“Prejudice is a burden that confuses the past, threatens the future, and renders the present inaccessible.”
– Maya Angelou
Anti-discrimination laws have often been hailed as the pillar of progress. At present, there are four (4) major legislation in Hong Kong that addresses anti-discrimination on the grounds of sex, pregnancy, marital status, disability, family status and race. These legislations include:
- Sex Discrimination Ordinance, Cap. 480 (“SDO”);
- Disability Discrimination Ordinance, Cap. 487 (“DDO”);
- Family Status Discrimination Ordinance, Cap. 527 (“FSDO”); and
- Race Discrimination Ordinance, Cap. 602 (“RDO”).
MAJOR ANTI-DISCRIMINATION DEVELOPMENTS (circa 2020 & 2021)
That having been said, it should be noted the fight against anti-discrimination is a continuous one and many have come to question whether our existing laws are adequate.
HONG KONG SAR
- Amendments to the Sex Discrimination Ordinance (“SDO”) in June 2020 included provisions that declared the discrimination or victimisation of breastfeeding women during employment illegal.
- On 18 September 2020, the High Court prevented unlawful discrimination against same-sex married couples by recognising a same-sex partner as a ‘surviving spouse’ under the Intestates’ Estates Ordinance (Cap. 73).
UNITED STATES (USA)
- President Biden signed an Executive Order preventing discrimination or harassment on the basis of sex, sexual orientation, or gender identity in school campuses on 8 March 2021.
- Montana enacted legislation on 7 May 2021 adding vaccination status as a protected category under its Human Rights Act, making illegal any workplace discrimination against employees based on vaccination status or possession of an immunity passport. Many states have proposed similar legislation.
- On 27 May 2021, the US passed the Pregnant Workers Fairness Act (H.R. 1065) – which requires employers to accommodate employees or job applicants affected by pregnancy, childbirth, or related medical conditions.
- Allay (UK) Ltd v Gehlen held that employers must keep up to date their equal opportunities training to rely on the statutory defence of ‘reasonable steps’ in discrimination and harassment claims brought by customers; failure to do so can hold an employer vicariously liable for an employee’s discriminatory conduct.
- The Employment Appeal Tribunal (“EAT”) held in Price v Privy Council  that it was not discriminatory to enhance pay to a female employee on adoption leave and not do so for a male employee on shared parental leave due to material differences in circumstances.
- The French Court of Cassation held that dismissing an employee for wearing a headscarf on the justification of upholding company image is discriminatory in the absence of a neutrality requirement.
- At the end of 2020, France implemented a gender pay equity law requiring companies to publish their gender pay equity score – where failure to reach a score of 75 may result in a fine – in order to eliminate the pay gap between male and female employees.
- France launched an anti-discrimination platform to help victims flag incidents of discrimination and connect them with experienced lawyers who can guide them through the administrative or legal processes.
- In May 2020, Berlin enacted legislation to prevent public authorities from discriminating based on skin colour, gender, and other factors, thereby addressing systemic racism.
- On 7 January 2021, Germany passed the FüPoG II (“Second Leadership Positions Act”) which set minimum quotas for women in management positions for large companies, thus working to increase the number of women in management.
- In a judgment dated 21 January 2021, it was held that if a woman sues for the same remuneration for the same work done by a male colleague, and the male colleague’s pay is inexplicably greater than that of his female counterpart, the presumption of gender-based discrimination is satisfied.
- An anti-discrimination bill was passed in July 2020 to outlaw institutionalised discrimination against the LGBTI community, better responding to current injustices such as the criminalisation of consensual same-sex activity in the military, violence, and defamatory media statements.
- In October 2020, an amendment to the Equal Employment Opportunity and Work-Family Balance Assistance Act introduced procedures for relief with the Labour Relations Commission regarding sexual discrimination/harassment in the workplace.
- The suicide of Byun Hee-soo – a transgender soldier – due to forceful discharge from the military-led to calls for legislative reform in South Korea to better protect transgender people.
- On 17 March 2021, the Sapporo District Court held that failure to recognise same-sex marriages violates Article 14 of the Constitution (right to equality), acknowledging that sexual orientation ‘cannot be chosen or changed by one’s own will’.
- In tandem with the landmark ruling, 80 LGBT groups in Japan submitted a petition to the Diet asking to introduce the LGBT Equality Act.
- The Ministry of Manpower imposed anti-discrimination obligations for licensed Employment Agencies (EAs) from October 2020, preventing EAs from discriminatory hiring based on age, race, nationality, gender, and disability.
- Piyush Gupta, the CEO of DBS Bank, encouraged in an online panel on board diversity the publication of companies that do not currently have women on their boards, which paints them in a ‘bad light’ and may incentivise an increase of women in management positions.
- A landmark ruling in January 2020 held in favour of a transgender employee against her employer who dismissed her on the grounds of her gender identity, which widened the definition of ‘discrimination based on sex’ to include protections for transgender people.
- In May 2021, China published a survey report on LGBTI Diversity and Inclusion in Corporation in China with the support of the UN Development Programme, recognising a need for reformed corporate culture.
- In March 2021, New Delhi passed the Medical Termination of Pregnancy (Amendment) Bill to enlarge the category of women who can get an abortion before 24 weeks to “protect the dignity and rights of women”.
- On 1 June 2021, the labour ministry released an advisory report encouraging the creation of enabling provisions in the Maternity Benefit (Amendment) Act 2017 to provide maternity benefits to women who are nursing children and to permit nursing mothers to work from home for a year after childbirth during the pandemic.
As demonstrated hereinabove, whilst the world has moved great strides towards a fairer world, much is yet to be done. The following are anticipated further developments in the field of anti-discrimination laws the next few years:
- Greater recognition of discrimination on the basis of gender identity in the workplace, and more stringent responses by governments to tackle existing corporate culture.
- Laws ensuring that pregnant/childrearing women are not faced with unfair dismissals and are provided the necessary legislative protection to achieve work-life balance.
- Improved protection for the LGBTI community, especially those in Asian countries, where existing protection is weak if not non-existent.
- Laws requiring public authorities to act fairly while carrying out government duties, keeping in mind systemic discrimination against marginalised communities.
- Greater protection of choice regarding personal health in the post-Covid era, where protection is afforded to those who choose not to get the vaccine or receive corresponding medical care.
This article is co-authored by Joshua Chu from ONC Lawyers