The Equal Opportunities Commission (“EOC”) conducted a sexual harassment survey across a broad range of business sectors during June to August 2013. 6000 companies were canvassed, but only 198 replied. Despite the poor response rate, the results were interesting and revealed the following:Only 57% of respondents had a policy statement on sexual harassment
(ii) Of the 43% of respondents who did not have a policy statement, 82%
said they would not choose to formulate a policy in the near future.
(iii) The majority of respondents who had a policy, made statements
such as sexual harassment will not be tolerated, confirmed a
commitment from management to eliminate and prevent sexual
harassment and provided options for dealing with complaints
formally. However, the respondents typically did not include details
of a designated person to handle complaints, provide the details
of the members of staff responsible for providing information and
advice, options for dealing with the complaints informally or any
details of staff training. Therefore key information was not being
communicated in the policy.
Findings & Recommendations
The EOC concluded that the results indicated low awareness on preventing
sexual harassment in the workplace. The EOC recommended that
employers develop clear policies on preventing sexual harassment and
that they take reasonably practicable steps to prevent such conduct.
Sexual harassment is unlawful under the Sex Discrimination Ordinance
and employers were warned that they may be held vicariously liable for
sexual harassment by their employees.
The EOC intends to take initiatives and collaborate with professional
associations in launching anti-sexual harassment campaigns for the
business sector. It plans to provide training courses on the prevention
of sexual harassment and to set up an award scheme to recognise
companies with a comprehensive sexual harassment policy.
Statistics on discrimination in the workplace for 2012/ 2013
The EOC published a Factsheet for the period 2012/13, which confirms
that it handled a total of 929 complaints in 2012/13 and 309 of those were
employment related complaints brought under the Sex Discrimination
Summary of remaining employment related complaints
Disability discrimination 357
Race discrimination 17
Family status discrimination 22
The breakdown of the complaints under the Sex Discrimination Ordinance
are illustrated in the diagram below:
Breakdown of employment related complaints under the Sex Discrimination
Sex discrimination Victimisation - 18
10 - Martial status discrimination
ation - 24
Defending against claims for vicarious liability
Under the anti-discrimination ordinances in Hong Kong, an employer can
be liable for the discriminatory actions of its employees whether or not the
action was done with the employer’s knowledge or approval.
An employer can defend claims on the basis that it took reasonably
practicable steps to prevent the employee from committing discriminatory
acts. However, employers should be aware that simply having a policy on
discrimination will not be sufficient. The court will consider a number of
additional factors including the following:
(i) Was the policy implemented?
(ii) Are employees aware of the policy? Where is the policy located
(for example, is it in the Employee Handbook or on the employer’s
intranet)? How is the policy brought to the attention of employees?
(iii) Does the employer have any evidence to prove that the policy was
read by employees (such as a signed acknowledgement by the
(iv) Is training under the policy mandatory? Does the employer have
attendance records to demonstrate that the alleged discriminator
undertook the training?
(v) Are complaints under the policy dealt with promptly and
(vi) Does the employer take disciplinary action against employees who
have been found guilty of discrimination and is such action applied
Employers who can answer all or most of these questions positively
will be in the best position firstly, to prevent discrimination from taking
place, and secondly, to defend any claims for discrimination that might be
brought against them as the result of an employee’s actions.
Looking forward: EOC’s employment related priorities
In September 2013, the EOC identified five priority areas that it will focus
on over the next three years. Two of the five priority areas relate to the
field of employment namely (i) a review of the discrimination ordinances
and (ii) a plan to seek legal protection for sexual minorities (sexual
orientation or gender identity). The EOC is also planning a review of the
Code of Practice on Employment under the Sex Discrimination Ordinance.