11 November 2020
The Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020 ("Amendment Legislation") was gazetted on 19 June 2020 which provides a number of additional protections from discrimination and harassment under the Sex Discrimination Ordinance (“SDO”), Disability Discrimination Ordinance (“DDO”), Family Status Discrimination Ordinance (“FSDO”) and Race Discrimination Ordinance (“RDO”). The main enhancements applicable to employers are summarised in this article:
Harassment in the Workplace
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The Amendment Legislation extends protection from workplace harassment to "workplace participants" where there is no employment relationship (including interns, volunteers and barristers’ pupils), and also creates obligations for such workplace participants not to harass others in the workplace; and
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Anyone who engages or hires a workplace participant will be held vicariously liable for acts of harassment committed by the workplace participant, unless it can be demonstrated that the person or organisation took reasonably practicable steps to prevent the workplace participant from committing those acts.
Race Discrimination
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Where the original scope of protection provided by the RDO covered direct racial discrimination and harassment on the basis of one's or his/her near relative's race, the Amendment Legislation extends the protection to "associates" of the individual, i.e. his/her spouse or domestic partner, his/her relative or carer and someone who is in a business, sporting or recreational relationship with the individual; and
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The definitions of "race" and "racial group" of a person under the RDO have been amended to include the imputation of a race or racial group to a person. Therefore, an individual will also be protected from discrimination and harassment on the basis that they are assumed to be of a particular race.
Breastfeeding Employees
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An amendment to the SDO will make it unlawful to directly or indirectly discriminate against breastfeeding women, or to victimise them for breastfeeding. The definition of "breastfeeding" includes both the act of breastfeeding a child and the expressing of breast milk.
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While all of the changes under the Amendment Legislation took immediate effect from 20 June 2020, this amendment will only come into force in 12 months (19 June 2021).
Intention to discriminate
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Prior to the enactment of the Amendment Legislation, if the defendant could prove that there was no intention to discriminate, the person claiming that he or she was a victim of indirect discrimination under the SDO, RDO or FSDO was not entitled to an award of damages.
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The lack of intention to discriminate will no longer be a defence to a claim for damages in such cases.
Key takeaways
Although some of the amendments will only come into force in June 2021, employers are advised to evaluate the adequacy of their anti-discrimination and harassment policies for compliance with the Amendment Legislation.
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As the lack of intention to discriminate is no longer a defence to a claim for damages, employers should ensure that they do not, without proper justification, impose requirements or conditions on employees which might inadvertently place protected employees at a disadvantage (e.g. because of a disability or on the ground that they are a parent or carer).
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Anti-harassment training and policies should be extended to all workplace participants to minimise any vicarious liability.
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Employers should update their relevant policies and code of conduct such that they cover situations of discrimination and harassment of breastfeeding employees and take into account the expanded scope of racial discrimination/harassment.
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Although the Amendment Legislation does not impose a positive obligation to offer lactation breaks or facilities, it is advisable for employers to ensure that workplace policies and practices do not inadvertently place them in contravention of the Amendment Legislation.
For further information, please contact:act:
Diana Purdy, Partner, Bird & Bird
diana.purdy@twobirds.com
