New breastfeeding discrimination and harassment laws in Hong Kong

As reported in a previous issue of Frontline APAC, the Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020 ("Amendment Legislation") was enacted on 19 June 2020 and introduced certain changes to the Sex Discrimination Ordinance (“SDO”). Part 2 of the Amendment Legislation makes it unlawful to directly or indirectly discriminate against breastfeeding women. The effective date of Part 2 was delayed for one year until 19 June 2021.

During the debates on the Amendment Legislation, it was noted that Part 2 only dealt with discrimination against breastfeeding women and omitted to provide measures to prohibit harassment of breastfeeding women. The Sex Discrimination (Amendment) Bill (“SDO Bill”) was therefore gazetted on 31 January 2020 and passed by the Legislative Council on 17 March 2021 to provide for protections against harassment on the ground of breastfeeding. This also came into effect on 19 June 2021 under the Sex Discrimination (Amendment) Ordinance 2021.

The new protections now enshrined in the Sex Discrimination Ordinance, make it unlawful in the employment context to:

1. Treat a woman less favourably on the ground that she is breastfeeding when compared with the treatment given, or that would be given, to a woman who is not breastfeeding (direct discrimination);
2. Apply a condition or requirement where the proportion of breastfeeding woman who can comply with it is considerably smaller than the proportion of people who are not breastfeeding and can comply with it, and where the condition or requirement causes a detriment to breastfeeding woman, but is not objectively justifiable (indirect discrimination);
3. Engage in unwelcome conduct towards a woman on the ground that she is breastfeeding if a reasonable person would have anticipated that the woman would be offended, humiliated or intimidated by that conduct (direct harassment);
4. Engage in conduct that creates a hostile or intimidating working environment for a woman on the ground that she is breastfeeding (hostile environment harassment);
5. Victimise a woman who makes a claim, or intends to make a claim, of breastfeeding discrimination or harassment.

Ensuring employees understand these concepts is important to avoid any inadvertent acts of discrimination or harassment because it will not be an acceptable excuse for employees (or their employers) to say that they did not know that their acts were unlawful or that no harm was intended.

Employers can, themselves, be vicariously liable for the unlawful acts of their employees unless they can prove that they took reasonably practicable steps to prevent such acts. Such steps should include regular training for all employees that explains the types of conduct that are inappropriate in the course of employment, as well as circulating clear policies prescribing the types of behaviours that are prohibited. Managers should also set the right tone within their teams by cultivating a culture and promoting practices that treat breastfeeding women with respect and dignity.