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Legal news, views and insight from LexisNexis Hong Kong
3 August 2020 | by LexisNexis Hong Kong
The Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020 (“Amendment Ordinance”) was gazetted and came into effect on 19 June 2020, introducing a number of changes to the four anti-discrimination Ordinances in Hong Kong, namely the Sex Discrimination Ordinance (the “SDO”), Disability Discrimination Ordinance (the “DDO”), Family Status Discrimination Ordinance (the “FSDO”), and Race Discrimination Ordinance (the “RDO”).
The most notable changes were made with regards to the SDO, including the addition of section 8A which provides for protection against discrimination on the ground of breastfeeding. The Amendment Ordinance defines breastfeeding as the act of breastfeeding or expressing breast milk. In contrast to the rest of the changes made by the Amendment Ordinance which came into operation on 19 June 2020, this breastfeeding amendment to the SDO would commence operation 12 months later.
Amendments specifically made to the RDO will serve to enhance protection against discrimination on the ground of race. It is now unlawful to discriminate against an individual on the ground of race of their associate, which includes spouses, cohabitators, relatives, carers or other individuals in a business, sporting or recreational relationship with them. The Amendment Ordinance also extends the meaning of race to include an individual’s race, colour, descent, or national or ethnic origin that is imputed to that individual. This provision enhances protection from racial discrimination and harassment by imputation.
The Amendment Ordinance also provides protection against workplace harassment across the SDO, DDO, and RDO to make this conduct unlawful on the grounds of sex, disability, and race. While the provisions on workplace harassment protected workplace participants including employees, contract workers, partners of firms and commission agents, the Amendment Ordinance now extends the definition of workplace participants to include personnel such as interns, volunteers, and barristers’ pupils. Furthermore, the Amendment Ordinance introduces vicarious liability as against persons engaging interns and volunteers, unless the employer has made reasonably practicable steps to prevent the interns and volunteers from conducting those actions.
With regards to harassment, further amendments have been made to the respective anti-discrimination Ordinances to protect individuals in specific circumstances outside of the workplace. This includes harassment in relation to provision of goods on grounds of disability and race, harassment committed on a ship or aircraft outside of Hong Kong on grounds of disability and race, and harassment by management committee of clubs on grounds of sex and disability.
Finally, the Amendment Ordinance removes the requirement for an intention to discriminate for an award of damages for acts of discrimination on grounds of sex, family status, and race. Previously, a plaintiff in an action for discrimination under these grounds would not have been entitled to damages if the defendant could prove that there was no intention to discriminate.
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