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New! - Amendment to the Sex Discrimination Ordinance

Sex Discrimination Ordinance
Q: What is the Sex Discrimination Ordinance (SDO)?
A:

The SDO is an anti-discrimination law passed in 1995. Discrimination on the basis of sex, marital status and pregnancy, and sexual harassment are made unlawful under this law. These protections are in seven different fields. The law applies to both males and females.

The SDO also provides for the establishment of the Equal Opportunities Commission to work towards the elimination of discrimination and harassment as well as to promote equal opportunity between men and women.

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: Does the SDO apply to all employers in Hong Kong?
A:

The SDO applies to all employers in Hong Kong except where their employees work wholly or mainly outside Hong Kong.

Unlawful Acts Under the SDO
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 favorably than another person of the opposite sex, with a different marital status, or who is not pregnant. For example, if you are rejected for a job because the employer wants to hire a person of another sex. If you are single and pregnant and the employer says that maternity benefits are only for those who are legally married. Pregnancy discrimination can occur if you are terminated at the end of your maternity leave.

Indirect discrimination occurs when a condition or requirement, which is not justifiable, is applied to everyone but in practice adversely affects persons of a particular sex or marital status, or those who are pregnant. For example, if your employer penalizes you for not working overtime because you are not able to do so as you are pregnant. If your employer cannot prove that the overtime requirement is justified, then it can be indirect discrimination.

Q: Can an employer refuse to employ me because of my sex?
A:

It is unlawful for an employer to discriminate against a job applicant or an employee on the basis of sex. However, if a person's sex is a genuine occupational qualification (GOQ) for the job, it is then not unlawful. That is, if the job can only be done by a male or a female. This is not the same as the employer thinking that males are not suitable as clerks or women as managers. The GOQ must show that the job can only be done by a particular sex for essential reasons. For example, a retirement home may want to hire female attendants to help with providing intimate care to female retirees.

Q: Is Genuine Occupational Qualification (GOQ) an automatic exception?
A:

No, Genuine Occupational Qualification (GOQ) is not an automatic exception for sex discrimination. The employer must show that the GOQ is absolutely essential to the job in question.

Q: Can an employer refuse to employ a job applicant because she is pregnant?
A:

It is unlawful to discriminate against a job applicant because she is pregnant. If a pregnant woman is the best qualified candidate she should be selected for the job. However, if the position is a temporary one that requires the work to be done within a short period of time it may be reasonable for the employer not to employ a pregnant applicant.

Q: Can an educational establishment or a service provider refuse to provide me with services or facilities because of my sex, pregnancy or marital status?
A:

It is unlawful for a service provider to refuse to provide goods, services or facilities on the basis of sex, pregnancy or marital status. It is also unlawful for an educational establishment to deny admission to, or expel a student, because of these reasons.

Q: What is sexual harassment?
A: There are two forms of sexual harassment. The first is any unwelcome sexual behavior or conduct which is offensive, humiliating or intimidating.

The second form can be a working environment where there are actions, languages or pictures that are of a sexual nature that makes it hard for you to do your work. This is called "a sexually hostile working environment".

Q: To which areas do the provisions relating to sexual harassment under the Sex Discrimination Ordinance apply?
A:

The provisions relating to sexual harassment apply to the employment and education sectors. In addition, the provisions apply to sexual harassment by provider of goods, facilities or services against a customer, by owner of premises against tenant or occupant, and by customers against provider of goods, facilities or services, which is unlawful.

Q: What is pregnancy discrimination?
A:

The following acts are considered pregnancy discrimination:

  • an employer refuses to hire a pregnant woman;
  • an employer dismisses or transfers a pregnant woman into a lower paying position;
  • an employer dismisses a woman on her return from maternity leave.
Q: What is marital status discrimination?
A:

Marital status discrimination occurs when a particular marital status is required. For example, if a landlord will only rent to married persons. If an employer gives different benefits to those who are single, married, or divorced.

Q: Can the 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 SDO apply to the Government?
A:

Yes, the provisions of the SDO apply to the Government. Some areas, however, are exempted from the law. These include:

  •  acts performed under any immigration legislation;

  • entry into and departure from Hong Kong;
  • 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 organization's management or seek other forms of help from your staff organization or union;
  • if the complaint is related to the provision of goods, services, facilities, or an education establishment you can lodge a complaint with the providers or request for improvement;
  • lodge a complaint with the Equal Opportunities Commission (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 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 authorized by the aggrieved person to lodge the complaint. If you have not been authorized, you may 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;
  • your personal information (name, contact information, sex, state of pregnancy, or marital status, etc.)
  • name of the respondent(s) (name of person or company) and contact information;
  • information supporting your claim of discrimination, sexual harassment or victimization;
  • 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 SDO;
  • 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 may 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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