The protection against unlawful breastfeeding discrimination and harassment under the Sex Discrimination Ordinance (SDO) in Hong Kong will commence on 19 June 2021.
The new breastfeeding discrimination and harassment law applies to a woman who is engaging in the act of breastfeeding a child or expressing breast milk, or a woman who feeds a child with her breastmilk even if the child may not be her biological child. The law gives protection to breastfeeding women in the context of employment; education; provision of goods, facilities or services; disposal or management of premises and clubs; and government activities.
There are two forms of unlawful breastfeeding discrimination under the SDO: direct and indirect. In the employment context:
- Direct discrimination means treating a breastfeeding employee less favourably than a non-breastfeeding employee in the same or not materially different circumstances on the ground that she is breastfeeding;
- Indirect discrimination arises when a condition or requirement is applied to employees equally but a smaller proportion of breastfeeding staff can comply compared to non-breastfeeding staff. The breastfeeding employees suffer a detriment as a result of the unjustifiable condition or requirement.
The SDO affords protection against breastfeeding harassment to employees as well as other workplace participants in a common workplace. These include contract workers, commission agents, firm partners, interns or volunteers. Breastfeeding harassment occurs when a person:
- Engages in an unwelcome conduct, which a reasonable person, having regard to all the circumstances, would anticipate that the breastfeeding woman would be offended, humiliated or intimidated by that conduct; or
- Alone, or with others, engages in a conduct which creates a hostile or intimidating environment for the breastfeeding woman.
For details of the new breastfeeding protection law, please see our recent Legal Updates: Changes to Hong Kong Discrimination Law and the Practical Considerations for Supporting Breastfeeding Employees in Hong Kong and our Guide to Discrimination Law in Hong Kong.
The Equal Opportunities Commission has also published the following guidance and leaflets to assist the public in understanding the new breastfeeding protection law:
- Guidance on Breastfeeding Discrimination and Harassment in Employment and Related Sector (April 2021);
- Leaflet on Breastfeeding Discrimination and Harassment in the Workplace.
Employers should review and update their anti-discrimination and anti-harassment policies as well as the trainings they provide, to take account of the new breastfeeding protection law under the SDO.
Visit us at mayerbrown.com
Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe - Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.
© Copyright 2020. The Mayer Brown Practices. All rights reserved.
This Mayer Brown 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.