Pregnant women victims of bias
Women in Hong Kong this week celebrated the progress made towards reaching gender equality. Nevertheless, sex discrimination remains a grim reality in the workplace.
The Equal Opportunities Commission (EOC) last year received 334 complaints filed under the Sex Discrimination Ordinance (SDO). The figure was up from 318 in 2008. Of them, 173 were related to pregnancy discrimination - with 117 cases involving dismissal - while in 2008, there were 166 such complaints. The rest concerned sexual harassment (108, up from 89 in 2008), sex discrimination (29, down from 42), marital status discrimination (5, same as 2008 figures) and victimisation (19, up from 16). "Under the SDO, it is unlawful for an employer to subject a woman to a disadvantage or dismiss her on the grounds of her pregnancy," an EOC spokeswoman says.
A pregnant woman may consider herself a victim of discrimination if she is not being hired for a job or offered a pay rise or bonus consistent with what other employees receive.
The possibility of discrimination also arises when she is dismissed during pregnancy, or on return from maternity leave, is bypassed for a favourable transfer, or subjected to an unfavourable transfer, is forced to accept a change in working hours, roles and duties with no just causes, or finds her position being filled by other staff.
A pregnant employee who has been told to go should protect her legal rights, says Jennifer Van Dale, a partner at law firm Baker & McKenzie in Hong Kong. "A pregnant employee should immediately inform her employer that she is pregnant if she is [dismissed]," Van Dale says.
"The Employment Ordinance provides that the employer must withdraw the notice of termination in that case."
If the employer is already aware of the pregnancy but still chooses to dismiss, the employee has several options: going to the Labour Department, complaining to the EOC or filing a formal discrimination complaint in the District Court. Most cases can be completed quickly.
The EOC is required by law to investigate and help mediate the dispute through conciliation.
According to the EOC, from 2007 to last year, the average conciliation rate was 74 per cent. Conciliation terms include monetary compensation, apology and the offer of training opportunities after pregnancy.
Van Dale says acts of sex discrimination against pregnant women may happen with the best of intentions. For example, training sessions that take place at night after work may not be offered to a pregnant employee because the employer thinks that she should rest. But intention is irrelevant, and the courts will look at what actually happened if there is a complaint.
"The employer must have grounds to summarily dismiss the employee, such as gross misconduct or dishonesty, during pregnancy," she says.
Employers can be prosecuted even if compensation has been made. "It is still a criminal offence to dismiss an employee when she is pregnant or on maternity leave, except in very limited circumstances," Van Dale says.
- Write down what has happened
- Keep medical certificates
- Talk to your employer
- Keep a record of your work
- Find out how other women staff have been treated
- Resolve the problem with your employer
- Complain to the EOC and ask for an investigation and conciliation - you will have to do it within 12 months of the incident
- Talk to a lawyer
- File a lawsuit in the District Court - you will have to do it within 24 months