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Discrimination


Article contributed by special arrangement with the Equal Opportunities Commission

Rights during pregnancy must be observed


Stella was working as a part-time flight attendant with an airline when she became pregnant in late 2003. In line with the company's policy, she was put on ground duties until it was time to start her maternity leave.

In early 2004, business had started to pick up, so the company invited all part-time cabin crew to transfer to full-time employment contracts. Stella, though, was overlooked. Her crew manager told her she was not entitled to receive the offer because she was unable to perform in-flight duties at the time of the transfer. Her own view was that she was being unfairly penalised for being pregnant.

Not only that, she also considered that the airline's leave policy was discriminatory against cabin crew who were pregnant. For example, if a statutory holiday fell within the period of ground duties, it would be deducted from the employee's annual leave entitlement. Also, cabin crew who had given birth were not allowed to take annual leave immediately after their maternity leave.

Therefore, Stella filed a pregnancy discrimination complaint against the airline and her crew manager after consulting the Equal Opportunities Commission (EOC). Upon receipt of the EOC's letter stating Stella's complaint and noting the pregnancy-related provisions set out clearly under the Sex Discrimination Ordinance (SDO), the airline became more aware of its legal obligations and sought early conciliation.

The complaint was resolved when the company agreed to put Stella on a full-time employment contract. In addition, they also agreed to review their maternity policy to eliminate discrimination in the workplace.

Under the SDO, if a pregnant employee is treated less favourably than other staff who are not pregnant, this amounts to pregnancy discrimination. As a matter of corporate policy and good management practice, it is generally recommended that employers should review and amend any internal procedures which restrict or preclude transfers between certain jobs, if they are found to be discriminatory. An employer should also formulate a standard leave policy which is applicable for all staff in order to maintain consistency.

(Update: In the case of Chan Choi Yin v Toppan Forms (Hong Kong) Ltd (2006), damages awarded to the defendant included loss of earnings, future loss of earnings and injury to feelings.)

Q&A on how to avoid pregnancy discrimination
Q1 Can an employer refuse to employ a job applicant because she is pregnant?
A1 It is unlawful to discriminate against a job applicant because she is pregnant. If a pregnant woman is the best qualified candidate, she should be selected for the job. However, if the position is a temporary one that requires the work to be done within a short period, or requires strenuous physical activity which the pregnant applicant cannot perform, it may not be unlawful for the employer not to employ an applicant who is pregnant.

Q2 There has been a downturn in business. Do I have to keep a job open for an employee who is currently on maternity leave since we have been managing fine without her?
A2 Unless her job has genuinely become redundant, you are legally obliged to keep the job, or a suitable alternative job at the same level, open for her. It would be against the law to claim her job had become redundant and then give it to someone else.

Q3 Do I have to offer a pregnant employee training if she will be going on maternity leave soon anyway?
A3 It is against the law to treat an employee less favourably than others because she is pregnant. This would include refusing her training opportunities offered to everyone else. Many women do return to work after maternity leave. Showing her that she is a valued employee may encourage her to return to work after having her baby. This will also save you the possible cost of hiring and training a new employee to replace her.

Q4 I run a small real estate agency. My office manager recently returned to work after three months' maternity leave. She has worked for me for seven years and received an annual salary increase each year up to now. However, I don't see how I can calculate or award an increase this time because she was away for a significant part of the year.
A4 Even though your office manager had several months' maternity leave, she should still be regarded as entitled to an annual adjustment and assessed accordingly. Remember, you could be acting unlawfully if you fail to give her a salary increase simply because she was pregnant for some part of the year.

Q5 I am not married and recently became pregnant, but my employer said our company's health insurance policy only covers married women in respect of maternity benefits. What can I do?
A5 The EOC conciliated a similar case involving an unmarried pregnant woman and maternity insurance. We told the employer and the insurance company that if there is insurance coverage for married women who are pregnant, then unmarried women must also be covered. Otherwise, this could amount to discrimination on the grounds of marital status, which is prohibited under the Sex Discrimination Ordinance.


Taken from Career Times 16 December 2005

(Last review date: 23 August 2013)


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

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