Most Read Contributor in Hong Kong, September 2016
Keywords: Sex Discrimination Ordinance, SDO,
On 12 December 2014 the Sex Discrimination Ordinance
("SDO") was amended to make unlawful the sexual
harassment of a person by a customer in the course of seeking to be
provided with or being provided with goods, facilities or services
by that person.
Effect of the amendment
The new law will protect women and men working in Hong
Kong's goods and services sector. It provides a person with
direct recourse against a customer who sexually harasses him/her in
the course of providing goods, facilities or services to that
In practical terms, the amendment has a particular impact on
customer-facing employees whose role requires personal interaction
with customers. For example, the following types of conduct would
be caught by the amendment:
A customer making crude jokes or sexual comments to an employee
of a service provider.
A customer inappropriately touching an employee of a service
A customer who is an individual will be personally liable to the
victim. In addition, if the person committing the unlawful
harassment is an employee of a corporate customer and the act was
done in the course of the employee's employment, then the
corporate customer will also be vicariously liable (whether or not
the act was done with the employer's knowledge or
Further, anything done by a person as agent for another person
with the authority of that other person (whether express or
implied, and whether precedent or subsequent) will be treated for
the purposes of the SDO as done by that other person as well as by
him. So, for example, a manager of the employee who unlawfully
harasses may also be liable if the act was done with his/her
There is a defence to the above forms of vicarious liability if
the corporate employer or manager can prove that they took such
steps as were reasonably practicable to prevent the employee or
agent from doing the unlawful act, or from doing in the course of
his employment acts of that description.
What should you do?
We recommend that employers update their anti-harassment policy
to deal with the amendments.
Appropriate anti-harassment training (and refreshers) should be
provided to employees particularly customer facing employees. Among
other things employees should be asked to alert management to any
incidents of potential harassment immediately so that they may be
addressed without delay.
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This article provides information and comments on legal
issues and developments of interest. The foregoing is not a
comprehensive treatment of the subject matter covered and is not
intended to provide legal advice. Readers should seek specific
legal advice before taking any action with respect to the matters
discussed herein. Please also read the JSM legal publications
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