Regulations on sexual harassment in the workplace in Hong Kong

In Hong Kong, sexual harassment in the workplace is prohibited under the Sex Discrimination Ordinance (Cap. 480) (“SDO”), which is enforced by the Equal Opportunities Commission (“EOC”). The SDO came into force in 1996 and has been amended from time to time. 

Under s.2(5) of the SDO, a person sexually harasses another if that person:

1. makes an unwelcome sexual advance or an unwelcome request for sexual favours, or engages in other unwelcome conduct of a sexual nature in relation to another person, in circumstances in which a reasonable person, having regard to all the circumstances, would anticipate the other person being offended, humiliated, or intimidated; or
2. alone or together with others, engages in conduct of a sexual nature that creates a hostile and intimidating environment. 

According to EOC guidance, sexual harassment covers both verbal and physical acts. Specifically, “conduct of a sexual nature” includes making a statement of a sexual nature, whether orally or in writing (Part 1 s.2 of the SDO).

As per s.2(8) of the SDO, the perpetrator and victim of sexual harassment can be of any gender. 

Under s.23A of the SDO, it is unlawful for a workplace participant to harass another participant at their shared workplace. A 'workplace participant' has a broad definition, including not just employees and employers, but also contract workers, interns, and volunteers. This provision also protects individuals who are seeking employment. 

Under s.46(1) of the SDO, an employer may be held vicariously liable for sexual harassment committed by their employees, agents, interns, and volunteers in the course of their work, whether or not the employer was aware of or approved the act. Since sexual harassment can occur outside the workplace or working hours (e.g. at after-work drinks), this should be a legitimate concern for employers. 

According to EOC guidance, employers can minimise their risk of liability by taking ‘reasonably practicable steps’ to prevent sexual harassment. Such steps may include implementing anti-sexual harassment policies and ensuring employees are well informed of the policy, conducting periodic reviews of the policy and training sessions for employees, setting up a complaint-handling procedure for reporting incidents and conducting investigations, and taking timely disciplinary action.

According to statistics published by the Research Office of the Legislative Council Secretariat, employment-related sexual harassment complaints lodged with the EOC surged by around 110% from 2017 to 2021 in Hong Kong, which is believed to be attributable to the spread of the #MeToo movement. However, many instances of sexual harassment continue to go underreported, with the last major EOC survey in 2021 suggesting that only 15% of victims formally reported incidents to management, the EOC, or the police.

While our employer clients have, from time to time, received complaints against employees for sexual harassment, the more significant impact of the #MeToo movement on our clients has been on their internal policies and support programmes for employees. 

The Hong Kong court has the power to award a wide range of remedies under the SDO, including, but not limited to, ordering the respondent to perform any reasonable acts to redress any loss or damage suffered by the victim and/or paying compensation for any loss (such as past and future earnings and benefits, or injury to feelings) and damages (such as punitive or exemplary damages) suffered by the victim. 

In C v Hau Kar Ki (DCEO 10/2021), for example, the claimant was awarded HK$10,000 in exemplary damages as the compensatory award was judged ‘inadequate’ to punish the respondent. This was in addition to HK$80,000 in damages for injury to feelings, to mark the degree of embarrassment, humiliation, emotional distress, and anxiety caused by the respondent’s repeated acts of sexual harassment. 

Further, there are also likely to be a significant number of out-of-court settlements in light of the potential reputational damage arising from sexual harassment cases. 

We would say this currently sits in the amber category.

The EOC takes a proactive role in overseeing conciliatory procedures between the parties involved in a sexual harassment claim, with the primary aim of facilitating settlement or supporting ensuing legal proceedings. Due to a relatively low successful conciliation rate over the past decade (28%), the EOC has made a number of recommendations to the government in recent years, indicating its intent to streamline the complaints procedure and reduce the complaint withdrawal rate.

The EOC furthermore promotes awareness and provides guidance on sexual harassment prevention, including offering training programmes, resources, and support for employers and employees. Many organisations also implement their own anti-sexual harassment measures, which go beyond those ‘strongly encouraged’ under the SDO. 

During the #MeToo campaign, media reporting focused on the sports and entertainment sectors, where high-profile victims were concentrated. However, data shows that compared to the overall rate of 11.8%, workplace sexual harassment in Hong Kong is significantly more prevalent in the accommodation and food services sector (16.5%), the real estate, professional, and business services sector (14.9%), and the information and communications sector (13.2%). Furthermore, employees working in medium-sized organisations (50-99 employees) were significantly more likely to have experienced sexual harassment than those working in small or large organisations.