Anti-discrimination
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1. 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.
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