Key changes in anti-discrimination law that employers must note

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Introduction

On 19 June 2020, the Hong Kong Government gazetted the Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020 (“DLMAO”) which seeks to enhance protection against discrimination and harassment. The DLMAO amends the four major anti-discrimination Ordinances in Hong Kong, namely the Sex Discrimination Ordinance (Cap.480) (“SDO”), the Disability Discrimination Ordinance (Cap.487) (“DDO”), the Family Status Discrimination Ordinance (Cap.527) (“FSDO”) and the Race Discrimination Ordinance (Cap.602) (“RDO”).

The majority of the amendments have come into operation on 19 June 2020. The key changes and our suggestions to employers are summarised below:


(i)   Harassment at workplace

There are three major amendments for enhanced protection against harassment at workplace:

(1)   Unlawful harassment on the grounds of sex, disability or race now covers situations where the harasser and the victim are “workplace participants” working in a common workplace, even in the absence of any employment or employment-like relationship with each other.

 

(a)   The definition of “workplace participants” covers employees, employers, contract workers, principal of a contract worker, commission agents, principal of a commission agent, partners in a firm, interns and volunteers.

 

(b)   For example, a person’s act of harassing a contract worker (who is not an employee of the person) providing services at the person’s office on the instruction of the contract worker’s employer will be unlawful. Interns and volunteers will be liable for acts of harassment they commit in the course of an internship or performing the volunteer work.

 

(2)   The DDO and RDO are amended to render it unlawful for customers to harass service providers on the ground of disability or race, including where the harassment occurs outside Hong Kong on Hong Kong registered aircrafts or ships.

 

(3)   The DDO and SDO are amended such that it is unlawful for a club or its management to engage in disability or sexual harassment against its member or an applicant for membership of the club.

 

Importantly, a person who engages a “workplace participant” (including an employer) can be held vicariously liable for an act of harassment committed by the “workplace participant” in a common workplace, whether or not the act was done with the knowledge or approval of that person, unless it can be proved that the person took “reasonably practicable steps” to prevent the “workplace participant” from committing the unlawful act. For example, an employer can be held liable if its employee unlawfully harasses an outsourced worker working in its office in the course of employment. Employers can also be held liable for unlawful acts of harassment committed by their interns and volunteers against other “workplace participants”.

 

 We suggest employers to (a) formulate written workplace harassment policies (if they have not done so), (b) carefully review and update their workplace harassment training and policies to ensure compliance with the amendments, (c) extend their workplace harassment training and policies to all “workplace participants”, including interns and volunteers, to minimise their potential liabilities, and (d) take all “reasonably practicable steps” to prevent unlawful acts of harassment by their employees. According to the Equal Opportunities Commission, “reasonably practicable steps” may include implementing and promoting anti-harassment policy, raising awareness on harassment prevention through organising activities such as seminars and training workshops, and developing preventive and remedial measures (such as implementing complaint handling and supporting mechanism against harassment).


(ii)   Breastfeeding discrimination

Express provisions are introduced under the SDO to prohibit direct and indirect discrimination on the ground of breastfeeding:

(1)   A person can be liable for unlawful discrimination if the person (a) treats a breastfeeding woman less favourably than a person who is not breastfeeding; or (b) applies a blanket requirement or condition to all persons but the requirement or condition has a disparate effect on breastfeeding women who cannot comply with it and suffer a detriment as a result, and the requirement or condition cannot be shown to be justifiable.

 

(2)   Breastfeeding is broadly defined. A woman is considered to be 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 breast milk”. The child needs not be the woman’s own child.

 

(3)   The protection will apply to various fields covered by the SDO, including education, employment and the provision of goods, services and facilities, and disposal or management of premises.

 

 We suggest employers to lay down in writing internal policies and practices to increase accommodation for breastfeeding women and to avoid liability for breastfeeding discrimination. Although no positive duty would be imposed on employers to provide reasonable accommodation (such as lactation break or facilities) for breastfeeding women, the failure to make reasonable accommodation may constitute discrimination if the employer cannot show that it is justifiable.


(iii)   Extended scope of racial discrimination and harassment

The RDO has been amended so that it is unlawful to discriminate or harass a person because of the race of the person’s “associate”. “Associate” 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.

In addition, the RDO now covers racial discrimination and racial harassment by imputation that the victim is of a particular race or a particular race group, even if the victim is not. Therefore, a person can be held liable for racial discrimination or harassment on the basis of a mistaken perception of the race of the victim.


(iv)   Intention to discriminate not required for award of damages

The intention requirement for an award of damages for certain acts of indirect discrimination under the SDO, FSDO and RDO have been removed. Hence, for acts of indirect discrimination on the grounds of sex, race or family status, the Court may award damages to a successful claimant even if the discriminatory treatment is unintentional.

As intention is irrelevant in determining an award of damages for indirect discrimination, employers are more susceptible to claims for damages for discrimination in the workplace.

 

 We suggest employers to (a) carefully review their employee handbooks and workplace policies to see if there are any discriminatory requirements or conditions, (b) lay down stringent and clear guidelines in writing to ensure that decisions in recruitment, promotion and performance management are not influenced by unconscious bias, and (c) review their procedures for handling discrimination complaints so that such complaints are properly handled and followed up with.


Implications for employers

All amendments under the DLMAO have come into effect on 19 June 2020 except those in relation to breastfeeding discrimination, which will take effect on 19 June 2021. Separately, the Sex Discrimination (Amendment) Bill 2020, will be introduced in future to render it unlawful to harass breastfeeding women under the SDO. The various amendments have extended the obligations and potential liabilities of employers, leaving employers more susceptible to discrimination and harassment claims.

As a starting point, we encourage employers to adopt our suggestions above. However, employers should bear in mind that whether an act or a company policy amounts to discrimination or harassment very much depends on the facts and circumstances of each case. If in doubt, seek assistance from legal advisors at an early stage. We have extensive experience in reviewing company policies and employee handbooks. If you would like to know more about how we can help your business stay compliant with various employment, privacy and discrimination laws and regulations, please contact us at employment@onc.hk.

The full text of the DLMAO can be accessed here.

 

For enquiries, please feel free to contact us at:
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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.
Published by ONC Lawyers © 2020