Labour Law Paper gendered ageism

labour law (2012-2013)

A hypothetical Case of Gendered Ageism

UID: 2009077305

Word Count: 5,998

Introduction

Some jobs are not equally represented by both sexes. Airline

companies provide one of the best examples. Flights attendants are

predominantly females; pilots, males. At the same time, most

airlines in Hong Kong mandate their flight attendants to retire at the

age of 35 or 40; pilots, 60. Is it a mere coincidence that female-

dominated flight attendants are required to retire much earlier than

male-dominated pilots? Or is it an incidence reflecting our cultural

emphasis on the youth and beauty of females?

Gendered Ageism and flight attendants

Gendered ageism refers to the phenomenon of how age and

gender combine to from double jeopardy to women.1 Women are

valued in accordance to the conditions ascribed to their youth such

as sexual appeal.2 Researches in UK, Australia and US indicate that

women working in female-dominated occupations are especially

1 Helen Walker, Diane Grant, Mark Meadows and Ian Cook, “Women's Experiences and Perceptions of Age Discrimination in Employment: Implications for Research and Policy.” (2007) Social Policy and Society, 6, p 37-48.2 Ibid.

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vulnerable to gendered ageism.34

A 2007 research which investigated the post redundancy

recruitment experiences of flights attendants after the collapse of

Ansett, a major Australian airline group, reviewed the plight of flight

attendants.5 Flight attendants in Ansett aged 38 in average, which

was considered to be old, and only 12% of them were able to find

new job in the same position.6 In the case of Hopper and Others v

Virgin Blue7, 8 flight attendants took an airline to court, claiming age

discrimination in the recruitment process as among 750 applicants,

only 1 applicant aged above 35 was accepted.8 Researches reviewed

that “expectation of flight attendants are sexualized, duties in safety

and crisis management are overshadowed”.9 Flight attendants are

expected to provide sexualized services which emphasize

employees’ physical appearance, to expend “aesthetical labours as

3 Handy, Jocelyn and Davy, Doreen, “Reproducing gendered ageism: Interpreting the interactions between mature female job-seekers and employment agency staff”, Massey University, New Zealand. Available at http://www.mngt.waikato.ac.nz/ejrot/cmsconference/2007/proceedings/theopenstream/handy.pdf, last retrieved on 28 Apr 2013.4 Sian Moore, “No matter what I did I would still end up in the same position’: age as a factor defining older women’s experience of labour market participation”, (2009), Work, Employment & Society, 23,p 655-671.5 Weller, S., “The labour market prospects of older workers: What can a legal case teach us?”, (2007), Work Employment and Society, 21(3), p 413-37.6 Ibid.7 2006 QADT 9, Anti-discrimination Tribunal Queensland, Australia, 29 March 2006. 8 Ibid.9 See note 4 above

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they perform in an idealized feminine role”.10

10 Ibid.3

The hypothetical case of this paper

The employment of Cathay Pacific Airlines (“CX”) prior to 1993

was another instance of gendered ageism. Females were required to

retire at 40; males, 55.11 In light of the Sex Discrimination Ordinance

(Cap 480) (“SDO”) coming into effect in 1996, CX subsequently

applied a unified retirement age: 45. However, the retirement age of

flight attendants still falls short of that of pilots by 15 years. It would

be a case of age discrimination if there were relevant legislation in

Hong Kong. At the same time, researches aforementioned tell us

that it is a case of sex discrimination in which females working in a

female-dominated job are double-jeopardized by gendered ageism.

However, would it be legally recognised as sex discrimination under

the current legal regime of Hong Kong?

This author seeks to explore the above question via a

hypothetical case: a female flight attendant, (“F”), sues CX for sex

discrimination by comparing her retirement age, which is a term in

the employment contract12 (“the retirement term”), with that of a

male pilot. The analysis centers on the SDO, which is the main piece

of legislation governing sex discrimination in Hong Kong. It is

11 Helen Tsang v Cathay Pacific Airways [2002] 2 HKLRD 677.12 Ibid.

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modeled upon the Sex Discrimination Act 1975 (“SDA”) in UK.

Sex Discrimination in the employment context

The first issue is whether the retirement term falls within the

protected employment context of SDO. Scope of protected

employment context is governed by s 11 which relates to offering

employment, access to opportunities, terms of employment and

dismissal. The scope is much widened by s 11(2)(c) which prohibits

discrimination against females by “subjecting her to any other

detriment”. The retirement term would fall within “terms of

employment” (s 11(2)(b)) or “any other detriment” (s 11(2)(c)).13

Direct Discrimination and Indirect Discrimination

The next issue is whether the retirement term amounts to

discrimination. Discrimination under the SDO is dichotomized into

direct discrimination and indirect discrimination. According to s 5(1)

(a), direct discrimination is established if a female14 is treated less

favourably on the ground of sex. Equal Opportunities Commission v

Director of Education15 is an example. The government’s secondary

school placement operated in a way that girls had to obtain better

13 Ibid.14 The SDO applies equally to men as well, according to s 6.15 [2001] 2 HKLRD 690.

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academic performance than a boy in order to be enrolled into a

secondary school of equal bands under government’s banding

mechanism.

Section (5)(1)(b) deals with indirect discrimination. It targets

apparently gender-neutral requirements which in effect operate to

females’ detriment disproportionately. Three elements must be

established in order to prove indirect discrimination. Firstly, the

proportion of women who can comply with the requirement is

considerably smaller than the proportion of men. Secondly, the

employer cannot justify the application of the requirement on a

ground other than sex. Thirdly, the complainant suffers from a

detriment because of her failing to compile with it.

Indirect discrimination is not applicable in our case. The

retirement term is not an apparently neutral requirement but a

detriment per se because it shortens the employment life span.

Moreover, the first element cannot be satisfied because males and

females are equally capable of complying with the retirement term.

F would have to prove her case by direct discrimination. But s 5(1)

(b) would still be relevant in assisting the author’s argument as will

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be seen later.

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But for test

The test for direct discrimination is the but for test16: would the

claimant receive the less favourable treatment but for her sex. The

but for test is equally applicable in cases involving pregnancy

discrimination, which is tackled by the SDO, as well as cases

involving race discrimination under Race Discrimination Ordinance

(Cap 602) and disability discrimination under the Disability

Discrimination Ordinance (Cap 487).17 Therefore, cases involving

other type of discriminations would be relied on as well. The test is

objective which means that once discrimination act is found,

discriminatory intention on the part of the employment is irrelevant.

The complainant has the burden to prove her case on a balance of

probability.

The test is a two-part test.18 According to King v Great Britain-

China Centre19, in the first stage, the court would first compare the

treatment to the claimant to that of a comparator to see if there is

less favourable treatment. If less favourable treatment is found, the

16 R v Birmingham City Council, ex p Equal Opportunities Commission [1989] AC 1155, Secretary for Justice v Chan Wah [2000] 3 HKLRD 641.17 Rick Glofcheski (ed), Employment Law& Practice in Hong Kong, (Hong Kong: Sweet & Maxwell/Thomson Reuters, 2010), p 313.18 See n 17 above, p 317.19 [1992] ICR 416.

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court will proceed to the second stage to decide whether it is caused

by the prohibited ground of sex discrimination. The second stage is

subdivided into two parts. The court first decides if the facts points

to the possibility of discrimination. If so, the court will then look to

the employer for an explanation. If no explanation is put forward or

if the explanation is considered to be inadequate or unsatisfactory,

the court would legitimately infer sex discrimination.20 The two

questions are sometimes intertwined as will be explained later. 21

Sex Discrimination needs not be the sole ground

Before we proceed to the two-part test, it is convenient to first

deal with an argument likely to be put forward by CX. CX would

argue that even if F were a male, as a flight attendant, she would

still be subjected to the retirement term. Despite this argument

being true, it is not fatal to our case. Section 4 of the SDO provides

that if an act is done for two or more reasons; and one of the

reasons is sex , then the act shall be taken to be done for the reason

of sex.22 Prohibited ground is required to be one of the reasons,

20 Ibid.21 See n 17 above, p 315.22 Applied in Chang Ying Kwan v Wyeth (HK) Ltd [2001] 2 HKC.

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instead of the sole or dominant reason. For instance, assuming that

the F is required to retire earlier because of two reasons, one being

she is a female and one being she suffers from a diseases which

would lead to a rapid deterioration of health after the age of 45. If

the second reason is the dominant reason, she would still be

required to retire early even if she were a male. However, sex is still

a reason causing the unfavorable treatment and hence brining her

within the protection of the SDO.

Less favourable treatment

The question of whether the claimant has received a less

favourable treatment depends on to whom the court compares her

with. The comparator could be either actual or hypothetical, as s

5(1) (a) provides for “than he treats or would treat a man”. The

author argues that a male pilot in CX is an appropriate comparator

to F. This seems to go against the traditional wisdom of “comparing

an apple with an apple” which tells us that a male flight attendant

would make a perfect comparator. It ensures that the claimant and

the comparator are similarly situated and excludes all other

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differences which could have caused the differential treatment. If

the sole difference between A and B is their sexes, a differential

treatment must have been caused by the difference in sex.

However, it is impossible and unnecessary to require the

comparator to be identical to the applicant in all attributes except

for sex. Assuming A and B are exactly identical except in two

aspects: A is female and B is a male; A wears a white shirt to the job

interview and B, a blue one. They apply for the same job and A is

rejected while B is offered the job. Assuming A files a claim on sex

discrimination based on the less favourable treatment, comparing to

B, she has received. Would B be considered not as an appropriate

comparator because he has worn a shirt of different color to the

interview? Probably not unless color-matching and fashion taste is

one of the job requirement. While sex is not the sole difference

between them, common sense would probably tell us it is the cause.

The selection criteria in job application are understandably to be

those capable of indicating claimant’s work performance, such as

education and past qualification. In most cases, the color of shirt

worn is not indicative of future job performance and is, hence,

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irrelevant in determining who will get the job. As a result, the

difference in the colors of shirts would be eliminated as a cause for

the differential treatment. The remaining difference, sex, is very

likely to be have caused A’s rejection. The existence of differences

which are irrelevant in determining the outcomes does not prevent

us from making a meaningful comparison. This is probably the logic

behind s 10 (a) which provides that a comparison of the cases of

persons of different sex under s 5(1) shall be such that the relevant

circumstances in the one case are the same, or not materially

different, in the other. Section 10 (a) only requires the comparator to

bear same or similar attributes to the claimant as long as those

attributes are relevant.

In our case, it is not necessary to require the comparator to hold

the same occupation as F, unless occupation is one of the relevant

circumstances under s 10(a). This leads us to the question on what

circumstances are relevant.

Relevant circumstances in choosing an appropriate comparator

Relying on cases involving pregnancy discrimination under SDO,

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the author argues that occupation is not a relevant circumstance in

choosing the comparator. In Chang Ying Kwan v Wyeth (HK) Ltd23,

the claimant was a product manager in the Pharmaceutical Products

Division of the employer. She was forced to resign shortly after she

gave notice of her pregnancy. She refused. She was subsequently

refused salary increase and subjected to additional reporting duty. In

applying the but for test, the court ruled that the appropriate

comparator was an ordinary employee who was not pregnant. The

court did not require the comparator to be another product manager

in the Pharmaceutical Division. Reasons were not given but

presumably all the less favourable treatments received by Chang

would normally be independent of the position she held but her job

performance. In another pregnancy discrimination case, Lam Wing

Lai v Yt Cheng (Chingtai) Ltd24, again the court did not require the

comparator to hold the same position or occupation as the claimant.

These two cases demonstrate that occupation is not necessarily a

relevant circumstance in proving pregnancy discrimination, which,

as aforementioned, use the same but for test applicable in sex

discrimination. The author argues that F’s case is similar to Chang 23 [2001] 2 HKC.24 [2006] 1 HKLRD.

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Ying Kwan and Lam Wing Lai, and the comparator could be an

ordinary employee, including a pilot, of different sex.

Relevant circumstance and alternative reason given by the

employer

CX would probably attempt to differentiate Chang Ying Kwan

and Lam Wing Lai by arguing that the differential treatment in F’s

case is dependent on her occupation. The exact reason why the F is

subjected to the require term is because she is a flight attendant

and the retirement term is applicable to all flight attendants, males

and females alike.

The House of Lord decision in Ireland, Shamoon v Chief

Constable of the Royal Ulster25 is relevant here. The relevant

legislation in Shamoon is the Sex Discrimination (Northern Ireland)

Order 1976, which is modeled on the UK SDA and, hence, similar to

the Hong Kong SDO. Shamoon is affirmed by the Hong Kong Courts

in Sit Ka Yin Priscilla v Equal Opportunities Commission And

Others26. In Shamoon, the claimant was a female chief inspector

who did appraisals of the constables in the Urban Traffic Branch. Her

25 [2003] UKHL 11. House of Lords in Ireland, 27 Feb 2003.26 [2010] HKDC 251.

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appraisal duties were removed from her after complaints were

made about the way she did them. She was then dismissed and

made a claim under the Sex Discrimination (Northern Ireland) Order

1976.

She sought to prove less favourable treatment by comparing to

two male chief inspectors who were in the same branch and had the

same duties but who had not had complaints against them. The

employer objected to her choice of comparator on the ground that

the reason why she was dismissed was her having received

complaints. The court held in favour of the employer and ruled that

attributes would be relevant in choosing the appropriate comparator

if the existence of the attributes were offered as an explanation by

the employer as to why the applicant is unfavourably treated.27 Here

we can see that the two stages of the two-part test are intertwined.

Usually alternative explanation to the less favourable treatment to

the claimant other than on the prohibited ground would be sought in

the second stage: the causation stage. But the question of

comparator in the first stage is sometimes dependent on the

alternative explanation provided by the employer and two stages

27 See n 24 above.15

would collapse into one. For the ease of reading, this analysis would

use the two-stage structure.

CX could rely on Shamoon and insist that occupation is a

relevant circumstance. However, Shamoon shall be distinguished

from our case

Distinguishing Shamoon

The alternative explanation provided by the employer must be

satisfactory and adequate.28 Simply saying that “she is required to

retire earlier because she is a flight attendant” is insufficient. In

Shamoon, it is self-evident that having received complaints or not

(as an indicator for job performance) does have a bearing on the

decision of dismissal. Conversely, how the occupation of flight

attendants itself connects to an earlier retirement age than those

who work as pilots requires further elaboration. In fact, employment

in non-Asian countries demonstrates the opposite. 52 states,

including United States, Singapore and Thailand, etc, are parties to

the Convention on International Civil Aviation. It implements a policy

known as the Rule of 60 by which parties to the convention are

28 See n 19 above.16

allowed to exclude from their airspace any aircraft flown by a pilot

who had attained the age of 60.29 As a result, pilots in many western

airlines are required to retire at the age of 60 while flight attendants

are required to retire at 65 or there is no such limitation as all. For

instance, no retirement age is set for flight attendants in American

Airlines.30

Occupation should only be considered as a relevant

circumstance in choosing a comparator if CX can adequately and

satisfactory explain why the job nature of flight attendants requires

an early retirement, or, alternatively, other reasons similar to the

rule of 60 applied to pilots. Otherwise, CX would be allowed to

randomly pick up any sham to disguise the true cause. Assuming F

wears a ring. If CX argue that the comparator should be another

employee who wears a ring as well since wearing a ring is the

reason for earlier retirement. Without further elaboration, the

argument would probably be deemed absurd and rejected. The

occupation of F is in nature no different from her other attributes,

29 Article 39(b) and standard 2.1.10.1 in Annex 1 to the convention, available at http://www.icao.int/publications/Documents/7300_cons.pdf, last retrieved on 28 Apr 2013.30 Daily Mail Reporter, “American Airlines’s longest serving flight attendant, 72, retires at 53, after 8,000 journeys, available at: http://blog.aarp.org/2013/02/28/this-fact-about-flight-attendants-may-surprise-you/, last retrieved on 28 Apr 2013.

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including the accessories she wears, and should not be regarded as

a relevant circumstance automatically without satisfactory

explanation offered by CX.

The market force or customer preferences argument

In other jurisdiction, airlines often try to justify discriminatory

treatments to flight attendants by resorting to customer

preferences. For instance, US airlines sought to be exempted from

the relevant anti-discrimination provisions31 on the grounds that

youth and beauty of flight attendants conform to customer

expectation.32 If CX adduces evidence to show that occupation is a

relevant circumstance as customer prefers younger flight

attendants, the court must be vigilant to the potential sexist

element in the argument. The reason behind customers’ preferring

younger flight attendants may be premised on the fact that most

flight attendants are females and customers prefer younger

females. Customer preferences itself could be sexually

discriminatory. Accepting such reasoning would defeats the purpose

of the SDO. The purpose of anti-sex discrimination legislation is

31 Civil Rights Act 1964, Title VII. 32 See n 5 above.

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precisely because the market is sometimes discriminatory and the

courts must provide a counter-marjoritarian force to protect

disadvantaged individuals.

The US court has powerfully rejected the market force argument

and stated that “discriminatory expectation is not a justification for

further discrimination.” 33 In Qantas airways Ltd v Christie [1998]

HCA 18, the Australian high court decided that “Grounds for

expectations in anti-discrimination laws cannot be themselves be

discriminatory, this should be a principle holding regardless of the

plausibility of the reasoning behind discriminatory practice”34.

It is unlikely that CX would be able to provide a satisfactory

alternative explanation as why occupation itself, in the case of flight

attendants, requires an earlier retirement age. Hence, occupation is

irrelevant in choosing an appropriate comparator. Using F’s choice

of comparator, a male pilot in CX, a less favourable treatment is

evident as F is mandated to retire earlier.

Causation: is it on the ground of sex?

The author argues that an inference of sex discrimination could

33 See n 5 above.34 See n 5 above.

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possibly be drawn from two facts: 1) flight attendants are

predominantly females, and 2) flight attendants are less favourably

treated than pilots which are dominated by males (“the proposed

inference”).

The proposed inference relies on group approach comparison:

finding of sex discrimination against the individual female flight

attendants by comparing how flight attendants as a group,

representing females as a group, is treated in relative to pilots as a

group, representing males as a group.

Drawing inferences from facts

Although the burden of proof is on the applicant, the standard is

a civil one. In King v Great Britain-China Centre, which is applied in

Hong Kong in numerous occasions35, Neill LJ decided that courts

should bear in mind that it is unusual to find direct evidence of

[sexual] discrimination and most of the time courts have to draw

inference from facts. The outcome of the case will therefore usually

depend on any inference which is just and equitable to draw from

the facts according to the [relevant section of the SDO].

35 For example, Yeung Chung Waiv St Paul's Hospital [2006] HKEC 1360; Chang Ying Kwan v Wyeth (HK) Ltd [2001] 2 HKC.

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More importantly, Neill LJ further said that “[t]hough there will

be some cases where, for example, the normal selection of the

claimant for a post or for promotion is clearly not on [sexual]

grounds, a finding of discrimination and a finding of a difference in

[sex] will often point to the possibility of [sexual] discrimination.”

This means that the coexistence of differential treatment and

difference in sex should be treated as pointing to the existence of

sex discrimination. May LJ in North West Thames Regional health

Authority v Noone36 said that this is not a matter of law but “almost

a common sense”. In the present case, between F, a female flight

attendant, and a male pilot, the coexistence of difference in gender

and the differential treatments in terms on retirement age points to

sex discrimination.

A purposive, generous and liberal approach in interpreting the SDO

In Wong Lai Wan Avril v Prudential Assurance37, the court said

that in interpreting the SDO, a broad, purposive approach and

generous and liberal interpretation should be adopted.38 If possible,

36 [1988] ICR 813 at 822.37 [2009] 5 HKC 494.38 See n 17 above, p 308.

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the SDO should be construed to be consistent with the international

treaties applied to Hong Kong. The court should read SDO more

generously and liberally in order to protect the right against gender

discrimination as enshrined in the Basic Law, ICCPR as applied to

Hong Kong, Bill of Rights Ordinance and, in particular, CEDAW.

Article 25 of the Basic Law provides that all Hong Kong residents

shall be equal before the law. Article 1 of the Bill of Rights provides

that the rights shall be enjoyed without distinction of any kind,

including sex. Article 25 and 26 of the ICCPR provides that every

citizen shall have the right and the opportunity, without distinction

of sex, to access other rights provided in the Covenant. The notion

of gender equality runs through the entire CEDAW.

To give due regard to the imperative of gender equality as

enshrined in the Basic Law and the international treaties

aforementioned, the court shall be more prepared to draw inference

of sex discrimination from facts.

CEDAW and Equal Pay for Equal Value of work

CEDAW is of particular importance. The framework for Equal Pay

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for Equal Value of Work (“EPEV”), enshrined in article 11 of CEDAW,

infers, similar to the proposed inference, sex discrimination by group

approach comparisons. In order to comply with CEDAW, SDO should

be interpreted as being wide enough to allow the proposed

inference.

The Equal Pay for Equal Work (“EPEW”) framework deals with

sex discrimination in the case of females and males holding the

same positions but receiving different remuneration. However, in

the 70s, researches reviewed that the persistent pay-gap between

males and females was a result of the two sexes being segregated

into different jobs.39 It was found that female-dominated jobs were

being paid much less than male-dominated jobs, although the

female-dominated jobs have similar or higher values, as determined

by e.g. skills, efforts, responsibility, working condition40. In Ontario,

Canada, in the 80s, the pay of a fresh nurse was lower than that of a

tree trimmer.41 This could not be tackled by EPEW as the female

nurse and male tree trimmer held different jobs in that case. The

39 Peggy Kahn and Elizabeth Meehan, Equal value/comparable worth in the UK and the USA, ( London: The Macmillan Press Ltd,1992), p1-4.40 Example is based on the Canadian model, see s 11(2) of the Canadian Human Rights Act and the Equal Wages Guidelines 1986.41 R.S. Schreiber RN, DNS & E. Nemetz RN, MHSc, “Pay equity and nursing on Ontario: and ten years later”, (2000), International Nursing Review, 4, p97-105.

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concept of EPEV has subsequently been developed to allow sex

discrimination to be inferred by comparing female-dominated jobs

as a group to male-dominated jobs as a group.

Article 11 (d) of CEDAW states that “States Parties shall take all

appropriate measures to eliminate discrimination against women in

the field of employment in order to ensure… the right to equal

remuneration...and to equal treatment in respect of work of equal

value…” This Article, in Canada, is implemented by s11 (1) of the

Canadian Human Rights Act (“CHRA”)42 which provides that “[i]t is a

discriminatory practice for an employer to establish or maintain

differences in wages between male and female employees

employed in the same establishment who are performing work of

equal value”.

In the Supreme Court of Canada decision of PSAC v Canada Post

Corp.43, in paragraph 215 to 217, it is decided that:-

“Subsection 11(1) can thus be seen to have tackled the

problem of proof by enacting a presumption that, when men

42 Submission by Canadian Human Rights Commission to the United Nations Committee on the Elimination of Discrimination against Women, Sept 2008, available at: http://www2.ohchr.org/english/bodies/cedaw/docs/ngos/CHRC_Canada42.pdf, last retrieved on 28 Apr 2013.43 [2011] 2 F.C.R. 221, Supreme Court of Canada, 21 Feb 2008.

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and women are paid different wages for work of equal value that

difference is based on sex, unless it can be attributed to a factor

identified by the Commission in a guideline as constituting a

reasonable justification for it…section 11 of the [CHRA] is

addressing, primarily, a particular discriminatory practice

commonly known as systemic discrimination…The concept of

‘equal pay for work of equal value’ is, therefore, an attempt to

address systemic discrimination by measuring the value of work

performed by men and women.” (Italics supplied)

Therefore, in Canada, once a wage-gap between female-

dominated jobs and male-dominated jobs of equal value is found,

there is a rebuttable presumption that there is discrimination based

on the ground of sex. The Supreme Court’s reading of the purpose

of s 11(1) of CHRA is consistent with the purposes of CEDAW which

targets systemic discrimination as well.44 Systemic discrimination is

a type of discrimination which has arisen from various employment

policies and practices which often operate to the detriment of

44 For CHRA, see quoted judgement in PSAC v Canada Post Corp in the middle part of page 11; for CEDAW, see Achieving pay and employment equity for women-human rights and business development imperatives, available at http://www.cavalluzzo.com/publications/Reference%20documents/Achieving%20Pay%20and%20Employment%20Equity.pdf, last retrieved on 28Apr 2013.

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females.45 The detriment is not directed to every female individually,

but females as a group.

Article 11(d) of CEDAW draws inference of sex discrimination by

comparing female-dominated and male-dominated jobs. Although

there is no EPEV legislation comparable to s 11 of the CHRA in Hong

Kong, scholars argue that SDO is wide enough to cover EPEV46.

Moreover, this is also the view of the Hong Kong government in light

of its reply to CEDAW committee’s question on EPEV. 47 Article 11(d)

covers not just salary but also other aspects as encapsulated by the

term “treatment”. Therefore, the author argues that to interpret

SDO in compliance with CEDAW, the inference of sex discrimination

could be drawn from the differential treatment in terms of age of

retirement between male-dominated jobs and female-dominated

jobs.

CEDAW and gendered ageism in particular

The CEDAW committee has recognised the interactive effect of

45 See note 43 above, paragraph 217.46 For example, see Carole Petersen, Implementing Equal Pay for Work of Equal Value in Hong Kong: A Feminist Analysis, available at http://www.eoc.org.hk/eoc/upload/2006222104740102546.rtf, last retrieved on 28 Apr 2013.47 Ibid.

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sex discrimination and age discrimination. Women are experiencing

age discrimination in a way which is different from men, because of

their sex4849. CEDAW committee recognised that age discrimination

could amount to sex discrimination and call for government to

address the particular vulnerability of women against age

discrimination.

SDO allows an inference of discrimination by comparing men and

women as two groups

Drawing inference of sex discrimination based on group

approach comparisons could also be found in the SDO. Section 5(1)

(b) of the SDO provides that indirect discrimination is established if

a requirement is applied and the proportion of women who can

comply with the requirement is considerably smaller than the

proportion of men. As aforementioned, indirect discrimination is not

applicable in our case as all women and all men would be able to

comply with the requirement: retire at the age of 45. However, s

48 Ferdous Ara Begum, Ageing, Discrimination and Older Women’s Human Rightsfrom the Perspectives Of CEDAW Convention, available at http://www.globalaging.org/agingwatch/cedaw/cedaw.pdf, last retrieved on 28 Apr 2013.49 CEDAW General Recommendation No. 27, available at http://www2.ohchr.org/english/bodies/cedaw/docs/CEDAW-C-2010-47-GC1.pdf, last retrieved on 28 Apr 2013.

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5(1)(b) uses a group approach50 to comparison which is similar to

the proposed inference. Sex discrimination could be established

even though not all females fail to comply with the requirement and

hence suffer from a detriment. The underlying presumption of

indirect discrimination is that the requirement, which has a negative

impact on females disproportionately and which the employer could

not justify irrespective of the sex of the person to whom it is applied,

must be attributed to sex discrimination. It actually runs on a

parallel vein as the proposed inference.

The author, based on the reasons put forwards, argues that the

proposed inference could be drawn from the fact

Technicality: how to determine whether a job is female or male

dominated?

The distribution of the two sexes in a certain occupation could

be any combination falling between the two extremes in the

continuum. There is a technical question as to setting a cut-off of

gender predominance in order to qualify a job as a female or male

50 See n 17 above, p 325.28

dominated job. In Canada, this question is tackled by the Equal

Wages Guidelines 1986. S 13 of the Guidelines provides for

thresholds ranging from 55 percent to 70 percent depending on the

total number of members in the group.

Although there is no comparable legislation in Hong Kong, this is

not a bar to drawing inference from making group based

comparisons. Similar question would arise under indirect

discrimination as well since the court must decide how

disproportionate the impact to the two sexes have to be in order to

satisfy the requirement of s 5(1)(b) of the SDO. Courts may make

reference to other jurisdictions to make a decision. Moreover, as

May LJ said that drawing inference is not a matter of law but

common sense51, the lack of clear legislation does not prevent the

court form interpreting what amount to a sufficient gender

predominance for the purpose to inferring sex discrimination. In any

case, in Hong Kong, the predominance of females is more than 80

percent52, which should suffice to consider flight attendants as a

female dominated occupation.51 See above 17.52 Hong Kong Women’s Coalition on Equal Opportunities, Submission of shadow report to CEDAW Committee, June 2006, available at http://www.iwraw-ap.org/resources/pdf/Hong%20Kong_SR.pdf, last retrieved on 28 Apr 2013.

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Employer to offer alternative explanation

As aforementioned, if the facts point to the possibility of

discrimination, the court would then look to the employer for an

adequate and satisfactory explanation. Otherwise, inference of sex

discrimination could be legitimately drawn. As aforementioned, this

stage is intertwined with the first stage. Argument is similar as

aforementioned.

Shifting of burden

In other jurisdictions, for the finding of sex discrimination in

general, or sex discrimination specific to EPEV, there is a shifting of

burden to the employer in the second stage once a prima facie case

of sex discrimination is established. In UK, the shifting of burden is

codified by the UK Equality act 2012, which is enacted under the

Council Directive 97/80/EC.53 In US, the courts have interpreted that

Title VII of the Civil Rights Act 1964 which governs sex

discrimination in the employment context, to include such a shifting

53 Marguerite Bolger and Cliona Kimber, Sex discrimination law, (Dublin: Round Hall Ltd, 2000), p74-75.

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of burden.54 Canada has adopted such a shifting of burden as well.55

The author argues that adopting the shifting of burden approach

would be more inconsistent with the imperative of protecting the

right to equality as enshrined in the Basic Law and international

treaties. However, Hong Kong courts have decided that there is no

shifting of burden to the employer at any stage. The conclusion

must be reached on the balance of probability, bearing in mind both

the difficulties which face a person who complains of unlawful

discrimination and the fact that it is for the complainant to prove her

case.56

Fall-back position: anti-age discrimination legislation

The author argues that, as explained above, the SDO is wide

enough to allow the proposed inference to be drawn. The court

should find in favour of F for her claim on direct sex discrimination.

However, understandably, the court would be very reluctant to

accept this argument under the current legal regime. The unfairness

54 For example, see Betty Warren v Solo Cup Company 516 F.3d 627, United States Court of Appeals, 20 Feb 2008.55 See n 17 above.56 Yeung Chung Waiv St Paul's Hospital [2006] HKEC 1360.

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inflicted on the plaintiff could then only be righted by anti-age

discrimination legislation. Most anti-age discrimination legislations

in other jurisdictions provide for the exception of “genuine job

requirement”. In Australia, it is termed as “inherent job

requirement”57; in US, bona fide occupational qualification58.

Assuming, hopefully, Hong Kong will enact anti-age discrimination, it

is likely that it will adopt one similar to the “genuine occupational

qualification” (“GOQ”) exception provided in other discrimination

ordinances in Hong Kong59. The author would suggest adopting a

closed list of GOQ as in other discrimination ordinances in Hong

Kong, instead of modeling on the US or Australia regime to provide a

general and open-ended list. The latter may encourage employers

to stretch the meaning of GOQ to fit into different discriminatory

practice which would compromise the right against age

discrimination.60

However, anti-age discrimination legislation would only tackle

the problem of gendered ageism. There are other discriminatory

57 Industrial Relations Act 1988 , Section 170DF(1)(f)58 United States Code, Title 29, Chapter 14, Section 623.59 s.12 of the SDO, s 12 of the Disability Discrimination Ordinance, s 11 o the Race Discrimination Ordinance.60 E.g. see Qantas airways Ltd v Christie [1998] HCA 18, High Court of Australia, 19 Mar 1998.

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practices which are indirectly applied to females via applying to a

female-dominated job. Those practices could only be eliminated by

allowing the use of a group approach in comparison to infer sex

discrimination.

Conclusion

Job segregation must be understood against the backdrop of

historical male domination in the labour market. It provides ample

space for discriminatory practices against females by applying

asymmetrical requirements to female-dominated jobs and male-

dominated jobs. Strict adherence to a finding of sex discrimination

only by comparing persons holding the exact same occupation

would leave many victims without remedies. To protect the right to

gender equality as enshrined in the SDO, an inference of sex

discrimination shall be allowed to be drawn by comparing female

dominated job as a group to male dominated job as a group.

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