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EOC Gives Legal Assistance in a Sexual and Racial Harassment Case

06/12/2024

The Equal Opportunities Commission (EOC) today (6 December 2024) issued legal proceedings under the Sex Discrimination Ordinance (SDO), Cap. 480, and the Race Discrimination Ordinance (RDO), Cap 602, in the District Court on behalf of a person (the Claimant) (Case number: DCEO 11/2024).

The Claimant, a Bangladeshi female, alleged that she was subjected to sexual harassment and racial harassment by her former employer (the 1st Respondent) who frequently addressed her with sexual and derogatory racial terms during her employment as a part-time law clerk at his law firm. The Claimant also alleged that her former direct supervisor (the 2nd Respondent) besides abetting the 1st Respondent to sexually harass her, he also sexually harassed her on many occasions. The incidents included sending a hyperlink to a photo of sexual connotation to the Claimant via instant messaging app, and repeatedly describing his sexual activities to the Claimant despite her expressed discomfort, etc. The Claimant suffered severe emotional distress, which eventually led to her constructive dismissal.

Under the SDO, sexual harassment that occurs in the field of employment is unlawful. Sexual harassment refers to any unwelcome conduct of a sexual nature, such as unwanted physical touch, hugs, kisses, and sexual innuendo, in circumstances in which a reasonable person would have anticipated that the victim would be offended, humiliated or intimidated. In addition, if a staff (including employers), alone or together with other persons, engages in conduct of a sexual nature that creates a hostile or intimidating environment for another staff, the former is considered to have sexually harassed the latter.

Furthermore, the SDO stipulates that an employer may be vicariously liable for acts of sexual harassment committed by an employee, even if the employer is unware of such acts. This holds unless the employer proves to have taken steps that are reasonably practicable to prevent such incidents from occurring, which could be used as a defence.

Under the RDO, it is unlawful to commit racial harassment in the field of employment. The RDO defines racial harassment as when a person engages in any unwelcome conduct on the ground of another person’s race (e.g. abusive, insulting or offensive behaviour), which a reasonable person, would anticipate that such conduct would offend, humiliate or intimidate the other person. Racial harassment may also occur if a person creates a racially hostile environment for another person because of his/her race. For example, engaging in name calling, which people of certain racial groups may find offensive or impolite, could be unlawful racial harassment.

By taking this case to the court, the EOC hopes to raise public awareness and reminds employers and employees that it is unlawful to sexually or racially harass employees or colleagues in the workplace. It also sends the message that harassment acts have serious legal consequences.

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