If you were to browse job advertisements in Malaysia, you’re bound to find the keyword “prefer (insert language here) speaker” within many of the listings. Recently, Youth and Sports Minister Syed Saddiq Syed Abdul Rahman commented on this practice by saying that employers seeking “Mandarin speakers” in their job advertisement should be investigated, claiming it to be a form of discrimination.
His statement received mixed reactions from netizens with some defending the practice of having a language requirement in job advertisements whilst others applauded his stance by saying that it could combat what they believe is discrimination by employers in hiring employees.
No matter which side of the argument you stand on, one question that is left unanswered is whether the practice itself is legal or not within our country’s law.
Well, here’s the answer: Yes, it is very much legal. Here’s why:
1. There is no specific law against putting a language requirement in a job listing (yet)
Whether it’s the Employment Act 1955 or any other law or regulations pertaining to employment in Malaysia, there is nothing that says an employer cannot put a language requirement inside their job listing.
However, this may change in the future with the enactment of a new law. That said, it must first be passed through both houses of parliament before taking effect. As of now, according to the laws of our country, this practice is legitimate.
2. A language requirement is not racial discrimination
Despite arguments saying that putting a language requirement inside a job advertisement is considered a form of racial prejudice or discrimination, the practice in itself is quite necessary depending on the nature of the vacant position.
For example, if there’s an opening for a writer for a Mandarin-language website, wouldn’t the keyword “Mandarin speaker” be important to skim through the applicants?
Furthermore, a language is not necessarily tied to a certain race or nationality as someone can master and speak a certain language even if they’re not native to it. You don’t have to be a Malaysian Chinese to be a Mandarin speaker; heck, Mandarin is not even the most commonly used Chinese dialect in our country!
That honour actually goes to Hokkien, which would put most Chinese Malaysians at a disadvantage for a job that requires someone to be well-versed in Mandarin. So, how can there be racial discrimination if even the Malaysian Chinese could potentially be left out due to this preference?
3. So, what constitutes racial discrimination in terms of employment opportunities?
What is illegal and downright unconstitutional is advertising jobs requiring the candidate to be from a specific race. Prominent Malaysian lawyer Annou Xavier explained in detail regarding this, saying that putting headlines such as ‘Chinese only’ or ‘Melayu sahaja‘ in job advertisements is against Article 8 of the Federal Constitution which prescribes that:
“….there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment…”
Everyone is equal before the law and should not be discriminated by race, religion or gender in every aspect including employment in our country. Thankfully, major job portals such as Jobstreet has banned the usage of racial-based keywords by employers in their job listings, as you can see below:
However, these types of racial-based job advertisements are still quite rampant in Malaysia even though the practice is clearly against our Constitution. More on that below.
4. There is also no law to punish employers who discriminate in hiring (yet)
Even though discrimination in hiring employees is against the Constitution, there is actually no specific law to punish employers who are guilty of it. Industrial relations expert Muhammad Sadas Abdullah confirms this and further added,
“It is up to the company to decide if it wants to hire only Chinese. The government may question its policy and blacklist the company, but that is all. No one is going to take a company to court because of that.”
Without a specific law aimed at punishing employers who post racial-based job advertisements, avenues to take action against these employers are limited as one can only take a company to court for damages for dismissal without valid reasons if there is an employment contract between them.
Simply replying to a job advertisement does not suddenly make you enter a contractual relationship with the poster.
Sounds complicated? Well, here’s the TL;DR version:
- Yes, it is legal to put “Mandarin speaker” in a job advertisement.
- No, a language requirement does not constitute a form of racial discrimination. What is worrying though, is that there is a possibility for employers to misuse it for that end which may be what Syed Saddiq was alluding to in his statement.
That’s why the government should establish a clear guideline governing the advertisement of job vacancies as well as the enactment of a specific law that safeguards Malaysians from being racially discriminated in their job search.
What is your take on the whole matter? If a guideline on job advertisements were to be established soon, what would you like to see in it? Share your thoughts in the comments section!
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