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Discrimination


Article contributed by
special arrangement with the
Equal Opportunities Commission

Male workers only in male wards?


The complaint

"I had been employed by the hospital as a casual worker for two years to undertake general cleaning duties in different wards and public areas. Due to budget cuts, the hospital embarked on a downsizing exercise. But I was furious to find out that the hospital had terminated only female workers, irrespective of our seniority and performance, while none of our male colleagues were affected. This is unfair and unacceptable!"

What the EOC did

Ah-Yee lodged a complaint with the Equal Opportunities Commission (EOC) which investigated the case.

The employer admitted that only female temporary workers were terminated, while all male temporary workers were retained. They argued that the male wards were short of staff and, for privacy reasons, male workers were preferred. The hospital admitted that the decision to dismiss Ah-Yee was purely because of her sex.

Ah-Yee protested, "I find it hard to believe it is inconvenient for a woman to help out in the male wards. The hospital has asked me from time to time to cover for my male counterparts in the male wards during their absence. Also, if female doctors and nurses can serve in the male wards, why can't I?"

After gathering all relevant facts, the EOC investigator explained the provisions of the Sex Discrimination Ordinance (SDO) to the hospital management. They realized that treating female workers less favorably than male workers might breach the law. Finally, the hospital agreed to reinstate Ah-Yee and the matter was settled amicably.

What the law says

The hospital has claimed exemption for sex discrimination by applying sex as genuine occupational qualification, (i.e. male worker in male ward). This cannot be a valid defense argument as the nature of the job (i.e. general cleaning duties) does not call for a particular sex for reasons of physiology or privacy.

Under the SDO, it is unlawful to dismiss an employee on the grounds of sex. Employers should apply consistent selection criteria (e.g. education and qualifications, experience, knowledge, skills and abilities) in recruitment, promotion, transfer, training, dismissal or redundancy. The application of consistent selection criteria helps to promote fairness and minimize unconscious bias.

(Update: The recent case of Tsang Helen v Cathay Pacific Airways Ltd (2002) held that there was direct discrimination under s.5(1) of the SDO, since the male flight attendant was in a significantly better position than his female counterpart and the only reason for this distinction was his gender.)

Good Management Practice - Guidelines for dismissals, redundancies and unfavorable treatment of employees

It is unlawful to discriminate on the grounds of sex, marital status or pregnancy by dismissing the employee or subjecting him or her to any other detriment. In line with the 'good management practice', it is recommended that employers should:

* review redundancy procedures affecting a group of employees predominantly of one sex so as to ensure that there is no discrimination and to remove any effects which could be disproportionate and unjustifiable;

* ensure that conditions of access to voluntary redundancy benefits are available on equal terms to male and female employees in the same or similar circumstances.

Q&A on sex discrimination
Q1 Due to a downturn in business, my employer decided to reduce all female staff's salary by five per cent. As for male staff, their salary would neither be increased nor cut. The employer explained that since men tended to be the breadwinners, their salary should not be cut. Is this discrimination against female staff under the Sex Discrimination Ordinance (SDO)?
A1 Yes, under the SDO it is unlawful to discriminate on the grounds of sex, marital status or pregnancy in the terms and conditions of employment or subject an employee to any other detriment.

Q2 There is a vacant senior position in my company and we must undergo a training program before becoming eligible to apply for that vacant post. However, my application for the training program was turned down while my male colleagues successfully enrolled for the course. When I asked why I was not selected to undergo training, my manager explained that priority would be given to male staff, as they are more stable in their jobs (for example, they take no maternity leave). Can I lodge a complaint with the EOC for being discriminated due to my gender?
A2 Yes, you can. It is unlawful for employers to discriminate on the grounds of sex, marital status or pregnancy in the way they give opportunities for promotion, transfer or training. In line with the 'good management practice', it is recommended that employers specify the conditions for application for promotion, training or transfer to all staff who may be interested, and set out detailed procedures in writing for communication to all employees (irrespective of sex) who are eligible.

   
 
Source : Equal Opportunities Commission


Taken from Career Times 22 November 2002

(Last review date: 23 August 2013)


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

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