A breastfeeding survey conducted by the Department of Health has revealed that the percentage of women breastfeeding their newborn babies in 2018 was 87.5%, which has increased by over 30% since 2004. With the number of breastfeeding mothers increasing, it is important to ask the question – has your organisation done its part to #BreakTheBias and more specifically taken steps to prevent discrimination and harassment against breastfeeding women in the workplace?
While there are certainly going to be differences in opinion as to how to break the bias in our workplaces, what is clear is that the law in Hong Kong has recognized that discrimination and harassment against breastfeeding mothers is a risk and developments have been made to address this issue. As a brief reminder, the protection against unlawful breastfeeding discrimination and harassment under the Sex Discrimination Ordinance (SDO) came into effect in June last year. We summarise below how breastfeeding women are protected under law and provide some insights into what employers should be doing in light of the relevant legal requirements. We also briefly comment on what employers should consider when implementing vaccination requirements vis-à-vis breastfeeding employees.
Unlawful acts in relation to breastfeeding employees
Under the SDO, the behaviours set out below are unlawful in relation to any breastfeeding employees, that is, any female employee who is engaged in the act of breastfeeding a child or expressing breast milk or who feeds a child with her breast milk.
Direct discrimination: refers to the act of treating a breastfeeding employee less favourably because they are breastfeeding.
Indirect discrimination: refers to a breastfeeding employee suffering a detriment due to an unjustifiable requirement or condition which applies equally to all employees (whether breastfeeding or not), but which is significantly harder for breastfeeding employees to comply with.
Harassment: refers to (i) subjecting a breastfeeding employee to unwelcome conduct in circumstances in which it can reasonably be expected that such conduct would offend, humiliate or intimidate the employee; or (ii) the working environment becoming hostile or intimidating to a breastfeeding employee due to actions taken by a person or a number of persons.
Victimisation: refers to the act of treating a person (who does not necessarily need to be a breastfeeding employee) less favourably because they have taken or intend to take certain actions including for example alleging breastfeeding discrimination or harassment, bringing proceedings in relation to breastfeeding discrimination or harassment, giving evidence in connection with such proceedings or alleging breastfeeding discrimination or harassment.
In practice, issues of breastfeeding discrimination or harassment may be relevant in situations where a breastfeeding employee is not considered in promotions, is restricted or prevented from breastfeeding or expressing milk in suitable facilities, is harassed for expressing milk or whose request for changes to working conditions or accommodation is denied.
What should employers be doing?
The Equal Opportunities Commission (EOC), the statutory body responsible for implementing and enforcing the anti-discrimination laws of Hong Kong, has in recent times published a guide explaining the legal protections accorded to breastfeeding women as well as some suggested practices that employers should adopt in order to promote equality and prevent breastfeeding discrimination from occurring in the workplace. While EOC guidelines are not legally binding, the courts have been known to consider these in discrimination disputes. As a first course of action, it would be prudent for employers to review these guidelines to see what measures should be implemented. A few of the key measures are highlighted below.
i. Developing and implementing a breastfeeding policy
It is advisable that employers develop and implement a written breastfeeding policy which include provisions on, among others, the employer’s position on supporting breastfeeding employees, the zero-tolerance stance towards discrimination against breastfeeding employees, the facilities available to employees to breastfeed or express milk and the procedures for applying for working condition adjustments or accommodations. The breastfeeding policy should be circulated to all employees.
Having in place a breastfeeding policy is likely to be helpful in the event an employer faces a discrimination complaint or claim. Employers are generally held accountable for the unlawful acts conducted by its employees (irrespective of the employer’s knowledge) provided that they were done in the course of employment. A defence available to employers is that they have taken reasonably practicable steps to prevent their employees from committing such acts. In practice, having a clear written policy that has been well implemented within the organisation will assist an employer in proving that it has taken such steps. Other steps that can be taken include, for example, providing all employees with training on discrimination and harassment and having a reporting mechanism in place for employees to raise and escalate concerns.
ii. Availability of facilities for breastfeeding
Employers should ensure that breastfeeding employees have suitable spaces and amenities for breastfeeding. Employers may consider for example providing a designated room for baby-care and breastfeeding, adapting a multi-purpose room for breastfeeding employees, setting up private areas separated by a curtain with appropriate signs or permitting visits to another nearby location with suitable spaces and amenities for breastfeeding. Toilets and bathrooms are not considered as suitable facilities for breastfeeding employees. If an employer fails to ensure that breastfeeding employees have suitable spaces and amenities for breastfeeding, this may form grounds for a discrimination complaint or claim.
iii. Special accommodations – additional breaks
As breastfeeding employees may need to take lactation breaks or other additional breaks, it is important for employers to consider requests for breaks reasonably, having regard to various factors including the Department of Health’s recommendation that employers should allow lactation breaks during the one-year period following delivery, the nature of the employer’s business, the number of employees and the employee’s role. Unreasonable rejections to requests by breastfeeding employees for breaks may form grounds for a discrimination complaint or claim.
COVID-19 vaccination policies and breastfeeding employees
In its press release last year, the EOC has expressly recognised that COVID-19 vaccinations are not suitable for every person and when imposing different requirements, employers should balance any policies and suggestions by the Government with the needs of such individuals and whether other appropriate arrangements may be made for them.
Employers should also note that, pursuant to the proposed amendments to the Employment Ordinance in relation to COVID related matters (which have not yet come into effect), it will be a valid reason to dismiss, or vary the terms of the employment contract of, an employee who fails to comply with a “legitimate vaccination request”. Note however that unless the place of work is a scheduled premises or any specific government requirement or recommendation applies to the employee, for a vaccination request to be considered as “legitimate”, it should not be made to any employee who is breastfeeding.
Where an employer decides to implement a mandatory vaccination policy and a breastfeeding employee is subject to adverse treatment due to their inability to comply, this may provide grounds for them to bring an unlawful discrimination complaint or claim. In addition, where the adverse treatment is termination of employment, if the place of work is not a scheduled premises and no government vaccination requirement or recommendation applies to the breastfeeding employee, the employee may have grounds to claim unreasonable dismissal provided that their period of service is not less than 2 years.
In light of the above, before requiring all or part of the workforce to be vaccinated, it is prudent for employers to consider whether there is a genuine need for the relevant employees, including breastfeeding employees, to vaccinate. If a mandatory vaccination requirement is imposed and an employee indicates that they cannot comply due to their breastfeeding status, the employer should consider whether there are any alternative arrangements that can be made (such as allowing the employee to work from home, or allowing the employee to enter the workplace but be subject to regular testing).
Written by Wendy Wong and Jason Lo, Employment practice, DLA Piper Hong Kong
