The Equal Opportunities Commission (EOC) has launched its first comprehensive review of the four anti-discrimination ordinances relating to gender, disability, family status and race since they came into force as long ago as the late 1990’s and is seeking opinions from the public on its proposed extension of protection from discrimination.
Background
The review has been prompted by the deficiencies in the current legislation, the changing needs of Hong Kong and international developments on human rights protection. The current anti-discrimination laws were largely based on the then discrimination laws in the UK and Australia which have been reviewed and reformed on a number of occasions. In fact, many international jurisdictions (e.g. the UK, Australia and New Zealand) already have laws in place to protect most (if not all) of the proposed forms of protection from discrimination. If the proposed amendments are adopted, this will bring Hong Kong’s anti-discrimination regime more in line with the international standards/practice.
Proposed amendments
Some of the proposed amendments to these ordinances, if implemented, would have significant implications in an employment context. The key proposed amendments include:
- Unmarried couples should be protected from family status / marital status discrimination.
- The law should protect people from nationality, citizenship or residency status discrimination.
- A duty to provide reasonable accommodation for persons with disabilities should be imposed.
- The law should provide protection for sexual harassment in common workplaces where there is no employer/employee relationship.
- There should be a defence for principals to liability from unlawful conduct of agents.
- Requests for information for a discriminatory purpose relating to sex, family status, race, marital status, etc should become unlawful.
Implications in employment context
The rationale and the implications of these proposed amendments are explained as follows:
1. Unmarried couples to be protected from family status / marital status discrimination
Currently, people in de facto relationships (i.e. unmarried homosexual or heterosexual couples) do not enjoy express protection from marital status and family status discrimination.
As such, if an employer only provides medical benefits for spouses of employees but not de facto partners of employees, it may not constitute direct marital status discrimination. By the same token, a woman who has to care for the elderly father of her de facto partner and as a result is treated less favourably at work may not be able to claim family status discrimination.
It is therefore proposed that the law should be amended to protect people in de facto relationships expressly, and if adopted, entitlement to employment benefits would be extended to unmarried couples. In the public consultation papers, the EOC did not indicate their position as to whether the proposed protection should extend to homosexual couples, but is seeking the public’s opinion in this regard.
2. Protection from nationality, citizenship or residency status discrimination
The tension between people from Hong Kong and mainland China (including new immigrants) has been increasing in recent years. However, unlike many other international jurisdictions (e.g. Australia and the UK) where protection from nationality, citizenship or residency status discrimination is safeguarded by express law, Hong Kong is lacking protection in this regard.
The current Race Discrimination Ordinance only protects people from “race” discrimination and does not provide protection from discrimination against one’s nationality, citizenship and residency status.
If this amendment is adopted, there could be unlawful discrimination if an employer refuses to interview or employ a person on the ground of his nationality, citizenship or resident status (e.g. a newly arrived immigrant).
3. A duty to provide reasonable accommodation for persons with disabilities
Under the current regime, there is no statutory duty to provide reasonable accommodation for persons with disabilities. The concept of “reasonable accommodation” is however one of the relevant factors in determining whether the defence of “unjustifiable hardship” to disability discrimination is established.
The EOC believes that an express duty to make accommodation is preferable to ensure persons with disabilities are better able to participate in key aspects of life, such as employment. The reasonableness of accommodation would depend on various factors such as practicability of services/facilities and resources of employers.
If this proposal is adopted, employers may need to make appropriate workplace adjustments, such as modifying work premises and equipment and modifying work practices/schedules (e.g. regular meal breaks for employees with diabetes). What specific accommodation is needed will require a case-by-case analysis. There will likely be disputes as to what accommodation is considered reasonable. Facilities which a disabled person may consider necessary and should reasonably be provided by the employer may not be practicably provided by the employer. For example, not all commercial buildings in Hong Kong have toilets for disabled persons, and it might not be practical or even possible for an employer to make any adjustment to accommodate the need of a disabled employee.
4. Protection for sexual harassment in common workplaces where there is no employer/employee relationship
Currently, an employer may be liable for sexual harassment of an employee by another employee at the place of work. However, he will not be liable for such unlawful acts of a non-employee on an employee at common workplaces. For example, if a female promoter, who is hired by a promoting company to work in a supermarket, is sexually harassed by an employee of the supermarket, her employer (the promoting company) will not be liable for the unlawful acts of the harassing party. The reason is that the harassing party is only an employee of the supermarket but not the promoting company. Nor will the supermarket be liable because the victim is not its employee.
To close this gap, it is proposed that the employer of the sexually harassed employee should be also held liable for the harassment committed by a non-employee if (i) it is put on notice of the harassment and (ii) it fails to take reasonable action to prevent it from happening.
This is one of the most controversial proposed amendments as it may increase the regulatory burden on employers. Some business interest groups objected to this proposal based on the perceived difficulty in controlling the conduct of third parties (particularly the customers). If the proposal is adopted, it is foreseeable that employers might require their third party service providers to comply with their sexual harassment policy and provide indemnity for any loss incurred from any unlawful sexual harassment committed by the staff of the service providers on their employees.
5. Defence for principals to liability from unlawful conduct of agents
Under the current regime, employers and principals are liable for discriminatory acts carried out by their employees and agents respectively. However, only employers (but not principals) will have a defence if they prove that they took reasonably practicable steps to prevent such unlawful discrimination from happening. It is proposed that such defence should now be available to principals too.
Such proposed defence may exempt employers’ liability as principal in the event that a recruitment agency commits unlawful discrimination (e.g. not putting forward candidates on grounds of their race even though they are suitably qualified) if they can prove reasonable steps have been taken to prevent discrimination. For example, instructing the agency to follow its equal opportunities policy may be considered as a reasonable step.
If the proposal is adopted, employers should make appropriate arrangements with their agents. For example, they can insert appropriate clauses in agency agreements to require compliance with their equal opportunities policy.
6. Requests for information for a discriminatory purpose relating to sex, family status, race, marital status, etc to become unlawful
Currently, the law only prohibits requests for information for a discriminatory purpose in relation to disability. To ensure harmonized and consistent levels of protection, it is proposed that the protection should extend to other protected characteristics (e.g. sex and family status). If so, it would be unlawful for an employer to require candidates to answer questions (either in interviews or application forms) as to whether they are married and have children.
Timetable
The public consultation will end in late October. It is expected that a report with recommendations will be submitted by the EOC to the government around the middle of next year.
