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Discrimination


Article contributed by
special arrangement with the
Equal Opportunities Commission

Lower pay for women


The complaint

Gigi worked as an accounting clerk and she was the only female employee in the company. The overseas head office made all management decisions in this company.

Gigi alleged that last year the company gave her a smaller pay rise than to the male employees holding the same position because of her gender. She believed that her work performance had been very good and even surpassed her male colleagues. She claimed that when she asked the general manager for an explanation, he said that since men have tended to be the breadwinners, they should receive a higher percentage in pay adjustments. She then complained to the overseas head office about sex discrimination and was told that the male employees in her office were given a higher pay rise to compensate for their lower pay. Within a month of filing the complaint, Gigi received a letter of dismissal from the general manager. She believed that she was being punished for complaining about the unfair treatment and subsequently lodged a complaint with the EOC.

What the EOC did

The EOC began its investigation by contacting the respondent, the general manager at Gigi's workplace. The respondent replied that Gigi was dismissed due to her poor performance and not as a result of her complaint. However, he was not able to substantiate this claim with any documented evidence of Gigi's work performance.

A conciliation meeting was held during which the respondent (the general manager) explained that the two male accounting clerks received a higher pay rise as they were on a lower salary compared with Gigi. He felt he might not have adequately explained to Gigi the reason for the male employees' higher pay rise, which caused the subsequent misunderstanding. He further added that he himself had received no pay increase in the last two years.

Gigi, on the other hand, felt it was not acceptable that she received a smaller pay rise purely on the basis of her gender. She also felt she was punished for complaining directly to the head office alleging sex discrimination.

Throughout this meeting, the respondent denied Gigi's allegation although he did eventually agree to give Gigi a sum equivalent to her year-end bonus to compensate for the fact that she was dismissed shortly before the Chinese New Year. Gigi, who had already started a new job at the time, agreed to settle the matter this way.

What the law says

Under the Sex Discrimination Ordinance (SDO), it is unlawful for employers to discriminate against a person on the grounds of sex in the terms of employment. It is also unlawful to treat a person less favorably because he or she has made an allegation that another person has acted unlawfully under the SDO. This treatment is defined as "victimization".

(Update: The case of Secretary for Justice v Chan Wah (2000) adopted the "but for" test in determining whether less favourable treatment has occurred on the grounds of a person's sex. The defendant's motive, while not an essential condition to liability, may be a relevant consideration.)

Good management practice: Eliminate discrimination in employment

The primary responsibility of each employer is to ensure that there is no discrimination at work on the grounds of sex, marital status or pregnancy. The SDO makes it unlawful to discriminate on such grounds. The use of consistent selection criteria for recruitment, promotion, transfer, training, dismissal and redundancy as well as terms and conditions of employment promote fairness and minimize unconscious bias. These criteria and terms and conditions should be made known to all employees and job applicants upon request. Without this consistency, decisions can be subjective and leave the way open for discrimination to occur.

Q & A on sex discrimination
Q1 I have been asked to act as a witness in a complaint case and would like to know what would happen if there were any retributions?
A1 The law protects witnesses as well as complainants against being victimized. If a person or a witness for the complainant suffers retribution, the person can lodge a complaint with the EOC.

Q2 I responded to a job advertisement in the newspaper and was told that the job is for women only. Can I lodge a complaint with the EOC?
A2 Yes, you can. The SDO applies to both men and women. An employer cannot treat a man less favorably than a woman. They can only do so in exceptional circumstances where being a man or a woman is a genuine occupational qualification for a particular job.

   
 
Source : Equal Opportunities Commission


Taken from Career Times 11 October 2002

(Last review date: 23 August 2013)


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

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