Proposed changes to Hong Kong's discrimination laws leave existing gaps unaddressed

Hong Kong's discrimination laws have once again come under the spotlight following the commencement of a three month Discrimination Law Review of the current anti-discrimination laws by the Equal Opportunities Commission ("EOC") as well as the recent introduction of the Sex Discrimination (Amendment) Bill 2014 into the Legislative Council.

The Discrimination Law Review could result in changes being introduced to enhance various elements of each of Hong Kong's four existing anti-discrimination ordinances. Separately, if passed, the Sex Discrimination (Amendment) Bill 2014 will amend the Sex Discrimination Ordinance so that sexual harassment of a service provider by a customer becomes unlawful.

However, while these latest developments may bring welcome changes to the Hong Kong discrimination law landscape, they are likely to do little to address the areas in which Hong Kong discrimination laws – particularly in an employment context – still lag behind those of other nations such as Australia and the United Kingdom where discrimination laws are more comprehensive.

The current legal regime

Hong Kong currently has four anti-discrimination ordinances: the Sex Discrimination Ordinance ("SDO"), the Disability Discrimination Ordinance ("DDO"), the Family Status Discrimination Ordinance ("FSDO") and the Race Discrimination Ordinance ("RDO"). These ordinances prohibit various forms of discrimination such as direct and indirect discrimination, harassment and victimization where that discrimination is based on prohibited grounds such as sex, marital status, pregnancy, disability, family status or race in particular fields such as employment.

Certain exceptions may apply to permit discrimination in an employment context which would otherwise be unlawful under the ordinances, including for example where being of a particular sex or being able-bodied is a genuine occupational requirement for a particular role.

An employee subject to unlawful discrimination may lodge a formal complaint to the EOC. The EOC will then investigate the complaint and attempt to settle the complaint through conciliation between the parties. Alternatively, the aggrieved employee may commence civil proceedings in the District Court against the alleged wrongdoer. However, given the time and costs associated with such court proceedings, the majority of actions are in practice commenced by way of a complaint to the EOC.

Recent developments

In early July 2014, the EOC commenced a three month public consultation process as part of a review of all of the discrimination ordinances in Hong Kong. The EOC has invited opinion on, among other things, the following issues:

• whether the four existing anti-discrimination ordinances should be combined into a single modernized Discrimination Ordinance;
• whether the law should protect new immigrants from discrimination;
• whether there is a need for protection from discrimination on the ground of being in a de facto relationship;
• whether a duty on public authorities to promote equality across all the protected attributes should be introduced; and
• whether the law should provide protection from sexual harassment in common workplaces.

A number of the above topics will have an effect on discrimination laws in an employment context. For example, there is currently no clear prohibition against discrimination on the basis that a person is in a de facto relationship (as opposed to a marriage). Provided that the definition of a de facto relationship is clearly spelt out, an amendment to the discrimination laws in this regard would be a welcome addition to ensure that employment benefits such as travel allowances, housing allowances and insurance benefits are not withheld from an employee on the basis that they are not married to their partner with whom they are living on a genuine domestic basis.

In addition, there is currently a gap in liability under the SDO for sexual harassment in a workplace context where the harassment occurs outside of the employment relationship. This can occur, for example, where multiple employers share one workplace, and a person is harassed by someone other than his or her employer. The EOC's review indicates that the Government may look to close this gap by introducing workplace liability for a person sexually harassing another person at the same workplace even where there is no employment relationship between the two people.

The unaddressed grounds for discrimination  

Despite the existence of Hong Kong's four anti-discrimination ordinances, Hong Kong's current anti-discrimination regime overlooks several grounds of discrimination. The most obvious of these are discrimination on the grounds of sexual orientation, age and religion, none of which is unlawful in Hong Kong even in the context of employment.

There currently appears little intention to introduce such grounds of unlawful discrimination in Hong Kong. Indeed, the Discrimination Law Review consultation document states clearly that the purpose of the Review is not to introduce discrimination grounds of "sexual orientation, gender identity, intersex status, or age" in to current Hong Kong laws and that consultation on these grounds will take place at a later point in time.

The Labour Department does have in place guidelines and codes of practice aimed at preventing discrimination on grounds of age and sexual orientation in the workplace. These give practical guidance to employers in relation to all phases of the employment life cycle, including:

• advertising for vacant positions;
• using unbiased and consistent selection criteria for job applicants;
• offering fair and consistent employment terms and conditions;
• giving appraisals, promotions, training and transfers;
• implementing discipline and dismissals; and
• preventing workplace bullying and harassment.

However, codes of practice and guidelines are not legally binding and the fact remains that discrimination on the grounds of sexual orientation, age and religion is not unlawful in Hong Kong.

If the EOC's Discrimination Law Review results in changes being made to discrimination laws in the areas canvassed by the consultation document, this will go towards creating a more comprehensive set of discrimination laws in Hong Kong. However, these changes will not address the many gaps which currently exist in Hong Kong's discrimination legislation when compared to that of Australia and the United Kingdom. More reform will need to take place in order to address that gap.

Please contact Gareth Thomas or Helen Beech of the Employment Pensions and Incentives team if you have any questions.