Workplace harassment in Hong Kong remains a critical issue, and it is something that can significantly impact the well-being of employees and the overall productivity of an organisation.
Last month, the South China Morning Post published an article stating that a recent survey found "one-third of women in Hong Kong have been sexually harassed in the workplace over the past three years, but most of them do nothing about it fearing it will affect their job or because they have accepted it as the norm".
In Hong Kong, the legal framework surrounding workplace harassment is robust, aiming to protect employees from various forms of discrimination and harassment. However, the survey found that only 7.6% of the women who had reported having been sexually harassed took legal action mainly because victims were reluctant to escalate the situation either believing that it would not help them or worse, that they would suffer adverse consequences or retaliation.
It is important for employers to therefore encourage employees to speak up, and to implement strong policies and procedures for employees to do so.
Legal framework in Hong Kong
Hong Kong's Anti-Discrimination Ordinances provide a comprehensive legal framework to address various forms of discrimination and harassment in the workplace. In relation to harassment specifically, the following are unlawful:
- Disability harassment under the Disability Discrimination Ordinance;
- Racial harassment under the Race Discrimination Ordinance; and
- Sexual harassment and breastfeeding harassment under the Sex Discrimination Ordinance;
Understanding Sexual Harassment
Sexual harassment may be one of the most common types of harassment that occurs in the workplace, and it is important for employers to understand what constitutes sexual harassment. Two forms of sexual harassment are defined under the SDO::
1. Unwelcome Sexual Conduct:
This involves a person engaging in conduct of a sexual nature where the conduct is:
- unwelcome to that person;
- it includes making a sexual advance or a request for sexual favours to that person; and
- a reasonable third person, having regard to all the circumstances, would expect that the person would be offended, humiliated or intimidated by the conduct.
2. Hostile or Intimidating Environment:
This involves a person engaging in conduct that creates a hostile or intimidating environment for the victim.
It is important to note that the alleged harasser's intention does not matter.
Employer's obligations
Employers in Hong Kong have a legal and moral obligation to prevent and address harassment in the workplace. Under the SDO, DDO and RDO, there is a concept of vicarious liability which means that an employer can be liable for an employee's act of sexual, disability or racial harassment (whether or not the employer knew about or agreed with the act). The only defence against such liability would be if the employer can prove that they took "reasonably practicable steps" to prevent the act in the workplace.
Protecting your workplace
The EOC has recommended, as part of their leaflet on "Protection from Sexual, Disability and Racial Harassment in Common Workplaces" that employers should consider implementing the following practices in order to prevent workplace harassment:
- Developing an anti-harassment policy for the company;
- Briefing all workplace participants on anti-harassment laws before commencing work (this includes employees, contract workers, consignment workers, interns and/or volunteers);
- Establishing proper channels to handle complaints of harassment and ensuring that all individuals in the workplace are aware of such complaint channels; and
- Providing regular trainings and reminders to everyone in the workplace on the anti-harassment policies.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
