Following is a question by the Hon Paul Tse and a written reply by the Secretary for Constitutional and Mainland Affairs, Mr Raymond Tam, in the Legislative Council today (May 4):
Recently, the Equal Opportunities Commission (EOC) instituted legal proceedings on behalf of a man against the owner of an entertainment venue under the Sex Discrimination Ordinance (Cap. 480) (SDO), alleging that the “ladies’ nights” (i.e. charging male customers a higher admission fee than that for female customers) offered by that entertainment venue was discriminatory on the ground of sex. The court ruled in favour of EOC. It has been reported that a former Director of Public Prosecutions pointed out that should the authorities concerned disregard common sense and sound judgment when enforcing SDO, and waste time on such kind of frivolous lawsuits, it might instead result in members of the public feeling SDO repulsive. The press reports also pointed out that the new Chairperson of EOC once suggested entertainment venues launching “gentlemen’s nights” (i.e. charging female customers a higher admission fee than that for male customers) at the same time to “balance” the concessions for men and women. A spokesperson of the Hong Kong Bar & Club Association has pointed out that in the light of the aforesaid judgment and suggestion, entertainment venues may be coerced into offering gentlemen’s nights albeit loss-making, in order to avoid breaching the law inadvertently. In this connection, will the Government inform this Council:
(1) given that the man concerned in the aforesaid case reportedly lodged the complaint with EOC merely because he had been dissatisfied with the small number of female customers drawn to that entertainment venue by the ladies’ night, and that offering ladies’ nights is just a promotional gimmick of entertainment venues, whether the Government will, in the light of the comments by the aforesaid former Director of Public Prosecutions, consider taking the initiative to seek clarifications with EOC or following up on the aforesaid case by other appropriate means, so as to make it clear whether SDO’s original intent covers, and whether SDO should be applied to, ladies’ nights or other similar promotional gimmicks, i.e. the offering of concessions mainly for promoting goods and services;
(2) whether the Commerce and Economic Development Bureau (CEDB) will assess and consult the bar trade on the setback suffered by the bar trade, especially those bars situated in places frequented by tourists (including Lockhart Road, Lan Kwai Fong and Knutsford Terrace) as a result of the aforesaid judgment; whether CEDB has assessed the impacts on the bar trade if bars are coerced into offering gentlemen’s nights or cancel ladies’ nights although this may work against their economic interests;
(3) given that the aforesaid case has led to concerns raised by quite a number of business operators of different trades that the promotional gimmicks commonly used by them (e.g. concessions for Mother’s Day set meals offered by restaurants as well as different fees charged by hair and beauty salons for male and female customers) may be regarded as discriminatory on the ground of sex, thereby exposing them to the risk of lawsuits, of the policies and measures put in place by the Government and EOC to allay the concerns of the business sector;
(4) whether the authorities will advise EOC to draw up guidelines for the trades concerned so as to clarify that unless a business operator has an intention which is unreasonable or involves sex discrimination disproportionate to marketing and promotional efforts, EOC in general will not institute legal proceedings under SDO against any business practices and promotional gimmicks which primarily aim at providing concessions; if they will, of the details; if not, the reasons for that; and
(5) whether it knows if EOC, when in future considering whether to institute legal proceedings against a business operator on behalf of a complainant, will make reference to the comments by the aforesaid former Director of Public Prosecutions and give more regard to common sense and sound judgment so that EOC will be less susceptible to allegations of overcorrecting, acting frivolously or doing something for the sake of doing it?
In consultation with the Equal Opportunities Commission (EOC) and relevant departments, we would like to respond to the question raised by the Hon Tse as follows.
The EOC is a statutory body established under section 63 of the Sex Discrimination Ordinance (SDO) (Cap. 480). It is responsible for implementing the four existing anti-discrimination ordinances, and 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.
As the legal proceedings of the case referred to by the question have not been concluded yet, it is inappropriate for the Government to make comments. Nevertheless, as members of the community have expressed concern over the implications of the case, we will invite the EOC to consider, after the case has concluded, reviewing the implementation of the relevant provisions and, if necessary, making recommendations to the Government.
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, May 4, 2016
Issued at HKT 14:19