Anti-Discrimination Legislation Update
In the last issue, we noted that Legco member Lee Cheuk Yan planned to introduce resolutions calling for the Sex Discrimination and Disability Discrimination Ordinances (SDO and DDO) to go into full effect on 2 September. The resolutions never came to a vote as Legco President Andrew Wong ruled them out of order on 26 June. Mr. Wong ruled that Mr. Lee could not move for changes to a commencement date when a commencement notice had not yet been issued by the Government. The Government's schedule, therefore, prevails, meaning that the non-employment provisions of the SDO and DDO will go into effect sometime in September -- when the Equal Opportunities Commission (EOC) is operational -- and the employment-related provisions will wait until the EOC has finalised the codes of practice for employers (late 1996 at the earliest).
While it may be somewhat premature to criticise the Code of Practice as it has not yet been finalized, the Monitor has seen a copy of the first draft of the code for the SDO and it has given some cause for concern. For instance the Code finds a justifiable exception to the provisions against sex discrimination when employers request gender-based differences in personal appearance. The writers make a distinction between "discrimination between the sexes and discrimination against one or other of the sexes" (italics in original). It would seem to allow the very sort of discrimination in dress code that was the cause of such uproar when it came to light recently that one firm was fining its female employees for wearing trousers at work. The draft code cites a 1978 case in the UK where it was found not discriminatory for female employees of a bookshop to be forbidden to wear trousers. Leaving aside the fact that 1978 was 18 years ago, the draft code shows some contorted logic in a sta tement that it's OK to force women to wear skirts because men don't have a choice between wearing skirts and trousers. The Code's attempt to discriminate between types of discrimination is also less than convincing. The Monitor intends to participate in the public consultation on the Codes of Practice and hopes that the EOC will be willing to reconsider its first draft in light of the views of the public and concerned groups.
Christine Loh is the sponsor of a bill introduced on 10 July which aims to strengthen the SDO and DDO -- the Sex and Disability Discrimination (Miscellaneous Provisions) Bill 1996. Among other provisions, the Bill specifies commencement dates for the SDO and DDO; amends the test used to identify indirect discrimination; reduces the allowable time period of exceptions for small employers; repeals an exception in the SDO for acts taken to safeguard Hong Kong's security; and provides for the expiration of other exceptions within one to two years, namely, sex discrimination in small-house policy in the New Territories, and in the disciplined services, and marital status discrimination in public housing.
The Bill also makes more effective the remedies available to victims of sex discrimination by removing the 150,000 cap that the SDO puts on damage awards; by letting a Court order a terminated employee to be reinstated; and by removing the bar against damages in cases of unintentional indirect sex discrimination. In addition, it enables the EOC to bring court proceedings in its own name without waiting, as existing provisions provide, for the Secretary for Home Affairs to make regulations regarding such litigation; and enables the EOC to bring suit under the Bill of Rights or Letters Patent as opposed to being limited to proceedings under the Ordinance. The Bill also strengthens the EOC's investigative powers and gives the EOC power to promote international standards relevant to the Ordinances and to examine and report on proposed legislation. At a Legco Home Affairs Panel on 26 July, called to dicuss the UK's Third Periodic Report in respect of Hong Kong under the International C ovenant on Economic, Social and Cultural Rights, Emily Lau pressed the government representative to say whether the government supported these amendments. The Government representative said that he felt any changes to the SDO and DDO should wait until the EOC had had time to see how the current ordinances worked once in effect and that the EOC should be the body to decide whether the amendments should go forward. Pressed further, he said that the Government was "neutral" on the Member's Bill to amend the ordinances.
While dragging its feet on the implementation of the SDO and the DDO, the Government is moving even more slowly in other areas. After conducting public consultation exercises on discrimination on the grounds of family status and sexual orientation, the government announced plans to introduce legislation against discrimination on the grounds of family status. The legislation would cover a similar scope as the SDO and the power of the EOC would be expanded to cover discrimination on the basis of family status. The government will not, however, propose legislation against discrimination on the basis of sexual orientation "as the public generally consider it premature." Instead, the Government will take non-legislative measures such as education and funding support services for homosexual/bisexual groups.
In the area of age discrimination, the Government's Education and Manpower Branch is in the process of conducting a public consultation exercise which ends 7 August. At the outset of the consultation exercise, the Government seems reluctant, despite much evidence to the contrary, to admit the extent of age discrimination of Hong Kong. In the Legco Brief describing its consultation paper, the government states that "although older workers appear to be disadvantaged, this seems to be related to certain traits which happen to coincide with old age", and further, "employers may be forced by market forces to avoid hiring older workers, for they must please their customers in order to survive." The Government warns that "legislation is not a panacea" and "may lead to over-regulation and unnecessary litigation and may not benefit either employers or employees."
The Government will also conduct a public consultation exercise on Race Discrimination by the end of the year.
While the Government proceeds at a snail's pace in these areas, several Legco members have introduced their own bills to remedy discrimination. In addition to the bill amending the SDO and DDO, Lau Chin Shek has decided to reintroduce, with some technical changes, the Equal Opportunities (Family Responsibility, Sexuality and Age) Bill gazetted on 30 June 1995. The current version had its first reading on 10 July. In addition, Elizabeth Wong has introduced the Equal Opportunities (Race) Bill which also had its first reading on 10 July.