Discrimination against breastfeeding in public

The issue of discrimination against breastfeeding in public and at workplace surfaced again recently after a taxi driver has posted on Facebook a photo of a passenger breastfeeding her baby with the caption “Is this for real?”. Yet, the real concern is not simply whether the driver has infringed the breastfeeding mother’s privacy, but whether there is any statutory regime in place governing the driver’s disrespectful act.

On 6 December 2016, the Food and Health Bureau (FHD) in its press release revealed that breastfeeding rate in Hong Kong has increased from 24% in 1992 to 89% in 2015. However, discrimination against breastfeeding mothers remains. According to findings of the Equal Opportunities Commission (EOC) from its “Study on Pregnancy Discrimination and Negative Perceptions Faced by Pregnant Women and Working Mothers in Small and Medium Enterprises” released in May 2016, over one in five (22%) employees reported that they were discriminated within the first year after returning to work from giving birth.

No explicit law prohibiting direct or indirect discrimination against breastfeeding

Currently, there is no explicit provision in the Sex Discrimination Ordinance (SDO) prohibiting direct or indirect discrimination against breastfeeding in Hong Kong. The EOC handles complaints of discrimination relating to breastfeeding under the provisions of the Family Status Discrimination Ordinance (FSDO) on the basis of the care of an immediate family member (a son or daughter related by blood).

Under the FSDO, it is unlawful to discriminate against a person who has “family status” in specified areas including employment, education, provision of goods, facilities or services, disposal or management of premises, etc. However, the definition of “family status” does not cover breastfeeding women which therefore makes it difficult for the EOC to establish a case of discrimination on the ground of breastfeeding. The EOC has received some 17 complaints relating to discrimination against breastfeeding but so far no case on discrimination on grounds of breastfeeding has been taken to court in Hong Kong.

Many other countries already have laws prohibiting discrimination against breastfeeding in public places and at work. In the United Kingdom, the Equality Act 2010 stipulates that discrimination in relation to child birth and maternity includes discrimination on the ground of breastfeeding if the nursing mother is treated less favourably. In China, the Special Rules on the Labour Protection of Female Employees issued by the State Council in April 2012 prohibit employers from terminating a female employee on the ground of breastfeeding. Further, employers are required to allow female employees a one-hour break in each day for breastfeeding, which shall continue for one year after the child’s birth. Taiwan implemented the Public Breastfeeding Act in 2010 making it illegal to prevent women from breastfeeding in public places. The Act also requires department stores, megastores, government agencies, train stations, airports and public transit areas to provide a breastfeeding room. In Australia, there is express protection from discrimination against women who are breastfeeding under the Sex Discrimination Act 1984.

EOC’s recommendations

Based on its previous findings concerning unfavourable treatments of working mothers occurred in public and workplaces, the EOC proposes that discrimination laws should be reformed to afford protection for breastfeeding mothers. In March 2016, the EOC in its Submission to the Government on the Discrimination Law Review recommended that an express provision be introduced in FSDO (or SDO) prohibiting direct or indirect discrimination on grounds of breastfeeding in areas including employment; education; provisions 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; and activities of the Government, and to include expressing milk in the definition of breastfeeding.

Legislative Council to take EOC’s recommendations forward

On 20 March 2017, the Panel on Constitutional Affairs of the Legislative Council met and considered that EOC’s recommendation in relation to breastfeeding was capable of driving consensus among stakeholders and society. The Panel also accepted EOC’s view that this issue was of higher priority and would therefore initiate discussion with the Legislative Council on the EOC’s recommendation.

Conclusion

To further promote its policies of encouraging breastfeeding, the FHD has issued letters to more than 470 private enterprises and organisations to promote the provision of “breastfeeding-friendly workplace” (including lactation breaks and facilities for storage of breastmilk in workplace). Legislation prohibiting discrimination against breastfeeding may be introduced in the near future, employers may need to consider formulating friendly workplace policies to enable nursing mothers to breastfeed or express milk in a breastfeeding-friendly environment.