Recently, the world mourned the loss of Ruth Bader Ginsburg, the former Justice of the Supreme Court of the United States, global champion of equality, and icon of women’s rights. Her legacy of achieving positive legal change particularly in relation to equality for women is enormous. She herself highlighted that change is often accomplished gradually in steps:
“Generally change in our society is incremental…real change, enduring change happens one step at a time.”
The universal right to equality and non-discrimination can only be realized where there are effective legislative protections from discrimination. But those protections must be capable of evolving to meet the changing needs and evidence of discrimination in societies.
As Hong Kong’s statutory equality body, the Equal Opportunities Commission (EOC) is a change agent. It has a duty to advocate for legislative changes where it considers it necessary to better prevent discrimination. The EOC has been instrumental in securing improvements in the anti-discrimination laws over the last 23 years, including recent amendments to the four anti-discrimination Ordinances passed in June 2020.
This article explains the background to the recent amendments, their legal effect, and examines several of amendments with advance equality for women who continue to experience substantial discrimination and harassment. It also looks forward to the future and how the anti-discrimination laws should be further modernised to ensure that the human right to equality can be enjoyed by all.
1. The Discrimination Law Review
Since 1996 four anti-discrimination Ordinances have been enacted in Hong Kong: the Sex Discrimination Ordinance (SDO); the Disability Discrimination Ordinance (DDO); the Family Status Discrimination Ordinance (FSDO); and the Race Discrimination Ordinance (RDO).
The EOC has a duty to keep under review the effectiveness of the anti-discrimination laws and where it considers it appropriate, may make recommendations for reform. In 2014 the EOC conducted a comprehensive review of the anti-discriminations laws which involved public consultation and large scale response of 125,000 submissions from the public. Following the consultation, in 2016 the EOC made detailed submissions to the Government and 73 recommendations for reform of the four anti-discrimination Ordinances.
2. The Amendments to the Anti-Discrimination Ordinances
The Government agreed to implement eight of the EOC’s recommendations which were passed in June 2020 by the Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020. These improve protections from discrimination and harassment on grounds of sex, disability, race and family status in a number of ways. In summary the amendments are:
– Protecting breastfeeding women from direct and indirect discrimination, as well as victimisation in the sectors of employment; the provision of goods, facilities and services; education; management and disposal of premises; clubs; and the functions of Government under the SDO;
– Protecting workplace participants from sexual, disability and racial harassment in common workplace where there is no employment or related relationships between the parties, such as interns or volunteers, under the SDO, DDO and RDO;
– Protecting service providers from disability and racial harassment by customers, including where such acts occur overseas on board Hong Kong-registered aircraft and ships, under the DDO and RDO;
– Protecting the public from direct and indirect racial discrimination and racial harassment by imputation under the RDO, that is, a person being imputed to be of a particular race or a member of a particular racial group;
– Protecting a person from direct racial discrimination or racial harassment under the RDO, where they are less favourably treated or racially harassed on grounds of the race of an associate;
– Protecting members and prospective members of clubs from sexual and disability harassment by clubs or management of the clubs under the SDO and DDO;
– Repealing requirements of an intention to discriminate as a precondition to awarding damages in court proceedings for acts of indirect discrimination under the SDO, FSDO and RDO.
All of these provisions came into force on 19 June 2020, except for the provisions providing protection from discrimination for breastfeeding women which will come into force on 19 June 2021.
3. Advancing Equality for Women
Several of the amendments which will have significant impact in society, are particularly important in promoting equality of opportunity and preventing discrimination and harassment against women.
The evidence from the EOC’s work is that discrimination against women in Hong Kong remains widespread, whether it is women being discriminated against in relation to childbearing during pregnancy or after childbirth; or women being sexually harassed by employers, colleagues, or customers. For the year 2018/19 the EOC received 338 complaints under the SDO relating to discrimination in employment. Of these, 33% (111 cases) involved pregnancy discrimination, and 44% involved sexual harassment (150 cases) (see https://is.gd/f4SP0E).
Protections From Discrimination of Breastfeeding Women
The protections from breastfeeding discrimination are crucial as they ensure not only that breastfeeding women are protected from discrimination in many areas of life such as employment and the provision of services, but also so they can fully participate in society.
The amendments address the evolving needs of Hong Kong society to support the increasingly numbers of women breastfeeding their babies. The Department of Health figures indicate that the percentage of mothers breastfeeding their newborn increased from 66% in 2004, to 87.5% in 2018 (see https://is.gd/SrvVYy). The increasing proportion of women breastfeeding is also consistent with international research and recommendations by the World Health Organisation that highlight the health benefits of breastfeeding both for babies and their mothers (see https://is.gd/WVu2ka).
As a result of the amendments, relevant stakeholders will need to carefully consider whether any changes should be made to their facilities and policies to accommodate breastfeeding women. For example employers with employees who are or will be breastfeeding should consider whether there are sufficient facilities for them to express milk, and if not what alternative arrangements can be made for them. Employers should also review their policies regarding making adjustments to working conditions for breastfeeding employees. Such adjustments could involve additional breaks to express milk, flexible working hours, working part time for a period, or a temporary change in role if an existing role involves a health risk to the breastfeeding employee.
In the context of breaks for breastfeeding employees, the Department of Health recommends that they can take two 30-minute lactation breaks (or one hour in total) for an eight-hour working day, and that those breaks be counted as working time (see https://is.gd/oAHptW). A refusal to allow such breaks or deducting an employee’s salary for taking the breaks may constitute indirect discrimination against breastfeeding women, unless an employer can justify refusing them.
Protections From Sexual Harassment of Women
The amendments providing protection from sexual, racial and disability harassment in common workplaces are a progressive reform and place Hong Kong ahead of many other developed jurisdictions around the world. It will significantly improve the protections from sexual harassment of women, such as those doing internships or working as volunteers. This protection is crucial since persons doing internships or volunteering are often in more vulnerable situations, as a result of having fewer legal rights and imbalances of power.
Previously under the SDO there was protection from sexual harassment in relation to employment and related work environments. However, there was only protection where an existing legal relationship such as employment, principal and agent (eg contract work), or partnerships. The amendments broaden the protections from sexual, racial and disability harassment to cover situations where persons are working in a common workplace, but there are none of the above work relationships between the parties.
For example, many organisations including law firms and Chambers of barristers have internship programmes providing interns work experience to develop their careers. Previously, as most internships would not involve an employment or other existing work relationship, there was no protection from sexual harassment of or between interns. The amendments ensure that this gap in protection has been closed.
These reforms provide some of the most comprehensive protections from sexual, racial and disability harassment in any common law jurisdictions. In comparison, the United Kingdom has no equivalent protections from harassment in such situations, and in Australia, there is only equivalent protection from sexual harassment for volunteers or interns in two States of New South Wales and Victoria, and not at Federal level.
The reforms are also consistent with the requirements of a new International Labour Organisation (ILO) human rights Convention which aims at preventing harassment and violence at work, including gender based harassment and violence (see https://is.gd/NZUYXY). The People’s Republic of China voted in favour of the Convention and therefore it is likely the Convention will be ratified by China in the future and become binding on Hong Kong. Significantly, the Convention requires all forms of harassment in workplace to be prohibited by law, including harassment against interns and volunteers. The fact that Hong Kong has already introduced those legal protections highlight we are leading the way globally on this issue.
The Path Forward on Legislative Reforms
Despite the welcome progress of the recent amendments, there are still many areas where the EOC believes the anti-discrimination laws should be substantially modernised. It should be noted that the Government has only implemented 8 of 27 higher priority recommendations made by the EOC in the DLR. In addition, there are entire groups in society that have no protection under the existing anti-discrimination Ordinances.
In relation to the DLR recommendations, there remain significant flaws in protections from discrimination on grounds of race and disability. The RDO does not provide any protections from discrimination on grounds of nationality, citizenship or residency status, nor does it prohibit racial discrimination or harassment by the Government in exercising its functions. The lack of protection is inconsistent with international human rights obligations under the United Nations Convention on the Elimination of Racial Discrimination which applies in Hong Kong. It also has practical implications. For example, if ethnic minorities are unfairly stopped and searched or arrested by Police on grounds of their race, they would not be able to make a complaint to the EOC or bring a claim of racial discrimination under the RDO, given such Police action are considered Government functions.
For people with disabilities, a key area where they face discrimination in life is lack of accommodation for their needs whether in employment, the provision of servicers or access to premises. For that that reason the United Nation Convention on the Rights of People with Disabilities and which also applies in Hong Kong, requires all Member States to provide reasonable accommodation. The EOC recommended that there should be a legal duty to provide reasonable accommodation for people with disabilities, consistent with similar provisions which exist in most common law jurisdictions.
Finally, the existing anti-discrimination Ordinances do not provide any protections from discrimination for particular groups in society, such as Lesbian Gay Bisexual Transgender and Intersex (LGBTI) people, or groups identified by age.
In relation to LGBTI people, the EOC commissioned comprehensive research on the introduction of anti-discriminations laws to cover new protected characteristics of sexual orientation, gender identity and Intersex Status (see https://is.gd/d53EVu). The research highlighted widespread discrimination that LGBTI people face in all aspects of life in Hong Kong, and recommended that the Government should consult on introducing anti-discrimination legislation. Given there has been no progress in this area, the EOC plans to follow up by making further proposals on the appropriate content of such anti-discrimination laws.
Significant advancements have been made by the recent amendments to the four anti-discrimination Ordinances, and in particular they provide crucial improvements in protection from discrimination and sexual harassment of women. However, our anti-discrimination laws still do not provide sufficient or any protection from discrimination for some groups in society. At the EOC we remain committed to achieving further step changes towards equality for all.