Our Thoughts On Section 377A

October 18, 2018

 

The decriminalisation of gay sex between two consenting adult men once again surfaces as a hot-button topic of discussion across the nation after India struck down their Section 377 and Professor Tommy Koh asked the gay community to challenge our own Section 377A again. Since then there have been opinions from religious leaders in Singapore, a new constitutional challenge filed, extensive arguments by former Attorney Generals and a town hall held to rally individuals to speak to their Members of Parliament.

Here at VanillaLaw LLC, our stand is clear – inclusion and diversity is of utmost importance when it comes to creating a workplace environment that is safe, welcoming and ideal for, well, work. No employee can possibly function well if they feel that they have to hide who they are, watch their mannerisms, watch what they say, etc. Can you imagine having to work in a place where your most constant thought is, “I better make sure not to reveal that I am gay because my colleagues and bosses do not like gay people.”? In our community, it’s more important to be open-minded, respectful and willing to have open discussions about our differences.

On the human resources front, diversity and inclusion efforts specifically work to combat any form of discrimination due to gender, age, race, religion, sexual orientation, disability, marital status and disability. A 2018 study shows that while things are improving, more still needs to be done. Workplace discrimination disregards a person’s talents, experiences and skills, which from an employer’s perspective, is human resource suicide. There have been companies that have been boycotted by whole segments of their client base because of open discrimination from the company and/or its leaders on specific sensitive issues.

On the legal front, it is interesting to note that there is no specific part of the Employment Act that actively protects against discriminatory practices. However, the local Ministry of Manpower (MOM) refers to the Tripartite Guidelines on Fair Employment Practices (TAFEP) when it comes to employment discrimination. If any employee experiences employment discrimination, they can contact TAFEP for help. At this stage, the Tripartite Alliance for Dispute Management (TADM) is a possible avenue to see redress. If an employer is “recalcitrant, unresponsive, or persistently fails to improve their employment practices”, TAFEP will refer the case to MOM for further investigation. After the investigation, if the employer is found to have engaged in discriminatory practices, MOM will take the appropriate actions to curtail his/her work pass privileges, with the period of curtailment varying depending on the severity of the case. Read more about it here.

In spite of the above measures that are in place, if we were to look more critically at the realities of the law, two glaring points stand out – a) TAFEP is only consultative and seeks parties to mediate, b) there are presently no specific anti-discrimination law, which makes us wonder if MOM actually has any power to persecute, let alone investigate companies.

At the end of the day, we seek to encourage all employers to implement anti-discrimination policies. These could be in employee handbook or in the terms in the employment agreement.  Business owners should think carefully for themselves about the kind of work environment they want to operate in. Always ask yourself, what is truly best for your business and the people working with and for you?