Vietnam has introduced a legal framework to ensure equal employment opportunities for all employees. Under the Labor Code (2021), it is now illegal to discriminate against someone because of that person's race, skin color, nationality, ethnicity, gender, age, pregnancy, marital status, religion, opinion, disability, family responsibilities, HIV infection, or her participation in trade unions or in an internal employee organization. A breach is subject to an administrative fine ranging from VND5,000,0001 to VND20,000,000. In addition to administrative fines, an employer can be sued for employment discrimination. Moreover, if the act is reported to the labor authorities, it can be a blemish on the employers' reputation and image. The Labor Code and its implementing regulations, however, do not enumerate specific acts which are a breach.
The reality is that some discriminatory practices are embedded to the point where they may not seem to be discriminatory at all. In some cases, the public will need to revisit and change long-existing practices.
Vietnam has a history of continuing to update its employment law and of recognizing and enforcing more enlightened practices. We believe that the campaign against discriminatory practices will be deliberate.
Job advertisements: It is currently easy to find job advertisements that appear to be clearly incompliant. For example, a help-wanted ad that seeks "females with good appearance" or "recent college graduates" may discourage males or older persons from applying.
Employment restrictions: There are other practices which breach anti-discrimination rules. For example, (i) an employer may refuse to recruit a new employee because she is a Muslim, or lesbian or she is found to be pregnant; (ii) a foreign director may recruit only staff who come from her geographic region although local employees may be fully qualified.
On job discrimination: There are many forms of discrimination. For example, employers may impose unequal discipline, give a negative employment reference, implement unequal training or apprenticeship programs, make pre-employment inquiries about employees' disabilities, etc.
Application and hiring: Young workers may be seen to have advantages over older workers in some industries and sectors. Manufacturers may prefer to employ young workers. Is the practice discriminatory? For example, manufacturers may refuse to give employment applications to people aged 40 or more. One may rely on such a fact to claim discrimination.
Recruitment of foreigners: FIEs pay attention to hiring Vietnamese as a part of their HR development plan. But the company may not be ready to employ Vietnamese for certain management positions. The law does allow an employer to recruit a foreign employee to serve in a key role if the general pool of local employees is not seen to be qualified for that position. Before a foreign person can be recruited and before a work permit can be issued, the employer is required to prove that the employer has posted a job advertisement for that position, and that there is no local qualified candidate. But care must be taken. Candidates or the authorities may question whether selection is discriminatory.
HIV-infected person: An employer may require a job applicant to take a test, and the employer may wish to exclude individuals with HIV infection. Related to that, an employer may refuse to employ a woman whose husband is HIV-infected. Both practices are prohibited by both the Labor Code–and by the Law On Prevention and Control of HIV.
Pay and benefits: The Labor Code expressly provides that men and women in the same workplace must receive equal pay for equal work. In practice, employers may pay male workers more. This type of discrimination is clearly prohibited.
Restructuring: When deciding which employees will be laid off following a corporate restructuring, an employer may decide to choose the oldest workers. This practice of "ageism" is discriminatory.
Job assignments and promotions: It is common for an employer (being a state-owned enterprise (SOE)) to make decisions about job assignments and promotions based on the employee's political opinion or upon relationships The Labor Code applies equally to SOEs, but it may be more difficult to aver job discrimination in an SOE. Employees–who work in SOE, and who are not fairly treated— often find that the more realistic remedy is to transfer to the private sector.
Promotion: Discrimination may occur in promotions not just in initial employment. For instance, a woman has been included in a shortlist of employees eligible for consideration for a position. The HR department then learns that she is pregnant and removes her. The woman can assert discrimination.
Other discrimination: Racial discrimination may not be a large issue in Vietnam since 90% of Vietnam's population is ethnic-Kinh. But discrimination may occur when it involves a person's sexual orientation, gender transition, third gender. In international practice, this is considered to be discrimination as an individual is seen to have the right to assume a different gender from the one she was born with.
Conclusion: The purpose behind the anti-discrimination rules is to create "equality of opportunity" for all employees, regardless of race, skin color, nationality, ethnicity, gender, age, pregnancy, marital status, religion, opinion, disability, family responsibility and more. Of course, people are not identical, and people have different values, talents, and capabilities. The new rules on non-discrimination are not intended to subvert the clear talent or ability of one employee over another. They are intended to remove artificial impediments to employment brought about by public perceptions or attitudes and not by an employee's ability to perform.
In-house counsel will need to work with HR people to review internal policies and practices in order to ensure absence of discrimination and compliance with the Labor Code. HR (in coordination with in-house counsel) will play an important role to identify potentially discriminatory practices. This may involve review of recruitment policies, training initiatives promotion, company culture and attitudes, and generally to make employees aware of practices that may discriminate. The objective is to create fair employment, create clear career paths, assure a transparent appraisal system, and to create an environment for employees or applicants to state their concerns without fear of reprisal.
Footnote
1. US$1=VND24,000
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