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14 February, 2018
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 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:
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If the proposed changes become law, it would be unlawful to ask women to either stop expressing milk in the workplace or breastfeeding in restaurants, libraries and clubs, as this would amount to unlawful discrimination. Rigid or inflexible policies that prohibit or restrict employees from taking lactation breaks could give rise to discrimination complaints. |
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If the proposed changes become law, it would be unlawful to harass or treat an individual less favourably by blindly assuming the individual is of a particular race group or ethnic origin, even when they are not. |
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If the proposed changes become law, harassment on the basis of sex, disability, race (including imputed race and association with a race) would be outlawed: –
This would apply not only to employers and co-workers, but also to service providers, customers, co-tenants, sub-tenants and management of clubs. |
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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. |
Although Hong Kong has made effort to normalise breastfeeding, breastfeeding is still very much plagued by discrimination at work and in the public at large. There is nothing in the SDO or FSDO that specifically deals with this.
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: As for the issue of harassment as between persons in a common workplace, 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!
Discrimination law in Hong Kong remains a closely watched topic. Further updates to follow!
For further information, please contact:
Anita Lam, Counsel, Head of Employment, Clifford Chance
anita.lam@cliffordchance.com
