Summary: A Critical Comparison of the Position in Ireland and Hong Kong regarding the Prohibition of Discrimination on Sexual Orientation Grounds in the Workplace

Author: Clara Hurley
Summarised by Kylie Chang (Associate)

The author contrasted Hong Kong’s effort in developing a legal prohibition against differential treatment based on different sexual orientations (the “prohibition”) with Ireland’s position as they are both common law jurisdictions with a history of conservativism. It is argued that the key to Ireland’s success is having a more progressive legislature, being bound by international obligation and having an effective complaints mechanism in place.
 
The Legislature’s Attitude

In Ireland, the Employment Equality Act 1998 expressly states that the prohibition applies to all workplaces. The act is described as expansive as it covers also perceived homosexuality and those who have not ‘come out’.
 
In Hong Kong, the prohibition is based on case law - Leung v. Secretary for Justice. The court held that the prohibition merely binds all public authorities pursuant to the Hong Kong Bill of Rights Ordinance. The Legislative Council once rejected to legislate the prohibition to cover all workplaces by claiming it was too radical, instead, a non-binding guideline (Code of Practice against Discrimination in Employment on the ground of Sexual Orientation) was set out for imposing the prohibition to cover all workplaces. The author criticised that the decision is influenced by conservative Chinese values. To add on, the guideline operates with an exemption – the prohibition is inapplicable to employment in domestic environment or in conservative countries abroad. It is submitted that the exemption should be abolished as it would create a chilling effect on LGBT employees working for conservative employers.
 
International Obligation

Ireland as a Member State of the European Union is bound by the EU Directive 2000/78/EC to prohibit both direct and indirect discrimination in workplaces on sexual orientation grounds. In Hong Kong, there is no equivalent international obligation which binds the legislature to actively insert the prohibition in statute.
 
The Effectiveness of the Complaint Mechanism

In Ireland, the Workplace Relations Commission handles all discrimination allegations and is empowered to impose enforceable remedies to the victims. Decision of the commission must be enforced within 56 days and can be appealed to the Labour Court.
 
The Hong Kong equivalent – Equal Opportunities Commission – however cannot examine allegations on sexual orientation discrimination. Instead, it is directed to a governmental unit, the Gender Identity and Sexual Orientation Unit. The Unit’s recommendation is non-binding and can impose neither remedies to the victim nor penalties to the employer.
 
Conclusion

It is clear that Hong Kong is not doing enough to equalise opportunities in workplaces for the LGBTQ community. The legislature should take the initiative in leading our society to be more inclusive and more compliant with international human rights protection standard.
 
Comment

I agree with the author’s view that Hong Kong Legislature should make more of an effort in equalising opportunities for the LGBT community. However, this is not enough to create an inclusive society – a greater degree of public education is required to remove the social stigma.