Hong Kong anti-discrimination ordinances now apply more broadly

Hong Kong has four anti-discrimination ordinances, namely the Sex Discrimination Ordinance (“SDO”), the Disability Discrimination Ordinance (“DDO”), the Family Status Discrimination Ordinance (“FSDO”) and the Race Discrimination Ordinance (“RDO”) which provide for protection on the grounds of sex, pregnancy, marital status, race, disability and family status. On 11 June 2020, the Legislative Council passed the Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020 which introduced a number of amendments to these anti-discrimination ordinances. The amendments were introduced as a result of a comprehensive review of the four anti-discrimination ordinances by the Equal Opportunities Commission published in 2016. Out of a total of 73 recommendations in the EOC’s report, the government decided to implement eight of the recommendations. The major changes in the law introduced by the new legislation are as follows:

• amendments to the SDO to prohibit both direct and indirect discrimination against breastfeeding women in the field of employment, education and the provision of goods, facilities or services
• amendments to the SDO, RDO and DDO to provide protection from sexual, disability and racial harassment between persons working in a common workplace without an employment or employment-like relationship, which would include interns, contract workers, volunteers and pupils
• aligning the RDO with the DDO to protect a person’s “associates” rather than “near relatives” from racial discrimination or harassment
• extending protection from racial discrimination and harassment under the RDO to persons perceived or imputed to belong to a particular racial group
• extending protection to racial and disability discrimination by service users to service providers, similar to protection for sexual discrimination and harassment
• extending protection against racial and disability discrimination by service users to service providers on Hong Kong registered aircraft and ships, similar to protection for sexual discrimination and harassment
• amendments to the SDO and DDO to prohibit a club or the committee of management of a club to harass a person based on his or her sex or disability
• amendments to the SDO, FSDO and the RDO to permit an award of damages to the Plaintiff in cases where the indirect discrimination was applied without intention to discriminate

Out of the eight amendments, the introduction of explicit protection for breastfeeding women and between persons working in a common workplace are the most significant for employers.

The government has stated that the introduction of explicit protection for breastfeeding women does not impose a positive duty to provide reasonable accommodation for breastfeeding. However, an employer may be held liable for indirect discrimination against a breastfeeding employee if (a) the employee cannot comply with a requirement or condition that applies to all staff and she suffers a detriment as a result and (b) the employer cannot justify the requirement or condition. For example, while an employer is not required to provide lactation breaks, if an employer does not provide regular breaks to all employees and a breastfeeding employee is unable to express milk for her baby as a result, the employer will have to justify its policy.

The protection introduced for persons working in a common workplace imposes on employers a duty to take reasonably practicable steps to prevent its employees from committing unlawful discrimination. A failure of the employer to do so may expose it to vicarious liability for civil claims from victims of harassment in the same workplace.

Employers may wish to review their employment handbook and policies and discuss with their insurers whether their existing coverage covers the potential new claims under the updated legislation.

The Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020 has been gazetted on 19 June 2020 and the operative provisions will come into force on 18 June 2021.