The Equal Opportunities Commission made recommendations on workplace sexual harassment
Introduction
On
12 May 2022, the Equal Opportunities Commission (“EOC”) released the findings of the first-ever “Territory-wide Representative
Survey on Sexual Harassment in Hong Kong 2021”. In its report,
the EOC set out and discussed the survey result, and made recommendations on redressing
sexual harassment including workplace sexual harassment.
Workplace
sexual harassment
The
survey shows that sexual harassment is prevalent, regardless of sex and age. It
confirms the traditional belief that more women than men are victims of
workplace sexual harassment, and that the harassers are very often men. The
survey findings further illustrate that those with less power, i.e. younger adults, in particular
younger women, and those who took up temporary positions are more likely to
face sexual harassment at work. The study also demonstrates that working in a
company with no anti-sexual harassment policy significantly increases one’s
likelihood of being sexually harassed.
EOC’s
recommendations
In
the report, the EOC made various recommendations to the employers, the Government
and the Hong Kong Exchanges and Clearing Limited (“HKEX”) on redressing sexual harassment. The recommendations are
summarised below.
Employer
Employers
are encouraged to develop a clear corporate anti-sexual harassment policy that
handles complaints, takes disciplinary actions, provides awareness training to
staff and communicates the redress channels. Employers should also encourage
potential victims to be assertive and adopt a bystander intervention approach.
Employers
should explicitly show its commitment to countering sexual harassment by, for
instance, appointing a top-level manager to oversee anti-sexual harassment matters.
Companies are also advised to inform their staff about the recent legal changes
in anti-sexual harassment provisions under the Sex Discrimination Ordinance
(Cap. 480) (“SDO”).
Government
The
Government may explore the feasibility of introducing a positive duty on
employers to take reasonable steps to prevent and respond to workplace sexual
harassment. For example, the SDO may be amended to make employers legally
liable for third party harassment, when participants in common workplaces,
customers, or clients are found to have sexually harassed their employees,
unless employers have taken reasonably practicable steps to prevent the sexual
harassment, and they have no knowledge of the sexual harassment in issue.
The
Education Bureau should consider thoroughly reforming the sexuality education
in primary and secondary schools to give more emphasis on gender equality and
relationship education, including sexual harassment in digital contexts and
image-based sexual violence. Secondary and tertiary schools should provide
training to students on awareness of sexual harassment and equip them with
skills and knowledge to respond to sexual harassment.
HKEX
HKEX
should consider reviewing the Environmental, Social and Governance
(“ESG”) Reporting Guide of the
Listing Rules to include the adoption of an anti-sexual harassment policy as
one of the key gender equality strategies that listed companies should disclose
in their ESG reports.
Takeaway
In its report, the EOC made recommendations, in particular, the proposed
amendment to the SDO to make employers legally liable for third party
harassment. The proposed amendment suggested that EOC wants to promote
accountability as well as a broader systemic and cultural change. The proposed
amendment, if implemented, will shift the burden from individuals making
complaints to employers taking proactive and preventative action. We shall keep
you updated if the Government introduces such proposed amendment as a bill.
The Government has yet to introduce a bill to
put into effect the EOC’s recommendations. That said, employers should establish
(if not already have one) and review from time to time their anti-sexual
harassment policy to create a safe working environment for their employees.
Employers are advised to seek proper legal advice and assistance when doing so.
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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,
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Published by ONC Lawyers
© 2022 |