Y’s Men’s Club of Hong Kong Luncheon Meeting
“Equal Opportunities – Good practice, Good business” — (只備英文版) Mr Raymond Tang, Chairperson, Equal Opportunities Commission
Many of you here today may ask how does equal opportunity translate into good practice and good business. As employers or senior executives, having effective anti-discrimination and anti-harassment policies in your business is good practice. Good management practices will not only increase your pool of potential talent, meaning getting the right person for the right job, it will also boost your staff’s morale and productivity. Having preventive measures in place help to minimize complaints and legal risks, which save time and money for every employer. An inclusive and productive workplace will eventually add to your competitive edge and enhances your brand name value.
Discrimination can occur in all walks of life, but the provisions in Hong Kong’s existing anti-discrimination legislation only protect individuals who have experienced discrimination based on their gender, disability, family status pregnancy and marital status. The EOC is the statutory body responsible for implementing and administering provisions of the three anti-discrimination ordinances in Hong Kong: the Sex Discrimination Ordinance, the Disability Discrimination Ordinance and the Family Status Discrimination Ordinance.
The EOC’s primary functions under the three anti-discrimination ordinances are to eliminate sex discrimination, sexual harassment, family status discrimination, disability discrimination, disability harassment and vilification, and to promote equality of opportunity between men and women, between persons irrespective of family status, and between persons with and without a disability. In so doing, it must work within the parameters of the law and the framework of the legislation.
Under the law, protection is accorded to individuals in certain fields, such as employment, government functions, education, provision of goods, facilities and services. The legislation is applicable to both the public and the private sectors, and it binds the government. As close to 80% of our complaints are employment related, the business sector is our major partner.
You may well ask just how does EO Law apply in the work environment?
EO law covers business owners and operators, managers and supervisors, and all employees, including those on commission, casual workers, and contractors. It applies to :
- Ÿ Hiring
- Ÿ Terms and conditions of employment
- Ÿ Pay scales
- Ÿ Benefits of employment
- Ÿ Training
- Ÿ Promotion
- Ÿ Transfers
- Ÿ Dismissal
- Ÿ Redundancy
- Ÿ Termination of employment
Essentially it covers the entire employment cycle.
What are the employer’s responsibilities ?
It is the employer’s and manager’s responsibility to do all that they reasonably can to make sure everyone in the workplace is treated fairly, and that discrimination, harassment, vilification and victimization don’t happen. They are also required to take all reasonable action to enable a person with a disability to do a job, unless that would cause unjustifiable hardship.
Many employers have EO policies to let everyone know what is and isn’t acceptable workplace behaviour, and to ensure that EO law is followed at every stage of employment, from advertising, interviewing and hiring to termination. They also have procedures for dealing with EO related problems, to make sure they are handled fairly and consistently.
Employers are legally liable for all employees’ actions done in the course of their employment (in the workplace and outside it and whether or not you knew about it) unless you can show you took reasonably practicable steps to prevent the unlawful behaviour. Such vicarious liability will be familiar to lawyers and experienced managers. In practice, it means that if one of your employees sexually harassed another, the employee who was sexually harassed could make a complaint against you as the employer, as well as against the person who committed the act of harassment.
As the employer, you are legally liable for the actions of your employees unless you can successfully raise the defense that you took reasonably practicable steps to prevent unlawful behaviour from happening. What are some of these steps? They include having a procedure in place to handle such situations, ensuring that staffs are familiar with such procedure, and providing regular training and information on equal opportunity to employees. Better still, involve the EOC in your training program (the modest fees that we charge are well worth it!).
If someone makes a complaint against an employer, the EOC or court will look at the size and nature of the business when determining what constitutes reasonably practicable steps. For obvious reasons, requirements expected of an SME may not be the same as a large, multinational corporation.
Under the Disability Discrimination Ordinance, it is unlawful to discriminate against an employee on the ground of his disability. The law also provides that when an employee produces a medical certificate supporting special work arrangement be made, the employer should consider providing accommodation to help the employee in performing his duty, unless there is unjustifiable hardship to the employer in providing such accommodation. Examples include :
- Adapting recruitment procedures, for example, allowing a person with a visual impairment to take an oral selection test rather than a written test;
- Modifying business premises to provide facilities such as a ramp allowing wheelchair access;
- Changing work schedules, for example, allowing an employee with diabetes non-standard breaks to eat or administer insulin as required to maintain healthy blood sugar levels.
It could also be a form of indirect disability discrimination where attendance (for example, no sick leave allowed) is set as a condition for payment of bonus, and it is difficult for an employee to fulfill the condition due to his disability.
EO law recognizes the realities in the business world and that businesses must operate competitively. In certain limited circumstances, it would not be considered discriminatory:
- when a person is unable to carry out the inherent requirements of the job (e.g. a delivery driver needs to be able to drive),
- when gender or absence of a disability is a genuine occupational requirement (e.g. an actress to play the part of a woman in a theatrical performance),
- when reasonable accommodation would cause an employer unjustifiable hardship.
Last year, in order to facilitate employers and employees to implement equal opportunities in the workplace, we launched a new programme, the “EO Club”. So far, a network of over one hundred organizations, including major corporates, SMEs and government departments have joined the Equal Opportunities Club, to find out more about compliance tools, exclusive training modules and the latest best practices around the world. Through this programme we seek to introduce the concept of “EO Officer” in our business enterprises - that there should be a designated officer responsible for the implementation of equal opportunities policies and practices within the organization.
The work of the EOC poses a continuing challenge. When we first opened our doors ten years ago, our focus was on communicating to the public about our vision and how equal opportunity could provide redress for those who had faced discrimination. But a decade down the road, so much has evolved, and we now realize that our work is firmly on the agenda. Just in the past year alone, perhaps as a reflection of efforts to mainstream equality in different spheres of everyday life, the Commission had been asked to present views, provide advice and to report progress in a number of Legislative Council panels and meetings. The subjects are wide ranging, and they include, just to name a few, education for children of ethnic minorities and concessionary public transport fares for persons with disabilities.
We are also glad to see that issues we have been concerned about in recent years, are now garnering support in Hong Kong. Last week, the Chief Executive Mr. Donald Tsang told Legco that he would be leading an initiative to foster a tripartite partnership between the community, the business sector and the Government to promote the development of social enterprises as a concerted effort to alleviate poverty. The Commission welcomes this new commitment; we believe businesses need to adopt corporate social responsibility in order to enable more in society to share in our prosperity and stability.
It is acknowledged that globalization has opened up markets and opportunities, and I am sure many of us here today have benefited in one way or another from this, yet at the same time, the process also leaves countries and communities vulnerable to external influence. In the new century, our local economy today has undergone fundamental changes, as a result of which there are some in our community who are no longer able to participate in the new knowledge-based employment market. The United Nations launched the Global Compact in 2000, a corporate citizenship initiative to engage business in adopting social responsibility, so that commerce, investment and trade continue to bring prosperity and stability to different countries, cultures and people. The Global Compact asked companies to embrace, support and enact, within their sphere of influence, a set of core values, which includes human rights and the elimination of discrimination in respect of employment and occupation.
A growing number of companies have now embraced corporate social responsibility because expectations of consumers have changed. Social audits of companies are now undertaken to meet the demands of shareholders, notably institutional investors. The pursuit of profits is no longer the only objective of investors and major businesses. Social accountability, ethical investment and sustainable development are now topics for serious discussion not only in boardrooms, but also in the global regulatory bodies and international trade negotiations.
I understand from your website the Y’s Men’s Club was founded in 1932, and lady members were first admitted in 2001. This of course, is only natural since the roles of women have changed dramatically in the last century. Statistics show that more than half of women who are employable, have joined our workforce. Judging from the high number of female university students graduating every year, we realize that women’s active participation in more spheres of our society will have far reaching consequence in the years to come.
Working women today, who still need to care for their families face decisions on a daily basis to balance work and family. Double-income families will become the norm necessitating new roles for men. And change is on the way. Recently we learned from press reports that certain companies in Hong Kong are beginning to award paternity leave to fathers, and a couple of months ago, women doctors in public hospitals were demanding more flexible work hours. This situation is not unique to Hong Kong. Many developed economies overseas have already witnessed the direct impact on which this has generated on traditional gender roles.
And how do companies adapt to this phenomenon? In order to attract the best talent, and often it may be a woman, organizations in the United States and Europe have adopted family friendly employment policies encouraging all employees to achieve a better work/life balance. For example, in the United States, IT professionals can work from home, women lawyers in Germany can job share, and new fathers in Sweden can take paternity leave for a minimum of two months while their spouses continue to pursue their careers. Studies show that not only are staff happier and staying longer in their jobs, companies also benefit from a more productive and dedicated work force.
It is a fact that workers in Hong Kong toil long hours, and many surveys have shown the high social costs that the community pays for the lack of family time and health risks that individuals suffer. Over the past few years, a growing community concern over the lack of work-family balance has called for a more family-friendly working environment in Hong Kong to help reduce stress for employees. In view of this, the Equal Opportunities Commission and the Women’s Commission jointly commissioned the Lingnan University to conduct a study on the needs, awareness, prevalence and benefits of “Family-friendly Employment Policies & Practices (FEPPs)” last year. 137 corporations and SMEs, employing a total of over 160,000 staff, participated in the survey.
The Survey is the first FEPPs study of this scale in Hong Kong that involved both employers and employees. FEPPs refer to programmes designed by companies or organizations to help employees balance work and family roles. The overriding objective of these policies and practices is to assist employees in managing their family responsibilities while also maintaining employment, by offering more choices of flexible and varied work arrangements to cater for their needs. These often mean flexi-hours, home-based work or 5-day work week.
The survey found that just over a third of the organizations were aware of family friendly employment policies, while only about 10% of the companies had adopted such policies. But it was clear from the study that employees strongly supported FEPPs and for the few companies that had implemented FEPPs, they reported substantial gains, such as improved reputation, better morale and lower staff turnover rate.
In general, family friendly policies were associated with improved productivity, performance and more job satisfaction. Staff perceived less work stress, less physical or psychological symptoms and better work-life balance. The survey showed that wider adoption of FEPPs would result a broad range of benefits for both companies and employees.
A short while ago, the race discrimination bill was introduced to Legco to begin its legislative process, and when passed, the EOC will be charged to implement this latest piece of anti-discrimination legislation.
In today’s geo-politics, the whole concept of “race” is a difficult one. In the context of race discrimination, one only has to look at overseas jurisdictions to appreciate that, whilst legislation seems to be the favoured model to secure social change, it does not eliminate racist occurrences.
Although it is not suggested that race legislation will itself change racist beliefs or attitudes, an inherent outcome of regulation and enforcement is that it does alter behaviour. The law, therefore, does have a vital role to play in “delegitmising” racial discrimination and in providing an avenue for redress for affected persons. In anticipation of accepting responsibility for its implementation, the EOC is currently looking at various measures by which it can assist stakeholders – including the business community – to comply with the legislation.
These will include seminars, training sessions, Codes of Practice with practical guidelines, and the introduction of other publications. We are meeting with stakeholders to better understand their concerns and their needs. We have also planned for other pre-enactment work, to research and to understand the needs and expectations of our community, including stakeholders who would be directly affected (employers and employees alike).
The business sector is an important partner for the Equal Opportunities Commission. Every business, venture or organization relies on its people to deliver, to make it a success. I wish my message today encourages you to think beyond compliance with the law, because enforcement is never the only answer. Being a decision maker in a successful organization, I hope you will lead your company to create a positive working environment for your staff, to provide value for your stakeholders and to foster the well-being of our community.
 10 May 2007, South China Morning Post, Business Page: Reported that HSBC Holdings, a major banking institution, has in its lending clauses a prohibition that it will not finance companies involved in logging in “primary tropical moist forests” - better known as rain forests - or illegal logging.