Helper forced to take pregnancy test wins sexual discrimination case against Hong Kong employer

Judge wrote that ‘whether a female employee is pregnant is a private matter about which the employer has no right to know’

PUBLISHED : Thursday, 19 January, 2017, 8:03pm
UPDATED : Thursday, 19 January, 2017, 11:36pm

An Indonesian domestic worker has won a sexual discrimination claim against her former employer after claiming she had been forced to take a pregnancy test by urinating in a potty.

In a judgment handed down on Thursday, District Court Judge Lee Wan-tang said that although Waliyah stopped short of proving she was forced to take a “mandatory” test – and that even she wanted to know the result – it was still “a private matter”.

Accepting the argument of the helper’s lawyers, Lee wrote “whether a female employee is pregnant is a private matter about which the employer has no right to know”.

He also said by asking her helper to undergo a pregnancy test, her employer Chan Man-hong subjected her to “less favourable treatment” based on her gender.

“A male employee would not be asked to take such a test and to disclose his private information to the employer,” he wrote.

Waliyah lodged her claim for compensation in 2015under the Sexual Discrimination Ordinance, claiming that she was forced to urinate for a test in 2013 by Chan and Chan’s husband Terence Yip Hoi-sun. She also sued them for their subsequent dismissal.

Chan, a mother of one, was the only one who attended the trial, as the court failed to contact her former husband after they separated.

The helper, who came to Hong Kong in 2008, started working for the Yips in 2012 until one morning in October 2013, she was asked by Chan to urinate in a potty for a pregnancy test.

Although Waliyah claimed in a court document that she was forced to undergo the test, she later testified in court that she was only asked by Chan instead. The helper said she even volunteered because she wanted to know whether she was pregnant or not.

The judge also found it more probable that the helper raised with Chan the possibility of getting an abortion in Hong Kong, as the helper testified that she did not want to return to Indonesia to give birth to the “illegitimate” child fearing that her parents would know. The baby has been given up for an adoption.

“The absence of a subjective intention or motive to discriminate … would not prevent an act from being discriminatory against an employee,” Lee wrote, citing a past case.

He added that the helper’s compliance, albeit voluntary, could have been the result of her subservient character and ignorance of her legal rights.

But he also found that only Chan’s ex-husband, Yip, a “dominating husband who was disrespectful towards to his wife”, was responsible for Waliyah’s dismissal. Chan was even reluctant to let the helper go.

The judge asked them to schedule the case to a later day for both sides to discuss damages arising from Chan’s discrimination.