one of the protected characteristics.

It is hoped that such calls will be heeded when the draft legislation is eventually introduced by the government in Parliament. This could be achieved either through having a universal prohibition on workplace discrimination, as in the case of Malaysia, or specifically having SOGIESC as one category of protected characteristics, similar to legislative protections in Taiwan.