Have you reviewed your workplace policies and practices?
The Hong Kong government recently passed into law significant amendments to existing anti-discrimination legislation. These amendments will impact a large range of activities and are particularly significant in the employment context.
What you need to know
What you need to do
In a long-awaited development, the Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020 (Amendment Ordinance) was gazetted on June 19, 2020 and came into force on the same day.
The changes implemented by the Amendment Ordinance result in additional protections from discrimination and harassment for employees.
READ MORE: Anti-discrimination requirements for recruiters in Singapore
Hong Kong anti-discrimination regime
Hong Kong has a dedicated anti-discrimination legislation regime comprising the Sex Discrimination Ordinance (SDO), the Disability Discrimination Ordinance (DDO), the Family Status Discrimination Ordinance (FDO), and the Race Discrimination Ordinance (RDO).
These laws apply to a broad range of activities, including the provision of services, but relevantly for employers apply to the entire employment lifecycle from advertising, recruitment through to termination.
Sex discrimination to include breastfeeding
Through the Amendment Ordinance the SDO has been amended to include breastfeeding as a protected characteristic.
Notably, the definition of “breastfeeding” in the amended SDO includes not only the act of breastfeeding and expressing milk but also to being a person feeding a child with breast milk (i.e, the status of being a breastfeeding mother).
Unlike the rest of the changes introduced by the Amendment Ordinance, this amendment will only come into effect on June 19, 2021.
Once those changes come into effect, the SDO will prohibit any person directly or indirectly treating a woman who is breastfeeding less favourably compared to a woman who is not breastfeeding.
It will also be lawful for an employer to do any act which is reasonably intended to afford employees who are breastfeeding with the same opportunities as those who are not.
In other words, implementing special measures — distinct from positive discrimination — for breastfeeding women will be lawful once the changes to the SDO take effect.
Despite the above changes, the Amendment Ordinance does not impose a positive legal obligation on employers to offer lactation breaks or facilities to employees.
Race discrimination
The RDO prohibits discrimination against an employee on the basis of the employee's race, and, prior to the recent amendments, the race of the employee’s “near relative”.
The Amendment Ordinance has replaced references in the RDO to “near relative” with the broader term “associate”.
This includes a spouse, relative or carer of the employee, another person living with the employee on a genuine domestic basis, and another person who is in a business, sporting or recreational relationship with the employee.
The definitions of race and racial groups in the RDO have also been amended to cover the race or racial group which has been imputed to a person.
In other words, it is now unlawful to harass or discriminate against a person on the basis of a race or racial group which that person is assumed (imputed) to be from, even when that is not in fact the case.
READ MORE: More experience racial discrimination at work
Workplace harassment
The Amendment Ordinance amends the SDO, DDO, and the RDO to make it unlawful for one “workplace participant” to harass another “workplace participant”.
The effect of this change is to add an intern or volunteer of a firm to the list of persons who are protected and prohibited from engaging in workplace harassment. The list previously included employees, employers, contractors and their principals, and commission agents and their principals.
Employers should take particular note of this change and ensure that their workplace harassment/bullying policies cover all “workplace participants” rather than just employees.
Indirect discrimination claims
In the past, an employee who commenced a claim under the SDP, RDO or FDO against his or her employer on the basis of indirect discrimination would not be entitled to damages if the employer could prove that there was no intention to discriminate — although other remedies would still be available.
A significant change made by the Amendment Ordinance is the removal of this protection. That is, an individual who has suffered indirect discrimination can be awarded damages even where there was no intention to discriminate against that individual.
Recommendations
The changes brought about by the Amendment Ordinance are significant and far-reaching.
We recommend that employers:
James Comber leads the Hong Kong dispute resolution practice at Ashurst. Contact him at [email protected].
Karen Mitra is a senior associate at Ashurst. Contact her at [email protected].
© Ashurst 2020. Reproduced with permission. This article was first published in Ashurst’s Employment Update dated 26 August 2020.
