The Equal Opportunities Commission Made Recommendations On Workplace Sexual Harassment

Introduction

On 12 May 2022, the Equal Opportunities Commission (“EOC”) released the findings of the first-ever “Territory-wide Representative Survey on Sexual Harassment in Hong Kong 2021”. In its report, the EOC set out and discussed the survey result, and made recommendations on redressing sexual harassment including workplace sexual harassment.

Workplace sexual harassment

The survey shows that sexual harassment is prevalent, regardless of sex and age. It confirms the traditional belief that more women than men are victims of workplace sexual harassment, and that the harassers are very often men. The survey findings further illustrate that those with less power, i.e. younger adults, in particular younger women, and those who took up temporary positions are more likely to face sexual harassment at work. The study also demonstrates that working in a company with no anti-sexual harassment policy significantly increases one’s likelihood of being sexually harassed.

EOC’s recommendations

In the report, the EOC made various recommendations to the employers, the Government and the Hong Kong Exchanges and Clearing Limited (“HKEX”) on redressing sexual harassment. The recommendations are summarised below.

Employer

Employers are encouraged to develop a clear corporate anti-sexual harassment policy that handles complaints, takes disciplinary actions, provides awareness training to staff and communicates the redress channels. Employers should also encourage potential victims to be assertive and adopt a bystander intervention approach.

Employers should explicitly show its commitment to countering sexual harassment by, for instance, appointing a top-level manager to oversee anti-sexual harassment matters. Companies are also advised to inform their staff about the recent legal changes in anti-sexual harassment provisions under the Sex Discrimination Ordinance (Cap. 480) (“SDO”).

Government

The Government may explore the feasibility of introducing a positive duty on employers to take reasonable steps to prevent and respond to workplace sexual harassment. For example, the SDO may be amended to make employers legally liable for third party harassment, when participants in common workplaces, customers, or clients are found to have sexually harassed their employees, unless employers have taken reasonably practicable steps to prevent the sexual harassment, and they have no knowledge of the sexual harassment in issue.

The Education Bureau should consider thoroughly reforming the sexuality education in primary and secondary schools to give more emphasis on gender equality and relationship education, including sexual harassment in digital contexts and image-based sexual violence. Secondary and tertiary schools should provide training to students on awareness of sexual harassment and equip them with skills and knowledge to respond to sexual harassment.

HKEX

HKEX should consider reviewing the Environmental, Social and Governance (“ESG”) Reporting Guide of the Listing Rules to include the adoption of an anti-sexual harassment policy as one of the key gender equality strategies that listed companies should disclose in their ESG reports.

Takeaway

In its report, the EOC made recommendations, in particular, the proposed amendment to the SDO to make employers legally liable for third party harassment. The proposed amendment suggested that EOC wants to promote accountability as well as a broader systemic and cultural change. The proposed amendment, if implemented, will shift the burden from individuals making complaints to employers taking proactive and preventative action. We shall keep you updated if the Government introduces such proposed amendment as a bill.

The Government has yet to introduce a bill to put into effect the EOC’s recommendations. That said, employers should establish (if not already have one) and review from time to time their anti-sexual harassment policy to create a safe working environment for their employees. Employers are advised to seek proper legal advice and assistance when doing so.

Contributing Advisors