On 19 June 2020 the Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020 was gazetted to commence. It amends each of the existing anti-discrimination ordinances to extend protection prohibiting discrimination on the ground of breastfeeding and strengthen some of the protection against unlawful discrimination and harassment. The enhanced protections (save for those relating to breastfeeding) commenced with immediate effect. This Legal Update looks at the changes and what employer should be doing in light of them.
What are the key changes?
- Unlawful breastfeeding discrimination
The Sex Discrimination Ordinance (SDO) will be amended to provide for unlawful discrimination on the ground of "breastfeeding". Under the SDO, a woman will be treated as breastfeeding if she is engaged in the act of breastfeeding a child or expressing breast milk, or is a person who feeds a child with her breastmilk.
As with sex discrimination both direct and indirect discrimination is unlawful. So, an employer will be taken to have unlawfully discriminated against an employee on the ground of breastfeeding if it treats her less favourably than it would treat those who are not breastfeeding in the same or not materially different circumstances. Indirect discrimination arises where a condition or requirement is applied to everyone equally but a smaller proportion of women who are breastfeeding can comply than those who are not breastfeeding, she suffers a detriment as a result and the condition or requirement is unjustifiable.
The above amendments will come into force on 19 June 2021.
- Harassment in the workplace
The scope of unlawful sexual harassment, disability harassment and racial harassment has been expanded to cover situations where the claimant and respondent are "workplace participants" provided that they work in or attend the same workplace. "Workplace participants" include an intern or a volunteer where there is no employment relationship.
Interns and volunteers will be personally liable for acts of harassment they commit in the course of an internship or performing the volunteer work.
A person who engages an intern or volunteer maybe vicariously liable for the unlawful act of harassment their intern or volunteer commits even if the unlawful act was done without their knowledge or approval. It may be a defence to vicarious liability if the person can show that they took such steps as were reasonably practicable to prevent the intern or volunteer from doing the relevant act, or from doing acts of that description.
- Unlawful race discrimination and harassment by imputation and against "associates"
The Race Discrimination Ordinance (RDO) has been expanded to cover:
- "race" or "racial group" that is imputed to a person. So, it is possible to engage in unlawful race discrimination if you treat someone less favourably thinking that they are of a particular race when in fact they may not be; and
- situations where a person is discriminated against or harassed because of the race of that person's "associate". "Associate" has the same meaning under the RDO and the Disability Discrimination Ordinance (DDO), which includes a spouse of the person, another person who is living with the person on a genuine domestic basis, a relative of the person, a carer of the person, and another person who is in a business, sporting or recreational relationship with the person.
- Protection against disability and racial harassment by service providers and customers
Under the SDO, it is unlawful for a service provider to sexually harass a customer (and vice versa) in the course of offering, providing or acquiring goods, facilities or services.
The DDO and RDO have now been amended to provide a similar protection to that in the SDO to prohibit disability and racial harassment by service providers and customers in the course of the providing of acquiring goods, services or facilities. The protection also extends to cover harassment on board Hong Kong-registered ships and aircraft while outside Hong Kong.
- Protection against sexual and disability harassment against a member or applicant for membership of a club.
The SDO and DDO have been amended to make it unlawful for a club or the committee of management of a club and its members to sexually harass a person or to harass a person with disability who is or has applied to be a member of the club. A "committee of management of a club" means the group or body of persons (howsoever described) that manages the affairs of that club. As such, a club may be held liable for the conduct of an individual who has a management role within the club even if they are not its employees.
- Damages for unlawful indirect sex, race and family status discrimination
Before the amended legislation, no damages will be awarded to a claimant who succeeds in his/her claims for unlawful indirect sex, race and/or family status discrimination if a respondent can prove that the requirement or condition concerned was not applied with the intention of treating a claimant unfavourably. The SDO, RDO and FSDO have been amended to remove this "intention" exclusion going forward. So, for unlawful indirect sex, race and/or family status discrimination that is committed on or after 19 June 2020, the Court may award damages to a successful claimant even if the less favourable treatment is unintentional.
What should I do now?
Employers (including clubs) should:
- Review and update their anti-discrimination and anti-harassment policies (including their equal opportunities policies);
- Update the training they provide to take account of the changes in the legislation and provide refresher training. As intention is irrelevant to determining the issue of unlawful discrimination, an employer should consider whether the training it provides to employees can cover unconscious bias.
Although the provisions dealing with breastfeeding will not commence for another year or so, employers can use the time to train staff.
The Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020 with full detail of the above amendments can be found here: https://www.gld.gov.hk/egazette/pdf/20202425/es1202024258.pdf