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Employment, Pensions & Immigration
On 19 June 2020, the Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020 (the "Ordinance") came into force. The Ordinance has expanded the scope of protection against discrimination enshrined in the four anti-discrimination ordinances in Hong Kong – the Sex Discrimination Ordinance ("SDO"), Disability Discrimination Ordinance ("DDO"), Family Status Discrimination Ordinance ("FSDO") and Race Discrimination Ordinance ("RDO").
The Ordinance has amended the laws to protect a person from direct racial discrimination and harassment on the ground of the race of the person's "associate", instead of the race of the person's "near relative".
The term "associate" has a broader meaning than the term "near relative". Specifically, an "associate", in relation to a person, refers to:
The Ordinance has widened the scope of protection to cover direct and indirect racial discrimination and harassment by imputation that a person is of a particular race or is a member of a particular racial group.
Therefore, in the event that a person discriminates against or harasses another person on the basis of a mistaken perception of the race of the latter, the discriminator or harasser would still be held liable for racial discrimination or harassment.
The Ordinance has introduced protection from sexual, racial and disability harassment in circumstances where the harasser and the victim are working in a common workplace but have no employment or quasi-employment relationship.
It is now unlawful for a person who is a workplace participant to harass or discriminate another workplace participant at a workplace of them both. The definition of "workplace participant" includes an employee, an employer, a contract worker, a commission agent, the principal of a contract worker or commission agent, a partner in a firm, an intern and a volunteer.
An act done by an intern or a volunteer is to be treated as an act done by the person who engaged the intern or volunteer for the internship or volunteer work, whether or not the act was done with the knowledge or approval of that person.
It is unlawful for a club, the committee of management of a club or a member of the committee of management of a club to harass or discriminate a person who is, or has applied to be, a member of the club.
Prior to the enactment of the Ordinance, the laws only protected a customer from disability or racial harassment by a person providing goods, services or facilities, but not vice versa. Under the new laws, a provider of goods, services or facilities is also protected from disability and racial harassment from a customer.
The protection for the providers of goods, services or facilities and for the customers also extends to the harassment which takes place outside Hong Kong but on a Hong Kong registered ship, aircraft or dynamically supported craft.
New provisions have been introduced to protect breastfeeding women from direct and indirect discrimination, as well as victimisation, in key sectors such as education, employment and the provision of goods, services and facilities.
The proposed definition of "breastfeeding" does not only cover the act of breastfeeding, but it also includes the act of expressing milk and the status of being a breastfeeding woman.
A person shall be liable for direct discrimination if he treats a breastfeeding woman less favourably than a person who is not breastfeeding. A person could also be liable for indirect discrimination if he applies a blanket requirement or condition to all persons but the requirement or condition has a disparate and detrimental effect on breastfeeding women.
These new breastfeeding provisions will come into force on 19 June 2021.
The Ordinance has removed the requirement of an intention to discriminate as a pre-condition to awarding damages for unlawful acts of indirect discrimination on the ground of sex, family status or race.
Employers should bear in mind that anything done by a person in the course of his employment shall be treated as done also by his employer (except for criminal proceedings), whether or not it was done with the employer's knowledge or approval.
It shall be a defence for an employer to prove that he took such steps as were reasonably practicable to prevent the employee from committing the unlawful act in the course of his employment.
Employers are reminded to review and update their workplace anti-discrimination policies, staff training and complaint mechanisms in light of the new discrimination laws in Hong Kong.
If you wish to discuss this article, the Ordinace, or any discrimination issues in Hong Kong, please contact Mun Yeow.