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The provisions on prohibiting breastfeeding discrimination and harassment under the SDO came into force on 19 June 2021. Adam Hugill, Partner — Employment & Immigration at Hugill & Ip Solicitors, informs employers on all they need to know.
Hong Kong has amongst the lowest birth rates. During 2020 the number of births fell a reportedly 18.5% with a total fertility rate of 0.87, second-lowest only to South Korea and about half of the average birth rate among other developed economies.
While numerous personal and social factors affect birth rates, an often-cited reason is the lack of employment protection and family-friendly employment policies. Many governments use the promotion of family-friendly policies to tackle the deceleration of population growth.
Employees with family commitments often have to juggle work and family responsibilities. By introducing family-friendly employment practices, employers can help employees balance the responsibilities of their work and families.
Family-friendly employment policies
The Hong Kong Government has long supported good family-friendly employment policies by urging employers to adopt measures voluntarily. However, it has been slow to pass the necessary legislation to compel such policies. As a consequence, Hong Kong’s parental leave entitlements are among the shortest in Asia and have been criticised as failing to protect parents’ interests.
Prior to the enactment of the provisions of the Employment (Amendment) Ordinance on 11 December 2020, which increased statutory maternity leave to 14 weeks, the previous 10-week statutory maternity leave period had remained unchanged since its implementation in 1981. Paternity leave was only introduced in March 2015 providing for three days leave, which was increased to only five days’ leave on 18 January 2019.
Protection from breastfeeding discrimination
On 19 June 2021, the Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020 amendments to the Sex Discrimination Ordinance ("SDO") will come into effect extending protection prohibiting discrimination on the ground of breastfeeding. Within Asia, laws offering such protections are already in place in South Korea, Taiwan and Japan.
Once in force, the SDO will offer protection from direct and indirect discrimination, harassment and victimisation for any woman who:
- is breastfeeding
- is expressing breast milk
- feeds a child from her breast milk, whether or not she is doing it at the time of the discrimination, harassment or victimisation.
The protection applies to all women who fall within the criteria, whether or not the child she is breastfeeding is her child. The protection therefore, applies to mothers and also wet nurses or where a mother is able to feed an adopted child or child born of surrogacy.
Direct and indirect breastfeeding discrimination
Direct discrimination will occur if an employer treats a female employee less favourably than it would treat those who are not breastfeeding in the same or not materially different circumstances.
Indirect discrimination arises where a condition or requirement is applied to everyone equally but which adversely impacts women who are breastfeeding and the condition or requirement is unjustifiable.
In the case of both direct or indirect discrimination, breastfeeding does not have to be the dominant or a substantial reason for the less favourable treatment, but merely must be one of the reasons.
Breastfeeding harassment
Harassment can take two forms:
(i) unwelcome conduct towards the breastfeeding woman – when a person engages in unwelcome conduct, which a reasonable person, having regard to all the circumstances, would anticipate that the woman would be offended, humiliated or intimidated by that conduct;
(ii) creating a hostile or intimidating environment – a person, alone or with others, engages in conduct that creates a hostile or intimidating environment for the woman.
Breastfeeding victimisation
Victimisation (sometimes referred to as retaliation) occurs when an employee suffers less favourable treatment as a result of bringing or intending to bring a complaint of discrimination.
Vicarious liability
As with other anti-discrimination legislation, an employer will be responsible for the conduct of its staff (the definition of which has been expanded to include interns and volunteers), unless the employer has taken steps to prevent such discriminatory practices.
It is also unlawful to instruct, induce or pressure someone to discriminate against a breastfeeding woman.
Practical considerations for employers
While the requirement to provide paid lactation breaks is not specified in the Ordinance, the Equal Opportunities Commission’s Guidance on Breastfeeding in Employment and Related Sections (“Guidance”) cites a Department of Health recommendation to allow lactating mothers two 30-minute breaks per day to express milk, without deducting or reducing wages for the break.
Similarly, while the Ordinance does not require an employer to make specific facilitates available for breastfeeding or lactating women, the Guidance suggests that facilities are made available. Such facilitates should be private, hygienic and safe. Toilets have been specifically excluded as they might not be hygienic.
While larger employers may have sufficient resources to provide a dedicated babycare room, the Guidance provides that alternatives may be available, including use of a suitably private meeting room, empty office or a screened area (which includes a supportive chair and other basic amenities), sharing facilities with other nearby employers or allowing the employee to visit a nearby community babycare facility. Access to refrigeration should also be provided, although this may be the same refrigerator as used by other staff.
If an employer has received a request from an employee for adjustments to her working conditions while she is breastfeeding (e.g. additional / extended breaks), the employer should discuss with the employee what arrangements can practically be accommodated, how long the arrangements are likely to be in place and whether they will have any effect on salary or other benefits.
All employers are recommended to now either update existing workplace policies or consider putting in place a breastfeeding policy that explains what might constitute breastfeeding discrimination and harassment and the employer’s zero-tolerance stance to such discrimination and harassment. The policy should also address how requests to facilitate breastfeeding should be raised and implemented.
The guidance does not have legislative force however, it will often be considered by the EOC or the Courts in the event a complaint or claim is made. Since the Guidance is intended to provide practical “best practice” advice, an employer that follows the Guidance is unlikely to fall foul of the legislation.
Photo/ University Hospital
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