On 19 June 2020 the Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020 came into effect. The enhanced protections commenced with immediate effect, save for those relating to breastfeeding, which are expected to come into force on 19 June 2021. As a result, the existing anti-discrimination ordinances have been or will be amended to extend protection against discrimination on the ground of breastfeeding and strengthen protection against unlawful discrimination and harassment. This article summarises the key changes.
Unlawful breastfeeding discrimination
The Sex Discrimination Ordinance (SDO) (Cap 480) will be amended to include prohibitions against direct and indirect unlawful discrimination on the ground of 'breastfeeding' (ie, engaging in the act of breastfeeding a child or expressing breast milk or being a person who feeds a child with their breastmilk). This covers unlawful discrimination by employers in the workplace.
The scope of unlawful sexual, disability and racial harassment has been expanded to cover situations in which the claimant and the respondent are workplace participants. 'Workplace participants' include interns and volunteers in the workplace. Employers may be vicariously liable for unlawful harassment by their workplace participants even if the act was committed without their knowledge or approval.
Unlawful race discrimination and harassment by imputation and against associates
The Race Discrimination Ordinance (RDO) (Cap 602) has been expanded to cover unlawful discrimination on the ground of imputed race. Accordingly, it may constitute unlawful race discrimination if a person treats another person less favourably because they think that they are of a particular race when in fact they may not be. Further, the ordinance has been amended to provide for situations in which a person is discriminated against or harassed because of the race of their 'associate', including:
- the person's spouse;
- another person whom the person lives with on a genuine domestic basis;
- the person's relative;
- the person's carer; and
- another person with whom the person is in a business, sporting or recreational relationship.
Protection against disability and racial harassment by service providers and customers
The amended Disability Discrimination Ordinance (Cap 487) and the amended RDO now prohibit disability and racial harassment by service providers against customers (and vice versa) in the course of providing or acquiring goods, services or facilities.
Damages for unlawful indirect sex, race and family status discrimination
Previously, if a respondent could prove that a discriminatory act was not performed with the intention of treating the claimant unfavourably, the claimant who succeeded in their claim for unlawful indirect sex, race or family status discrimination was awarded no damages. This 'intention' requirement has now been removed in the SDO, the RDO and the Family Status Discrimination Ordinance (Cap 527), such that damages may be awarded to a successful claimant even if the less favourable treatment is unintentional.
