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Sexual harassment law protects customers from goods and service providers but not the other way round

By Vanessa Cheung and Natalie Tsoi

Leung is a 58-year-old worker in a care home. She has been doing this work for 18 years. One day, as she carried out her daily routine helping an elderly man with his shower, he stretched out his hands and tried to touch her breasts while she was towel-drying his body. Leung was shocked, she covered his body immediately to stop him attempting to touch her.

This may seem like a blatant case of sexual harassment but, under existing law, Leung cannot sue the elderly man. As a service provider, she can be sued but has no right to sue the service receiver for sexual harassment under the Sex Discrimination Ordinance (SDO).

“It is absolutely unfair…Why can you complain about me on sexual harassment but I cannot complain about you?” she asks.

The SDO was enacted in 1995 and is implemented by the Equal Opportunities Commission (EOC). Under the terms of the ordinance, “It is unlawful for a person to sexually harass another person in the course of offering to provide, or providing, goods, facilities or services to that other person.” But sexual harassment by customers and clients against service providers is not covered, leaving 3 million service providers outside the scope of the ordinance.

According to the EOC, sexual harassment occurs when any person makes unwelcome sexual advances, or unwelcome requests for sexual favours, to another person. Conduct of a sexual nature which is likely to offend, humiliate or intimidate another person or creates a hostile environment is also considered sexual harassment.

In 1999, the EOC proposed to amend the SDO by making it unlawful for a customer to sexually harass the service provider in the course of seeking, or receiving, goods and services. Although the government indicated it would not object to such an amendment in 2000, nothing happened until the EOC proposed it again in 2011.

And it was not until October this year, that the administration tentatively announced it would introduce the Sex Discrimination (Amendment) Bill to the Legislative Council by the second half of the current legislative session.

Human rights lawyer Chong Yiu-kwong believes one reason why it has taken so long is the lack of controversy over the issue, pushing it to the bottom of the government’s agenda. Since sexual harassment by customers against service providers is not covered by the SDO, the EOC cannot follow up on any complaints or maintain relevant statistics, and subsequently victims might not bother turning to the EOC. Therefore, there is a lack of data showing how serious the problem is and reflecting the necessity to amend the ordinance.

“Issues will never be prioritised if the government does not feel the pressure,” Chong says.