Legal Update – Beware of the Risk of Sex Discrimination in Job Advertisements

 “Female migrant workers from Guangdong Province will be given priority” (original Chinese wording: 「廣東省新移民女工優先」) is a sentence that appeared in a recent job advertisement for various positions in a dumpling restaurant chain in Hong Kong (see this link to the news report from 24 September 2024).

The above job advertisement sparked debate for potentially constituting sex discrimination. The advertisement had also caught the attention of the Hong Kong Equal Opportunities Commission (“EOC”), who said that they were investigating the incident. In this article we delve into the regulation of discriminatory advertisements in Hong Kong.

Discriminatory advertisements

Section 43(1) of the Sex Discrimination Ordinance (“Ordinance”) provides that:

“It is unlawful to publish or cause to be published an advertisement which indicates, or might reasonably be understood as indicating, an intention by a person to do any act which is or might be unlawful by virtue of Part 3 or 4 [of the Ordinance]”

 Part 3 of the Ordinance incorporates section 11(1) which provides that: –

“It is unlawful for a person, in relation to employment by him at an establishment in Hong Kong, to discriminate against a woman—

(a) in the arrangements he makes for the purpose of determining who should be offered that employment;

(b) in the terms on which he offers her that employment; or

(c) by refusing or deliberately omitting to offer her that employment.”

Section 6 of the Ordinance, states that the provisions in Parts 3 and 4 of the Ordinance shall be read as applying equally to the treatment of men.

An act in contravention to sections 11(1)(a) or (c) will however be lawful if it can be shown that a person being a particular sex is a genuine occupational qualification for the relevant job. Under section 12 of the Ordinance, examples of such exceptions include: –

• the essential nature of the job calls for a man [or a woman] for reasons of physiology or, in dramatic performances or other entertainment, for reasons of authenticity, so that the essential nature of the job would be materially different if carried out by a woman [or a man] – that is, it might be justified for job advertisements for casting in drama to indicate a particular sex;

• the job needs to be held by a man [or a woman] to preserve decency or privacy as it would involve physical contact, or that the work is performed in circumstances where men [or women] might reasonably object to the presence of the opposite sex because they are in a state of undress or are using sanitary facilities – that is, it might be justified for employers to indicate in job advertisements for cleaners for the male toilet that they would like to hire male cleaners.

Whilst we have few other details, it seems unlikely that the job advertisement for workers in a dumpling restaurant will fall within the above exceptions.

In the circumstances, the EOC may take legal action in respect of the job advertisement in question. Under section 77 of the Ordinance, the EOC has the power to issue enforcement notices against an employer requiring them to comply with the Ordinance. Under section 82 of the Ordinance, the EOC also has the power to start legal proceedings for breach of section 43. The exercise of these powers by the EOC is not unprecedented.

In 1997, the EOC applied for a decision in the District Court that Apple Daily had contravened section 43(1) by publishing a job advertisement for “several pretty female reporters” to report on balls and social events. The District Court found in favour of Apple Daily, but the decision was ultimately reversed on appeal in favour of the EOC (see this link).

Takeaways

Historically, job advertisements have usually been vetted by newspapers and recruitment websites for any potential discrimination before they are published. As it has become increasingly common for employers to post job advertisements directly on their own social media pages, employers must take great care to avoid any form of discrimination, when drafting and publishing job advertisements.

Russell Bennett, Mark Chiu and James Li

If you want to know more about the content of this article, please contact:

Russell Bennett

Partner | Email

Mark Chiu

Consultant | Email

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication. This article was last updated on 30 September 2024.