Code of Practice on Employment under the Sex Discrimination Ordinance
Hong Kong has become successful due to its fair, open and competitive society. Equality of opportunities in employment ensures that all suitable people compete equally and effectively on the basis of their abilities, aptitude and knowledge. This is an important element in sustaining Hong Kong's success.
Legislation on sex discrimination was introduced in Hong Kong not only to ensure equality of opportunities in certain area, but to reflect the growing needs of the Hong Kong community in:
- upholding civil rights - Hong Kong has made significant advances in protecting individual rights and respecting human dignity. The elimination of discrimination on the ground of sex in employment signifies a progressive society and contributes to the development of civil rights for people in Hong Kong.
- maintaining social harmony - Hong Kong prides itself on its low level of social conflict. Its economic success is a result of people being interested in fighting competitors in the market place rather than fighting other groups in society. Social harmony in Hong Kong can be maintained through the use of fair and open practices in social areas including employment.
- ensuring better use of skills and resources - By tapping into the largest pool of available talent, Hong Kong employers can enhance the quality of their staff and thereby improve their competitive edge. Creating this pool means including all skilled and talented people regardless of their sex. This present a challenge to all of us - to accept and value differences, and to dispense with stereotypical assumptions of the male or the female. Employers are encouraged to recast the conventional notion of 'suitability' and focus on the 'ability' of a person rather than the gender.
- achieving organizational success - Organizations which incorporate equality of opportunities into their organizational strategy will be improved by seeking to develop the abilities of all employees. There is indeed a close link that exists between affording equal opportunities in organizations and good employment practice. In some cases an initial cost may be incurred in implementing equal opportunities policies, but this will be more than compensated for by better employment relationships and better use of human resources.
This Code of Practice on Employment is offered to assist employers and employees in understanding the requirements of the Sex Discrimination Ordinance. In the long term, the Equal Opportunities Commission hopes to create, with the support of the community, an environment where there is no barrier to equal opportunities and no discrimination.
|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.|
|2.1||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.|
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.
|4.1||According to the SDO, an act done by a person in the course of his or her employment may render both that person and his or her employer liable. Similarly, an act done by a person as agent for another may render both the agent and principal liable. Employers are legally responsible for the actions of their employees, done in the course of their employment, whether or not these were done with the employer's knowledge or approval.7|
|4.2||A failure on the part of a person to observe any of the recommendations contained in this Code does not automatically render him or her liable to any proceedings. However, if a person is accused of discrimination, sexual harassment or victimisation, failure to implement the recommendations outlined in this Code could be used as evidence in a court of law.8 This applies to both employers and employees, as well as agents and principals.|
|4.3||When the EOC investigates an alleged discriminatory act or conducts a formal investigation the EOC will also take compliance of this Code into account.|
It is also unlawful to instruct, induce, threaten or knowingly aid others to commit unlawful acts under the SDO.9
|4.5||This Code may be used as a guidance for employers as to what steps it is reasonably practicable for them to take to prevent their employees from committing unlawful acts. Where the Code offers specific guidelines to employers and they follow such guidelines, the fact they did so will assist a court to determine that they have taken all reasonable steps practicable.10|
Under the SDO, it is unlawful to discriminate in employment on the ground of sex, marital status or pregnancy. This includes the following situations:
Acting upon stereotypical assumptions based on sex, marital status or pregnancy could lead to discrimination.
Under the SDO, sexual harassment in employment is unlawful. Without limiting the meaning of sexual harassment as defined in the SDO, the following behaviour can be regarded as sexual harassment:11
Under the SDO, sexual harassment in employment includes the following situations:12
|6.3||A series of incidents may constitute sexual harassment. However, depending on the circumstances, it is not necessary for there to be a series of incidents. One incident may be sufficient to constitute sexual harassment.|
|6.4||On the other hand, an employee may be the victim of a hostile work environment where he or she is harassed in a pattern of incidents that may not be, in and of themselves, offensive, but when considered together amount to sexual harassment.|
Under the SDO, it is unlawful to discriminate in employment by way of victimisation. Victimisation in employment may occur where a person:13
|7.2||Victimisation in employment also covers the situations listed under paragraph 5.1 of this Code.|
|8.1||The SDO allows for positive action whereby, an act targeting persons of a particular sex or marital status, or who are pregnant would not be unlawful if it is reasonably intended to ensure that these persons have equal opportunities in employment, or to provide them with goods, access to services, facilities, opportunities, grants, benefits or programmes to meet their special needs in relation to employment.|
|9.1||The principles underlying this Code should be applied, where applicable, in the selection of partners in partnerships, admission to membership in workers' and employers' organisations, provision of services by employment agencies, and selection and treatment of contract workers and commission agents.|
|10.1||The primary responsibility of each employer is to ensure that there is no discrimination at work on the ground of sex, marital status or pregnancy. The SDO makes it unlawful to discriminate on such grounds.|
|10.2||This section describes good management practices which will help to eliminate discrimination. It recommends the use of consistent selection criteria for recruitment, promotion, transfer, training, dismissal and redundancy as well as terms and conditions of employment. These criteria and terms and conditions should be made known to all employees and job applicants upon request. Without this consistency, decisions can be subjective and leave the way open for discrimination to occur.|
Developing a set of consistent selection criteria for all aspects of employment is one of the most important steps in eliminating discrimination in the workplace. This can be done by reference to the duties and responsibilities that would need to be carried out in the job. The application of consistent selection criteria is good management practice as it helps organisations to:
Save for a few exceptions, such criteria should not make reference to sex, marital status or pregnancy. They should be specifically related to the job, such as:
In line with good management practice, it is recommended that employers:
Sex discrimination by an employer in recruiting for a job, or in providing opportunities for promotion or transfer to, or training for, a job is not unlawful where a person's sex is a genuine occupational qualification (GOQ)17 for the job. The criteria for determining whether a person's sex is a GOQ for a particular job are set out in the SDO and are explained below:
|10.7||The GOQ is not an automatic exception for general categories of jobs; in every case it will be necessary for the employer to show, if the exception is to be claimed, that it applies to the particular job in question.|
|11.1||Employers should make all recruitment decisions on the basis of consistent selection criteria. In this way, each individual can be assessed according to his or her capabilities to carry out a given job and will not be judged by irrelevant considerations.|
|11.2||Do not assume that only men or only women are able to do certain kinds of work. For example, men can be good secretaries and women can be good fire-fighters.|
|11.3||Employers should ensure that sex, pregnancy or marital status is not used as a ground for determining who should be offered employment. This applies no matter whether recruiting by advertisement, through employment agencies or through career offices in educational establishments.|
|11.4||In addition, employees handling applications and conducting interviews should be trained to avoid acts of discrimination.|
Employers should ensure that the contents of advertisements are based on consistent selection criteria.18 In line with good management practice, it is recommended that employers:
In line with good management practice, it is recommended that employers:
In line with good management practice, it is recommended that employers:
An interviewer who seeks evidence of skills and abilities and who relies on facts rather than generalised hunches will be less likely to be biased. In line with good management practice, it is recommended that employers:
|11.9||It is a good practice to record, immediately after the interview, the assessment that each interviewer has formed on the applicant's ability to match the consistent selection criteria. This will not only ensure a logical assessment of the applicant's strengths and weaknesses but will also serve as a valuable explanation and defence against any unfounded suggestion of sex bias.|
|11.10||While employers may be concerned for the health, safety and welfare of their employees, they should not inquire about an applicant's child-bearing plans.|
|11.11||However, employers should point out if certain work conditions may have adverse effects, e.g. women should be made aware that exposure to some hazardous materials (e.g. lead or radioactive materials) could pose a danger to an unborn child.|
If tests are to be used for selection purposes, it is recommended that employers:
|11.13||Employers should draw a distinction between pre-employment and post-hiring enquiries, as there are some questions that could give rise to allegations under the SDO if asked before the applicant has been hired. It is therefore recommended that an employer should not ask questions which might subsequently give rise to any such allegation. (See paragraph 11.7.1 for examples of pre-employment questions that should be avoided.)|
|11.14||As an example, it could be valid after hiring to request information regarding the spouse and number of children for medical benefits or educational allowances, or people to notify in case of emergency.|
|11.15||Where recruitment is done through employment agencies, employment services provided by the Labour Department, and educational establishments or non-government organisations, the employer should advise them that they should comply with the SDO and follow the recommendations in this Code as far as practicable.|
|11.16||Where appropriate, employers should specify that vacancies are open to persons of both sexes when notifying employment agencies, or employment services. This is especially important when a job has traditionally been done by persons of one sex.|
|12.1||Under the SDO, it is unlawful to discriminate, on the ground of sex, marital status or pregnancy, in the terms and conditions of employment or access to benefits,22 facilities or services. This applies to both existing contracts and new ones. Benefits may be in the form of fringe benefits, commissions, bonuses, allowances, pensions, health insurance plans, annual leave, merit and performance pay, or any other benefits available to employees generally.|
|12.2||In respect of the terms and conditions of employment, employers should maintain the principle of equal pay for equal work. That is, a female employee is entitled to equal pay when she is doing "like work" or the same work as that of a man. "Like work" means work which is of a broadly similar nature and where the differences between the tasks performed by either of them are not of practical importance to the terms and conditions of employment.23|
|12.3||Different job titles, job descriptions or contractual obligations do not necessarily imply that the work is different. It is what the job-holders actually do that matters. The question of whether the two jobs are "like work" can be answered by a general consideration of the type of work involved and the skill and knowledge required to do them.|
Examples of " like work" are:
|12.5||Sex discrimination in pay may occur because women and men tend to be segregated into different jobs. Frequently the jobs done mainly by men have a higher status and are more highly rewarded than those done by women. Such differences can be reinforced by discriminatory recruitment, selection and promotion procedures which restrict the range of work persons of each sex perform.|
|12.6||A related principle to equal pay for equal work is that of equal pay for work of equal value. Where women undertake work as demanding as that of their male colleagues, even though the work is different, women should receive the same pay and benefits. That is, jobs of equal value warrant equal pay.|
|12.7||Overseas experience suggests that different jobs done by a man and a woman can be compared on the basis of the demands made on a worker in terms of effort, skill, responsibility and working conditions.24 Employers can set individual pay rates based on market forces and individual performance but should not pay a class of workers less for doing work of equal value on the basis of sex.|
|12.8||Employers should maintain the principle of equal pay for equal work and are encouraged to consider progressive implementation of equal pay for equal value. This will require objective and professional evaluation of different jobs within the same establishment, or alternative methods of approaching the issue of equal pay which can be demonstrated to be non-discriminatory. Large organisations in both the public and private sectors with a structured human resources department could take a lead in this.|
|12.9||Some companies use different job titles for men and women who are doing essentially the same work. This can lead to jobs undertaken by women being given lower status and so lower pay. If the titles do not reflect a genuine difference in the nature of the work done, they should be changed so that the same title applies to both jobs.|
Here are some examples of discriminatory job titles when the same work is being done by men and women within the same organisation:
|12.11||Where part-time workers do not enjoy pay or benefits in pro-rata with full-time workers, companies should review the arrangements to ensure that such arrangements are justified without regard to sex, marital status or pregnancy.|
Individual differences in pay are not in themselves discriminatory. Each case should be considered on its own merits. According to overseas experience,25 the following considerations are relevant in considering differences in pay for equal work or work of equal value:
In addition, such considerations should
|12.14||Employers should maintain gender-neutral workplace policies to avoid discrimination under the SDO, e.g. a married employee should have the option of whether or not to add the surname of the spouse.|
There are no provisions in the SDO that specify sex discrimination in relation to grooming codes (also referred to as dress codes) in employment. However, employers should take the following good practices into account when developing and implementing grooming codes for their staff:
It is unlawful for employers to discriminate on the ground of sex, marital status or pregnancy in the way they give opportunities for promotion, transfer or training. In line with good management practice, it is recommended that employers:
It is unlawful to discriminate on the ground of sex, marital status or pregnancy by dismissing the employee or subjecting him or her to any other detriment. In line with good management practice, it is recommended that employers:
In line with good management practice, it is recommended that employers:
|It is not victimisation if an employee is treated less favourably as a result of an allegation which is false and not made in good faith.30|
16. Formulating a policy to eliminate discrimination on the grounds of sex, marital status and pregnancy
|16.1||A policy that promotes equality of opportunities for all will ensure the effective use of human resources in the best interests of both the organisation and its employees. It is a commitment by an employer to the development of his or her staff.|
|16.2||The organisation should also commit to use employment procedures and practices which do not discriminate on the ground of sex, marital status or pregnancy and which provide equal opportunities for all employees. The details of the policy will vary according to the size of the organisation.|
|16.3||To demonstrate a commitment to the equal opportunities policy, it is recommended that the responsibility for the policy should be held by a member of senior management.|
|17.1||To ensure that the policy is fully effective, it is recommended that employers:
|18.1||It is recommended that the policy be monitored regularly to ensure that it is working in practice. To this end, consideration could be given to setting up a joint committee consisting of management and employee representatives.|
|18.2||In a small firm with a simple structure it may be quite adequate to assess the deployment and pay scales of employees from personal knowledge.|
|18.3||In a large and complex organisation a more formal analysis may be useful, for example, by sex, grade and pay in each unit. This may need to be introduced in stages as resources permit. Any formal analysis should be regularly updated and reviewed to enable any necessary action to be taken.|
|18.4||Sensible monitoring will show, for example, whether members of one sex:
|18.5||The employers should review information obtained from monitoring to ascertain whether or not the pattern of employment and deployment indicates any unlawful discrimination.|
|19.1||This part of the Code seeks to encourage the development and implementation of policies and practices which establish working environments free of sexual harassment.|
|19.2||A common characteristic of sexual harassment is that employees subjected to it will often be reluctant to complain to their employers. An absence of complaints about sexual harassment does not necessarily mean an absence of sexual harassment. It may mean that the recipients of sexual harassment think that there is no point in complaining because nothing will be done about it, or because it will be trivialised or the complainant subjected to ridicule, or because they fear reprisals.|
|19.3||Implementing the preventive and procedural measures outlined here should facilitate a favourable climate at work.|
|19.4||Both the policy and complaints procedures should be introduced after consultation or negotiation with employee representatives. Strategies to create and maintain a working environment in which the dignity of employees is respected are most likely to be effective where they are jointly agreed.|
|19.5||Employers should also make clear that employees have a duty and responsibility towards creating such an environment and in ensuring that sexual harassment does not occur.|
|20.1||As a first step in showing senior management's concern and its commitment to dealing with the problem of sexual harassment, employers should issue a policy statement which expressly states that sexual harassment at work is unlawful and will not be permitted and that employees have a right to complain should it occur.|
A policy statement on sexual harassment should include:
|21.1||A co-ordinator, preferably with special training, should be designated to establish and administer both informal and formal complaints procedures.|
Effective and regular promotion of the policy is important to a successful programme against sexual harassment in that:
In order to promote the policy, information may be disseminated through:
The co-ordinator or any other staff member involved in the complaints handling procedures should receive adequate training to enable sensitive treatment of cases in relation to sexual harassment, for example:
Regardless of whether an informal or formal complaints procedure is in use, it is good practice for employers to monitor and review complaints of sexual harassment and how they have been resolved, in order to ensure that the procedures are working effectively.
|23.1||While the employer has the main responsibility for eliminating discrimination and sexual harassment, and providing equal opportunities, employees at all levels, especially when they are acting as agents of their employer, have responsibilities too.|
|23.2||Employees may be personally liable for acts committed by them in the course of their employment. They should therefore observe the requirements of the SDO and follow the recommendations of this Code where applicable.|
|23.3||Employees should take note that, under the SDO, it is unlawful for them to sexually harass a co-worker, potential co-worker, an employer or a potential employer.|
|24.1||Employees can be proactive in helping to eliminate discrimination on the ground of sex, marital status or pregnancy by becoming familiar with the subject, so that they do not inadvertently discriminate against someone or inadvertently aid their employer to do so.|
|24.2||Whenever appropriate, employees could also encourage their employers to formulate discrimination policies and to implement preventive measures.|
|24.3||Employees are encouraged to be supportive of friends or colleagues who intend, in good faith, to lodge a complaint about discrimination, or have lodged such complaint.|
|25.1||Employees have a clear role to play in helping to create a climate at work in which sexual harassment is unacceptable. They can contribute to preventing sexual harassment through an awareness and sensitivity towards the issue and by ensuring that standards of conduct for themselves and for colleagues do not cause offence.|
|25.2||Sexual harassment is not merely a "management problem" and still less a "women's (or men's) problem". All employees have responsibilities as well as rights in respect of the work environment that is created. Sexual harassment, particularly in its less severe forms, can be part of the usual code of behaviour in a workplace. To change this may require each employee to reconsider his or her own attitudes and conduct as well as those of his or her colleagues.|
|25.3||Employees can do much to discourage sexual harassment by making it clear that they find such behaviour unacceptable and by supporting colleagues who suffered such treatment and are considering making a complaint.|
|25.4||A major reason why few sexual harassment complaints are reported is that the person involved is afraid of co-workers' reactions. They do not want to run the risk of being accused by them of spoiling the work climate. Neither do they want to be told that they provoked the harassment themselves or that they cannot take a joke. When employees show through their words and their actions that they find sexual harassment unacceptable, this will provide substantial support to those who are harassed and make it easier for them to come forward to file a complaint.|
|25.5||Employees who are themselves recipients of harassment should, where practicable, tell the harasser that the behaviour is clearly unwanted and unacceptable. Once the offender understands clearly that the behaviour is unwelcome, this may be enough to put an end to it. If the behaviour persists, employees should inform management and/or their employee representative through the appropriate channels and request assistance in stopping the harassment, whether through informal or formal channels.|
|25.6||When telling the harasser that the behaviour is unwanted, if the employee does not want to confront the harasser alone, he or she may want to ask a co-worker or a friend to be present. An alternative to confronting the harasser in person is to write to him or her and keep a copy of the correspondence.|
|25.7||Where an employee feels uncomfortable or unsafe in confronting the harasser directly, the employee may choose to inform management and/or an employee representative in the first instance and request for steps to be taken to deal with the matter.|
|25.8||If the harassment continues, however, the employee should, if possible, seek advice on what to do next. The employee at all times has the option of seeking external assistance.|
|25.9||It is important for an employee subjected to sexual harassment to keep a record of the incident(s) so as to be able to recall exactly what has happened.|
|25.10||Employees are also encouraged to come forward with complaints as soon as possible after the alleged incidents as a lapse in time may, in certain circumstances, weaken a complainant's case.|
1 ... See Section 69 of the SDO (Cap.480).
2 ... Currently the provisions of the SDO and the Code which deal with discrimination in employment (other than victimisation) only apply to organisations with over five employees; three years after the enactment date of the SDO (i.e. 14 July 1995), they should apply to all organisations.
3 ... See Section 14 of the SDO.
4 ... See Section 15(1) of the SDO. The provision relating to appointment to partnerships is limited to firms consisting of not less than six partners.
5 ... See Section 5 and 6 of the SDO.
6 ... See Section 2 (1) of the SDO for definition.
7 ... See Section 46 of the SDO.
8 ... See Section 69(14) of the SDO.
9 ... See Section 44, 45 & 47 of the SDO.
10 ... See Section 46(3)of the SDO.
11 ... See Section 2 (5) of the SDO.
12 ... See Section 23 and 24 of the SDO for details.
13 ... See Section 9 of the SDO.
14 ... See Section 9(2) of the SDO for exception.
15 ... See Section 48 of the SDO.
16 ... For general exceptions, please see sections 48-62 and Schedule 3 of the SDO.
17 ... See Section 12 of the SDO.
18 ... It is unlawful under Section 43 of the SDO to published an advertisement which is discriminatory.
19 ... See Section 48 of the SDO.
20 ... See later section on "Post-hiring enquiries: in the Code.
21 ... See Section 84(4)(c) and 86 of the SDO.
22 ... For exception in relation to the provision of different level of benefits and allowances to persons of different marital status, please see Schedule 5 to the SDO.
23 ... UK Equal Pay Act 1970.
24 ... Guideline Respecting the Application of Section 11 of the Canadian Human Rights Act and Prescribing Factors Justifying Different Wages for Work of Equal Values, 1986.
25 ... UK Equal Pay Act 1970 and Guidelines Respecting the Application of Section 11 of the Canadian Human Rights Act and Prescribing Factors Justifying Different Wages of Work of Equal Value, 1986.
26 ... Section 54 of the SDO allows employers, in certain circumstances, to encourage female employees only or vice versa to train for certain jobs.
27 ... See Section 84(4)(c) and 86 of the SDO.
28 ... Certain provisions relating to death and retirement are exempt from the SDO.
29 ... See Section 84(4)(c) and 86 of the SDO.
30 ... See Section 9(2) of the SDO.