Laws against discrimination can help advance diversity and inclusion: Lewis Silkin's Catherine Leung

Diversity and inclusion are often thought of in terms of the business case, if not ethics: the financial, reputational, and ethical bottom line. But there is another aspect which is seldom discussed, even though it directly ties in to all the above. This is the legal bottom line, the intersection between what companies do because it makes business or ethical sense, and what they are required by law to do.

To get a better understanding of how the law encourages and supports diversity and inclusion in the workplace, People Matters asked Catherine Leung, a partner in the Hong Kong office of law firm Lewis Silkin, what laws are applicable in this area and how they play out in practice. Leung has been practicing employment law for more than a decade, and one of her areas of focus is complex discrimination and sexual harassment cases. Using Hong Kong’s legal framework as context, she explained how anti-discrimination laws work, and how they act as both a push towards and a measure of diversity and inclusion in a society.

The law creates room for diversity and inclusion by prohibiting discrimination

In Hong Kong, Leung explained, there are four ordinances against discrimination, which, taken together, protect both employees and job applicants from being less favorably treated on the basis of their gender, pregnancy, marital status, disability, family status and race. Less favorable treatment includes direct or indirect discrimination, such as refusing to hire or promote someone based on one of the above traits; it also includes harassment or victimization. On top of this, employers are liable for the actions of their employees. So if, for example, someone harasses a co-worker because the co-worker is disabled, both the harasser and the employer could be liable.

Under these laws, an employee or job applicant who has been discriminated against can lodge a complaint with the Equal Opportunities Commission or bring a claim in the district court. In this respect, Leung said, “The anti-discrimination ordinances serve to deter such acts to some extent and in so doing, promote a work environment free from discrimination and harassment, as well as a culture of diversity and inclusion in the workplace.”

The law also provides impetus for employers to pro-actively prevent discrimination

Because employers are liable for any discriminatory behavior by their employees, it is only practical that they take steps to prevent such behavior. Leung provided a few recommendations in this regard: 

• Have in place a clearly written anti-discrimination/harassment policy and implement the same; 

• Enforce the policy in a consistent manner;

• Provide employees with regular training on the policy. 

Leung pointed out that Hong Kong’s anti-discrimination laws are considered less comprehensive than those of other similarly developed jurisdictions, but companies are nevertheless putting in place their own, more effective, measures.

“For instance, Hong Kong has not yet enacted legislation to prevent discrimination on the basis of age, religion or sexual orientation, but Taiwan has comprehensive laws prohibiting discrimination on the basis of race, class, language, thought, religion, political party, place of origin, place of birth, gender, gender orientation, age, marital status, appearance, facial features, disability, or past membership in any labor union,” she said.

“Despite the lack of comprehensive anti-discrimination laws, however, Hong Kong employers, particularly those which are multinational companies, increasingly have very comprehensive written anti-discrimination policies in place which go wider than the protection afforded by the law.”

Court cases, and their outcomes, are one way of measuring the cultural shift towards greater diversity and inclusion

Sexual harassment is one of the more well-known manifestations of an organizational culture that does not value diversity or inclusion. Hence, the preponderance of sexual harassment cases and their outcomes can be used as one indicator of how inclusive a society is.

In Hong Kong’s context, Leung observed, there has been some decline in sexual harassment cases over the years. “Due to the fact that there has been increased social awareness and a general movement towards speaking up against this unlawful behaviour, the number of sexual cases are probably less than, say, 10-15 years ago given the cultural and societal shift that has been and we anticipate will continue to take place,” she suggested.

She also highlighted two recent cases in Hong Kong which indicate cultural change. In the first case, in 2017, the Court of Final Appeal, Hong Kong’s highest court, ruled that same-sex partners should be allowed to apply for dependant visas. Subsequently, in 2019, the court also ruled that it is unlawful indirect discrimination to refuse a male government employee access to spousal benefits for his husband and deny the couple the ability to elect for joint assessment of salaries tax.

“These landmark cases clearly demonstrate that the Hong Kong courts are moving towards recognising equality of rights for same-sex couples and certainly sends a message that diversity should be embraced,” Leung observed.

What are some examples of discriminatory behavior that the law prohibits?

Leung provided several pointers on what could be considered unlawful discrimination under Hong Kong’s ordinances.

Sexual harassment: 

• Unwelcome behavior of a sexual nature towards the victim where the victim feels offended, humiliated and or intimidated, and a reasonable person would have anticipated that the victim would be offended, humiliated or intimidated. This would include leering, touching and brushing up against another person.

• Conduct of a sexual nature that creates a sexually hostile or intimidating work environment. This would include sexual jokes around the workplace.

Racial harassment:

• Unwelcome behavior on the basis of race, where a reasonable person would have anticipated that a person would be offended, humiliated or intimidated, or such that it creates a hostile or intimidating work environment. This could include racial jokes, calling of derogatory names or making fun of a person on the basis of their race. 

Disability harassment:

• Unwelcome behavior on the basis of any mental or physical illness, an illness which a person may have in the future, and illness which is imputed to a person.

If an employee experiences less favorable treatment based on some trait that is not protected by law—age, for example, is not protected in Hong Kong, although other jurisdictions prohibit age discrimination—they may be able to turn to the company’s internal policies for recourse.