☠️ Is your workplace discriminatory or toxic? We ask an employment lawyer

🙅 “The vibes are off” is not enough

Nearly one in three young adults has witnessed or experienced discrimination at the workplace, according to a recent survey by The Straits Times and market research company Kantar.

This is a worrying statistic. It’s common to come across casual comments or behaviour which seem “off” at work, but how do we know if they cross the line to become discriminatory?

Ian Lim, head of employment law at TSMP Law, tells thrive that certain comments at work are clearly discriminatory, regardless of context. Some examples of statements that clearly signal discrimination in the workplace are:

• “I do not want to work with or employ people from a certain race/country because I know they are less capable than others.”

• “I do not want people of a particular religion in my team.”

• “Anyone over 50 years of age will have poor information technology skills and be slow to learn. They’re going to be a burden to the team.”

• “Since you are a young woman who’s just gotten married, how many children do you plan to have? I need to understand whether you will perpetually be on maternity leave.”

But what about encounters that may not be so explicit? Lily (not her real name), 25, who works in a multinational media corporation in Singapore, has felt “different and out of place” at her male-dominated workplace before.

“It’s not uncommon to see a young, female worker in a room full of older males in my line of work,” she says. “There doesn’t seem to be any malicious intent (from male employees), but it can get pretty intimidating sometimes.”

According to Lim, conditions such as these aren’t enough to make a case for discrimination at work.

“A vague feeling of feeling left out (at work) isn’t enough grounds to make a case for experiencing constructive dismissal, which refers to resigning against one’s will,” he explains.

He adds that toxicity at the workplace can be discrimination-blind, too. “If there’s a toxic boss who just yells at all his subordinates every day, regardless of their age, gender or race, then that’s not actually discrimination even though it’s unacceptable,” he says. 

There can still be overlaps between workplace toxicity and discrimination, however, which occurs when certain actions or decisions at the workplace are made based on protected characteristics.

🧑‍⚖️ Building a case

Fewer workers who experienced discrimination at the workplace sought help from their employers in 2023 at 29.3 per cent, down from 35.3 per cent in 2022, according to data from the Ministry of Manpower (MOM).

One possible reason is because making a case for experiencing discrimination at work isn’t easy. An employee would have to demonstrate how their continued employment was made very difficult or close to impossible, according to Lim.

“It has to be to the point where an employee really has no choice but to resign. At present, the bar for constructive dismissal – where an employee resigns against their will due to a hostile work environment created by an employer – is very high,” he explains.

If the company has a proper grievance handling procedure, going to the human resources (HR) department at the company for help should be an option.

But in the event HR is unhelpful or potentially be sitting on the issue, the course of action for the employee would then be to approach the Tripartite Alliance for Fair and Progressive Employment Practices (Tafep) to make a report against the employer.

In the case of termination or salary claims, the employee can also go to the Employment Claims Tribunals (ECT), which will be preceded by a mediation process at the Tripartite Alliance for Dispute Management (TADM).

“In terms of evidence, it’s always best when there’s something in writing – in an email, or say a WhatsApp message,” Lim says.

“The evidence can be purely verbal too, but that means it’ll be your word against that of your colleague or boss. If others heard (the discriminatory remarks) too, the case could be stronger, but that’s provided they’re willing to come forward to vouch for you.”

💪 Enhanced protections

While Tafep can help look into and support workers’ complaints, it doesn’t provide them with much recourse to a claim at present ☹️. (It does, however, have investigatory powers and can hold employers to task if its investigations reveal workplace discrimination, on the bright side.) 

In the later part of this year or first half of 2025, a new Workplace Fairness Legislation (WFL) is set to be passed. This upcoming law will enhance protections against discrimination and provide assurance to employees that they can report incidents internally without fearing retaliation.

Ideally, such legislation will be able to provide recourse for individuals over a wider range of scenarios than is presently available, notes TSMP’s Lim.

It’s not easy to make a case for discrimination at work – but that doesn’t mean it should be swept under the rug if it’s happening to you. If you experience this, remember to be specific and precise in the evidence you present, and bring in other voices to support your claim if need be. 

One thing’s for sure – you can’t afford to be vague. “The vibes were off” is far from enough under these circumstances. 

TL;DR

• Workplace discrimination and a toxic work culture is not always the same 🙅 

• It’s important to note the difference between discriminatory actions and wider abusive behaviour or harassment

• Typically, those who wish to lodge a complaint against their employer go to Tafep, before heading to TADM for mediation

• However, claims can only be made at ECT, after fulfilling certain conditions with TADM

• A new Workplace Fairness Legislation (WFL) is set to be passed that will improve worker protections against discrimination