The Hong Kong Government recently passed into law significant amendments to existing anti-discrimination legislation . These amendments will impact a large range of activities and are particularly significant in the employment context.
What you need to know
- The Hong Kong Government has introduced amendments to Hong Kong's existing anti-discrimination legislation which provide expanded protections to employees.
- The majority of these changes took effect on 19 June 2020, with the protection of breastfeeding to take effect on 19 June 2021.
What you need to do
- Employers should review their internal policies and practices to ensure that they are compliant with Hong Kong's various anti-discrimination legislation.
In a long-awaited development, the Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020 (Amendment Ordinance) was gazetted on 19 June 2020 and came into force on the same day. The changes implemented by the Amendment Ordinance result in additional protections from discrimination and harassment for employees.
Hong Kong anti-discrimination regime
Hong Kong has a dedicated anti-discrimination legislation regime comprising the Sex Discrimination Ordinance (SDO), the Disability Discrimination Ordinance (DDO), the Family Status Discrimination Ordinance (FDO), and the Race Discrimination Ordinance (RDO). These laws apply to a broad range of activities (including the provision of services) but relevantly for employers apply to the entire employment lifecycle from advertising, recruitment through to termination.
Sex discrimination to include breastfeeding
Through the Amendment Ordinance the SDO has been amended to include breastfeeding as a protected characteristic. Notably, the definition of "breastfeeding" in the amended SDO includes not only the act of breastfeeding and expressing milk but also to being a person feeding a child with breast milk (i.e, the status of being a breastfeeding mother). Unlike the rest of the changes introduced by the Amendment Ordinance, this amendment will only come into effect on 19 June 2021.
Once those changes come into effect, the SDO will prohibit any person directly or indirectly treating a woman who is breastfeeding less favourably compared to a woman who is not breastfeeding. It will also be lawful for an employer to do any act which is reasonably intended to afford employees who are breastfeeding with the same opportunities as those who are not. In other words, implementing special measures (distinct from positive discrimination) for breastfeeding women will be lawful once the changes to the SDO take effect. Despite the above changes, the Amendment Ordinance does not impose a positive legal obligation on employers to offer lactation breaks or facilities to employees.
Race discrimination
The RDO prohibits discrimination against an employee on the basis of the employee's race, and, prior to the recent amendments, the race of the employee's "near relative". The Amendment Ordinance has replaced references in the RDO to "near relative" with the broader term "associate". This includes a spouse, relative or carer of the employee, another person living with the employee on a genuine domestic basis, and another person who is in a business, sporting or recreational relationship with the employee.
The definitions of "race" and "racial groups" in the RDO have also been amended to cover the race or racial group which has been imputed to a person. In other words, it is now unlawful to harass or discriminate against a person on the basis of a race or racial group which that person is assumed (imputed) to be from, even when that is not in fact the case.
Workplace harassment
The Amendment Ordinance amends the SDO, DDO, and the RDO to make it unlawful for one "workplace participant" to harass another "workplace participant". The effect of this change is to add an intern or volunteer of a firm to the list of persons (which previously included employees, employers, contractors (and their principals), commission agents (and their principals)) who are protected and prohibited from engaging in workplace harassment.
Employers should take particular note of this change and ensure that their workplace harassment/bullying policies cover all "workplace participants" rather than just employees.
Indirect discrimination claims
In the past, an employee who commenced a claim under the SDP, RDO or FDO against his or her employer on the basis of indirect discrimination would not be entitled to damages if the employer could prove that there was no intention to discriminate (although other remedies would still be available). A significant change made by the Amendment Ordinance is the removal or this protection. That is, an individual who has suffered indirect discrimination can be awarded damages even where there was no intention to discriminate against that individual.
Recommendations
The changes brought about by the Amendment Ordinance are significant and far-reaching. We recommend that employers:
- review their relevant workplace policies and practices to ensure compliance with the changes;
- consider introducing a specific breastfeeding policy and take steps to accommodate breastfeeding employees in the workplace (e.g. offering lactation breaks or facilities);
- introduce an anti-harassment policy (if one does not already exist); and
- conduct regular staff training regarding appropriate workplace behaviours, setting the employer's expectations regarding conduct, and reiterating prohibitions on discrimination and harassment.
Conclusion
For further information, please contact any of the key persons listed below.
