Workplace Discrimination against Sexual Minorities in Hong Kong

Ashley Sit

Author Ashley Sit is a law student at HKU enrolled in the SocSc (Govt & Laws) & LLB programme. 

While Hong Kong proudly positions itself as the world city of Asia with a diverse workforce, there is still a general lack of workplace inclusiveness to sexual minority workers.  Despite the government’s effort in putting forward various promotions on workplace inclusivity, statutory regulations are the most effective way to build a more inclusive workplace towards sexual minorities.

Stigma faced by sexual minorities employees

According to a white paper on workplace inclusion published by the Economist Intelligence Unit early this year, none of the 52 surveyed employees from Hong Kong agreed that their company has made "substantial progress" in LGBT diversity and inclusion over the last three years [1].  Compared to other Asian counterparts, Hong Kong was found to be lagging behind in taking actions that reflect diverse values and social concerns in the workplace. 

In 2019, South China Morning Post featured a construction worker who came as gay to his supervisor [2]. Yet, his confession spread out to his colleagues and he suffered a backlash of cruel teasing from his colleagues. This is, however, not an isolated incident. LGBTQ+ workers in Hong Kong still suffer from various kinds of stress, mocking of appearances, and even personal attacks every day in their workplaces. Professor Suen Yiu-tung, Founder and Director of the Chinese University's Sexualities Research Programme, conducted an interview with sexual minorities workers. It was revealed that the workers have received unfriendly attitudes from bosses and colleagues, some even have their jobs denied and even commented that coming out equals "career suicide" [3]. 

Is Hong Kong really not ready for being more open-minded to the LGBTQ+ community?

Surprisingly, a telephone survey conducted in 2019 found that only 12% of 1,058 people interviewed objected to laws protect LGBTQ+ community against discrimination, which was also a significant improvement from 35% in 2016. 60% of the respondents supported strong legal protection, which increased slightly by 4% compared to the results in 2016 [4].
In fact, an inclusive working environment allows workers to enjoy higher job satisfaction and productivity. Research conducted by the Lingnan University found out that if the workplace atmosphere or policies allow homosexual employees disclose their sexual identity, there is a higher job satisfaction and a lower chance of experiencing psychological distress. On the other hand, there will be an opposite effect if the workplace culture is suppressive and makes employees conceal their sexual identity. The research paper also quoted other overseas papers that concealing homosexuality in the workplace can lower job performance as homosexual employees tend to isolate themselves from coworkers in order to protect the secret of their sexuality. This hinders their ability to develop good relationships with colleagues, team performance as well as individual performance at work would also decrease. Therefore, having an open-minded working environment surely benefits the organization [5].

Insufficient legal protection to sexual minorities workers

The government has been paying effort to advocate for better protection against discrimination of sexual minorities in the workplace. The Constitutional and Mainland Affairs Bureau issued the Code of Practice against Discrimination in Employment on the Ground of Sexual Orientation and encourages employers in the private sector to adopt. The Code of Practice sets out guidelines on different aspects of employment. For employers, they have to ensure only relevant factors are taken into account when considering recruitment promotion. It also states that sexual orientation shall also not be a ground for dismissal and unfavourable treatments. As for employees, they can encourage inclusive policies be adopted in the company and be friendly to sexual minorities colleagues. By May 2019, the Code of Practice was adopted by approximately 230 companies, which only accounts for a small portion when there are over 120,000 companies in Hong Kong. Despite the Code having set out comprehensive guidelines, it is completely up to companies to voluntarily follow the Code and conduct self-regulations, not to mention the Code does not have any statutory effect. Private organisations are just encouraged to adopt anti-discriminatory practices and would not face legal consequences for any failure to comply [6].
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Currently, there are four anti-discrimination ordinances in Hong Kong, namely Sex Discrimination Ordinance (Cap. 480), Disability Discrimination Ordinance (Cap. 487), Family Status Discrimination Ordinance (Cap. 527), and Race Discrimination Ordinance (Cap. 602). None of them covers discrimination directed at LGBTQ+ community. In 2016, the Equal Opportunities Commission proposed to the government to enact anti-discrimination legislation based on sexual orientation and gender identity. Yet, the proposal failed. In 2019, former ICAC Director of Investigation Ricky Chu Man-kin took over at EOC. He proposed a new approach which would involve inserting protections into existing laws rather than advocating for one overarching legislation. As a result, there is a lack of protection for LGBTQ+ workers.

Not all jurisdictions are as slow as Hong Kong in terms of legal protection towards sexual minorities workers. The United States not only legalized same-sex marriage, but there are also sufficient protection as to workplace discrimination. The Supreme Court ruled that sexual orientation discrimination in employment context to be unconstitutional despite Title VII of the Civil Rights Act bans employment discrimination “because of [an] individual’s race, color, religion, sex, or national origin.” without explicit references to sexual orientation or gender identity.  The Court in Bostock v. Clayton County, Georgia 590 U.S.(2020) held that the word “sex” also includes sexual orientation, which is linewith a Supreme Court precedent, Oncale v. Sundowner 523 U.S. 75 (1998) that held Title VII prohibits the entire spectrum of sex-based discrimination [7]. It is therefore unlawful under federal law for employers to discriminate against employees based on sexual orientation or gender identity. This ensures legal protection for LGBTQ+ workers.

One step forward

Undeniably, a more inclusive workplace improves sexual minorities workers’ satisfaction and work performance. However, without statutory protection, sexual minorities workers can hardly work in a safe and inclusive workplace. The Code of Practice, without statutory enforcement, will only be a paper tiger. Therefore, the Hong Kong government shall also think of the possibility of statutory protection to better ensure sexual minorities will be treated fairly in the workplace. 

References:
[1] Economic Intelligence Unit. (2020).  Pride and Prejudice - The Next Chapter of Progress. The Economist. https://perspectives.eiu.com/sites/default/files/pride_and_prejudice_2020.pdf
[2] Ting. (2019). While Taiwan Has Legalised Same-sex Marriage, Hong Kong Is Still Struggling With Workplace Discrimination Against Lgbt Staff – Is the City Ready for Change?. South China Morning Post https://www.scmp.com/news/hong-kong/society/article/3012632/while-taiwan-has-legalised-same-sex-marriage-hong-kong-still
[3] RTHK. (2020). Ensure Workplace Protection for LGBT People in HK https://news.rthk.hk/rthk/en/component/k2/1532337-20200616.htm
[4] Suen. Chan. Wong (2020). Public Attitudes towards LGBT+ Legal Rights in Hong Kong 2019/20. Sexualities Research Program. The Chinese University of Hong Kong https://7bb73318-120e-454d-84c6-9da78469b28b.filesusr.com/ugd/c27b9b_3a3de20a3fba492b974e883d8a09d3aa.pdf
[5] Yam,Y. Chan, W. (2016). A Study of Occupational Health: Disclosing Homosexuality in the Workplace. Lingnan University https://commons.ln.edu.hk/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1012&context=socsci_fyp
[6] Kong, S. Tang, D. (2019). Hong Kong: LGBTQ+ Rights In Hong Kong: Evidence Suggests Attitudes Are Changing. Mondaq. https://www.mondaq.com/hongkong/discrimination-disability-sexual-harassment/851972/lgbtq-rights-in-hong-kong-evidence-suggests-attitudes-are-changing
​[7] Jenkins, W. (2020). The Supreme Court Reaffirmed LBGT Protections against Discrimination. How Can We Ensure Those Rights Are Realized?. Urban Institute. https://www.urban.org/urban-wire/supreme-court-reaffirmed-lbgt-protections-against-discrimination-how-can-we-ensure-those-rights-are-realized