Hong Kong - Equal Opportunities Commission Makes Submission To Bills Committee On Discrimination Legislation (Miscellaneous Amendments) Bill 2018.
Legal News & Analysis - Asia Pacific - Hong Kong - Labour & Employment
14 May, 2019
The Discrimination Legislation (Miscellaneous Amendments) Bill 2018("Bill"), which was gazetted in November 2018, seeks to strengthen protection against discrimination and harassment in Hong Kong.
The Bill is a response to eight of the recommendations contained in a detailed report submitted by the Equal Opportunities Commission (EOC) in March 2016 to the Government, setting out 73 recommendations for anti-discrimination reform, 27 of which it considers to be of a high priority (Discrimination Law Review). The EOC welcomed the Bill, but in February 2019 also made a written submission to the Bills Committee, highlighting what it sees as failures to go far enough to provide protections for certain groups, including volunteers, interns and ethnic minorities. The EOC also called on the Government to implement the other recommendations set out in its Discrimination Law Review as soon as possible, in particular those of a higher priority.
The Bill, which is expected to come into force in 2019, seeks to amend Hong Kong's anti-discrimination legislation (the Sex Discrimination Ordinance (SDO), the Disability Discrimination Ordinance (DDO), the Family Status Discrimination Ordinance (FSDO) and the Race Discrimination Ordinance (RDO)), by introducing the following changes:
- Provisions in the SDO prohibiting direct and indirect discrimination on the ground of breastfeeding and to include the expressing of milk in the definition of breastfeeding.
- Prohibition against direct discrimination and harassment of an individual due to the race of that person's "associate". Associate is defined to encompass an individual's spouse, person living with them on a genuine domestic basis, relative, carer and any person who is in a business, sporting or recreational relationship with the person.
- Protection from direct and indirect racial discrimination and racial harassment by imputation.
- Expansion of the scope of protection from sexual, disability and racial harassment to include persons working in a common workplace (e.g. consignment workers).
- Prohibition on harassment on the ground of disability and race by customers against services providers.
- Prohibition on disability and racial harassment between service providers and customers where the acts of harassment take place outside Hong Kong but on Hong Kong registered aircraft or ships.
- Protection for members and membership applicants of a club from sexual and disability harassment by the management of the club.
- Repeal of provisions in the SDO, FSDO and RDO which disallow an award of damages if the respondent in an indirect discrimination case can prove that the requirement or condition was not applied with intention to discriminate.
In its submission, the EOC expressed concerns that the Bill denies protection for wet nurses and may deny protection for mothers breastfeeding an adopted child or surrogate baby. Further, although the Bill extends protection to contractors and agents working in a common workplace, the EOC has criticised the failure to prohibit harassment against volunteers and interns who represent an increasing portion of the Hong Kong workforce.
On 25 February 2019, the Administration and the Bills Committee met with the EOC to discuss its submissions. During this session, the EOC called on the Government to address it concerns and to provide a detailed timeline as to when 19 other high priority recommendations contained in the Discrimination Law Review will be taken forward. It remains to be seen whether the Government will act on the EOC's requests; however, it is clear that much more progress is needed in order to bring Hong Kong's anti-discrimination ordinances in line with legislation in other jurisdictions.
For further information, please contact:
Pattie Walsh, Partner, Bird & Bird