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Family Status Discrimination Ordinance

Q: What is the Family Status Discrimination Ordinance (FSDO)?

A:

The FSDO is an anti-discrimination law passed in 1997. It makes unlawful for anyone or any organisation to discriminate against a person, male or female, on the basis of family status. The FSDO applies to seven different areas.

 

Q: In what areas am I protected?

A:

You are protected in the following areas:

  • 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
  • participation in clubs
  • activities of Government

 

Q: Why was the law necessary?  

A:

The increasing number of women in the labour market and the 'ageing' of the population in the last decade have made it increasingly necessary for the society to address the needs of workers with family responsibility. Nowadays, family responsibilities like the care of children and elderly parents are the responsibilities of both male and female workers. Workers face growing difficulties in trying to balance the demands of work and family. The potential conflict between work and family commitments affect workers' health, performance, career development, productivity as well as competitiveness.

 

Q: What is "Family Status"?

A:

Family status means that a person has responsibility for the care of an immediate family member. An immediate family member is a person who is related by blood, marriage, adoption or affinity. The types of blood relationships covered include mother, father, brother, sister, son, daughter, grandmother, grandfather, grandchild, aunt, uncle, cousin, nephew and niece. Relationship of marriage is that of husband and wife who are lawfully married. Relationships of affinity are those created by marriage, and include, for instance, mother-in-law and father-in-law.

 

Q: Does the FSDO apply to all employers in Hong Kong?

A:

Yes, it applies to all employers in Hong Kong unless the employee does his/her work wholly or mainly outside Hong Kong. (Please note that the exemption for "small employers" -- whose employees do not exceed 5 persons -- has expired on 26.6. 2000)

 

Q: I want to be a good employer; what kind of arrangements could I offer to my employees who have family status?

A:

You may consider adopting the following practices in addressing the needs of those employees with family status:

  • Adopt Consistent Selection Criteria in recruitment, promotion, transfer, training, dismissal or redundancy.
  • Do not hold stereotypical assumptions on the suitability of people with or without family status for a particular job; e.g. persons with family status are unsuitable for jobs that involve travel.
  • Avoid advertising positions as "full-time" unless this can be justified.
  • Keep mobility requirements to a minimum and allowance should be given to employees who have genuine difficulties in meeting the requirements.
  • Ensure that shift work arrangements are free from either direct or indirect discrimination.
  • Ensure that employees are allowed to have a free choice regarding the taking up of overtime work.
  • Offer part-time work or job sharing where possible.
  • Treat part-time employees fairly as regards pay, pension, training and promotion.

Unlawful Acts Under the FSDO

 

Q: What is discrimination?

A:

There are two kinds of discrimination -- direct discrimination and indirect discrimination.

Direct discrimination occurs when a person is treated less favourably than another person on the ground of family status. For example, if a woman is transferred to a less favourable job after childbirth because the employer thinks that a woman with an infant will not be able to travel. If the employer does not apply the same condition to a man with an infant, it could be direct discrimination on ground of family status.

Indirect discrimination occurs when a condition or requirement, that is not justifiable, is applied to everyone but in practice adversely affects persons who have family status. For example, a company insists that all its employees work overtime and a widower who has responsibility for care of his young children cannot comply with that condition. The company then dismisses him. The complainant feels aggrieved because as a single parent he cannot comply with that condition. If the company cannot justify why each and every employee must meet that condition, it could be a case of indirect discrimination on the ground of family status.

 

Q: Can an employer refuse to employ me because of my family status?

A:

It is unlawful for an employer to discriminate against a job applicant or an employee on the basis of his/her family status. For example, If you are applying for a job and the employer finds that your sister works for another company in a similar position, he/she cannot refuse to employ you for that reason. He/She will have to prove that collusion is possible and that it would be harmful to the company.

 

Q: Can an educational establishment or a service provider refuse to provide me with services or facilities because of my family status?

A:

It is unlawful for a service provider to refuse to provide goods, services or facilities on the basis of family status. It is also unlawful for an educational establishment to deny admission to, or expel a student, because of the same reason.

 

Q: Can the Equal Opportunities Commission (EOC) help me if I am treated badly because I acted as a witness or provided information for my friend or colleague who had lodged a complaint?

A:

Yes, if you are treated badly for helping a complainant, you can lodge a complaint of "victimization". If this happens, you are protected under the law and should immediately inform those who are dealing with your friend's or colleague's complaint.

 

Q: Does the FSDO apply to the Government?

A:

Yes, the provisions of the FSDO apply to the Government, but the latter is exempted from the law in the following areas:

  • for acts performed under any immigration legislation;
  • on entry into and departure from Hong Kong;
  • for acts done for the purpose of complying with the requirements of other existing statutory provisions.

Lodging a Complaint with the EOC

 

Q: What can I do if I feel I am being discriminated against?

A:

You can take one or more of the following actions:

  • if the complaint is job-related, you can lodge a complaint with your organisation's management or seek other forms of help from your staff organisation or union;
  • if the complaint is related to the provision of goods, services or facilities, you can lodge a complaint with the provider of the goods, services or facilities or request for improvement;
  • lodge a complaint with the EOC;
  • take your case to court.

Remember to make a record of what has happened as soon as possible while the incident is still fresh in your mind. The information will help you to recall details at a later date should you wish to lodge a complaint or take court action.

 

Q: How do I lodge a complaint with the EOC and what happens when I do so?

A:

A complaint must be lodged in writing. You may write it yourself or authorize someone else to do so.

After a complaint is received, the EOC must first investigate into the complaint and decide if it should be discontinued or proceed to conciliation.

 

Q: Can a group of persons lodge a single complaint?

A:

Yes, the complainant may be an individual, a group of individuals or any other body.

 

Q: Can I represent an aggrieved person?

A:

Yes, you can represent an aggrieved person. A representative complainant must show that he/she has been authorised by the aggrieved person to lodge the complaint. If you have not been authorised, you can still report the case to the EOC. After hearing of your concern, the EOC can look into the matter independently.

 

Q: If I want to lodge a complaint, what information do I need to provide?

A:

You need to lodge a complaint in writing and provide the following:

  • details and dates involved;
  • personal information (name, contact information, sex or marital status, etc.);
  • name of the respondent(s) (name of person or company) and contact information;
  • information supporting your claim of discrimination;
  • details of any detriment or emotional disturbance you have suffered because of the discriminatory actions;
  • information on witness(es).

If you have difficulties in preparing a complaint in writing, please contact the EOC Office.  Our staff will understand the reasons of your difficulties and your need so as to consider providing assistance accordingly.

Investigation and Conciliation

Q: How does the EOC investigate into a complaint?

A:

The EOC is required by law to investigate into the complaint. Allegations by the complainant are sent to the respondent(s) for comment. Responses are then made available to the complainant. Witness statements are taken and pertinent materials gathered to review to see if the case should be discontinued or proceed to conciliation. All information gathered during the investigation stage is kept confidential from third parties but may be used in court proceedings.

 

Q: Under what circumstances will the EOC discontinue the investigation of my complaint?

A:

The EOC will decide not to conduct or to discontinue an investigation into a complaint if:

 

  • the act complained of is not unlawful under the FSDO;
  • the aggrieved person does not desire to continue with the investigation;
  • more than 12 months have passed since the act was done;
  • the complaint cannot be appropriately pursued as a representative complaint;
  • the complaint is frivolous, vexatious, misconceived or lacking in substance.

 

Q: If I feel that I was discriminated against, is there any time limit for me to lodge a complaint? 

A:

If you would like to lodge a complaint with the EOC, you need to do it within 12 months of the incident. If you decide to take legal proceedings to District Court, you need to do it within 24 months of the incident.

 

Q: How does the EOC conciliate a case?

A:

The conciliator assists both parties to examine the issues that led to the complaint, identify points of agreement and negotiate a settlement to the dispute. The EOC is required by law to first investigate the case and then try to settle the matter through conciliation. Conciliation is a voluntary process. The conciliator does not act as an advocate for either side but acts as a facilitator. Settlements vary and may include a letter of apology, financial compensation, enactment of equal opportunities policies, etc. Settlement agreements are equivalent to contracts and are legally binding. Read the EOC brochure on conciliation for additional information.

 

Q: What can the EOC do for me if conciliation fails?

A:

If the complaint cannot be resolved through conciliation, you can apply to the EOC for legal assistance to go to court. Assistance may include the giving of legal advice, representation by the EOC's lawyers, legal representation by outside lawyers or any other form of assistance the EOC considers appropriate. A committee of the EOC considers all applications.

 

Q: Can I go to court independently without going to EOC?

A:

Yes, anyone can go to court directly and initiate civil proceedings under the law without going through the EOC.


 

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