Four years after the Equal Opportunities Commission made submissions to the government on proposed amendments to Hong Kong’s anti-discrimination legislation, several of those amendments have now been passed into law. Gazetted on 19 June 2020, the Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020 (“Amendment Legislation”) provides 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 update.
As a result of the Amendment Legislation, it is now 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. While the Amendment Legislation does not impose a positive obligation to offer lactation breaks or facilities, employers should examine their workplace policies and practices to ensure that they are not inadvertently falling foul of the SDO.
While all other changes under the Amendment Legislation took immediate effect from 20 June 2020, the changes to the SDO on breastfeeding discrimination will only come into force in 12 months, on 19 June 2021.
Prior to the enactment of the Amendment Legislation, employees, contract workers, partners of a firm and commission agents were protected from sexual, racial and disability harassment in the workplace. The Amendment Legislation now extends this protection to interns, volunteers and barristers’ pupils. All such workers are now referred to in the Amendment Legislation as "workplace participants".
The Amendment Legislation also creates obligations for interns, volunteers and barristers' pupils not to harass others in the workplace. These obligations already exist for the other workplace participants. It should be noted that 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. It will therefore be important to ensure that anti-harassment training and policies are extended to all workplace participants to minimise any vicarious liability.
Discrimination and Harassment by Association
Individuals who are treated less favourably by virtue of being associated with a person of a certain race (referred to as an "associate") are now protected from direct discrimination and harassment under the RDO. An associate is someone who is a spouse, relative or carer of the protected person, someone with whom the protected person is living on a genuine domestic basis, or someone with whom the protected person is in a business, sporting or recreational relationship.
The definitions of "race" and “racial group” of a person under the RDO have also been amended to include the imputation of a race or racial group to a person. It is therefore also unlawful under the Amendment Legislation to harass or discriminate against individuals on the basis that they are assumed to be of a particular race, even when they are not of that race.
Intention to Discriminate
Prior to the enactment of the Amendment Legislation, a personal 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 where the defendant could prove that there was no intention to discriminate. The lack of intention to discriminate against the claimant will no longer be a defence to a claim for damages in such cases.
Employers should therefore ensure that they do not, without proper justification, impose requirements or conditions on employees which might indirectly place protected employees at a disadvantage; for example, because of a disability or on the ground that they are a parent or carer.
The full text of the Amendment Legislation is available here.
If you would like to understand the potential implications of these legislative amendments for your organisation, please contact Pattie Walsh or Diana Purdy.