November 15, 2018 Labor & Employment
To illustrate this topic, let’s see the following cases which relate to gender discrimination (which is the most common type of discrimination):
“Female employee A was selected to participate in an upcoming training course. However, since said female employee recently discovered that she was pregnant, the company decided instead to send another employee to that training course. The reason being that it would not be beneficial for the company if said female employee finishes the training course but then takes a long maternity leave (06 months) immediately afterwards”.
So the question is: does the company’s action in sending another employee to replace the female employee at the training course constitute discrimination? Is there any violation by the company with the Vietnam labor laws in this case?
“Female employee B applied for a promotion within the company. During the interview with the Board of Management, she is asked about her childcare arrangements and her husband’s new job in another city far away from her workplace. In the end, the promotion was canceled and no one interviewed was offered a promotion. However, it was learned that the Board of Management decided before the promotion was canceled that such female employee would not be offered the promotion because it was assumed that she would not be able to balance her personal life and her performance at the new post. Further, it was assumed that her family would be moving shortly to the city where her husband was working because of his new job.”
Is the Board of Management behave in a discriminatory manner?
To determine the outcome of the two above-mentioned cases, the key point is answering to the question: What are the criteria used to identify a “discriminatory action” in order to conclude whether there was a discriminatory action/decision or not?
“Discrimination” in labor is strictly prohibited (Article 8, the 2012 Labor Code). However, the prevailing labor law of Vietnam has no regulation that specifies the exact legal definition of “discrimination”. In practice, circumstances constituting “discrimination” are often ambiguous leading employers to be confused as to whether their actions/decisions are discriminatory or not.
It is instructive to refer to other regulations:
According to Convention No. 111 – Discrimination (Employment and Occupation) Convention, 1958 of International Labor Organization (ILO) (to which Vietnam is a signatory), “discrimination” includes:
–Any distinction, exclusion or preference made on the basis of race, color, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;
–Such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employers’ and employees’ organisations, where such exist, and with other appropriate bodies.
Convention No.111 also clearly states that “any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination”.
According to the 2006 Law on Gender Equality of Vietnam, “gender equality indicates that men and women have equal positions and roles; are given equal conditions and opportunities to develop their capacities for the development of the community, family and equally enjoy the achievement of that development”, and “gender discrimination indicates the act of restricting, excluding, not recognizing or not appreciating the role and position of men and women leading to inequality between men and women in all fields of social and family life”.
Although the 2012 Labor Code does not have a specific definition of discrimination, there are some basic provisions which are relevant such as:
–Article 34 – Part-time employees: “Part-time employees are entitled to salaries and have the same rights and obligations as full-time employees, and are entitled to equal opportunities and to non-discrimination and assured labor safety and hygiene.”
–Article 57 – Rights and obligations of the hiring party (i.e. the user of outsourcing services): “Not to discriminate between the sub-leased employee and its own employees regarding working conditions.”
–Article 90 – Salaries: “An employer shall pay equal salaries without gender-based discrimination to employees doing a job of equal value.”
–Article 154 – Obligations of employers toward female employees: “To ensure gender equality and implement measures to promote gender equality in recruitment, employment, training, working time, rest time, salaries and other policies.”
All of the above regulations generally prohibit less favorable treatment for reasons related to differences in gender, race, marital status, etc. in relation to other employees whose circumstances are not materially different.
Criteria for identifying discrimination
To prove the existence of discrimination, it is necessary to identify three main factors: (i) there is less favorable treatment; (ii) the less favorable treatment is based on differences in gender, race, marital status and so on; and (iii) the less favorable treatment is not based on the nature of the job requirements.
There is less favorable treatment
To prove this factor, the basic questions to be asked are:
(i) less favorable treatment compared to who? and
(ii) less favorable treatment concerning what?
For the first question (i.e. less favorable treatment compared to who), a comparison is made between the employee alleged to be discriminated against and an employee of the opposite sex whose circumstances are not materially different. For example, in Case 2 above, a comparison is made between female employee B and the male employees who were also interviewed for the promotion by the company. However, it should be noted that not all cases require a similar comparison. For instance, in Case 1 above, it is impossible to compare female employee A with the male employees whose circumstances are not materially different, because female employee A is pregnant and it is unreasonable to invent a pregnant man for comparison purposes. Thus, in the case of female employee A, it is not required to prove that she was treated less favorably than other employees of the opposite sex.
For the second question (i.e. less favorable treatment concerning what), less favorable treatment may be less favorable in terms of job opportunities, training, salary, bonuses, promotion, payment, social insurance, health insurance, unemployment insurance, working conditions, labor safety, working time, rest time as well as other material and spiritual benefits. In determining the scope of less favorable treatment, it is especially important to decide whether or not there has been actual discrimination. For example, in Case 2, if female employee B argues that she was treated less favorably by proving she did not get the promotion because of her sex, she may have a problem because no one was actually promoted (including the male employees) at the end of the day. However, female employee B may argue that less favorable treatment still occurred by proving that during the interview she was asked about her childcare arrangements and family issues, when (assuming) the same questions were not asked of other male candidates. Accordingly, discrimination may be determined to be present in Case 2.
The less favorable treatment is based on the differences in gender, race, marital status and so on
To show discrimination, the less favorable treatment must be based on differences in gender, race, skin color, social strata, marital status, belief, religion and so on (which are provided by law). In other words, the employees would have received the same treatment “but for” such differences. For instance, in Case 1, the only reason that female employee A was turned down for the training course was because she was pregnant; while if she was not pregnant, she would have been selected for the training course. Another typical example that normally happens in family companies is the existence of an unwritten tradition of hiring or appointing men to the most important positions; as the result, it may constitute discrimination when preferring male candidates over female candidates based on the history and tradition rather than the ability, qualifications, and experience of candidates as well as the nature and requirements of the job.
The less favorable treatment is not based on the nature of the job requirements
If the less favorable treatment was purely based on the requirements of the job, such less favorable treatment is not considered as discrimination regardless of whether it was related to gender differences (or other differences as mentioned above). For example, referring to Case 1, there is no discrimination by the company if it is determined that participation in the training course may have negatively affected the health of female employee A. Similarly, in Case 2, if the answers to questions about childcare arrangements and family issues were necessary to determine whether or not female employee B qualified for the requirements of the new job after promotion (for example, the new job frequently requires business trips or working at night, etc.), then discrimination may not exist.
The burden of proving non-discrimination falls on employers
When a discriminatory action is taken, the interests of the employees will be violated (for example, such discriminatory action will result in lower salaries or allowances for employees). As such, disputes over discrimination often appear in conjunction with other common labor disputes such as disputes over salaries, allowances, training or labor outsourcing, etc. In the event of such disputes, the employer must prove that any less favorable treatment was based on the nature of the job requirements. This requires the employers to have a clear and transparent labor management system, such as (i) having a well-defined and rational job description that is appropriate to the nature and practical performance of the job; (ii) having transparent policies for salaries and bonuses and providing clear entitlement conditions and payment rates, which have been either noticed to and/or registered with the competent authorities as defined by the law (if any), etc.
It should be noted that in a labor dispute, the burden of proof falls on the employers, not the employees, as specifically stated in Article 91 of the 2015 Civil Procedure Code:
–If the involved parties being employees in labor cases cannot provide or submit to the Court materials and evidence because such materials/evidence are being managed or kept by the employer, the employer is required to provide and submit such materials and evidence to the Courts.
–The burden of proof falls on the employer if the employees file a lawsuit over the unilateral termination of a labor contract in cases where the employer is not allowed to do unilateral termination of the labor contract or where the employer is not allowed to impose labor discipline against employees as prescribed in the labor law.
–The involved parties that dispute another persons’ claims against them must make the dispute in writing and must collect, provide and submit to the Courts materials and evidence to prove such counter-allegations.
Administrative sanctions imposed on employment discrimination
Currently, administrative sanctions imposed for acts of employment discrimination are stipulated in Decree No.95/2013/ND-CP (as amended by Decree No.88/2015/ND-CP) such as:
–A fine of between VND10,000,000 and VND20,000,000 is imposed on the act of discrimination by gender, race, skin color, social class, marital status, belief, religion, HIV infection, disability in recruitment, employment and management of laborers.
–A fine of between VND1,000,000 and VND2,000,000 is imposed on the hiring party (i.e. the user of outsourcing services) for the act of discriminating between sub-leased employees and its own employees regarding working conditions.
–A fine of between VND6,000,000 and VND10,000,000 is imposed on employers for the act of discriminatory treatment in terms of salaries, working time, or other rights and obligations in the labor relationship in order to prevent laborers from establishing or joining a trade union, or participating in trade union activities.
– Written by LE & TRAN | Vietnam’s Premier Business Litigation Firm
 Article 8.1, the 2012 Labour Code 2012 prohibits: “Discriminating on the basis of gender, race, skin color, social strata, marital status, belief, religion, HIV infection, disabilities or for the reason of establishing, joining trade unions and participating in trade union activities.”
This insight is quoted from the Vietnam Labor Law Review (October 2018), you can download and read the full file of Vietnam Labor Law Review (October 2018) here.