EOC Article: Business Promotion Does Not Take Precedence Over Equal Opportunities
The District Court has provisionally ruled in the Equal Opportunities Commission (EOC)’s favour in a test case, where a man who was assisted by the EOC contested that he was treated unfairly on the ground of his sex because he was charged HK$300 for entry, well above the HK$100+ charge levied on women, into a bar from Sunday to Friday during normal business hours. As this involved a default judgment and the case is still technically ongoing, the EOC will not discuss the specifics of the case in detail.
The main concern is whether all business promotions providing additional material goods or benefits specifically to women would now be unlawful? And how would this ruling impact giving perks or concessionary fares to other groups, such as people with disability or the elderly?
We have come a long way in improving gender parity in Hong Kong. Yet many challenges remain, and discrimination and stereotypes due to gender are still prevalent, often manifesting in more subtle ways. It is worth noting that the EOC’s intention for bringing this case is two-fold: one, to heighten our community’s awareness to unlawful treatments on the grounds of sex or gender; and two, to rightfully assist a complainant (in this case, a male) to claim fairness under the provisions of the Sex Discrimination Ordinance (SDO), which gives equal protection to both women and men. It is important to clarify that under the SDO, setting a fee difference on the ground of sex in the provision of the same service would amount to sex discrimination.
As the defendant (i.e. the bar owner) did not appear in court to make a defense, the EOC’s lawyer applied for judgment in favour of the claimant and the application was granted by the court. The judgment is an uncontested one and has limited effect on subsequent cases. Nevertheless, it should be noted that the court would not have granted a default judgment, even in the absence of the Respondent, if the claimant does not have a valid claim.
So can women be treated better than men in services or in buying goods? The answer is clear: NOT if it is simply based on your sex or gender. Likewise, imagine if men are charged less in the entrance fees to a cinema, simply due to their gender. Such a fee-charging policy would be clearly discriminatory on the ground of sex.
On the other hand, giving concessionary fares for specific groups, such as people with disabilities, is arguably a different issue, as this is a way to widen a disadvantaged group’s access to a necessary service (e.g. travel/transport) to a level comparable to the majority, and advance their equal participation in society.
The EOC recently completed a comprehensive review of the four anti-discrimination laws (namely the Race Discrimination Ordinance, the Sex Discrimination Ordinance, the Family Status Discrimination Ordinance, and the Disability Discrimination Ordinance). The EOC has submitted its initial recommendations (73 items in all, with 27 priority areas) to the Government for her responses. We hope this can provide a good opportunity for the public to debate and to offer their ideas.
Equal Opportunities Commission
21 April 2016