According to a 2022 survey by AWARE and Milieu Insights, almost 7 in 10 LGBTQ+ respondents have experienced workplace discrimination. This article explains what legal recourse you may have if you have been subject to discrimination or harassment at the workplace.  

What is discrimination?  

Legally speaking, discrimination refers to a situation where a person is treated worse than others because of a protected characteristic. Such protected characteristics can include race, religion, sex, disability, sexual orientation and gender identity. 

There are a few ways by which a person may be treated worse than others: direct discrimination and indirect discrimination. 

Direct discrimination refers to the situation where an employer, A, intentionally treats an employee, B, worse than other employees because of a protected characteristic. In most cases, A’s discrimination is because B has the protected characteristic. For example, after A discovers that B is gay, A decides to exclude B from work meetings because A is uncomfortable with gay people.

Sometimes, B may not actually be gay or transgender. However, A may have thought that B is gay or transgender. This is known as discrimination by perception. For example, an employer may assume (wrongly) that a woman who is more masculine-presenting is lesbian and discriminate against her on the basis of her sexual orientation. 

In other cases, B may not be gay or transgender, but is associated with someone who is gay or transgender. For example, B may be the parent of a gay person who is a proud ally of their child. Their employer, A, may consider B’s acceptance of B’s child to be immoral and terminate B’s employment for that reason. This would constitute discrimination by association.

Indirect discrimination happens when the employer implements a policy or practice that applies to all employees but disproportionately affects those with a particular protected characteristic. In this case, the employer may not intend to discriminate against these employees but the result of the policy or practice is still discriminatory.

For example, an employer adopts a dress code policy that requires all employees to wear uniforms that align with their legal gender marker. A trans man is required to dress according to the women’s dress code, which conflicts with his gender identity. Even though the dress code policy applies equally to all employees, it disproportionately disadvantages employees who are transgender. 

What does Singapore law say about workplace discrimination? 

In August 2021, the Singapore Government announced that it would enact a new Workplace Fairness Legislation (WFL) which would prohibit discrimination at the workplace. However, based on the final report of the Tripartite Committee on Workplace Fairness (TCWF), the WFL is not expected to recognise sexual orientation or gender identity as protected characteristics. It would also not prohibit indirect discrimination, or discrimination by association or perception. The Singapore Government has fully accepted the recommendations set out in the TCWF’s final report.

The Tripartite Guidelines on Fair Employment Practices(TGFEP) also set out best practices that employers should adhere to. According to the TGFEP, employers must recruit and select employees on the basis of merit (such as skills, experience or ability to perform the job), and regardless of age, race, gender, religion, marital status and family responsibilities, or disability. Though sexual orientation and gender identity are not explicitly referenced in the TGFEP, the TCWF have confirmed that the TGFEP provide protection against “all forms of workplace discrimination”. Workplace discrimination on the basis of their sexual orientation or gender identity would therefore be prohibited by the TGFEP.

In addition to the TGFEP, the Tripartite Guidelines on Wrongful Dismissal (TGWD) state that dismissing an employee because of discrimination is wrongful. This would include discrimination on the basis of sexual orientation or gender identity. 

What should I do if I have been discriminated against? 

If you have faced workplace discrimination, there are a few options you can pursue. 

Claim for wrongful dismissal

If you have been dismissed because of your sexual orientation or gender identity, this constitutes wrongful dismissal. 

You can file a claim for wrongful dismissal with the Tripartite Alliance for Dispute Management (TADM). TADM will assist you with mediating the dispute with your employer. Find out more about the process here: https://www.tal.sg/tadm/getting-started

If you are not able to resolve the dispute with your employer at the TADM through mediation, you may receive a Claim Referral Certificate which would entitle you to file a claim with the Employment Claims Tribunal (ECT). Parties cannot be represented by lawyers in ECT proceedings and the maximum claim amount is $30,000 if you have attempted mediation before filing your claim with the ECT. You can read more about the ECT here: https://www.judiciary.gov.sg/docs/default-source/civil-docs/ect_guide.pdf.

Alternatively, if your claim exceeds the ECT claim limit of $30,000, you can file your claim for wrongful dismissal with the civil courts. You should consult a lawyer who can advise you further on the next steps. 

Claim for breach of implied term of mutual trust and confidence

Under Singapore law, the courts recognise that employers and employees owe each other a duty of mutual trust and confidence (unless parties expressly exclude such a duty in the employment contract). Both parties should therefore not act in a way that damages or destroys this relationship of mutual trust and confidence. 

This duty of mutual trust and confidence may include:

● a duty to behave with civility and respect;

● a duty to redress complaints of discrimination or provide a grievance procedure; and

● a duty not to behave in an intolerable or wholly unacceptable way. 

Depending on the facts, curtailment of an employee’s job role because of their sexual orientation or gender identity may amount to a breach of this duty. If the employee had suffered losses because of the breach, they will also be able to claim damages. For instance, damages have been awarded for recognised psychiatric illnesses and damage to reputation.

You would need to file your claim in the Singapore courts and should consult a lawyer who can advise you further on the next steps. 

File a complaint with TAFEP

The Tripartite Alliance for Fair Employment Practices (TAFEP) can provide advice and assistance if you have experienced workplace discrimination. You can contact TAFEP by filling in this form: https://www.tal.sg/tafep/contact-us#workplace-practices.  

Depending on the nature of the case, TAFEP may contact you for more information before reaching out to your employer to conduct further investigations. TAFEP may work with the employer to improve their employment practices. If the employer has breached the Tripartite Guidelines on Fair Employment Practices (TGFEP), TAFEP may escalate the case to the Ministry of Manpower (MOM). MOM may impose administrative penalties on errant employers, such as work pass debarment. 

Written by Daryl Yang, Same But Different Volunteer.