Introduction

The Equal Opportunities Commission (EOC) is tasked, pursuant to section 64(1)(e) of the Sex Discrimination Ordinance, Cap. 480 (SDO) and section 62(1)(e) of the Disability Discrimination Ordinance, Cap. 487 (DDO) with the function of keeping under review the working of the two Ordinances.

The EOC announced in February 1997 that it would conduct a review of the SDO and the DDO, commencing at the end of 1997 following twelve months operational experience.

The review focused on three areas:

1. provisions of the legislation which warranted review in terms of operational experience;
   
   
2. provisions of the legislation which could cause operational difficulties; and
   
   
3. provisions which required clarification or re-drafting (including a review of the Chinese text of the legislation).

Underpinning the whole review exercise was the recognition by the EOC that both the SDO and the DDO were relatively new pieces of legislation which had not yet been tested in the courts, and that a reformulation of equal opportunities laws in general would benefit from a timely review at a later stage.

The proposals are based on the EOCs commitment to the principle of equality of persons regardless of gender or disability and the fundamental premise that equal opportunities is a human right which is at the heart of a healthy economy and society, which must be mainstreamed into every aspect of life.

The recommendations comprise -

1. proposals for amendments which would clarify and simplify existing provisions in the legislation; and
   
   
2. proposals for amendment which would rectify what were considered to be defects in the legislation.

The Legislation

The SDO was enacted on 14 July 1995 and the DDO was enacted on 3 August 1995. The non-employment related provisions of both Ordinances became operational on 20 September 1996, while the employment related provisions became operational on 20 December 1996.

Under the SDO, the EOC is charged with the duty to work towards the elimination of discrimination on the grounds of sex, pregnancy and marital status, to promote equality of opportunity between men and women generally, and to work towards the elimination of sexual harassment.

The fields to which the SDO applies include : employment, the provision of goods, services and facilities, education, disposal and management of premises, clubs, activities of the government, and eligibility to vote for and to be elected to advisory bodies.

Under the DDO, the EOC is charged with the duty to work towards the elimination of discrimination on the ground of disability, to promote equality of opportunity between persons with and without a disability, and to work towards the elimination of disability harassment and vilification.

The fields to which the DDO applies are the same as those for the SDO, save and except for eligibility to vote for and to be elected to advisory bodies. The DDO also includes the additional field of sport.

Highlights of the Legislative Review

The EOC has proposed amendments in 20 areas of the legislation. The key proposals include :

• the EOC should have the right to take legal action for discriminatory practices;
  
  
• Schedule 5 of the SDO, which contains a number of exemptions, should be repealed; and
  
  
• the protection against sexual harassment in certain fields should be extended.

EOC Right to Take Legal Action against Discriminatory Practices

The EOC has proposed that the SDO and the DDO should be amended to allow the EOC to bring civil proceedings in the District Court for discriminatory practices.

Under the existing provisions of the legislation, persons who apply or operate discriminatory practices may only be dealt with by the EOC by way of formal investigation. The EOC considered that the power to take legal action in its own name to combat the application or operation of discriminatory practices by persons is a positive step towards eliminating discrimination.

Schedule 5 of the SDO

The EOC has recommended the repeal of Schedule 5 of the SDO. Schedule 5 contains eight items which, although discriminatory, are considered not unlawful because they have been exempted.

All eight items which are exempted under Schedule 5 arise out of government policies, practices and regulations and affect the rights of individuals in their relationship with the Government.

The EOC has the duty to work towards the elimination of discrimination and the promotion of equal opportunities for all. Exceptions and exemptions are contrary to the principle of equal opportunities and defeat the spirit of anti-discrimination legislation. To prevent them from weakening the legislation, the EOC considers that they should be kept to a minimum and only when they are necessary.

The following are examples of the exemptions that would be removed with the repeal of Schedule 5:

	minimum height and weight requirements, dress codes and restrictions on the use of fire-arms in respect of recruitment to the disciplinary forces. Where differential height and weight requirements apply for men and women, this may result in men being excluded because they cannot satisfy the height and / or weight requirements for men, but would otherwise fulfill the fitness requirements of the job. Yet such men may be taller and / or heavier than the women who met the female height and weight requirements. This amounts to direct sex discrimination. Where the same height and weight requirements are imposed on men and women, such requirements could indirectly discriminate against women. The EOC takes the view that such requirements or restrictions on men or women should be reviewed and replaced. Instead, the disciplinary forces should specify what the requirements of the job are, and recruit persons who are best able to fulfill those requirements. The EOC also considers that the disciplinary forces should design a satisfactory method of assessment of physical fitness that actually measures each individual against his or her ability to do the job in question.
	small house policy This policy was introduced by the Government more than 20 years ago to relieve the housing situation in the New Territories. It grants special benefits relating to land in the New Territories to male indigenous villagers, without giving the women the same benefits.
	preferential treatment to unmarried widows of good character Regulations relating to benefits payable to widows of officers of the Hong Kong Auxiliary Police Force who die in action give preferential treatment to widows who remain unmarried and of good character. The EOC considers that this type of discrimination is based on outmoded and stereotypical attitudes to women which are unfair and unnecessary.

Sexual Harassment

The EOC has recommended that the protection against sexual harassment should be extended in four areas :

1. education
   
   The EOC considers that educational establishments are responsible for the psychological well-being of their students while at school, and that they should therefore be responsible for the prevention of the creation of a sexually hostile or intimidating learning environment.
   
   
2. provision of goods, services and facilities
   
   The SDO currently protects persons against sexual harassment by providers of goods, services and facilities. It does not, however, provide protection for the persons who are providing such goods, services and facilities. The EOC considers that this leaves persons employed in the service industry, in particular, vulnerable and therefore recommends that the legislation should be amended to protect them.
   
   
3. clubs
   
   Although it is unlawful for committee members of clubs to discriminate against members or prospective members, there is no protection against sexual harassment. The EOC considers that members and prospective members of clubs should be protected against sexual harassment by committee members.
   
   
4. tenancy
   
   The EOC has proposed that the existing provisions in the SDO which provide some limited protection against sexual harassment in tenancy relationships should be extended to protect against sexual harassment by a tenant against another tenant or sub-tenant occupying the same premises, and by a sub-tenant against another sub-tenant occupying the same premises.

Equal Opportunities Commission
April 1999