Sex Discrimination Ordinance
What does the Sex Discrimination Ordinance do?
The Sex Discrimination Ordinance (the Ordinance) was enacted on 14 July 1995 and came into full operation in 1996. Under the Ordinance, it would be unlawful to:
- discriminate against a person because of his or her sex
- discriminate against a person because of his or her marital status
- discriminate against a pregnant woman
- discriminate against a breastfeeding woman
- sexually harass a person
- harass a breastfeeding woman
The Ordinance is applicable to both women and men. However, no account shall be taken of special treatment afforded to women in connection with pregnancy, childbirth or breastfeeding.
What is Discrimination?
There are two types of discrimination: "direct" and "indirect" discrimination. Direct discrimination means treating a person less favourably than another person in the same or not materially different circumstances because of the victimised person's sex, marital status, or a woman who is pregnant or breastfeeding. Unequal pay for equal work would be an example of "direct" discrimination.
"Indirect" discrimination means imposing the same requirement or condition on everyone, but which has an unfair effect on a particular group of persons. For example, if a bank only recruits bank tellers who are at least 6 feet tall, it is likely that many more women than men are unable to satisfy this height requirement. This kind of unfair requirement would constitute "indirect" sex discrimination if there is no reasonable justification for the requirement.
The same principles apply to discrimination on the grounds of sex, marital status, pregnancy and breastfeeding.
What are Sexual Harassment and Harassment of Breastfeeding Women?
Sexual Harassment: Under the Ordinance, sexual harassment is
(a) making an unwelcome sexual advance, or an unwelcome request for sexual favours to a person or engaging in other unwelcome conduct of a sexual nature in relation to a person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person would be offended, humiliated or intimidated; or
(b) alone or together with other persons, engaging in conduct of a sexual nature which creates a hostile or intimidating environment for a person.
Harassment of Breastfeeding Women: Under the Ordinance, harassment of a breastfeeding woman is
(a) engaging in unwelcome conduct, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the breastfeeding woman would be offended, humiliated or intimidated by that conduct; or
(b) alone or together with other persons, engaging in conduct that creates a hostile or intimidating environment for the breastfeeding woman.
What areas of activity does the Ordinance cover?
The Ordinance makes discrimination on the grounds of sex, marital status, pregnancy and breastfeeding, as well as sexual harassment and harassment of breastfeeding women unlawful. This applies to many areas of activity. These include:
- employment;
- education;
- provision of goods, facilities, or services;
- disposal or management of premises;
- eligibility to vote for and to be elected or appointed to advisory bodies;
- activities of clubs; and
- activities of Government.
The Ordinance renders sexual harassment between workplace participants at a common workplace unlawful, even where there is no employment or employment-like relationship between them. A “workplace participant” covers persons working in the same workplace, including an employer, an employee, a contract worker, the principal of a contract worker, a commission agent, the principal of a commission agent, a partner in a firm, an intern and a volunteer.
What should you do if you are sexually discriminated against, sexually harassed or harassed because you are a breastfeeding woman?
Discrimination on the grounds of sex, marital status, pregnancy and breastfeeding, as well as sexual harassment and harassment of breastfeeding women are unlawful. You have a right to take action. The Equal Opportunities Commission (the EOC) is an independent statutory body responsible for overseeing the implementation of the Ordinance. If you experience treatment that you think may be unlawful under the Ordinance, you may seek assistance from the EOC. Alternatively, you may also bring proceedings in court.
What does the EOC do?
The EOC is responsible for working towards the elimination of sex discrimination, sexual harassment and breastfeeding harassment, and promoting equality of opportunity between women and men. The EOC also develops and issues codes of practice, and undertakes public education and research programmes to promote equal opportunities between women and men.
The EOC provides assistance for persons who have experienced discrimination on the ground of sex, marital status, pregnancy or breastfeeding, or sexual/breastfeeding harassment. A person may lodge a complaint in writing to the EOC. The EOC will then investigate the complaint and encourage conciliation between the parties in dispute. If the complaint cannot be resolved, the EOC may provide assistance in court proceedings should the aggrieved person decides to take his/her case to court.
Contact of the EOC
Address:
16/F., 41 Heung Yip Road
Wong Chuk Hang, Hong Kong
Tel. No. : (852) 2511 8211
Fax No. : (852) 2511 8142
Online enquiry and complaint form：Please click here
Email: eoc@eoc.org.hk [Please note that this email address is not designated for enquiry and complaint handling services relating to the anti-discrimination ordinances.]
(This article only provides general information on the Ordinance. The information is by no means exhaustive or definitive. Please refer to the provisions of the Sex Discrimination Ordinance for a complete and definitive statement of the law.)