12 February 2014
What is "positive discrimination"? Is it risky?
Positive discrimination involves the active promotion of a category of individuals who are identified as having been previously disadvantaged or under represented. Positive discrimination will always involve a counterbalance of negative discrimination.
Although section 48 of the Sex Discrimination Ordinance contains an exemption for acts that are reasonably intended to ensure employees or individuals in a protected category have equal opportunities and access to services, facilities or opportunities and are afforded benefits or programmes in relation to employment, this section does not permit employers overtly to favour women over men in the selection process for roles or promotions.
Whilst employers may have the best intentions in encouraging managers to recruit more women and to identify the best female talent for positions as they arise, any employer who actively encourages its managers to select women as opposed to men for new roles or to otherwise favour women in the recruitment process is at risk of claims from men for direct sex discrimination under the Sex Discrimination Ordinance (in Hong Kong).