Hong Kong Ponders Discrimination Law Shakeup

The Hong Kong Government is considering key changes to the existing anti-discrimination ordinances. The proposed changes have been brought forward following a consultation carried out by the Equal Opportunities Commission (‘EOC’) in 2014. In her inaugural policy address, the Chief Executive Carrie Lam said the Government would submit legislative amendment proposals in the 2017-2018 session of the Legislative Council (‘LegCo’) to implement the key recommendations.

The major changes

The proposed changes are meant to encourage family-friendly workplaces, expand the scope of harassment protection and address the issue of stereotypical assumptions during the hiring process. The main changes are as follows:

Discrimination on the basis of breastfeeding

The Government plans to introduce express provisions in either the Sex Discrimination Ordinance (‘SDO’) or the Family Status Discrimination Ordinance (‘FSDO’) prohibiting direct and indirect discrimination on grounds of breastfeeding and to include expressing milk in the definition of breastfeeding.

Although Hong Kong has made every effort to normalise breastfeeding, breastfeeding is still plagued by discrimination at work and amongst the public at large. If the proposed changes become law, it will become unlawful to ask women to stop expressing milk in the workplace or breastfeed in restaurants, libraries and clubs. Rigid or inflexible policies that prohibit or restrict employees from taking lactation breaks could give rise to discrimination complaints.

Discrimination on the basis of “imputed” race.

Amendments to the Race Discrimination Ordinance (‘RDO’) will include protection from discrimination and harassment by perception or imputation that a person is of a particular racial group.

If the changes become law, it will be unlawful to harass or treat an individual less favourably by automatically assuming the individual is of a particular race group or ethnic origin, even when they are not.

Expanding the scope of harassment protection

Harassment and in particular sexual harassment, unfortunately still remains rife in Hong Kong. If the proposed changes become law, harassment on the basis of sex, disability, race (including imputed race and association with a race) will be made illegal in a common workplace, in co-tenanted or sub-tenanted premises, on aircraft, ships and in clubs. This will apply not only to employees and co-workers, but also to service providers, customers, co-tenants, sub-tenants and club managers.

Dispensing with proof of intention to discriminate

The Government proposes to repeal provisions under the SDO, FSDO and RDO that require proof of intention to discriminate in order to award damages for indirect discrimination claims.

At present, awarding damages for indirect discrimination under these Ordinances requires proof that the respondent intended to discriminate against the claimant. Successful claims for indirect discrimination are therefore quite rare in Hong Kong. The repeal of provisions requiring a proof of intention to discriminate will make it easier for genuinely aggrieved parties to make good their indirect discrimination cases and obtain damages from the wrongdoer.

Best practice for employers

Even before the proposed changes are tabled for discussion at LegCo, there is much that employers can do to improve their brand, promote diversity and attract talent.

  • Family-friendly facilities and policies: Employers should be prepared to provide appropriate space in the office to allow employees to take lactation breaks and express milk. Work policies should be sufficiently flexible to enable new mothers to take lactation breaks at work.
  • No stereotypical assumptions: The provisions regarding discrimination on the ground of the race of an “associate” are likely to have most effect in the hiring process. For example, an employer may make an assumption that a candidate does not read or speak Chinese or English based on their surname or appearance, when the candidate is fully capable of doing so. Employers should be warned not to make stereotypical assumptions before making any hiring, firing or promotion decisions.
  • Anti-harassment policies, training & complaint procedures: It is important for corporates to have in place appropriate anti-harassment policies and procedures and to make sure these are communicated and understood by everyone working on the premises.

To promote a harassment free and non-hostile workplace, everyone should be encouraged to report any incident of harassment by co-workers, customers and service users whether on the basis of sex, disability, race and even breastfeeding. Disciplinary action should also be taken against the wrongdoer for inappropriate behaviour in the workplace!

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Counsel, Clifford Chance