New legislation is expected in the coming year to better protect equality and eliminate discrimination in Hong Kong. Peter Reading, Legal Counsel, Equal Opportunities Commission, highlights this changing compliance environment and looks at the work that still needs to be done to ensure rights are protected in the years ahead.
The 10th of December 2018 marks the 70th anniversary of the signing of the UN Universal Declaration of Human Rights (UDHR), the foundation of modern human rights protections globally.
One of the key rights protected under the UDHR is the right to equality and non-discrimination, which is also incorporated into many of the other subsequent UN human rights conventions. It is also incorporated in Hong Kong, both under the Bill of Rights, and through Hong Kong’s four anti-discrimination laws.
Companies have a crucial role in promoting equality and eliminating discrimination, whether as employers, service providers or housing providers.
The anniversary therefore marks a poignant moment to reflect on the evolution of protections from discrimination in Hong Kong, the work of the Equal Opportunities Commission (EOC) to modernise the anti-discrimination laws and the proposed government amendments to these laws that are likely to come into operation in 2019.
Current protections from discrimination in Hong Kong
Hong Kong, similar to many other jurisdictions and countries, has three layers for promoting equality and eliminating discrimination against different groups in society: international human rights obligations, constitutional legislation protecting human rights and civil anti-discrimination legislation.
The UDHR was the predecessor to a number of UN human rights conventions, to which most countries are parties, and that have effect in Hong Kong. These include the International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); the Convention on the Elimination of all Racial Discrimination (CERD); the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW); the Convention on the Rights of the Child (CRC); and the Convention on the Rights of Persons with Disabilities (CRPD). A fundamental right under all of these conventions is the right to equality and non-discrimination.
In addition, at a constitutional level the Hong Kong Basic Law and Bill of Rights provide protections of human rights, including provisions prohibiting discrimination. The Hong Kong Bill of Rights Ordinance (BORO) contains the Bill of Rights and came into effect in June 1991. It implements into Hong Kong law most of the provisions of the ICCPR, including the right to be free from discrimination on ‘…any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’.
Both the Bill of Rights and the Basic Law are legally binding on the government, all public authorities and those acting on their behalf. However they are generally not legally binding upon private bodies or individuals, including companies.
Finally, specific anti-discrimination legislation has been developed incrementally over the last 22 years. Currently, Hong Kong has four anti-discrimination laws: the Sex Discrimination Ordinance (SDO) and the Disability Discrimination Ordinance (DDO), which both came into operation in 1996; the Family Status Discrimination Ordinance (FSDO), which came into operation in 1997; and the Race Discrimination Ordinance (RDO), which came into operation in 2009.
The SDO, DDO, FSDO and RDO apply not only to the government, but also to private bodies such as companies. Generally speaking they prohibit discrimination in a wide range of fields of everyday life: employment and vocational training; the provision of goods, facilities and services; education; management and disposal of premises; and government functions (except the RDO).
The anti-discrimination laws also established and set out the functions and powers of the EOC, which commenced operating in 1996 and is Hong Kong’s statutory equality body to promote equality and eliminate discrimination in society under the four anti-discrimination laws.
The role of companies in promoting equality
Companies have always had a vital role in promoting equality and eliminating discrimination, but that role is even more critical today for a number of reasons.
Firstly, Hong Kong anti-discrimination laws and international human rights standards apply to companies in a number of capacities, including as employers, organisations that provide services and facilities to the public, or as providers of housing. At an international level, the UN has recently emphasised the obligations on companies to promote and protect human rights in all aspects of their work. In 2011 it issued a set of principles called Guiding Principles on Business and Human Rights. These include requirements to respect and monitor compliance with human rights obligations in their work, including the right to equality and non-discrimination.
Secondly, from a compliance point of view recent examples of high-profile cases of discrimination are a reminder that non-compliance with legal obligations can have significant financial and reputational consequences for companies.
In the UK in January 2018, a media investigation of the President’s Club Charity Trust uncovered widespread sexual harassment of women employed at an annual charity event. The treatment of the women attracted comprehensive condemnation from the government, while several of the children’s hospitals that received donations from the organisation returned all monies and the organisation was forced to close down.
Thirdly, evidence from a number of studies around the world indicate that companies that effectively promote equality in employment are generally more successful and productive. For example, a report published by McKinsey & Company on gender equality globally (Women Matter, published in October 2017) indicates a strong correlation between the presence of women in top management positions and better financial results. The report analysed 300 companies in 10 countries around the world and found a difference in average return on equity of 47% between the companies with most women on their executive committees and those with none, and a 55% difference in average operating margin.
In light of the above factors, it is crucial for companies to be aware of how changes in anti-discrimination laws will affect their operations, as well as consider how they can better promote diversity within their organisations.
EOC Discrimination Law Review and related work
Given that it is now more than 20 years since the first anti-discrimination laws were introduced in Hong Kong, recently the EOC has done considerable work to review the existing laws and conduct research on whether new anti-discrimination laws should be introduced. This work has been driven by the need to ensure that the legal provisions preventing discrimination meet the changing needs of Hong Kong society.
1. Discrimination Law Review recommendations
The EOC conducted extensive public consultation on modernising the existing four anti-discrimination laws and, in March 2016, published its submissions to the government. It made 77 recommendations for reform, with 27 identified as higher priorities. Some of the priority recommendations that are of particular relevance to the work of companies are discussed below.
Reasonable accommodation for persons with disabilities. For persons with disabilities in Hong Kong, an area in which the EOC receives many complaints is the lack of accommodation for them in employment or access services. Under
the UN CRPD, there is a requirement to provide reasonable accommodation for persons with disabilities. Article 2 of the CRPD defines reasonable accommodation as: ‘necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms’.
In many international jurisdictions such as the UK, the EU and Australia, there are specific duties to make reasonable accommodation for persons with disabilities in a range of fields. The denial of reasonable accommodation is also defined as a distinct form of discrimination.
In Hong Kong under the DDO, there is no requirement to make reasonable accommodation, which is inconsistent with the above international human rights obligations. The EOC therefore recommended that a distinct duty to make reasonable accommodation should be introduced, and that it apply to key aspects of public life such as employment, education and accessing services and premises.
Breastfeeding. The attitudes towards, and demographics of, breastfeeding women has significantly changed over the last 15 years in Hong Kong. There are increasing numbers of women and families that recognise the health benefits of breastfeeding their babies. As a result, the percentage of mothers breastfeeding their newborns has increased from 66% in 2004 to 86% in 2014. This means it is increasingly important to ensure that breastfeeding women are protected from discrimination in key areas of public life such as employment and the provision of services.
The EOC recommended that new provisions be introduced to prohibit discrimination against breastfeeding women in all areas of public life such as employment, the provision of services, and education. This would apply not only where women are actually breastfeeding, but also where they are expressing milk, for example while they are at work.
Sexual and other harassment. The #metoo campaign around the world has highlighted the issue of sexual harassment and violence against women. In Hong Kong it is clear that sexual harassment is also a major problem. For example, for the financial year 2016/17, there were 264 complaints made under the SDO. Of those, 242 were employment-related allegations and of those, 45% (108 cases) involved sexual harassment.
One of the areas where there is a gap in protection concerns situations where persons work in the same workplace but there is no employment relationship between them. Currently, in relation to workplaces, protection is restricted to where there is a relationship of employment or contract workers. The EOC recommended that the protections be expanded to cover common workplaces. One area that raises particular concern is sexual harassment of persons who are interns or volunteers. In such circumstances there is usually no employment relationship between the intern/volunteer and the organisation. Given that in Hong Kong there are increasing numbers of people doing internships or volunteering to secure future work, the EOC recommended that they be protected. Such protections exist in some other jurisdictions, such as the states of New South Wales and Victoria in Australia.
2. EOC research: LGBTI anti-discrimination legislation
The EOC has also recently done detailed research on introducing new anti-discrimination legislation in relation to protecting people from discrimination on grounds of being lesbian, gay, bisexual, transgender or intersex (LGBTI). Such protections are common in many other developed jurisdictions and have been recommended by the UN.
In January 2016, the EOC published a report on its Feasibility Study on Legislating against Discrimination on the Grounds of Sexual Orientation, Gender Identity and Intersex Status. The study was conducted by the Gender Research Centre of the Hong Kong Institute of Asia-Pacific Studies at the Chinese University of Hong Kong.
The study found that there was evidence of widespread discrimination against LGBTI people in many aspects of life such as employment, services, education and housing. Of the LGBTI people interviewed, 88% said they had been discriminated against in the last two years and 30% had attempted suicide in their lifetime. In relation to specific sectors of employment, provision of services and housing, respectively 32%, 50% and 21% of LGBTI people interviewed said they had been discriminated against in the last two years.
The study also found that there were changing attitudes of the general public towards the introduction of such LGBTI anti-discrimination legislation, with 55.7% of those surveyed indicating that they agreed with the introduction of such legislation.
Based on all the above evidence and considerations, the EOC recommended that the government should start consultation on introducing comprehensive LGBTI anti-discrimination legislation.
Government response to EOC recommendations
The government has indicated that it will implement eight of the EOC’s Discrimination Law Review recommendations and plans to introduce a bill in the Legislative Council by the end of 2018 (see ‘Proposed legislative changes’). This means the provisions are likely to come into effect sometime in 2019.
Whilst the EOC is pleased that the government is taking forward eight of the Commission’s recommendations, it is disappointed that the government has not agreed to implement the other higher priority recommendations. The EOC continues to call on the government to reconsider its position. The EOC notes that under the 2018 Policy Agenda, the government would study anti-discrimination measures in other jurisdictions to determine whether there should be legislation to protect people of different sexual orientations and transgender persons from discrimination. The EOC believes that, given the clear evidence from our research of the need for such legislation because of the discrimination faced by LGBTI people, it would be appropriate to proceed with consulting on introducing LGBTI anti-discrimination legislation on an expedited basis.
In relation to the eight recommendations that the government is implementing, the EOC will be producing guidance to help relevant sectors including companies to understand the effect of the new provisions. All companies should review and amend their policies and practices to take into account the amendments. This should also include considering what other measures should be taken, for example by providing information-sharing sessions and training to staff on the amendments.
Hong Kong is one of the jurisdictions in Asia which has relatively well-developed protections of the right to equality and non-discrimination. However all protections of human rights need to evolve to the changing needs of society, whether it is evidence of discrimination, shifting demographics and attitudes, or international human rights obligations. Such evolution has been a hallmark of all the developments in anti-discrimination laws in other similar developed jurisdictions.
It is a positive step that the government is implementing amendments to the four anti-discrimination laws in a number of respects, and all companies should ensure that they and their staff fully understand those changes. However we need leaps, not steps forward, in Hong Kong to ensure that the anti-discrimination laws are modernised to better protect key groups experiencing discrimination in society.
Peter Reading, Legal Counsel
Equal Opportunities Commission
SIDEBAR: Proposed legislative changes
The EOC’s Discrimination Law Review recommendations of particular relevance to companies that the government plans to implement are highlighted below.
Prohibition of direct and indirect discrimination and victimisation on the grounds of breastfeeding under the SDO.
Expansion of the definition of ‘associate’ under the RDO. For example, it will be unlawful to discriminate against or harass another person because of the race of the latter’s ‘associate’ in employment, including work colleagues – previously the definition of associate was restricted to near relatives.
Amendments to the RDO to cover direct and indirect racial discrimination and harassment by ‘imputation’ that a person is of a particular race or member of a particular racial group. For example, this would cover situations where a person is refused an interview because he or she is believed to be of a particular race and the employer does not wish to employ such a person.
Amendments to the SDO, RDO and DDO prohibiting sexual, racial and disability harassment between workplace participants. As discussed above, this is important to cover situations where there is no employment relationship between the parties when harassment occurs, such as contract workers and commission agents. The government currently has not agreed to cover the situation of volunteers or interns.
Aligning provisions in the RDO and DDO with the SDO to offer protection for a person providing goods, facilities or services from racial and disability harassment by a customer. Protections from sexual harassment by customers of employees were introduced in December 2014, but there are no equivalent protections relating to racial or disability harassment.
Repealing existing provisions in SDO, RDO and FSDO preventing damages being awarded for indirect discrimination where no intention to discriminate is established. This is to ensure consistency with the DDO, and is important as intention should not be a determining factor as to whether damages are awarded.