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Can a one-size-fits-all approach to diversity work in Asia?
02/03/2021
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Gay Pride Event in Taipei, Taiwan
Authors
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John VDLD
John van der Luit-Drummond is editor-in-chief of International Employment Lawyer

The killing of African-American George Floyd by Minneapolis police officers on 25 May 2020 led to a wave of grassroots demonstrations, first in cities across the US, but later to mass protests in more than 4,000 towns and cities worldwide. The Black Lives Matter (BLM) movement has undoubtedly made employers in the west reassess and commit to tackling historic injustices and ending endemic racial discrimination in their workforces. But what about elsewhere around the globe?

Across the Asia-Pacific, gender remains the most protected characteristic, followed by race and disability. Although there are several countries in the region with comprehensive anti-discrimination legislation, there is generally no consistent approach.

Australia, for example, protects a significant number of characteristics, including intersex status, gender identity, and sexual orientation. Taiwan is also of note for being particularly progressive following its recognition of same-sex marriages and the prohibition of discrimination in employment on grounds of race, class, language, thought, religion, political party, place of origin, place of birth, gender, gender orientation, age, marital status, appearance, facial features, and disability. 

Elsewhere, Japan’s anti-discrimination laws only cover gender, age, union organisation, and those with caring responsibilities. Similarly, Hong Kong only protects sex, race, disability, and family status in its anti-discrimination ordinances. By contrast, Singapore has no dedicated anti-discrimination legislation, but some general protection is built into the state’s constitution, while guidance is also set out in the Tripartite Guidelines on Fair Employment Practices. Jurisdictions where this is still a developing area include Malaysia, Indonesia, mainland China, and Vietnam.

Across jurisdictions there is a significant disparity in anti-discrimination laws and also cultural attitudes towards inclusion and anti-discrimination

“Anti-discrimination legislation across Asia-Pacific is, in general, less developed and more conservative than in other countries, especially those in Europe,” explains Kathryn Weaver, head of Lewis Silkin’s Hong Kong office. “Religious views and sexual orientation often clash, resulting in limited legislation to protect either group. There are some exceptions to the rule, but most jurisdictions tend to take a more minimal approach to protection against discrimination.”

“You will find that across the various jurisdictions there is a significant disparity in anti-discrimination laws and also cultural attitudes towards inclusion and anti-discrimination,” agrees Michael Michalandos, head of Baker McKenzie’s Asia-Pacific employment and compensation team. “This is principally due to a greater diversity of political attitudes and religious beliefs and the influence of these beliefs on government, and also the stages of development of the legal system, particularly in relation to workplace laws.”  

However, with increasing economic growth and the global integration of many countries in the region, Weaver sees a change on the horizon, albeit at a slower pace than elsewhere in the world. “Case law, especially judicial review, is leading to greater equality in some Asia-Pacific jurisdictions, with successful challenges being brought in court, especially by the LGBTQ+ community,” she says.

The disparity between Asia-Pacific nations means the transference of successful diversity and inclusion (D&I) initiatives to the region are less likely to be successful. “The most common problem is where European or US-headquartered firms try to take a western or one-size-fits-all approach to D&I, which can fail due to legal, cultural, social, political, and religious differences,” explains Weaver. “Certain countries may not be as receptive to D&I initiatives as others, particularly if they are not mandated to have such protections under their local labour laws or best practices. This is not to say these initiatives would not be effective with local employees, but they may require more training around the concepts, as they may be new to them.”

This type of approach can be problematic, adds Weaver, and may lead to legal battles, resistance in a policy’s implementation, and employee adherence to it. “Many international employers want to have consistent D&I policies across all of their jurisdictions and will, therefore, draft their policies based on the highest level of protection in the region. This means some jurisdictions may have policies that offer far more protection than under statute, which can lead to confusion and an unwillingness to follow the policies, but equally means that employees of an international company know they will be treated equally in the workplace, no matter which office they work in.”

The risk of mental health issues in a workforce can often be higher in an organisation where D&I is not taken seriously

But what are the risks to an employer that decides to base its D&I policies merely to mirror the protections of the local laws, even if those are less stringent than in other jurisdictions? “The difficulty for employers in the risk of sub-standard practices is principally reputational rather than just legal,” adds Michalandos. “This is particularly so given the advent of social media campaigns such as the Me Too movement. The increased level of scrutiny by social activists and the ability for them to mobilise supporters rapidly on the internet has caused a dramatic shift over the last five years. It is no longer enough for organisations to be a ‘legally compliant’ employer. They must also be an ‘ethically compliant’ employer.”

For Michalandos this means employers across the Asia-Pacific will ultimately be judged by a higher standard than the relevant local laws. “In practical terms, this does mean that employers who wish to avoid these risks must invest more in educating staff and shifting embedded cultural views.”

As with anywhere else in the world, the risks to Asia-Pacific-based employers failing to take D&I seriously goes beyond the obvious potential legal challenges brought by employees or negative PR. “It could lead to unpleasant and unproductive working environments,” says Weaver. “It could also impact on talent attraction and retention, because companies with good D&I practices often attract good people and keep them because they treat them well and equally. Those that don’t will struggle to find the right people and will have a high turnover. The risk of mental health issues in a workforce can often be higher in an organisation where D&I is not taken seriously.”

Unfortunately, as Weaver and Michalandos note, the impact of the covid-19 pandemic has delayed the introduction of D&I-related legislation across the region. Nevertheless, there have been some recent developments employers should take note of, particularly in the area of sexual harassment protections. 

“In Japan, power harassment claims have increased over the last few years and we have also seen recent court cases on the issue of equal pay for equal work,” says Michalandos. “Also, the Safe Spaces Act, which prohibits gender-based sexual harassment, was enacted in the Philippines in 2019.”

Additionally, Michalandos points to China’s new civil code which, after coming into effect on 1 January 2021, means victims of sexual harassment may be able to request that the perpetrator assumes civil liability. “The promulgation of the civil code means that, for the first time, there is a relatively clear legal definition of sexual harassment at the national level in mainland China, and it also reiterates employers’ obligations to prevent and prohibit sexual harassment in the workplace. Similarly, Vietnam’s new Labor Code also came into effect on 1 January 2021, pursuant to which employers must establish rules on the prevention of workplace harassment.”

“In Hong Kong, new protections under discrimination law have been introduced to include breastfeeding as a protected characteristic under the Sex Discrimination Ordinance from June 2021,” adds Weaver, “while New Zealand passed a new Equal Pay Amendment Act in November 2020, which is intended to make it easier for workers to make pay equity claims without litigating through the courts by using a collective bargaining approach.”

Speaking to Weaver and Michalandos, it is clear that, although the BLM campaign did not have as large an impact in the region as it did in other parts of the world, the movement has nonetheless led to many Asia Pacific-based employers reflecting upon and improving their D&I policies, practices, and procedures, including employee ethnicity monitoring. Employers will need to keep a close eye across the region in the months and years ahead, and cut their D&I cloth accordingly.