Sexual harassment: A quick guide for queer individuals in Hong Kong who might need it

Ashley Kong & Elsa Du

Authors Ashley Kong and Elsa Du are law students at HKU enrolled in the JD and LLB programmes respectively.

Many queer individuals in Hong Kong might have, at some point of their lives, experienced sexual harassment or other discriminatory treatment at school, in the workplace or any organisational setting. [1] This blog aims to provide a quick guide on what is sexual harassment and how you can launch a sexual harassment complaint.

What is sexual harassment?

Sexual harassment is defined in section 2(5) of the Sex Discrimination Ordinance (Cap. 480), (“SDO”) as follows:

2.    Interpretation
[…]
(5)    For the purposes of this Ordinance, a person (howsoever described) sexually harasses a woman if--
     (a)    the person--
        (i)    makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to her; or
             (ii)    engages in other unwelcome conduct of a sexual nature in relation to her, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that she would be offended, humiliated or intimidated; or
    (b)    the person, alone or together with other persons, engages in conduct of a sexual nature which creates a hostile or intimidating environment for her.

The above only gives a general description for legal purposes. In practice, sexual harassment encompasses many types of behaviour, such as--

• Making sexual and offensive comments about somebody’s appearances, dress, lifestyle or the way they carry themselves;
• Asking intrusive questions to which the person being asked clearly did not want to answer;
• Telling sexual jokes or raising sexual content (e.g. pornographic images and videos) in professional, academic or otherwise inappropriate settings;
• Making unwelcomed sexual advances in a setting when such behaviour is inappropriate, unexpected and generally frowned upon, such as at work, at school, etc.;
• Touching somebody sexually without consent;
• …and so on.

A tell-tale sign to determine if you have been sexually harassed is: when you encounter somebody behaviour’s fitting the above description directed at you, do you feel embarrassed, humiliated, intimidated, offended and/or discriminated? 
Many victims of sexual harassment recall their initial reaction to such abuse as feeling very confused and sometimes guilty themselves. Sexual harassers often sugar-coat their unwelcomed sexual remarks and advances by claiming they are just joking, complimenting the victims or just being friendly. It is common that sexual harassers “gaslight” victims into thinking they are overly sensitive, complaining too much and are not “good fun”.

Sometimes sexual harassment may constitute indecent assault or other minor sexual offences under Hong Kong statutes; but unlike indecent assault, sexual harassment does not carry criminal liability, it is purely a civil matter, it could be said of as a civil offence. In successful claims, victims may be awarded pecuniary compensation or other types of restitution. Put simply, a civil claim seeks to claim restitution for damages (such as dismissal from job) and injuries (physical or mental) caused by the defendant’s harassment conduct, it is therefore important the defendant must supply proof for such damages and injuries inflicted by such harassment conduct with an estimation of monetary compensation or to propose feasible remedies. Meanwhile, in criminal prosecution, the focus is on the defendant’s conduct and may lead to sentence in the case of criminal conviction, but compensation for the victim generally is out of the picture.

Know your rights

Under the SDO, all employers in Hong Kong are under an obligation to provide a safe and non-discriminatory environment to employees, so are schools of all level to students. SDO section 5 sets out a basic definition of sex discrimination:

5.    Sex discrimination against women
(1)    A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Ordinance if--
     (a)    on the ground of her sex he treats her less favourably than he treats or would treat a man; or
    (b)    he applies to her a requirement or condition which he applies or would apply equally to a man but--
         (i)    which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it;
                (ii)    which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied; and
                (iii)    which is to her detriment because she cannot comply with it.
(2)    If a person treats or would treat a man differently according to the man’s marital status, his treatment of a woman is for the purposes of subsection (1)(a) to be compared to his treatment of a man having the like marital status.

In simpler words, differential treatment on the basis of sex constitutes sex discrimination. It should be noted that while the provision stresses the woman as the receiver of the discrimination, the SDO generally operates in the same way with respect to men suffering from such forms of sex discrimination. It is a misconception that the ordinance only protects women.

Another misconception is that the SDO only governs interactions between men and women. In fact, the SDO also applies in interactions between individuals of the same sex.

For queer individuals, the sexual harassment they encounter may be discriminatory on grounds of sexual orientation and/or sexual identity. While Hong Kong has not enacted legislations protecting individuals against discrimination on grounds of sexual orientation or sexual identity, there are still some documents and laws you can rely on.

The first is the Code of Practice against Discrimination in Employment on the ground of Sexual Orientation (“Code of Practice”) issued by the Constitutional and Mainland Bureau. [2] This is not a law, but a code of practice which employers can opt in to abide by. Organisations that have pledged to adopt it are responsible for ensuring their conduct is compliant with the Code of Practice. [3]

Where the employer has not elect to the Code of Practice, coupled with the absence of an anti-discrimination law protecting queer individuals, the employer may claim they are under no obligation to protect employees against discrimination on grounds of sexual orientation and/or sexual identity. With that being said, there are some case law which have declared some kinds of discriminatory conduct unlawful. It is recognised in Leung Chun Kwong v Secretary for Civil Service (2019) [4] and QT v Director of Immigration (2018) [5] that differential treatment in employment terms and benefits for same-sex couples lawfully married or entered into civil partnership abroad in contrast with married heterosexual couples is unlawful in Hong Kong. While these rulings generally concern the making of administrative decisions by government departments, the spirit could be said of as the same for the private sector. The effect of these rulings might spill over to the construction of the SDO and the Family Status Discrimination Ordinance (Cap. 527).

How to deal with sexual harassment
To begin with, it is important to say “no” to the harassers clearly and demand them to stop the behaviour. It might be a good idea to get the message across in writing and keep a record as proof that their behaviour was unsolicited, unwelcomed and non-consensual.
It is the employer’s and the institution’s responsibility to ensure the workplace or the school is safe and non-discriminatory. Everyone has a right to lodge a formal or informal complaint at work or at school on sexual harassment, and the SDO as well as other anti-discrimination laws impose a duty on the employer and the institution to take it seriously. It is important to illustrate as accurate in detail as possible of the incident, including the date, time, location, nature, sequence of events and witnesses.
An alternative is to lodge a complaint with the Equal Opportunities Commission (“EOC”), which is the statutorily empowered to enforce anti-discrimination laws in Hong Kong. This might a favourable option when the claimant finds the employer or institution unhelpful and dismissive in handling his/her complaint
It is possible to engage the EOC to ensure that the employer or institution to observe its legal duty. The claimant can request investigation, conciliation and legal assistance at the EOC. The EOC complaint process usually begins with a written letter, e-mail, online form or fax correspondence. Complainants may make telephone calls but the conversation will be treated as a general enquiry which is unofficial in nature.
The last resort is to lodge a civil lawsuit, or report to the police if the discriminatory conduct might constitute criminal behaviour. In such case it is best to consult a lawyer.
References
[1]  Policy 21, “A Study on Discrimination Experienced by Sexual Minorities” (July 2015): https://www.policy21.org/PDF/480%20A%20Study%20on%20Discrimination%20Experienced%20by%20Sexual%20Minorities.pdf
[2] Constitutional and Mainland Affairs Bureau, HKSAR Government, “Code of Practice against Discrimination in Employment on the ground of Sexual Orientation”: https://www.cmab.gov.hk/en/issues/full_code_of_practice.htm
[3] Constitutional and Mainland Affairs Bureau, HKSAR Government, “List of Organisations that have pledged to adopt the Code of Practice against Discrimination in Employment on the Ground of Sexual Orientation”: https://www.cmab.gov.hk/doc/issues/Bilingual_List_of_Organisations.pdf
[4] Leung Chun Kwong v Secretary for Civil Service [2019] 22 HKCFAR 127, [2019] HKCFA 19, [2019] HKEC 1765, [2019] 4 HKC 281
[5] QT v Director of Immigration [2018] 21 HKCFAR 324, [2018] HKEC 1792, [2018] 4 HKC 403, [2018] HKCFA 28