Can an employer refuse to employ me because of my gender/sex? Under what circumstances can an employer use "genuine occupational qualification" as an excuse for sex discrimination?
It is unlawful for an employer to discriminate against a job applicant or an employee on the basis of gender/sex. However, if a person's sex is a "genuine occupational qualification" (GOQ) for the job (i.e. the job can only be done by a male or female), it is then not unlawful. In other words, if the job can only be done by a man, the employer is entitled to appoint a male employee and accordingly will be exempt from any liability regarding sex discrimination in recruitment, promotion, transfer or training in respect of that job.
This is not the same as the employer thinking or just guessing that males (or females) are not suitable for a particular job. For example, the employer may have violated the Sex Discrimination Ordinance if he/she thinks that only a female can take up the post of secretary, and then specifies that requirement on the relevant job advertisement. The GOQ must reflect that the job can only be done by a particular sex for essential reasons. For example, a retirement home may want to hire female attendants to help with providing intimate care to female retirees.
With reference to section 12 of the SDO, the circumstances under which sex is a GOQ for a job are highlighted below:
- The essential nature of the job requires a man or a woman because of physiology or for authenticity in dramatic performances or other entertainment. For example, in the modeling of clothes to be worn by a particular sex, or playing the role of a particular sex in a film.
- The job requires a man or a woman to preserve decency or privacy. For example, the requirement of a male to work as an attendant in a male changing room.
- The job is likely to involve the employee working or living in a domestic setting and the employee will have significant physical or social contact with the person living there. For example, domestic helpers or companions to elderly people.
- The nature of work or the working location requires the employee to live in premises provided by the employer and the only available premises do not provide both separate sleeping accommodation and sanitary facilities for either sex. For example, working on a small boat or at a remote site.
- The employment establishment/organization is a single-sex company or in a single-sex part of a company where people receive special care, supervision or attention; and the essential character of that company or the part of it requires a person of the same sex to do the job. For example, a male warden in a male prison or a female attendant working in a section of a hospital for female patients only.
- The holder of the job provides individuals with personal services promoting their welfare or education, or similar personal services, and such services are most effectively performed by one sex. For example, a female counsellor at a shelter home for battered women or a female social worker at a girls' home.
- The job needs to be held by a man (or a woman) because it is likely to involve the performance of duties outside Hong Kong in a place where the customs or laws do not permit a woman (or a man) to effectively perform such duties. For example, a sales manager who is required to negotiate business deals in a country where the customs would forbid the involvement of a woman.
- The job is one of two to be held by a married couple. For example, where a married couple is employed as foster parents at a children's home.
How to complain
If you have been discriminated against, you should first complain to the person responsible for the discriminatory conduct. If the complaint is job-related, you can lodge a complaint with your organization's management or seek other forms of help from your staff association or labour union (if you belong to one). If the complaint is related to the provision of goods, services, facilities, or an educational establishment, you can lodge a complaint with the relevant service providers and request improvement.
If you fail to get any positive reply after complaining to the discriminator, you can lodge a complaint with the Equal Opportunities Commission (EOC). Alternatively, you may bring your case to the District Court.
Remember to make a record of what has happened as soon as possible while the incident is still fresh in your mind. The information will help you recall details at a later date should you wish to lodge a complaint, or take legal action.
If you have been treated badly because you acted as a witness or provided information for a friend or colleague who lodged a complaint, you can also lodge a complaint of "victimisation" (see section 9 of the SDO, section 7 of the DDO , section 6 of the FSDO or section 6 of the RDO ). You should immediately inform those who are dealing with your friend's or colleague's complaint such as their representing lawyer or the EOC.
Lodging a complaint with the Equal Opportunities Commission
You need to lodge your complaint in writing and provide the following information:
- details of the discriminatory acts and the dates involved;
- your personal information including your name and contact information. Other information required includes: sex or state of pregnancy (for sex discrimination), nature of your disability (for disability discrimination), or marital status and number of children (for family status discrimination), or race (for race discrimination);
- name of the discriminator/respondent (i.e. name of the person or company that discriminated against you) and their contact information;
- information supporting your claim of discrimination, harassment, vilification or victimisation;
- details of any detriment or emotional disturbance you have suffered because of the discriminatory acts;
- information pertaining to any witness(es), such as their contact information and what they witnessed.
You may lodge your complaint through the EOC's on-line complaint form, by fax,, by post, or in person. After a complaint is received, the EOC will first investigate the complaint and decide if the complaint has substantial grounds. If the complaint does not have substantial grounds, it will be discontinued. If there are substantial grounds, the EOC may proceed to conciliation or decide to start legal proceedings.
Time limit for lodging a complaint
If you would like to lodge a complaint with the EOC, you need to do it within 12 months of the incident. If you decide to take legal proceedings to the District Court, you need to do it within 24 months of the incident. You should try to seek legal advice before taking any legal action.
EOC handling a complaint
The EOC is required by law to investigate the complaint. Allegations by the complainant are sent to the respondent/discriminator for comment. Responses (if any) are then made available to the complainant. Witness statements are taken and pertinent materials are gathered to see if the case should be discontinued or proceed to conciliation. All information gathered during the investigation stage is kept confidential from third parties but may be used in court proceedings.
The EOC may decide not to conduct or to discontinue an investigation into a complaint if:
- more than 12 months have passed since the discriminatory act was done;
- the act complained of is not unlawful;
- the aggrieved person does not desire to continue with the investigation;
- the complaint cannot be pursued appropriately only as a representative complaint (i.e. the complaint should be personally lodged by the aggrieved person instead of being lodged through a representative);
- the complaint is frivolous, vexatious, misconceived or lacking in substance.
After receiving a complaint, the EOC must first carry out an investigation and decide whether to discontinue the case, or proceed to conciliation. When the investigation is completed, either side can also request that the case be settled through conciliation. However, conciliation is completely voluntary and either party can stop the process at any time.
The conciliator of the EOC assists both parties to examine the issues that led to the complaint, identify points of agreement and negotiate a settlement to the dispute. The conciliator does not represent either side but only acts as a facilitator.
Bringing the case to court
If the conciliation is not successful, the complainant can apply to the EOC for legal assistance to commence a civil lawsuit in the District Court. The granting of legal assistance by the EOC is not guaranteed. It may be granted if the EOC thinks that it is unreasonable, because of the complexity of the case or the complainant's position in relation to the respondent, to expect the complainant to deal with the case unaided.
Legal assistance may include the giving of legal advice, representation by the EOC's lawyers, legal representation by outside lawyers or any other form of assistance the EOC considers appropriate. A committee of the EOC considers all applications. If you wish to seek further information from the EOC, please click here.
If you fail to get legal assistance from the EOC, you may consider the Legal Aid Scheme run by the Legal Aid Department. Before obtaining legal aid, you need to go through a financial means test and a case merits test.
Any aggrieved person can go to the District Court directly and initiate a civil lawsuit under the law without going through the EOC. However, you are strongly recommended to consult a lawyer before taking legal action.
On the other hand, the EOC cannot entertain applications for legal assistance unless you have been through its complaints system and conciliation has proved to be unsuccessful. In such cases, the EOC may grant legal assistance if it thinks it is appropriate to do so.