Ss 5, 8 of FSDO

The complainant (C) was a shipping clerk employed by a company (R). She alleged that R dismissed her 3 days after she applied for urgent leave to take care of her new born daughter who had been hospitalized. C alleged that the decision to terminate her was made on ground of her family status. C lodged a complaint with the EOC against R for family status discrimination.

R denied the allegations, and said C had been made redundant due to declining business. C’s work performance was worse than the other clerk in the same department. C did not agree and said she would not have received a higher pay rise than the other clerk if that was the case.

As there were disputes between the parties as to whether the decision to make C redundant was made solely on the ground of her unsatisfactory performance and whether C’s family status was one of the factors considered by R in the redundancy exercise, the case proceeded to conciliation and was settled after R agreed to pay a sum to C about one month of her salary.

Remarks:

It is unlawful to discriminate against an employee by dismissing him/her on ground of the employee’s family status, even if the family status is only one of the reasons for the termination.

Ss 5, 8 of FSDO

The Complainant (C) was a construction supervisor employed by a company (R) on a contract basis. C alleged that a manager of R told him that he was not entitled to paternity leave when he verbally notified him of his intention to apply for the leave. C was entitled to paternity leave according to the Employment (Amendment) Ordinance 2014 as he was working on a continuous contract. C was terminated a few weeks after the verbal notice. C claimed that he had no performance issue and got a salary increase not long ago. He believed that the termination was related to his family status.

C lodged a complaint with the EOC against R for family status discrimination. The case was settled through early conciliation after R agreed to pay C a sum equivalent to the paternity leave pay he was entitled to.

Remarks:

It is unlawful to discriminate against an employee by dismissing him/her on ground of the employee’s family status.

Ss 5, 8 of FSDO

The complainant (C) was employed as a clerical staff at a logistics company (R). After she returned to work from maternity leave, C was initially allowed to use a vacant room and a meeting room in the office to express milk. C felt satisfied with the arrangement as both rooms were clean and provided privacy. She was also allowed to store milk in the office.

A week later, however, C was assigned to work in a warehouse downstairs from the office to perform stock taking duties, which was not part of her job requirement. She was told by her supervisor that she could only express milk in the warehouse or at a shopping mall nearby. The supervisor also informed C that she would not be allowed to store milk in the office upstairs.

C claimed the warehouse was unsuitable for expressing milk as it was dusty and unsanitised. She initially tried to express milk at the shopping mall but soon felt that the dirt she collected from working in the warehouse would heighten the risk of contaminating the milk.

A few days later, C was asked to work in the office. Her supervisor told her she was not allowed to attend to personal matters, including expressing milk, during office hours. C claimed that she often saw other colleagues attend to personal matters, such as taking a smoke break or having breakfast during office hours.

C finally resigned.

C lodged a complaint with the EOC against R for family status discrimination. The case was settled through early conciliation after R issued an apology letter, proof of employment letter and a sum equivalent to about 2 months’ basic salary of C.

Remarks:

Discrimination against breastfeeding employees is considered as family status discrimination as it relates to the responsibility for the care of an immediate family member.

Ss5, 8 of FSDO

The Complainant (C) works for a trading company (R). A week after passing her probation at the company, she took 3 days’ urgent leave with no pay to look after her baby as her family member who used to look after the baby was unavailable, and no other family members could help. Upon returning to work, R sacked C, explaining that she was not suitable for the job. C alleged that the dismissal was due to her taking days off to look after her baby since she had passed her probation only days before.

C lodged a family status discrimination complaint with the EOC against R. The case was settled in post-investigation conciliation after R agreed to pay a sum equivalent to one month’s salary to C.

Remarks:

Under the Family Status Discrimination Ordinance, it is unlawful for an employer to dismiss an employee on the ground of the latter’s responsibility to take care of an immediate family member.

Ss 8, 11 of SDO and Ss5, 8 of FSDO

The Complainant (C) had been employed by a trading company (R) as a merchandiser for over 5 years when she was dismissed.

C alleged that since she informed R of her pregnancy, her colleagues had started making things difficult for her. She had talked to the director who took no heed of her complaints and seemed to condone the behavior of her colleagues.

At the end of her maternity leave, C applied for no-pay leave, as there was no one to take care of her new born if she resumed work. Her domestic helper could only report for duty 2 months later, and her mother had sustained a fall and injured her lower back. The director of R approved her application.

On the day C was supposed to resume work, the director sent her a message very early in the morning to tell her not to go back to the office as he would be leaving for a business trip the following day, and that business situation was not good at all. C did not see the message and returned to the office. The director saw her later on that day, and queried if she had read the message. He told C that there was no work for her that day as her previous job duties had all been assigned to other colleagues, which C disputed as a colleague had already handed over a client she previously handled back to her. He also said that business had declined and that C had caused him to lose a client. C did not agree with this, as the client in question was not lost due to C’s mistake but changes in its senior management. C offered to work part-time for the company until business improved, but was declined by the director. C was told to go home. The director said he would call her a few days later, which he never did. Finally, C received a message from the director to terminate her employment with R due to downfall in business. C did not believe that business had declined, as she knew that all employees got a pay rise that year. Although a client did not place orders anymore, the loss was made up by another client who had actually placed more orders. C also queried why she was chosen for dismissal but not other colleagues who had actually got less purchase orders than before.

C said that she was the first pregnant employee in the company since its establishment, and was the first merchandiser being dismissed. She disagreed that she had any performance issues; otherwise she would have been dismissed before taking maternity leave. She said she got bonus as well as pay rise in the past two years, proving that she had no performance problems. C alleged that she had been dismissed because of her pregnancy and the responsibility to take care of her baby.

C lodged a complaint with the EOC against R for pregnancy and family status discrimination. The case was settled through early conciliation after R agreed to provide a reference and pay her a sum equivalent to about 1.2 months’ basic salary of C.

Remarks:

It is unlawful for an employer to discriminate against an employee on the ground of her pregnancy and/or family status by subjecting her to any detriment. The protection of the Sex Discrimination Ordinance extends beyond the period of pregnancy. Whether the employee is dismissed during the pregnancy or maternity leave period is not a main consideration. If pregnancy is a reason for the less favourable treatment, the act would be unlawful.

Ss5, 8 of FSDO

The father of the Complainant (C) was admitted to hospital on a Friday three weeks after C started her employment with a company (R). With the consent of her supervisor, she left the office at about 4:00 p.m. that day. She applied for leave again on the coming Monday to meet with the doctor attending her father and to look after her mother who had chronic illnesses and mobility difficulty. C alleged that a staff member from the human resources department informed her in the afternoon that day that her employment with R had been terminated, as the management considered her not suitable to work for R in the long run due to the health condition of her family members.

C lodged a complaint with the EOC against R for family status discrimination. The case was settled through early conciliation after R clarified that the termination was not related to performance issue and provided C a reference letter. R also undertook that the termination and C’s complaint with the EOC would not affect their business cooperation, if any, in future.

Remarks:

Under the Family Status Discrimination Ordinance, it is unlawful for an employer to discriminate against an employee on the ground of the employee’s family status, i.e. the responsibility to take care of an immediate family member, by dismissing the employee. Employers should be careful not to base employment decisions on stereotypical belief.

Ss 8, 11 of SDO and Ss5, 8 of FSDO

The Complainant (C) had been employed by an insurance company (R) responsible for car insurance sales at the counter for more than 12 years when she informed R of her pregnancy. She was posted to a clerical position five months later, which was close to the end of the year. The reason given by R for the re-posting being that since staff members at the counter were required to distribute calendars to customers, she might not be suitable to do the job as she was heavily pregnant. Although C disagreed that distribution of calendar was a physically demanding duty, she accepted the re-posting. Her income, however, was greatly reduced as she no longer earned commission, the amount of which was usually more than her monthly salary.

C was arranged to perform data entry duty after she returned to work from maternity leave. She was told that she was not suitable for sales work at the counter as she had gained weight. C had reservation about that as a person’s weight should have nothing to do with the performance of sales duties. Furthermore, there was a co-worker at the counter who was of a big build too.

C managed to lose some weight a month later, and expressed her wish to get back to counter sales job again. R refused the request as C might need to take leave to look after her baby, and not able to cope with the physically demanding sales duties. C was told that the company would consider her request one year later when her baby was older. C disagreed as she had never been absent from work since she resumed duty.

C felt being discriminated and resigned.

C lodged a complaint with the EOC against R for pregnancy and family status discrimination. The case was settled through early conciliation after R agreed to provide a written apology and pay her a sum equivalent to about three and a half months’ basic salary of C.

Remarks:

It is unlawful for an employer to discriminate against an employee on the ground of her pregnancy and/or family status by subjecting her to any detriment. Management decisions based on stereotyping may lead to unlawful discrimination and should be avoided.

S8 of FSDO

The Complainant (C) worked for a company (R) as a restaurant manager. The new district manager asked her to schedule her rest days on weekends, which are the days when the restaurant was not so busy. C explained she had to take leave on alternate Thursdays in order to take her son to speech therapy. As a result, she could not arrange all rest days on weekends. Later, R dismissed C.

C lodged a complaint of family status discrimination against R with the EOC. The case was settled through early conciliation after R agreed to give a monetary payment of one month’s salary and to issue C a reference letter as well as an apology letter.

Remarks:

It is unlawful under the Family Status Discrimination Ordinance to discriminate against a person who has family status by dismissing that person or subjecting him/her to any other detriment. Family status refers to having the responsibility for the care of an immediate family member – a person related by blood, marriage, adoption, or affinity.

S8 of FSDO

The Complainant (C) worked for a company (R) as a security guard. She is a single mother, and her son has congenital heart disease and requires constant care. After school, her son would return home at around four in the afternoon. For about a year, C managed the dual role of mother and breadwinner well while working as a morning shift security guard, since she could take care of her son after her shift ends at about three in the afternoon. Her routine changed when her supervisor began to assign her to work afternoon shifts and night shifts, as well as to occasionally cover for security guards working in other districts, in order to meet the operational needs of the company. C informed her supervisors about her family status and requested her supervisor to arrange morning shifts for her, but her requests were not answered. She struggled to meet the work requirements for about a month but had to give up when her son needed to undergo a surgery.

C lodged a complaint of family status discrimination with the EOC against R. The case was settled through early conciliation after R agreed to give a monetary payment of about 3 months’ salary.

Remarks:

Family status refers to the status of having responsibility for the care of an immediate family member – a person related by blood, marriage, adoption, or affinity. It is unlawful under the Family Status Discrimination Ordinance to discriminate against a person who has family status by dismissing that person or subjecting him/her to any other detriment. Shift work arrangement is an area from which disputes often arise, so it is important for an employer to ensure that shift work arrangements are free from direct or indirect discrimination. Though the law does not require employers to accommodate every request from employees, it is a good management practice to arrange work so that employees can both care for the family and fully achieve their potential at work.

S8 of FSDO

The Complainant (C) worked for a company (R) as a Human Resources Director. Her mother was diagnosed with breast cancer. C informed her supervisor of her mother’s illness as she might need to take leave with short notice to take care of her mother. She took several days of leave in the next two months. R claimed C had poor performance and transferred some of her duties to another colleague. R also asked C to resign or she would be dismissed. C did not agree that she had poor performance, refused to resign, and was finally dismissed.

C lodged a complaint of family status discrimination with the EOC against R. The case was settled through conciliation after R agreed to issue a revised reference letter to C.

Remarks:

It is unlawful under the Family Status Discrimination Ordinance to discriminate against a person who has family status by dismissing that person or subjecting him/her to any other detriment. Family status refers to having the responsibility for the care of an immediate family member – a person related by blood, marriage, adoption, or affinity.

S8 of FSDO

The complainant (C) worked as a clinic assistant for a medical practitioner (R). After working for a year, C became pregnant and later took maternity leave. However, upon resuming work R frequently assigned her night duty due to which she could not take much care of her child. C’s mother had to look after the baby and take her for regular health check-ups. When C’s husband asked R why she was being assigned night duties frequently, R responded that the other staff had to work extra during C’s maternity leave and now they deserved more day duty.

C resigned from her job and lodged a complaint with the EOC against R for discriminating her on the ground of family status. The case was settled through conciliation after R agreed to provide C with an apology letter.

Remarks:

It is unlawful under the Family Status Discrimination Ordinance to discriminate against a person who has family status by dismissing that person or subjecting him/her to any other detriment. In this case, the frequent night shift duty could have been detrimental to the employee, who had to take care of her new born child as well.

S8 of FSDO

The Complainant (C) was an executive at a financial institution (R). One day she had to take a day’s leave as her son had to be hospitalized. C informed her office about her absence through text message. When the doctor informed C that her son needed to remain in the hospital for a few more days, she called her supervisor to request for one more day of leave. C was curtly asked whether she wanted her job or her family. C went to office the next day but within a few hours received a phone call from the hospital asking her to see the doctor immediately as her son’s condition had deteriorated. C requested her supervisor for an urgent leave but was denied. Left with no choice, she handed in her resignation and left.

Later C lodged a complaint with the EOC against the supervisor for discriminating against her and R for being vicariously liable for the act of her superior. The case was settled through early conciliation after R agreed to provide C with a reference letter and also to waive the payment she was supposed to make in lieu of the notice period for leaving employment. C decided not to pursue a case against the supervisor since he had left the job after she filed a complaint at the EOC.

Remarks:

Under the Family Status Discrimination Ordinance (FSDO), it is unlawful for a person or an organization to discriminate against any individual on the basis of his/ her family status. The FSDO explains family status as a person’s responsibility to take care of an immediate family member – a person related by blood, marriage, adoption or affinity. In the above case, C was discriminated because she was denied an urgent leave despite having a responsibility to look after C’s son, whom the law describes as her relative by blood.

S8 of FSDO

The Complainant (C), who used to work in a company run by the respondent (R), took leave to arrange the funeral of her deceased father. When she was back to work after leave, R told her that she was dismissed. C alleged that R told her that since her father had recently passed away he was worried that her emotions would affect the work of other staff.

C lodged a complaint with the EOC against R for discriminating her on the ground of family status. The case was settled through early conciliation after R agreed to pay a sum equivalent to C’s 1.5 months’ salary and provide statements of her monthly salary since the date she joined the company.

Remarks:

It is unlawful under the Family Status Discrimination Ordinance to discriminate against a person who has family status by dismissing that person or subjecting him/her to any other detriment. It might be family status discrimination if an employer dismisses an employee for having to arrange his/her parent’s funeral.

S5 & S8 of FSDO

The Complainant (C) had been working as a clerk at a bank (R) for five years when she was transferred to another department where working hours were considerably longer that her previous department. C claimed that this caused her difficulty in taking care of her young children as she was their primary caretaker. C’s husband worked mainly in the mainland and was mostly absent from home.

C lodged a complaint with the EOC alleging family status discrimination. The case was resolved after R agreed to allow C to leave office no later than 6.30 p.m during weekdays and also to consider adjusting C’s job duties and position depending on the operational needs and C’s skills and ability.

Remarks:

According to the Family Status Discrimination Ordinance, a person indirectly discriminates against another person if he/she applies the same requirement or condition, which cannot be justified, equally on people with and without family status but which has an unfair effect on people with family status because they cannot comply with it. It is a balancing exercise to consider the justifiability of a requirement imposed by the employer and the effect on individual employee.

S8 of FSDO

The Complainant joined the Respondent, a financial institution, as a Customer Service Officer in 1997 and worked regular banking hours. She had a 7-year-old daughter cared for by a part-time helper until 8 p.m. The Complainant's husband worked shifts including overnight duties, which meant she must be home in the evenings to care for her daughter.

In early 2005, the Respondent informed the Complainant that she would be assigned to work shifts in two months' time, which included working overnight duties. The Complainant requested to work regular hours only due to her childcare need but this was rejected. She alleged the Respondent had discriminated against her on the ground of her family status by operating a policy that required officers of her rank to work shifts, resulting in her not being able to care for her daughter at night.

There were 40 Customer Service Officers who worked in the Complainant's section and some had worked shifts since joining the company. From 2004, the Respondent had verbally informed those who did not work shifts, including the Complainant, that the terms and conditions of their jobs would be standardised and all would be required to work shifts.

The parties agreed to attempt early conciliation to resolve the matter and the complaint was settled without a full investigation. In balancing the Respondent's operational needs with the Complainant's personal circumstance, it was agreed that the Complainant would be transferred to a post that did not require shift duties.

Remarks:

Under the Family Status Discrimination Ordinance, it is unlawful for an employer to impose the same requirement on all employees with which persons with a particular family status cannot comply and suffer a detriment as a result, unless the employer can justify the requirement. In justifying the requirement, the nature of business, operational needs, and the terms and condition of employment are some of the factors that may be considered.

Register Ref: FSDO/1/December/2002

S8 of FSDO and S7 of SDO

The Complainant (C), a job applicant, alleged that the Respondent Company (R1), an electronic device company, and its Deputy General Manager (R2), had discriminated against her on the grounds of her marital status and/or family status (i.e. taking care of her 2 children) by rejecting her application for the post of Sales Coordinator. The post holder was mainly responsible for liaison with clients on orders. C claimed that R2, the sole interviewer in the recruitment interview, had asked her about her family responsibilities and marital status. R2 had also allegedly made a remark in the interview that “You are not a problem and I feel that you are quite good. But you have children and this is a big problem”.

Rs denied the allegations. They said C was not employed because her working experience was not up to the post requirement. R2 said her conversation on family composition with C was meant to be a casual talk only.

R2 offered C a verbal apology. In addition, R provided monetary compensation of $500 to C to compensate for the financial loss incurred for attending the interview. The case was settled in December 2002.

Remarks:

Only questions relevant to work requirements should be asked at job interviews. Decision to hire should be based on the assessment of one's capability in fulfilling the job requirements and not on speculations based on marital or family status.

Register Ref: FSDO/1/August/2002

S5 and S8 of FSDO & S8 and S11 of SDO

The Complainant (C) had worked as a teacher in a primary school (R1) for eight years. On the first day she resumed duties from maternity leave, which coincidentally was the first day of the school academic year, the principal (R2) proposed to her to change her employment status from full time to part time. C refused. The next day, R2 told C that she would be dismissed because she had been absent from the staff meetings during the summer holiday. C considered the reason for her dismissal unreasonable because she had been on maternity leave then and was not obliged to attend the meetings.

Rs denied the allegations. They explained that C agreed but failed to attend the staff meetings held during the summer holidays. Furthermore, C did not respond to R2's phone calls. R2 formed the view that C could not be entrusted with the demanding job of a class mistress. R2 also thought that because C had to take care of her child, she would appreciate having less demanding duties. R2 therefore assigned C to spend half of her working time on teaching duties and the remainder on administrative duties. Rs denied having forced C to work on a part-time basis. As C refused to take up the new duties, Rs therefore terminated the contract.

The complaints were resolved in August 2002 whereby Rs provided C with monetary compensation of $100,000 (roughly equal to 6 month's salary of C).

Remarks:

A person with particular family status should not be assumed to be less devoted to the job or any less competent. As far as discrimination acts are concerned, it is not the intention but the resultant impact of the act which is material. If an employer changes an employee's job duties if the move results in less favourable treatment to the employee, it may amount to unlawful discrimination.