On 12 December 2014 the Sex Discrimination Ordinance (“SDO”) was amended to make unlawful the sexual harassment of a person by a customer in the course of seeking to be provided with or being provided with goods, facilities or services by that person.
Effect of the amendment
The new law will protect women and men working in Hong Kong’s goods and services sector. It provides a person with direct recourse against a customer who sexually harasses him/her in the course of providing goods, facilities or services to that customer.
In practical terms, the amendment has a particular impact on customer-facing employees whose role requires personal interaction with customers. For example, the following types of conduct would be caught by the amendment:
- A customer making crude jokes or sexual comments to an employee of a service provider.
- A customer inappropriately touching an employee of a service provider.
A customer who is an individual will be personally liable to the victim. In addition, if the person committing the unlawful harassment is an employee of a corporate customer and the act was done in the course of the employee’s employment, then the corporate customer will also be vicariously liable (whether or not the act was done with the employer’s knowledge or approval).
Further, anything done by a person as agent for another person with the authority of that other person (whether express or implied, and whether precedent or subsequent) will be treated for the purposes of the SDO as done by that other person as well as by him. So, for example, a manager of the employee who unlawfully harasses may also be liable if the act was done with his/her authority.
There is a defence to the above forms of vicarious liability if the corporate employer or manager can prove that they took such steps as were reasonably practicable to prevent the employee or agent from doing the unlawful act, or from doing in the course of his employment acts of that description.
What should you do?
We recommend that employers update their anti-harassment policy to deal with the amendments.
Appropriate anti-harassment training (and refreshers) should be provided to employees particularly customer facing employees. Among other things employees should be asked to alert management to any incidents of potential harassment immediately so that they may be addressed without delay.