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DID YOU KNOW? Did you know… “

that it is unlawful for an employer to discriminate against a job applicant on the ground of her pregnancy by withdrawing a job offer made to her?

Employers have a responsibility towards the well-being of their employees. This includes providing them a safe, fair and equitable place of work. It is no secret that an employee who is justly treated and has equal opportunities for growth, development and reward is a more loyal, productive and creative member of the team.

It is incumbent upon every employer, no manner the size and nature of business, to have policies in place that take care of the requirements of the law. Employers can go beyond the mere requirements of the law to create harmonious workplace environments by putting in place efficient grievance handling mechanisms, employee support groups, team building activities etc.

One area of discrimination in employment seen quite often is pregnancy discrimination. Employers must understand the law and make sure their policies reflect these laws. More importantly, all staff must be made aware of these laws and policies as acts of discrimination performed by employees may lead to the company too being vicariously responsible for these.”

Case:

Jenny* was offered a position as a manager with a financial company. She was requested to undergo a medical examination. On the day Jenny went to the office to collect the notice of medical examination, she disclosed that she was pregnant. According to Jenny, the company withdrew the offer consequently. Although the company informed the agent which had arranged for the recruitment that the recruitment had been suspended, Jenny did not believe it as she found a similar job position in the same company advertised after the withdrawal of the offer.

Jenny lodged a complaint with the Equal Opportunities Commission against the company for pregnancy discrimination. The case was settled through early conciliation and a settlement was agreed upon.

“The Law: Under the Sex Discrimination Ordinance, it is unlawful for an employer to discriminate against a job applicant on the ground of her pregnancy.”

*Not her real name.

Pregnancy discrimination means treating a woman less favorably on account of her pregnancy. The Sex Discrimination Ordinance protects a woman from pregnancy discrimination in various areas including employment and provision of goods, facilities and services.

Under the Sex Discrimination Ordinance, it is unlawful for a Hong Kong establishment to subject a woman to a disadvantage or dismiss her on the grounds of pregnancy. This applies to all kinds of work including contract work.

While the case of Jenny relates to recruitment, pregnancy discrimination covers all aspects of employment. Under the law, employers are not allowed to:

• Refuse to hire a woman because of pregnancy.

• Limit a worker's transfers or training options because she is pregnant.

• Fire or force a worker to leave because she is pregnant.

• Fire a woman on return from maternity leave.

Marie* had worked for a bank as an Assistant Manager for about four years when she became pregnant. She alleged that after notifying her supervisor of her pregnancy, she was presented with a poor performance appraisal which she disputed. During the performance review meetings with her supervisors, she was repeatedly queried about her ability to work during her pregnancy. As a result of the poor appraisal, she did not get a salary increment and yearend bonus.

Marie lodged a complaint with the Equal Opportunities Commission against the bank for pregnancy discrimination. The case was settled through early conciliation after the bank agreed to a monetary compensation and also an agreement to withhold disclosure of her performance records to any organizations without her consent.

The Law: It is unlawful for an employer to discriminate against an employee on the ground of her pregnancy by subjecting her to detriment. Employers should adopt good management practice to prevent discrimination and promote equal opportunities in the workplace.

*Not her real name

What employers can do to prevent discrimination?

Employers should avoid making assumptions about the abilities of pregnant women. Just because a woman is pregnant, does not mean she cannot perform her duties or is less effective at her work. Employers should be aware of the rights and responsibilities of both their organizations and pregnant employees and applicants. Employers should also ensure that they comply with the provisions of the Sex Discrimination Ordinance and the Employment Ordinance.

Employers can help prevent discrimination by:

• Advising pregnant employees of their rights and responsibilities in relation to maternity and sick leave

• Having clear and consistent policies on prenatal checkup and maternity leave, staff recruitment, transfers, performance appraisals, pay rises and bonus system

• Providing training to staff in relation to these policies and encouraging a culture of understanding and openness

“To all employers, be they large, medium or small or young entrepreneurs just starting out, awareness of the law is a must. But remember, compliance with the law is a bare minimum. You can go well beyond and create model organizations and institutions which can serve as beacons of equality and fairness for others to follow.”

If you need further information regarding your rights under Hong Kong’s anti-discrimination ordinances and the complaint handling procedures of the EOC, please contact:

NiruVishwanath Ethnic Minorities Unit

Equal Opportunities Commission

Equal Opportunities Commission

16/F 41 Heung Yip Road, Wong Chuk Hang, Hong Kong Hotline: 25118211 Email: eoc@eoc.org.hk Website: www.eoc.org.hk Office hours: Monday to Friday from 8:45 am to 5:45 pm