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Following is a question by the Hon Tommy Cheung and a reply by the Secretary for Constitutional and Mainland Affairs, Mr Raymond Tam, in the Legislative Council today (June 8):
Question:
Earlier on, the Equal Opportunities Commission (EOC) instituted under the Sex Discrimination Ordinance (SDO) legal proceedings on behalf of a man against the owner of an entertainment venue, alleging that the "ladies' nights" (in which female customers are charged a lower admission fee than male customers) offered by that entertainment venue was discriminatory on the ground of sex. In the absence of the defendant from the hearing, the District Court ruled in favour of the plaintiff. Many members of the bar industry have relayed to me that they are surprised and disappointed at the ruling, and they are also worried that they will be prosecuted for sex discrimination when using promotional tactics like ladies' nights to develop the female customer market in future. These members have also pointed out that they have offered ladies' nights merely to attract more customers, with absolutely no intention of sex discrimination. This practice has a long history and is a trade practice commonly adopted worldwide. Given that the case has aroused public concern and that there are queries whether EOC has overcorrected, will the Government inform this Council whether:
(1) the authorities will conduct a public consultation or an opinion survey to gauge public views on trade practices like ladies' nights and gentlemen's nights, whether they agree that all trade practices which use concessionary prices to attract customers of a certain gender should be regarded as discriminatory on the ground of sex, and whether they agree to exempting such trade practices from the ambit of SDO, etc.; if they will, of the timetable and details of the consultation; if not, the reasons for that; and
(2) apart from exploring the views of the pubic, the authorities will consider taking the initiative to amend SDO to exempt from the ambit of the Ordinance those acts of offering ladies' nights and gentlemen's nights, etc. for business promotion done by operators of bar and catering services; if they will, of the details; if not, the reasons for that?
Reply:
President,
In consultation with the Equal Opportunities Commission (EOC), we would like to respond to the question raised by the Hon Cheung as follows:
As stated in our reply to the written question raised by the Hon Paul Tse on the same case at the Legislative Council meeting on May 4, the EOC is a statutory body established under section 63 of the Sex Discrimination Ordinance (SDO) (Cap 480) responsible for implementing the four existing anti-discrimination ordinances and keeping under review the working of these ordinances. It operates independently in accordance with the functions and powers stipulated by these ordinances. The Government does not interfere with the daily operations of the EOC.
According to the EOC, section 28(1) of the SDO provides that:
"It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a woman who seeks to obtain or use those goods, facilities or services -
(a) by refusing or deliberately omitting to provide her with any of them; or
(b) by refusing or deliberately omitting to provide her with goods, facilities or services of the like quality, in the like manner and on the like terms as are normal in his case in relation to male members of the public or (where she belongs to a section of the public) to male members of that section (Note)."
Section 28(1) of the SDO is applicable to all providers of goods, facilities or services, including bars, catering services, restaurants, etc. Currently, the law does not provide for any exemptions for business promotion and marketing behaviours.
According to the EOC, whether an individual case would constitute discrimination under the relevant Ordinance depends on the facts of the case. Broadly speaking, a differential treatment in the provision of goods, facilities or services arising solely from a customer's sex may be unlawful.
It is our understanding that the next step in the legal proceedings of the case referred to by the question is the assessment of damages, and the Judiciary will arrange a hearing date accordingly. As the legal proceedings of the case have not been concluded yet, it is inappropriate for the Government to make comments. As members of the community have expressed concern over the implications of the case, we wrote to the EOC on May 6 to invite it to consider, after the case has concluded, reviewing the implementation of the relevant provisions and, if necessary, making recommendations to the Government.
Every year, at the invitation of the Panel on Constitutional Affairs of the Legislative Council, a briefing is given by the EOC Chairperson to members of the Panel on the work of the EOC. We understand that the EOC Chairperson will attend the meeting of the Panel on June 20. Members may wish to learn more about the implementation of the four anti-discrimination ordinances by the EOC, the practical considerations in handling the relevant matters and discuss these issues directly with Prof Chan at the occasion.
Note: Section 6 of the SDO stipulates that the above provisions relating to sex discrimination shall be equally applicable to treatment of men and women.
Ends/Wednesday, June 8, 2016
Issued at HKT 11:50
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