Discrimination and harassment at work in Hong Kong: what employers must know

Discrimination and Harassment at Work in Hong Kong: What Employers Must Know

Hong Kong law imposes specific duties on employers to prevent discrimination and harassment at work. Four ordinances, administered by the Equal Opportunities Commission (EOC), govern this area. An employer who fails to understand these duties risks vicarious liability for acts committed by employees, even without the employer’s knowledge.

Types of Discrimination in Hong Kong Workplace

The four anti-discrimination ordinances each prohibit specific types of discrimination in Hong Kong workplace settings. The Sex Discrimination Ordinance (Cap. 480) covers discrimination on the ground of sex, marital status and pregnancy. It also prohibits sexual harassment. The Disability Discrimination Ordinance (Cap. 487) covers discrimination on the ground of disability, including past, present and imputed disability. The Family Status Discrimination Ordinance (Cap. 527) protects employees with family responsibilities, such as caring for a child or dependent relative. The Race Discrimination Ordinance (Cap. 602) covers discrimination on the ground of race, colour, descent, national or ethnic origin.

Each ordinance makes it unlawful to discriminate in employment. Recruitment, terms and conditions, promotion, transfer, training, dismissal and access to benefits are all caught. Discrimination can be direct or indirect. Indirect discrimination occurs when a condition or requirement that applies equally to everyone has a disproportionate adverse effect on a particular group and is not justifiable.

Hong Kong Anti-Discrimination Ordinances: The Four Statutes

The four Hong Kong anti-discrimination ordinances are:

• Sex Discrimination Ordinance (Cap. 480), commenced 20 May 1996
• Disability Discrimination Ordinance (Cap. 487), commenced 20 May 1996
• Family Status Discrimination Ordinance (Cap. 527), commenced 21 November 1997
• Race Discrimination Ordinance (Cap. 602), commenced 3 October 2008

The EOC administers all four ordinances. The Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020 (Ordinance 8 of 2020) amended all four. Most of its provisions commenced on 19 June 2020; the breastfeeding provisions commenced on 19 June 2021.

Key amendments introduced by the 2020 Ordinance include:

• Breastfeeding discrimination became unlawful under sections 8A and 10A of the Sex Discrimination Ordinance from 19 June 2021. Breastfeeding harassment was added separately as section 2A by the Sex Discrimination (Amendment) Ordinance 2021 (Ordinance 3 of 2021).
• Racial discrimination and harassment by association were introduced under section 5 of the Race Discrimination Ordinance. Harassment by imputation was added under sections 2 and 8.
• The bar on damages for indirect discrimination was repealed in section 76 of the Sex Discrimination Ordinance, section 54 of the Family Status Discrimination Ordinance and section 70 of the Race Discrimination Ordinance.

Employer Liability for Harassment Hong Kong

Employer liability for harassment Hong Kong is governed by the vicarious liability provisions in each ordinance. Section 46 of the Sex Discrimination Ordinance, section 48 of the Disability Discrimination Ordinance, section 34 of the Family Status Discrimination Ordinance and section 47 of the Race Discrimination Ordinance all provide that anything done by a person in the course of employment is treated as done by the employer as well as by the employee, whether or not it was done with the employer’s knowledge or approval.

An employer can be held liable for harassment committed by one employee against another. The same liability attaches to harassment by an employee against a third party such as a customer or supplier, if the act occurred in the course of employment. The liability extends to acts of workplace participants, not only employees. Section 23A of the Sex Discrimination Ordinance, section 22A of the Disability Discrimination Ordinance and section 24A of the Race Discrimination Ordinance make it unlawful for a workplace participant to harass another workplace participant at a workplace of them both. No employment relationship between them is required. A workplace participant includes employees, employers, contract workers and their principals, commission agents and their principals, partners, interns including pupils, and volunteers.

Sections 46A of the Sex Discrimination Ordinance, 48A of the Disability Discrimination Ordinance and 47A of the Race Discrimination Ordinance impose liability on persons who engage interns and volunteers.

Vicarious Liability for Employee Harassment Hong Kong

The vicarious liability for employee harassment Hong Kong provisions place a heavy burden on employers. Section 46(1) of the Sex Discrimination Ordinance states that anything done by a person in the course of employment is treated as done by the employer. The same wording appears in the other three ordinances.

The employer’s only statutory defence is set out in section 46(3) of the Sex Discrimination Ordinance. It is a defence to prove that the employer took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing acts of that description in the course of employment. Section 47(3) of the Race Discrimination Ordinance is the same in substance. Section 46(4) confirms the section does not apply to criminal proceedings.

To rely on this reasonable practicability defence, an employer must demonstrate that it had in place policies, training and complaint procedures that were reasonably designed to prevent harassment. The defence is not available if the employer knew or ought to have known of a risk and did nothing reasonable to address it.

Workplace Harassment Claim Hong Kong Procedure

A workplace harassment claim Hong Kong procedure begins with a complaint to the EOC. The EOC investigates the complaint and attempts to achieve a settlement through conciliation. If conciliation fails, the complainant may issue legal proceedings in the District Court. The court may award damages, including compensation for injury to feelings, and may grant an injunction.

The EOC may also provide legal assistance to complainants in appropriate cases. The EOC’s website (eoc.org.hk) provides guidance on the complaint procedure and the forms required.

The ordinances also cover harassment of service providers by customers under section 38(1A) of the Disability Discrimination Ordinance and section 39 of the Race Discrimination Ordinance. Harassment of club members and applicants is covered by section 39A of the Sex Discrimination Ordinance and section 38A of the Disability Discrimination Ordinance.

Practical Steps for Employers

An employer should take the following steps to reduce the risk of liability:

1. Adopt a written policy. The employee handbook policy should clearly state that discrimination and harassment are prohibited, define the protected characteristics under all four ordinances, and set out the consequences of breach. The policy should cover all workplace participants, including interns and volunteers.

2. Establish a complaint channel. The policy should name a designated person or committee to receive complaints, guarantee confidentiality and non-retaliation, and set out a clear procedure for investigation and resolution.

3. Provide anti-discrimination training. All employees, managers and supervisors should receive regular training on the ordinances, the employer’s policy and how to recognise and report harassment. Training should be refreshed periodically and documented.

4. Take prompt action on complaints. Any complaint must be investigated promptly and thoroughly. If the complaint is substantiated, the employer must take appropriate disciplinary action, up to and including dismissal.

5. Review and update policies. The 2020 and 2021 amendments introduced new protections for breastfeeding, harassment of interns and volunteers, and racial discrimination by association and by imputation. An employer should ensure its policies reflect these changes.

An employer that can demonstrate it has taken these steps is in a stronger position to rely on the reasonable practicability defence if a claim arises. The EOC publishes guidance on its website to assist employers in complying with the ordinances.