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Hong Kong Court of Final Appeal Provides Further Guidance on the Sex Discrimination Ordinance in the “Long Hair” Case

  • Hong Kong
  • Other

18-01-2021

This e-briefing discusses the implications of the case Leung Kwok Hung v. Commissioner of Correctional Services (FACV 8/2019) on employee dress codes.

In 2012, Leung Kwok Hung, a politician and activist who is widely known as “Long Hair” for his long hairstyle, was convicted in the Magistrates’ Court of criminal damage and disorderly behaviour and sentenced to imprisonment. At the correctional facility, he was required to have his hair (then about 80 cm long) cut pursuant to Standing Order 41-05 issued by the Commissioner of Correctional Services, requiring all male prisoners to have their hair cut ‘sufficiently close’ (‘盡量剪短’). The same Standing Order, however, provided that a female prisoner’s hair must not be cut shorter than it was when she was admitted unless she consents or there is a medical reason. This gave female prisoners significantly more choice on their hairstyle. Leung applied for leave to apply for a judicial review against the Correctional Services’ decision to cut his hair on the ground that this was a breach of the Sex Discrimination Ordinance) (“SDO”). The case was eventually brought to the Court of Final Appeal, and the key question before the Court was whether Standing Order 41‑05 constituted discrimination under the SDO by treating Leung “less favourably than female prisoners”.

The Law

Under s. 5(1) of the SDO, a person discriminates against a woman in defined circumstances if, on the ground of her sex, he treats her less favourably than he treats or would treat a man. This provision equally applies to discrimination against men).

The Court referred to a 4-step approach in establishing sex discrimination, namely:

  • there must be a difference in treatment between the complainant and another person of a different sex (the “compared person”);
  • the relevant circumstances between the complainant and the compared person are the same or at least not materially different;
  • it must then be shown that the treatment given to the complainant is less favourable than that given to the compared person;
  • the difference in treatment is on the basis of sex.

Given that Standing Order 41-05 provides for different treatment of male and female prisoners, steps (1), (2) and (4) are satisfied and were not seriously argued. The focus of the Court was on step (3). The Court has held that in determining whether the complainant is being treated less favourably, the Court should consider the context and determine objectively from the point of view of the complainant (i.e. whether there is a “reasonable ground” for the alleged discriminator to act as he or she did). The requirement to assess against the context is found in Section 10 of the SDO, which states that relevant circumstances must be taken into account. The Court referred this taking into account of the whole as the “package approach”.

The Package Approach

In order to consider the whole context, one would need to look at the objectives of the code, or underlying policy or reason for treating males and females differently.

This analysis consists of two layers:

  • identify a legitimate underlying objective behind the difference in treatments; and
  • assess the treatment of those affected against the standard that has been adopted by the code to determine whether males or females are disadvantaged compared to each other.

The difference between treatments must be reasonably connected with the stated objective, policy or reason.

As seen from case law, a dress code was not rendered discriminatory where it “applies a standard of what is conventional” (Smith v Safeway PLC). However, the Court in Leung’s case is of the view that there has to be some factual basis to support what is asserted to be conventions or conventional standards, and a mere assertion or subjective belief without more will be unlikely to overcome the evidential hurdle.

Interestingly, the Court also raised the question of “what if asserted conventions or conventional standards involve stereotyping”? In relation to this point, the Court confirmed that, generally speaking, a conduct will be considered discriminatory if there has been stereotyping. The object of the legislation is to ensure that each person is treated as an individual and not assumed to be like other members of the group. However, where it comes to conventions or conventional standards involving stereotyping, it is still a grey area in the law, and a question may arise as to the appropriateness of relying on such convention or conventional standards for the purpose of defeating an argument of less favourable treatment. For instance, can employers get away with a discriminatory claim if they require men to wear trousers and women to wear skirts? Unfortunately, this question was not answered in Leung’s case as the Court found that it was unnecessary to be addressed in Leung’s case, but the Court acknowledged that the point is capable of many nuanced arguments and is difficult conceptually and applied in practice.

The Case

The Court adopted the “package approach” in assessing whether Standing Order 41‑05 constituted discrimination under the SDO, focusing on whether Leung had been “treated less favourably than female prisoners”.

At the Court of Final Appeal, the Correctional Services’ argument was that:

  • the underlying objective the policy to cut male prisoners’ hair short was to foster custodial discipline by imposing reasonable uniformity and conformity among inmates; and
  • the restrictions were set by reference to the respective conventional standards for appearance for male and female inmates.

Therefore, males were not treated less favourably than female prisoners.

The Court accepted that custodial discipline is a legitimate factor to be considered, as a person can expect to be deprived of certain privileges or freedoms while in prison. However, it found that there was no reasonable connection between custodial discipline and the difference in treatments regarding the length of hair between male and female prisoners based on asserted conventional standards.

Further, the Court found that no evidence was put forward supporting the proposition that in Hong Kong society the conventional hairstyle for men is a short one whereas for women, hair can be long or short. In fact, the Court also commented that the hairstyles for men and women in Hong Kong are quite diverse. The Court found the suggestion that Standing Order 41-05 is intended to reflect conventional standards in hair length in society to be “unrealistic, if not bizarre”.

Considering the above, the Court found that Leung was being treated less favourably compared with female prisoners, and the Correctional Services had discriminated against him on the basis of sex, breaching the SDO.

Why is this Important to Employers?

As seen above, dress and appearance code in the work place may give rise to issues in relation to sex discrimination. In case of disputes, the Court will adopt a package approach to analyse if a complainant has been treated less favourably on the basis of sex.

In the employment context, the objective of a dress code in workplace may be to promote a concept of smartness on commercial grounds, which is accepted as a legitimate objective. The dress code might define the particulars of smartness for commercial reasons, for example a male employee is required to wear a collared shirt and tie at work (whereas female employees are not). This does not necessarily mean there is less favourable treatment towards male employees. The real issue is (1) whether a package that includes different treatments towards men and women, is directed at the objective of the dress code and (2) whether it imposes a particular disadvantage on one or other sex.

Generally speaking, employers should avoid stereotyping employees based on their sex, as the relevant conduct will be considered discriminatory.

We suggest employers to regularly review its dress codes for employees to ensure that:

  • the dress requirements have a legitimate objective;
  • any difference in treatment towards male and female employees is reasonably connected with the legitimate objective and not disadvantageous towards either group;
  • the dress code is reasonable having regard to the standard of our society today; and
  • if there is a dress code requirement for employees, such standards should be assessed carefully, having regard that stereotypical standards might be at risk of being discriminative.