Introduction

1. Purpose of the Code

1.1.This Code of Practice is issued by the Equal Opportunities Commission (EOC) in accordance with the Sex Discrimination Ordinance (SDO).¹ It aims to eliminate discrimination on the grounds of sex, marital status and pregnancy, sexual harassment and victimisation in employment and to promote equal employment opportunities between men and women.

1.2.The EOC believes that it is very important for employers, employees, and the general public to be aware of the principles prohibiting discrimination on the grounds of sex, marital status and pregnancy, sexual harassment and victimisation in employment. This Code is designed to help employees, their colleagues, employers and other concerned parties to understand their responsibilities under the SDO. The Code also provides guidance on the procedures and systems that can help to prevent discrimination and to deal with unlawful acts in employment.

2. Application of the Code

2.1. The Code applies to employment in Hong Kong in any establishment,² unless the employee does his or her work wholly or mainly outside Hong Kong.³

2.2. The Code applies to employment relationships in both the public and private sectors, the employment of contract workers, selection of partners in partnerships,⁴ memberships in workers' or employers' organisations, the conferral of professional or trade authorisations or qualifications, employment-related training, the provision of services by employment agencies and the appointment of commission agents.

2.3. Employers are encouraged to follow the guidelines and the recommended good practices in this Code, unless there are justifiable grounds for not doing so. In all cases, reference should be made to the provisions of the SDO .

2.4. The Code has to deal in general terms with discrimination on the grounds of sex, marital status and pregnancy, and sexual harassment. In adopting the Code employers may take into consideration the size and structure of their organisations. Small businesses, for example, will require simplified procedures and it may not always be reasonable for them to carry out all the Code's recommendations. However, small firms should ensure that their practices comply with the SDO and the spirit of the Code.

2.5. In addition to the Code the EOC will, from time to time, issue guidelines on good employment practices to assist organisations in implementing the recommendations set out in this Code.

3. Definitions

3.1. In line with the SDO, the Code stipulates equal protection for men and women.⁵ For practical purposes, listed below are the definitions of discrimination (direct and indirect), sexual harassment and victimisation that apply throughout this document.

3.1.1. Direct discrimination means treating a person less favourably than another person in comparable circumstances, because of a person's sex, marital status⁶ or pregnancy.

3.1.2. Indirect discrimination consists of applying the same treatment as between the sexes, persons with different marital status and persons who are pregnant or not, but is in practice discriminatory in its effect. For example, applying a certain minimum height or weight requirement to applicants could exclude a large proportion of female applicants and could be to their detriment. This would constitute indirect discrimination unless there was justification for a minimum height or weight requirement in the particular job.

3.1.3. Sexual harassment consists of any unwelcome sexual behaviour in circumstances where a reasonable person would have anticipated that the harassed person would be offended, humiliated or intimidated. It includes unwelcome sexual advances, unwelcome requests for sexual favours, and other unwelcome conduct of a sexual nature. It also includes creating a sexually hostile work environment.

3.1.4. Victimisation arises where a person (the discriminator) treats another person (the person victimised) less favourably than other persons in comparable circumstances because the person victimised or a third person has done or intends to do, or is suspected to have done or to intend to do, the following:

3.1.4.1. bringing proceedings against the discriminator or any other person under the SDO;

3.1.4.2. giving evidence or information in connection with proceedings brought by any person against the discriminator or any other person under the SDO;

3.1.4.3. otherwise doing anything under or by reference to the SDO in relation to the discriminator or any other person; or

3.1.4.4. alleging that the discriminator or any other person has committed an act which is unlawful under the SDO.