III. Sex Discrimination
Discrimination on the basis of sex, marital status, pregnancy and sexual harassment are prohibited under the Sex Discrimination Ordinance (“SDO”) . The law applies to both females ( section 5 of the SDO ) and males ( section 6 of the SDO ) and covers the following eight fields:
- provision of goods, services or facilities;
- disposal or management of premises;
- eligibility to vote for and to be elected or appointed to advisory bodies;
- participation in clubs;
- activities of the Government;
- practising as barristers (any offer of pupillage and training provided to barristers).
Although the provisions of the SDO also apply to the Government, some areas are exempt from the law. These include:
- acts performed under any immigration legislation;
- entry into and departure from Hong Kong;
- acts done for the purpose of complying with the requirements of other existing statutory provisions (e.g. different physical requirements between male and female police officers, and other exceptions listed in schedule 5 of the SDO ).
A. Sex discrimination at work
1. Can an employer refuse to employ me because of my gender/sex? Under what circumstances can an employer use “genuine occupational qualification” as an excuse for sex discrimination?
It is unlawful for an employer to discriminate against a job applicant or an employee on the basis of gender/sex. However, if a person’s sex is a “genuine occupational qualification” (GOQ) for the job (i.e. the job can only be done by a male or female), it is then not unlawful. In other words, if the job can only be done by a man, the employer is entitled to appoint a male employee and accordingly will be exempt from any liability regarding sex discrimination in recruitment, promotion, transfer or training in respect of that job.
This is not the same as the employer thinking or just guessing that males (or females) are not suitable for a particular job. For example, the employer may have violated the Sex Discrimination Ordinance if he/she thinks that only a female can take up the post of secretary, and then specifies that requirement on the relevant job advertisement. The GOQ must reflect that the job can only be done by a particular sex for essential reasons. For example, a retirement home may want to hire female attendants to help with providing intimate care to female retirees.
With reference to section 12 of the SDO , the circumstances under which sex is a GOQ for a job are highlighted below:
- The essential nature of the job requires a man or a woman because of physiology or for authenticity in dramatic performances or other entertainment. For example, in the modeling of clothes to be worn by a particular sex, or playing the role of a particular sex in a film.
- The job requires a man or a woman to preserve decency or privacy. For example, the requirement of a male to work as an attendant in a male changing room.
- The job is likely to involve the employee working or living in a domestic setting and the employee will have significant physical or social contact with the person living there. For example, domestic helpers or companions to elderly people.
- The nature of work or the working location requires the employee to live in premises provided by the employer and the only available premises do not provide both separate sleeping accommodation and sanitary facilities for either sex. For example, working on a small boat or at a remote site.
- The employment establishment/organization is a single-sex company or in a single-sex part of a company where people receive special care, supervision or attention; and the essential character of that company or the part of it requires a person of the same sex to do the job. For example, a male warden in a male prison or a female attendant working in a section of a hospital for female patients only.
- The holder of the job provides individuals with personal services promoting their welfare or education, or similar personal services, and such services are most effectively performed by one sex. For example, a female counsellor at a shelter home for battered women or a female social worker at a girls’ home.
- The job needs to be held by a man (or a woman) because it is likely to involve the performance of duties outside Hong Kong in a place where the customs or laws do not permit a woman (or a man) to effectively perform such duties. For example, a sales manager who is required to negotiate business deals in a country where the customs would forbid the involvement of a woman.
- The job is one of two to be held by a married couple. For example, where a married couple is employed as foster parents at a children’s home.
2. Further to question 1, do employers have to prove the existence of genuine occupational qualification (GOQ) as an exception for sex discrimination if they are being sued or if complaints have been made against them? What would happen if only part of the duties of a job involve gender/sex as a GOQ?
GOQ is not an automatic exception for sex discrimination. In each case it will be necessary for the employer, who claims GOQ as an exception or defence, to show that GOQ applies to the particular job in question. (For details of the grounds for proving GOQ, please go back to question 1.)
In a case where the job involves a number of duties but only some of the duties form the basis for sex being a GOQ, then GOQ may not be relied on as an exception for sex discrimination if the following conditions exist:
- At the time of recruitment, the employer already has existing employees of the opposite sex to the job applicants, and such employees are capable of performing the duties which would require the job holder to be of a particular sex;
- It would be reasonable for such employees to carry out those duties; and
- The number of such employees is sufficient so as not to cause undue inconvenience for the employer.
An example may help illustrate the above. There is a vacancy for a sales assistant in the women’s section of a department store where all the existing sales assistants are females. The employer refuses to consider appointing a man as the job involves taking body measurements and assisting customers in fitting. The employer also considers that the job must be held by a female to preserve decency or privacy within the meaning of the GOQ exception.
However, the employer’s refusal in this case may be unlawful. He or she may not rely on the GOQ exception because there are other female assistants working in the same store. The female assistants can help take body measurements of female customers, or assistcustomers in fitting on occasions where it is necessary, and the relevant male applicant can perform the other normal duties of the job in question.
It is recommended by the Equal Opportunities Commission that a job for which a GOQ was used in the past should always be re-examined if the post becomes vacant to see whether the GOQ still applies. Circumstances may well have changed and the GOQ may no longer be inapplicable.
For more information regarding sex discrimination on employment matters, please refer to the Code of Practice on Employment under the Sex Discrimination Ordinance (issued by the EOC).
3. How would a person’s age co-relate to sex discrimination? Is it unlawful if different age requirements are applied to males and females when they apply for jobs or obtain goods/services?
In case a different age requirement is applied to men and women when they apply for a job, or obtain goods or services (or have dealings in relation to other specified fields), the relevant employer or goods/services provider may have committed sex discrimination.
An example can be found in a Court of Appeal case in 2001 ( Helen Tsang v Cathay Pacific Airways Ltd. ). In this case, the employer had applied a different retirement age to male flight attendants (who retire at the age of 55) and female flight attendants (who retire at the age of 40). It was held that such policy was contrary to the Sex Discrimination Ordinance . (Note: The above case is only used to help illustrate the answer to the subject question. It does not represent the existing staff retirement policy of the above mentioned company.)
B. Sexual harrassment
Sexual harassment is any unwelcome or uninvited sexual behaviour which is generally regarded as offensive, humiliating or intimidating. This includes unwelcome sexual advances or unwelcome requests for sexual favours . The harasser may incur legal liabilities and may be liable to pay compensation to the victim.
According to section 2(5) and section 2(8) of SDO , acts of sexual harassment can be done by any person to a man or a woman. The provisions concerning sexual harassment also apply to homosexual relations. For example, a man can be sued under the SDO if he sexually harassed another man, and likewise a woman who harassed another woman.
Acts of sexual harassment may be carried out directly or indirectly in physical or verbal forms. Here are some examples:
- unwelcome physical contact (e.g. hugging, kissing or touching);
- staring or leering;
- brushing up against the body;
- intrusive questions about one’s private life;
- sexually offensive gestures.
Sexual harassment also includes the creation of a sexually hostile or intimidating work environment by engaging in unwelcome or uninvited sexual behaviour, for example
- sexually suggestive comments or jokes;
- displaying sexually explicit pictures or posters;
- insults or taunts based on sex;
- wolf whistling.
(Note: The forbiddance of creating a sexually hostile or intimidating work environment under the current provisions of the SDO does not apply to the other environments except in the workplace/employment related environments.)
Some acts of sexual harassment may even amount to criminal offences in which the harasser may be liable to a fine or imprisonment, for example:
- making obscene phone calls;
- indecent exposure;
- sexual assault (indecent assault or rape).
In reply to the second part of the subject question, you should note that the provisions of the SDO which govern sexual harassment do not apply to all environments. Broadly speaking, they only apply to the workplace/employment related environment and educational establishments . For the latter one, note that sexual harassment is not only prohibited between teachers and students, but it is also prohibited among students themselves. The third situation in which the provisions may apply is during the provision of goods, services and facilities. However, section 40 of the SDO only tells us that it is unlawful for the goods/services/facilities providers to sexually harass their customers/recipients. It does not tell us what would happen in a reverse situation. In view of the above, the Equal Opportunities Commission decides to improve the existing legislation concerning sexual harassment, and has submitted the relevant proposal to the Government.
1. What can you do if you are sexually harassed?
Ignoring sexual harassment does not make it go away, but may make it worse because the harasser may misinterpret no response as approval of the behaviour. The Equal Opportunities Commission has recommended some informal and formal strategies that can be used:
- Speak up at the time. Tell the harasser that his/her behaviour is unwelcome and has to stop;
- Keep a written record of the incidents, including dates, time, places, presence of any witnesses, nature of the harassment (what the harasser said and did) and your responses;
- Tell someone you trust;
- Identify an expert or counsellor who can provide emotional support and information about informal and formal institutional procedures;
- Write a letter/note to the harasser;
- Report it officially (e.g. to a senior staff in the company or the school principal);
- Complain to the Equal Opportunities Commission (please refer to How to Complain );
- Contact the police and/or file a lawsuit.
The judgment of a District Court Equal Opportunities Action in 2000 (please click here if you want to read the whole judgment) has explained that whether or not sexual conduct is unwelcome and unlawful depends on two questions: i) whether the complainant welcomed or accepted the conduct at the relevant time (but not whether a “reasonable person” would have welcomed it); and ii) whether the circumstances were such that the harasser should have realized that his/her approaches were unwelcome.
Most sexual harassment court cases requires the victim to prove that “unwelcome sexual conduct” has occurred, therefore, it is very important that you expressly tell the harasser to stop right at the beginning of the incident. Otherwise, you may have great difficulty proving the existence of “unwelcome sexual conduct” if you subsequently lodge a complaint or institute legal proceedings.
2. If an incident involving sexual harassment happened in an office or another part of the workplace, to what extent may the employer be held responsible or liable?
With reference to section 46 of the SDO , employers may also be liable for acts of sexual harassment committed by their employees in the course of employment, regardless of whether or not the acts were done with the employers’ knowledge or approval. However, it is a defence for the employers to show that they have taken reasonably practicable steps to prevent employees from committing such acts. The Code of Practice on Employment under the Sex Discrimination Ordinance (issued by the Equal Opportunities Commission) contains some practicable steps or guidelines for employers’ reference. The important points are highlighted below:
- employers should issue a policy statement to employees which expressly states that sexual harassment at work is unlawful and will not be permitted;
- the statement should also expressly state that employees have a right to complain if they are suffering from sexual harassment;
- a co-ordinator, preferably with special training, should be designated to establish and administer both formal and informal complaints procedures.
There may be both formal and informal ways of dealing with complaints of sexual harassment. The two approaches are both valid and can be included in a sexual harassment policy. The approach to take will usually depend on the wishes of the complainant. Employers need to set out clear procedures for both approaches and make the information available to all staff. This is particularly important in helping staff to understand the steps involved when making a complaint of sexual harassment.
Confidentiality would also strengthen any policy regarding handling sexual harassment. In short, any information relating to a complaint of sexual harassment must only be given out on a need-to-know basis. Employers need to ensure that managers understand this principle when dealing with such complaints. Adopting such a principle gives assurance to the complainant or potential complainant that management appreciates the sensitive nature of sexual harassment and that the details of complaint will not be disclosed to other colleagues.
For more information on how to formulate a policy on handling sexual harassment at work, please refer to clauses 19 – 22 of the Code of Practice.
C. Marital status discrimination
Marital status discrimination occurs when a particular marital status is required without reasonable or substantial grounds. Examples include a landlord only renting a flat to married persons ( section 29 of the SDO ), or an employer giving different benefits to employees who are single, married or divorced where such benefits are not related to their work performance ( section 7 of the SDO ).
Note that marital status discrimination is different from family status discrimination (see Family Status Discrimination ).
Can an employer refuse to employ a job applicant because she is pregnant?
The following acts may be considered as pregnancy discrimination:
- an employer refuses to hire a pregnant woman (but not because her qualifications or capabilities are inadequate for the job);
- an employer dismisses a pregnant woman, or transfers her to a lower paying position;
- an employer dismisses a woman on her return from maternity leave.
It is unlawful to discriminate against a job applicant because she is pregnant ( section 8 of the SDO ). If a pregnant woman is the best qualified candidate, she should be selected for the job. However, if the position is a temporary one that requires the work to be done within a short period of time, it may be reasonable for the employer not to employ a pregnant applicant.
There is a case study about pregnancy discrimination on the Equal Opportunities Commission website.