Important changes to Hong Kong anti-discrimination and harassments laws.
On 11 June 2020, the Legislative Council passed the Discrimination Legislation (Miscellaneous Amendments) Bill 2018. On 19 June 2020, the Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020 (Ordinance) was gazetted and came into force on the same day.
The Ordinance expands protection from discrimination and harassment in several areas by making changes to the Sex Discrimination Ordinance (SDO), the Disability Discrimination Ordinance (DDO), the Family Status Discrimination Ordinance (FSDO) and the Race Discrimination Ordinance (RDO).
Employers should be aware of these important changes. Employers may need to revisit their anti-discrimination policies to ensure they are in line with these new developments and conduct appropriate workplace training.
The Ordinance makes the following amendments to the abovementioned anti-discrimination ordinances:
- Amendments to the SDO to make direct and indirect discrimination on the ground of breastfeeding unlawful. For the purposes of the legislation, a woman is breastfeeding if she (i) is engaged in the act of breastfeeding a child or expressing breast milk; or (ii) is a person who feeds a child with her breast milk.
Note that these breastfeeding provisions will not come into effect until 19 June 2021. The amendments below came into effect on 19 June 2020:
- Amendments to the RDO making it unlawful to harass or directly discriminate a person on the ground of the race of that person's "associate".
In relation to direct discrimination, a person (the discriminator) discriminates against another person (the relevant person) if, on the ground of the race of an associate of the relevant person, the discriminator treats the relevant person less favourably than the discriminator treats or would treat another person not having an associate of the same racial group as the associate of the relevant person.
For the purposes of the legislation, "associate" in relation to a person, includes -
- a spouse of the person;
- another person who is living with the person on a genuine domestic basis;
- a relative of the person;
- a carer of the person; and
- another person who is in a business, sporting or recreational relationship with the person.
- Amendments in the RDO to the definitions of "race" and "racial group" to include a race, colour, descent or national or ethnic origin that is imputed to a person. This means that where a discriminator assumes a person is of a particular race and discriminates against or harasses that person on the ground of that person's race, this will be unlawful (even if the person is not in fact of that race).
- Amendments to the SDO, the RDO and the DDO to make sexual harassment, racial harassment and disability harassment in common workplaces unlawful where there is no employment relationship (e.g. volunteers and interns). Under the legislation, any act done by an intern in the course of the internship or act done by the volunteer in the course of performing volunteer work will be treated as an act done by the intern/volunteer and by the person who engaged the intern/volunteer (whether or not the act was done with the knowledge or approval of that person). However, it is a defence in proceedings for the person who has engaged the intern/volunteer if it can show that it took reasonably practicable steps to prevent the intern/volunteer from doing the act or from doing acts of that description in the course of the internship/performing volunteer work. As a person engaging an intern/volunteer may be vicariously liable for the acts of an intern/volunteer, it is important to have anti-discrimination policies in place to cover interns/volunteers and to educate them on such policies.
- Amendments to the RDO and the DDO to strengthen protection against disability harassment and racial harassment where customers harass service providers, including where such acts occur on Hong Kong registered aircrafts or ships and while they are overseas.
- Amendments to the SDO and the DDO to protect members or applicants for membership of a club from sexual harassment and disability harassment, by the management of clubs.
- Amendments to the SDO, RDO and the FSDO to remove the requirement of an intention to discriminate as a pre-condition to the award of damages for indirect discrimination.