Ignoring staff's family status may be discrimination

Article contributed by special arrangement with the Equal Opportunities Commission

Mr Chan is an office worker whose mother suffers from diabetes and hypertension. She lives alone and he is the only member of the family who is able to look in and take care of her daily needs. These include shopping, preparing meals, making sure she takes her medicine, and taking her to see the doctor.

Mr Chan faced an obvious problem when he received a notice from his supervisor informing him he was going to be transferred to another office a long way from his mother's home. The notice stated that he was not the only employee affected by the decision and that the transfer was made necessary by various factors, including operational needs. However, there had been no prior discussion about the possibility of a transfer to an alternative company office which was not so far away.

Mr Chan explained his concerns upon receiving the notice, but his supervisor ignored him. After considering the circumstances, Mr Chan felt that he had been discriminated against on the grounds of family status, as he had to take care of his sick mother and the move to the more distant office would make it difficult for him to continue doing this. Therefore, he lodged a complaint with the Equal Opportunities Commission (EOC) and explained that his basic request was that, if he had to be transferred, it should at least be to an office close to his mother's home.

Upon receiving Mr Chan's complaint, the EOC relayed his request and explained the provisions of the Family Status Discrimination Ordinance (FSDO) to his supervisor. The EOC also suggested to both parties that they should settle the matter by conciliation. After obtaining legal advice, the supervisor accepted the EOC's suggestion and agreed to conciliate, as long as Mr Chan could prove that it was genuinely his family responsibility to take care of his mother. Mr Chan did this by providing details of his own address and those of other family members. He also made declarations stating the duties he had to undertake for his mother, and that he had to accompany her to medical appointments several times a week. On receiving this information, Mr Chan's supervisor soon agreed to post him to an office nearer to his mother's home.

In a case such as this, the FSDO says that it is unlawful to discriminate or treat an employee less favourably on the grounds of his or her family responsibilities. The definition of family status refers to having responsibility for the care of an immediate family member, who is related by blood, marriage, adoption or affinity.

Clearly Mr Chan fell under this definition and his case was resolved without further difficulties.

Q&A on discrimination related to family status
Q1 One of my employees constantly applies for leave (paid and unpaid) to take care of his children and I have to employ temporary staff to handle his duties. Can I just dismiss him since he is absent from work so regularly?
A1 There is no simple answer. The employee must, first of all, establish his family status or family responsibilities. For example, he should explain why the children cannot be taken care of by relatives, a domestic helper or part-time worker. On the employer's side, if dismissal is on the grounds of the employee's family status (assuming he does have responsibility for taking care of his children), the dismissal may constitute an unlawful act. If such a move can be justified as reasonable, referring perhaps to the employee's inability to discharge his duties and showing that the same treatment is applied to all employees without similar family responsibilities, the dismissal may then not constitute an unlawful act under the FSDO. As a matter of good management practice, you should consider providing staff with reasonable assistance, such as flexible working hours or the option of job sharing.

Q2 I work as a machinist in a clothing factory. My supervisor has commended my work, but when I applied for promotion I was unsuccessful. This was because the company has a policy that says trainee supervisors must attend training sessions, and these are held at weekends. I am unable to attend because I have to care for my elderly mother at weekends, when her regular care-giver has time off. Should the company consider changing their current policy?
A2 The company's policy of arranging training sessions at weekends may constitute indirect discrimination. Employees with family responsibilities may be unable to attend those sessions, so the company should consider organising training sessions during working hours.

Q3 I attended a selection interview, during which one of the interviewers mentioned that I was suitable for the job, but that it was a problem that I had children. Can an employer refuse to hire me because of my family status?
A3 It is unlawful for an employer to discriminate against a job applicant on the basis of his or her family status. Only questions relevant to work requirements should be asked at job interviews. A person with particular family status should not be assumed to be less able for the job or any less competent. Any decision to hire should be based on the assessment of the applicant's ability to meet the job requirements and not on speculation based on family status.

Taken from Career Times 19 August 2005

(Last review date: 23 August 2013)

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