Anti-discrimination review does not go far enough
The Current Regime
Hong Kong’s anti-discrimination laws are in the spotlight following the start of a three-month review by the Equal Opportunities Commission (EOC) and the introduction of a sex discrimination amendment bill into the Legislative Council. The Discrimination Law Review could enhance the city’s four discrimination ordinances, while the Sex Discrimination (Amendment) bill could make unlawful the sexual harassment of a service provider by a customer.
However, while these latest developments may bring welcome changes to the legal landscape, they are likely to do little to address the areas in which Hong Kong discrimination laws – particularly in an employment context – still lag behind those of other nations such as Australia and Britain.
The four ordinances prohibit discrimination, harassment and victimisation based on sex, marital status, pregnancy, disability, family status or race.
Certain exceptions may permit discrimination in an employment context that would otherwise be unlawful under the ordinances, including for example where being of a particular sex or being able-bodied is a genuine occupational requirement.
An employee subject to unlawful discrimination may lodge a formal complaint to the EOC. The EOC will then attempt to settle the complaint through conciliation between the parties.
Aggrieved employees can also pursue civil proceedings in the District Court. However, given the time and costs associated with such court proceedings, the majority of actions are in practice commenced by way of a complaint to the EOC.
The Proposed Changes
The EOC commenced a three-month public consultation process in early July as part of a review of the discrimination ordinances. It invited opinion on the following issues: whether the four existing ordinances should be combined into a single, modernised ordinance; whether the law should protect immigrants from discrimination; whether there is a need for protection from discrimination on the ground of being in a de facto relationship; whether public authorities should be required to promote equality; and whether the law should provide protection from sexual harassment in common workplaces.
A number of the above topics will have an effect on employment conditions. For example, there is currently no clear prohibition against discrimination on the basis that a person is in a de facto relationship (as opposed to a marriage). An amendment to the law would ensure that employment benefits such as travel allowances, housing allowances and insurance are not withheld from an employee on the basis they are not married to their partner.
In addition, there is a gap in liability for sexual harassment in a workplace where it occurs outside of the employment relationship, for example, where multiple employers share one workplace, and a person is harassed by someone other than his or her employer. The EOC’s review indicates that the government may look to close this gap.
The Overlooked Issues
The anti-discrimination regime overlooks several types of discrimination. The most obvious of these are discrimination on the grounds of sexual orientation, age and religion, none of which are unlawful.
There appears little intention to address these omissions. Indeed, the consultation document states that its aim is not to introduce discrimination grounds of “sexual orientation, gender identity, intersex status, or age”, and that consultation on these grounds will take place at a later date.
The Labour Department does have guidelines and codes of practice aimed at preventing discrimination on grounds of age and sexual orientation in the workplace. These give practical guidance to employers in relation to all phases of the employment lifecycle, including advertising for vacant positions; using unbiased and consistent selection criteria for job applicants; offering fair and consistent terms and conditions; giving appraisals, promotions, training and transfers; implementing discipline and dismissals; and preventing workplace bullying and harassment.
However, these guidelines are not legally binding and the fact remains that discrimination on the grounds of sexual orientation, age and religion is not unlawful in Hong Kong.
The review will help create a more comprehensive set of discrimination laws. However, it will not address the many gaps in the legislation.
The information contained in this article should not be relied on as legal advice and should not be regarded as a substitute for detailed advice in individual cases. If advice concerning individual problems or other expert assistance is required, the service of a competent professional adviser should be sought.
Herbert Smith Freehills has 2,800 lawyers and 460 partners in over 20 offices globally. It advises on dispute resolution and employment, among other areas.
Gareth Thomas is head of the Hong Kong commercial litigation team and is responsible for the Greater China employment practice.
Helen Beech is a senior member of the Hong Kong employment practice and has a wide range of experience in employment matters.