Changes to Hong Kong anti-discriminatory laws coming soon

On 22 June 2018, the government proposed to introduce the Discrimination Legislation (Miscellaneous Amendments) Bill (Proposed Bill) with a view to implementing the recommendations of priority made by the Equal Opportunities Commission, following its review of the four anti-discrimination Ordinances, namely: the Sex Discrimination Ordinance (SDO), the Disability Discrimination Ordinance (DDO), the Family Status Discrimination Ordinance (FSDO), and the Race Discrimination Ordinance (RDO).

The proposed amendments to the SDO, DDO, FSDO and RDO are outlined as follows:

Express protection from discrimination against breastfeeding

(1)             In order to afford more comprehensive protection to all breastfeeding women, express provisions will be introduced in the SDO to prohibit direct and indirect discrimination against a woman on the ground of breastfeeding and to render such conduct unlawful.

Such prohibition is intended to apply to all areas within the existing scope of the SDO, e.g., employment, education, the provision of goods, services, disposal or management of premises, and the activities of the government, etc. The definition of breastfeeding would include the expression of milk and the status of being a breastfeeding mother. However, no positive obligation will be imposed on any person to provide reasonable accommodation such as lactation breaks or facilities to breastfeeding women.

Replace reference to “near relative” with “associate”

(2)             Under the current provisions of the RDO, there is no protection from racial discrimination by association in relation to friends, carers or work colleagues.

The government proposes to amend the RDO to prohibit direct racial discrimination and harassment to a person on the ground of the race of the person’s associate in all areas of employment, education, the provision of goods, facilities and services, access to clubs, etc. Except in relation to shared accommodation with the discriminator or his/her “near relative”, the proposed amendment aims to replace references to “near relative” with “associate”, which would be defined to mean a spouse of the person, another person living with him/her on a genuine domestic basis, his/her relative, his/her carer and another person who is in a business, sporting or recreational relationship with him/her.

Protection from racial discrimination and harassment by imputation

(3)             There is no protection from discrimination by imputation on the ground of race under the RDO. The government proposes amendments to the RDO to cover direct and indirect racial discrimination and harassment by imputation that a person is of a particular race or a member of a particular racial group. Thus, under the proposed amendment, a person will be held liable for racial discrimination or harassment if he/she discriminates against or harasses another person on the basis of a perception of the race of the other person (even if he is not of such race).

Common workplace liability where there is no employment relationship

(4)             The SDO, RDO and DDO provide limited protection for a person who may be subject to harassment where such person and the harasser are working in a common workplace but there is no employment relationship between them.

The proposed amendment intends to widen the scope of protection to workplace participants against sexual, racial and disability harassment under the SDO, RDO and DDO where such persons (i.e. the victim and the harasser) both work in a common workplace but are not employed by the same employer, e.g. consignment workers working in a retail shop.

Under the Proposed Bill, “workplace participants” would cover an employer, an employee, a contract worker, a principal, a commission agent and a partner, and “workplace” would mean a place at which a workplace participant works or otherwise attends in connection with being a workplace participant.

Liability of customers for harassing service providers

(5)             Under the RDO and the DDO, only customers are entitled to protection from racial and disability harassment, but not service providers. The Proposed Bill now seeks to provide protection also to providers of goods, facilities or services by amending the RDO and DDO.

Under the proposed amendments, it would be unlawful for a customer to sexually harass a service provider and vice versa. The proposed amendment would also provide protection to a customer from harassment under the DDO not only where he wants to acquire the goods or services or to make use of the facilities, but also where he is acquiring the goods or services or making use of the facilities.

Liability of customers for harassment of service providers on aircraft and ships

(6)             The Proposed Bill seeks to extend the territorial extent of the harassment provisions in certain provisions of the RDO and DDO so that the protection to service providers from racial and disability harassment by customers would be extended to cover harassment which takes place outside Hong Kong, but on Hong Kong registered aircraft and ships.

Liability of management of clubs for harassing members or prospective members

(7)             Amendments to the SDO and DDO are proposed to safeguard sexual and disability harassment by a club or its management against its members or prospective members, rendering such harassment unlawful.

Awarding damages to victim of indirect discrimination claims

(8)             The Proposed Bill aims to repeal certain provisions of the SDO, FSDO and RDO to allow award of damages to the victim of unlawful indirect discrimination despite the fact that the respondent can prove that there was no intention to treat the victim unfavourably on the ground of the claimant’s sex, marital status, pregnancy, family status or race, which was previously recognised as a defence.

Comment

The Proposed Bill will be introduced by the end of 2018. A number of the proposed amendments are employment-related, such as the proposed prohibition of direct and indirect discrimination against breastfeeding, and the expansion of the scope of protection from sexual, disability and racial harassment to persons working in a common workplace. In view of these imminent changes, employers should obtain a good understanding of the various proposed amendments. In addition, employers should be prepared to establish and implement a broader anti-discrimination/harassment policy and compliance training programs so as to reduce the likelihood of employer liability, and to provide a more harmonious work environment for their employees.