In recent months, Hong Kong has seen noteworthy developments regarding inclusiveness. The amendment to the Sex Discrimination Ordinance (“SDO”) which prohibits both breastfeeding discrimination and breastfeeding harassment (“Amendment”) will come into force on 19 June 2021.
The key legal implications of the Amendment and suggested best practices for employers are explored below.
To Whom Does The Protection Apply?
The protection against breastfeeding discrimination and breastfeeding harassment applies to any woman:
a. Who is breastfeeding a child,
b. Who is expressing breast milk, or
c. Who feeds a child with her breast milk
What Does The Prohibition Against Breastfeeding Discrimination Entail?
Direct and indirect discrimination, victimisation, discriminatory practices, and instructions to discriminate in the context of Breastfeeding will be unlawful once the Amendment takes effect. Breastfeeding need not be the dominant reason and only needs to be one of the reasons associated with less favourable treatment. Accordingly, it will amount to Breastfeeding discrimination if an employer does not allow breaks or flexible working hours to a Breastfeeding employee because the employer does not consider it appropriate for the employee to take any time off for expressing milk, but also because the employer thinks that this practice may cause other employees to ask for breaks or time off.
Direct discrimination occurs when an employee who is Breastfeeding is treated less favourably than another employee who is not Breastfeeding in the same or similar circumstances. For example, if an employee requests her employer to allow her to use an unused room in the office for expressing milk during the lunch break but the employer refuses the request saying that the room can only be used for purposes other than Breastfeeding, it will amount to direct discrimination.
Indirect discrimination occurs when, without any justification, a requirement or condition is imposed on all employees which is less likely to be complied with by a Breastfeeding employee and is detrimental to the Breastfeeding employee because she cannot comply with it. By way of example, a firm could impose a requirement on all employees that if they wish to take additional breaks during working hours, they must still ensure that their number of billable working hours per day is the same as all other employees. In this scenario, the requirement may have a detrimental effect on an employee who is Breastfeeding and needs to take lactation breaks to express milk and could amount to indirect discrimination unless the requirement can be justified.
Victimisation occurs when a person is treated less favourably than others in comparable circumstances for bringing or seeking to bring a complaint or proceedings against the discriminator under the SDO, or for giving evidence or information in connection with such proceedings. Accordingly, if a Breastfeeding employee’s employment is terminated because she made a complaint regarding alleged Breastfeeding discrimination against the employer to the Equal Opportunities Commission (“EOC”), it is likely to amount to victimisation.
Furthermore, discriminatory practices or any pressure or instruction to discriminate is also unlawful. Employers may also incur vicarious liability for the conduct of employees unless it can be shown that the employer took reasonably practicable steps to prevent Breastfeeding discrimination by its employees.
What Does The Prohibition Against Breastfeeding Harassment Entail?
The prohibition against Breastfeeding harassment supplements the prohibition against Breastfeeding discrimination and provides clear protection to Breastfeeding women. If a person engages in unwelcome conduct that would be considered by a reasonable person, having regard to all circumstances, to offend, humiliate or intimidate a Breastfeeding woman, this will constitute Breastfeeding harassment. In addition, if a hostile or intimidating environment is created by the conduct of a person (alone or in a group), this could also amount to Breastfeeding harassment. The new requirements provide that “conduct” for this purpose includes oral or written statements made either to the Breastfeeding woman or in her presence. This is not an exhaustive definition and other forms of conduct may also amount to harassment. Therefore, depending on the circumstances, remarks made to or in the presence of a Breastfeeding woman relating to her appearance or inability to attend a meeting due to lactation breaks may constitute harassment.
What Best Practices Should Employers Adopt?
In light of the new requirements, employers should consider their practices, their documentation, and communication with and training for employees with regard to Breastfeeding. This will help to create a clear and inclusive environment while reducing the risk of vicarious liability for companies through the acts of their employees.
- Provision of facilities: While there is no statutory obligation to provide appropriate facilities for Breastfeeding, it would be a good practice for employers to consider the available facilities and make adjustments to the extent possible. This could include designation of specific locations or the provision of screens and supported chairs in a multi-purpose room to facilitate privacy for lactation breaks.
- Lactation breaks: The EOC recommends allowing employees to take two 30 minute breaks to express milk during each working day as paid working hours. While this remains a recommendation in Hong Kong, it is worth noting that this is a legal right in mainland China.
- Whistleblowing: To guard against the risk of victimisation and prevent harassment, employers should ensure that there are appropriate mechanisms for employees to raise any concerns confidentially and without any threat.
- Anti-harassment policies and training: Employment policies should be reviewed and updated to ensure that these adequately address what constitutes Breastfeeding discrimination and harassment, as well as setting out clearly preventive measures, reporting procedures and potential recourse (including disciplinary actions) which apply. Employers should consider providing training to their employees to emphasize to them the required behaviour and standards.