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Article contributed by
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Equal Opportunities Commission

A landmark case in pregnancy discrimination


The Equal Opportunities Commission (EOC) welcomes the judgment on Hong Kong's first case of pregnancy discrimination, which makes it clear that employers are liable for their own unlawful discriminatory acts as well as for the acts of their employees.

The judgment

The District Court ruled on February 26, 2001 that the defendant, a pharmaceutical company, had discriminated against its former product manager because of her pregnancy. The judge also ruled that the plaintiff was unlawfully victimized, after she lodged a complaint with the EOC. The company had breached the Sex Discrimination Ordinance.

The case

The plaintiff's supervisors forced her to either resign or be demoted after she told them of her pregnancy. She lodged a complaint of pregnancy discrimination against the defendant with the EOC in October 1997. She also complained that her supervisors had victimized her for approaching the EOC. The acts of victimization included untrue and unjustified criticism, an increase in workload and denial of a pay rise. According to the defendant, the company does not, as a matter of policy, discriminate against pregnant employees (indeed, pregnant employees were granted various benefits by the company), and the reason for the plaintiff's treatment was her substandard performance. The Court accepted that there was no company policy and culture of pregnancy discrimination, but rejected that the plaintiff's poor treatment at work was a result of her performance. The Court held that the plaintiff's supervisors disliked the plaintiff, and saw her pregnancy as an opportunity to force her out. The Court held that the defendant was liable for the unlawful discriminatory acts committed by the supervisors.

The parties settled for an undisclosed amount after the Court ruled in favor of the plaintiff.

Conclusion

The case made it clear that although an employer, in this case the company, did not as a matter of policy discriminate against a pregnant employee, the employer would nevertheless be held vicariously liable for the unlawful acts of its employees i.e. the plaintiff's supervisors. The EOC urges all employers to adopt a policy on eliminating discrimination at work so as to ensure a culture of mutual respect amongst employees.

Q&A on sex discrimination on the grounds of pregnancy
Q1 I have applied for a job recently but, although I fulfilled all the requirements, they have chosen a man for the job though he is less qualified than me. I have heard later that the company prefers to employ men, as they do not want the trouble of employees going on maternity leave. Can I bring the case of sex discrimination on the grounds of pregnancy to the EOC?
A1 The company should select the best suitable person for the job. Yes, you can file a complaint to the EOC, as the company should not treat you less favorably because of your sex. To avoid unconscious bias in recruitment, we suggest the company develop a set of consistent selection criteria (such as education, experience, knowledge, skills/abilities) in relation to the duties and responsibilities that would need to be carried out in the job.

Q2 During my interview for a job, I was seriously grilled about my future plans for setting up a family, including how many children I want to have, and was directly asked whether I was planning to get pregnant. Is this lawful?
A2 This may be unlawful. Questions, which tend to discriminate against men or women, persons of certain martial status, pregnant women, persons with family status or disability should be avoided. Interviewers must be careful not to treat a person less favorably on the grounds of sex, marital status, pregnancy, disability, or family status. Candidates should be assessed solely on the basis of their qualifications.

Q3 I had returned to the company from maternity leave and a month later I got laid off. This is the third time in my two years with the company that women get laid off after pregnancy as the company is worried that we would take time off for child care and get pregnant again. What can I do?
A3 Under the Sex Discrimination Ordinance, it is unlawful to discriminate against a woman on the grounds of pregnancy. That is, an employer cannot treat a pregnant woman less favorably or dismiss her because she is pregnant. While the dismissal of employees during their pregnancy may be an obvious form of discrimination, the dismissal of women upon their return from maternity leave is less obvious. However, if the staff had not been pregnant and gone on maternity leave, she would not have been dismissed, then the dismissal may be unlawful and a complaint may be lodged.


Taken from Career Times 15 November 2002

(Last review date: 23 August 2013)


Disclaimer: The opinions expressed in this article are those of the contributor.

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