V. Family Status Discrimination
Under section 2 of the Family Status Discrimination Ordinance (“FSDO”) , family status means the status of a person who has the responsibility for the care of an immediate family member. An immediate family member is a person who is related by blood, marriage, adoption or affinity. The types of blood relationships covered include mother, father, brother, sister, son, daughter, grandmother, grandfather, grandchild, aunt, uncle, cousin, nephew and niece. The relationship of marriage is that of a husband and wife who are lawfully married. The relationship of adoption is that of a child who is lawfully adopted by a person who is not his/her natural parent. Relationships of affinity are those created by marriage, and include, for instance, mothers-in-law and fathers-in-law.
Direct discrimination may occur when a person is treated less favourably than another person on the grounds of family status. For example, a woman is transferred to a less favourable job after childbirth because her employer thinks that she has to take care of her child and will not be able to take business trips.
Indirect discrimination may occur when a condition or requirement that is not justifiableis applied to everyone, but in practice adversely affects persons who have family status. For example, a company insists that all its employees work overtime and a widower who has to take care of his young children cannot comply with that condition. The company then dismisses him. The widower feels aggrieved because, as a single parent, he cannot comply with that condition. If the company cannot justify why each and every employee must work overtime, this could be a case of indirect discrimination on the grounds of family status.
A person who has a family status is protected in the following areas:
- provision of goods, facilities or services;
- disposal or management of premises;
- eligibility to vote for and to be elected or appointed to advisory bodies;
- participation in clubs;
- activities of Government;
- practising as barristers (any offer of pupillage and training provided to barristers).
An employer knows that dismissing a pregnant employee may be unlawful, so he intends to dismiss that employee after she has given birth to her child. Would that employer still be liable under the law?
Under section 8 of the Family Status Discrimination Ordinance , i t is unlawful for an employer to discriminate against an employee on the basis of his/her family status (i.e. the duty to take care of an immediate family member) by dismissing that employee.
There was a District Court Equal Opportunities Action in 2005 ( Lam Wing Lai v YT Cheung (Ching Tai) Ltd. ) in which the Plaintiff, who had been dismissed by her employer due to her pregnancy and family status, was awarded compensation for injury to feelings as well as loss of income.
If an employer dismisses an employee only because the employer thinks that the employee has to take care of her child and cannot work overtime or take business trips etc., then that employer would have violated the FSDO .