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By: ONC Lawyers
Hong Kong, Hong Kong (SAR)

The Sex Discrimination Ordinance of Hong Kong (‘‘SDO’’) was recently amended to provide ‘‘new’’ protection to employees of the service industries (e.g. flight attendants, crew members on ships and sales representatives) against sexual harassment by customers and prospective customers.

Introduction

Before the recent amendments to the SDO, the scope of prohibition of sexual harassment just includes

  1. sexual harassment by employers towards job candidates and employees
  2. between employees and
  3. by service providers towards their customers and prospective customers.

Since 12 December 2014, sexual harassment by customers or prospective customers towards the providers of goods, facilities or services and their employees are also prohibited by the SDO.

Employees of the service industries are better protected

Under the recent amendments to the SDO, ‘‘it is unlawful for a person to sexually harass a woman (or a man) in the course of seeking to be provided with goods, facilities or services by her/him, or being provided with goods, facilities or service by her (or him).’’ In other words, prospective customers and/or customers are prohibited from sexually harassing the providers of goods, facilities or services. The SDO specifically stipulates that such prohibition is applicable even if the sexual harassment occurs on a Hong Kong-registered ship, or aircraft outside Hong Kong. The specific provision is crucial for protecting flight attendants and crew members of ship as they may be sexually harassed while on duty on the aircrafts or ships outside Hong Kong.

The amendments to the SDO represent a major step forward towards the protection of employees who have frequent contact with customers and prospective customers.

What will amount to sexual harassment?

According to the SDO, ‘‘a person sexually harasses a woman/man (victim) if the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the victim or engages in other unwelcome conduct of a sexual nature in relation to the victim, in circumstances in which a reasonable person would have anticipated that the victim would be offended, humiliated or intimidated, or the person, alone or together with other persons, engages in conduct of a sexual nature which creates a hostile or intimidating environment for the victim.’’ Moreover, the SDO stipulates that a conduct of a sexual nature ‘‘includes making a written or verbal statement of a sexual nature to the victim, or in her/his presence’’. Therefore, direct and indirect sexual harassment are prohibited by the SDO.

According to the Code of Practice (‘‘COP’’) issued by the Equal Opportunities Commission,  touching, grabbing or deliberately brushing up against the victim and persistent questioning about the victim’s sex life may give rise to sexual harassment.

Anti-discrimination policies shall be updated

In response to the recent amendments to the SDO, employers, in particular, the employers of the service industries shall prepare the relevant publication to make the employees, customers and prospective customers aware of the new law. Moreover, new internal policies and procedures shall be formulated to prevent and eliminate sexual harassment by customers and prospective customers.

Specific officers (who are sensitive, reasonable, non-judgmental, sympathetic, approachable and impartial) may be assigned to deal with the implementation of the relevant policies, to train the employees (especially the frontline employees who are most vulnerable to sexual harassment by customers and/or prospective customers) about the way in which they can protect themselves while continue to provide the goods, facilities and/or services to the satisfaction of customers and prospective customers.

Apart from the above, comprehensive procedures shall be established to handle the relevant complaint if it occurs.

Conclusion

Employers shall formulate new policies and procedures in order to prevent, eliminate and/or handle sexual harassment complaints in view of the amendments to the SDO.

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