There are two kinds of discrimination — direct discrimination and indirect discrimination.
Direct discrimination occurs when a person is treated less favourably than another person of the opposite sex, with a different marital status, who is not pregnant or not breastfeeding. 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 because you are pregnant, even though the termination is made 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, those who are pregnant or those who are breastfeeding. For example, if your employer penalises 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.

It is unlawful for an employer to discriminate against a job applicant or an employee on the basis of sex. However, if a personʼs 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 stereotypical belief or thinking, such as women are more suitable for clerical positions or men make better 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.

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

If a pregnant or breastfeeding woman is the best qualified candidate but is not selected for the job because she is pregnant or breastfeeding, then this may constitute unlawful discrimination. 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.

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

There are two forms of sexual harassment:

(1) Unwelcome conduct towards a person

When a person –

Makes an unwelcome sexual advance, or unwelcome request for sexual favours, to another person; or

Engages in other unwelcome conduct of a sexual nature to another person, which a reasonable person, having regard to all the circumstances, would anticipate that the other person would be offended, humiliated or intimidated.

(2) Create a sexually hostile environment

When a person, alone or with others, engages in conduct of a sexual nature, which creates a hostile or intimidating environment for another person. Such conduct could, for example, be in the form of making sexual jokes or displaying indecent pictures.

Sexual harassment is unlawful whether it is a woman or man who is sexually harassed, and irrespective of the sex of the person doing the sexual harassment.

The provisions relating to sexual harassment apply to the employment and education sectors, the provision of goods, facilities or services (that is, sexual harassment by a provider of goods, facilities or services against a customer and vice versa), management and disposal of premises, as well as participation in clubs.

The SDO also renders sexual harassment between workplace participants at a common workplace unlawful, even where there is no employment or employment-like relationship between them. A “workplace participant” covers persons working in the same workplace, including an employer, an employee, a contract worker, a principal, a commission agent, a partner, an intern and a volunteer.

Pregnancy discrimination occurs when a person is treated less favourably because of her pregnancy.

The following acts are considered pregnancy discrimination:

• an employer refuses to hire a pregnant woman even though she is the most suitable person;
• an employer dismisses or transfers a female employee to a lower paying position after knowing that she is pregnant; and
• an employer dismisses a female employee on her return from maternity leave.

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.

Breastfeeding discrimination occurs when a woman who is engaging in an act of breastfeeding a child – whether her own or not – or is engaging in an act of expressing breast milk, is subject to direct and indirect discrimination, as well as victimisation. A woman who feeds a child with her breast milk, but is not doing so at the time when the relevant act of discrimination is committed, is protected by the law as well. Examples include a restaurant refusing to serve a breastfeeding woman, or an employer giving an employee less favourable treatment because she expresses milk in the office.

There are two forms of harassment of breastfeeding women. This applies where a person harasses a woman on the ground that the woman is breastfeeding by:

• Unwelcome conduct towards the breastfeeding woman – when a person engages in unwelcome conduct, which a reasonable person, having regard to all the circumstances, would anticipate that the woman would be offended, humiliated or intimidated by that conduct.
• Creating a hostile or intimidating environment – A person, alone or with others, engages in conduct which creates a hostile or intimidating environment for the woman.

Conduct includes making a statement to a woman or in her presence, whether the statement is made orally or in writing.

Yes, if you are treated badly for helping a complainant, you can lodge a complaint of “victimisation”. 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.

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; and
• acts done for the purpose of complying with the requirements of other existing statutory provisions.

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, 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); and/or
• 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.

A complaint must be lodged in writing. You may write it yourself or authorise 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.

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

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 may still report the case to the EOC. After hearing of your concern, the EOC can look into the matter independently.

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 victimisation;
• details of any detriment or emotional disturbance you have suffered because of the discriminatory actions; and
• 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.

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.

Upon receiving a complaint in writing, the EOC will ascertain whether there had been an unlawful act that fell within the remit of the anti-discrimination ordinances, and whether the complaint was lodged by an aggrieved person or her/his authorised representative.

Once a case has been classified as a complaint, the EOC will assign a case officer to handle it. The case officer will notify the respondent of the complaint and request a response. The case officer may also write to the complainant, seeking further information or clarification of certain points, and may also ask about witnesses or documentary proof that might support the allegation(s). At all stages of complaint-handling, the EOC will adhere to the principles of impartiality and confidentiality, as well as its established procedures, and adopt a “victim-centric” approach, which seeks to recognise and pay special attention to the needs of victims, while managing their expectations.

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; or
• the complaint is frivolous, vexatious, misconceived or lacking in substance.

The EOC is required by law to investigate into a complaint and effect a settlement through conciliation. The conciliator of the EOC assists both parties to examine the issues that led to the complaint, identify points of agreement and negotiate a settlement to the dispute. Conciliation is entirely voluntary. The conciliator does not act for either party of the complaint, but would maintain independent and impartial, while adhering to the principle of confidentiality during the conciliation process. The conciliator would discuss the issues in dispute by asking questions designed to help all parties exchange information, develop and examine options for resolution, draft the settlement agreement according to the wishes of the parties and record the outcome.

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.

If the complaint cannot be resolved through conciliation, you may apply to the EOC for legal assistance to go to court.  The Legal and Complaints Committee of the EOC will consider and decide on the applications, taking into account the circumstances of each case and a set of established principles. 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.

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