The Sex Discrimination Ordinance (“SDO”) was recently amended to provide “new” protection to employees of the service industries (e.g. flight attendants, crew members on ships and sales representatives) against sexual harassment by customers and prospective customers.

Introduction
Before the recent amendments to the SDO, the scope of prohibition of sexual harassment includes (1) sexual harassment by employers towards job candidates and employees (2) between employees and (3) by service providers towards their customers and prospective customers. However, with effect from 12 December 2014, the SDO also prohibits sexual harassment by customers or prospective customers towards the providers of goods, facilities or services and their employees.

New protection under the SDO
Under the recent amendments to the SDO, “it is unlawful for a person to sexually harass a woman (or a man) in the course of seeking to be provided with goods, facilities or services by her/him, or being provided with goods, facilities or services by her (or him).” In other words, prospective customers and/or customers are prohibited from sexually harassing the providers of goods, facilities or services. The SDO specifically stipulates that such prohibition is applicable even if the sexual harassment occurs on a Hong Kong-registered ship, or aircraft outside Hong Kong. Such specific provision is crucial for protecting flight attendants and crew members of ships as they may be sexually harassed while on duty on the aircrafts or ships outside Hong Kong. The amendments to the SDO represent a major step forward towards the protection of employees who have frequent contact with customers and prospective customers.

What will amount to sexual harassment?
According to the SDO, “a person sexually harasses a woman/man (victim) if the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the victim or engages in other unwelcome conduct of a sexual nature in relation to the victim, in circumstances in which a reasonable person would have anticipated that the victim would be offended, humiliated or intimidated, or the person, alone or together with other persons, engages in conduct of a sexual nature which creates a hostile or intimidating environment for the victim.” Moreover, the SDO stipulates that a conduct of a sexual nature “includes making a written or verbal statement of a sexual nature to the victim, or in her/his presence”. Therefore, direct and indirect sexual harassment are prohibited by the SDO.

In order to give the public a better idea of the actions which may amount to sexual harassment, the Equal Opportunities Commission had issued the Code of Practice (“COP”) to set out some examples of sexual harassment. According to the COP, touching, grabbing or deliberately brushing up against the victim and persistent questioning about the victim’s sex life may give rise to sexual harassment.

What actions are required by the employers?
In response to the recent amendments to the SDO, employers of the service industries shall prepare the relevant publication to make the employees, customers and prospective customers aware of the new law. Moreover, new internal policies and procedures shall be formulated to prevent and eliminate sexual harassment by customers and prospective customers. Specific officers (who are sensitive, reasonable, non-judgmental, sympathetic, approachable and impartial) may be assigned to deal with the implementation of the relevant policies, to train the employees (especially the frontline employees who are most vulnerable to sexual harassment by customers and/or prospective customers) about the way in which they can protect themselves while continue to provide the goods, facilities and/or services to the satisfaction of customers and prospective customers. Apart from the above, comprehensive procedures shall be established to handle the relevant complaint if it occurs.

Conclusion
The amendments to the SDO provide better protection to the employees of the service industries. However, employers shall also formulate new policies and procedures in order to prevent, eliminate and/or handle sexual harassment complaints if necessary.