2. Further to question 1, do employers have to prove the existence of genuine occupational qualification (GOQ) as an exception for sex discrimination if they are being sued or if complaints have been made against them? What would happen if only part of the duties of a job involve gender/sex as a GOQ?
GOQ is not an automatic exception for sex discrimination. In each case it will be necessary for the employer, who claims GOQ as an exception or defence, to show that GOQ applies to the particular job in question. (For details of the grounds for proving GOQ, please go back to question 1.)
In a case where the job involves a number of duties but only some of the duties form the basis for sex being a GOQ, then GOQ may not be relied on as an exception for sex discrimination if the following conditions exist:
- At the time of recruitment, the employer already has existing employees of the opposite sex to the job applicants, and such employees are capable of performing the duties which would require the job holder to be of a particular sex;
- It would be reasonable for such employees to carry out those duties; and
- The number of such employees is sufficient so as not to cause undue inconvenience for the employer.
An example may help illustrate the above. There is a vacancy for a sales assistant in the women's section of a department store where all the existing sales assistants are females. The employer refuses to consider appointing a man as the job involves taking body measurements and assisting customers in fitting. The employer also considers that the job must be held by a female to preserve decency or privacy within the meaning of the GOQ exception.
However, the employer's refusal in this case may be unlawful. He or she may not rely on the GOQ exception because there are other female assistants working in the same store. The female assistants can help take body measurements of female customers, or assistcustomers in fitting on occasions where it is necessary, and the relevant male applicant can perform the other normal duties of the job in question.
It is recommended by the Equal Opportunities Commission that a job for which a GOQ was used in the past should always be re-examined if the post becomes vacant to see whether the GOQ still applies. Circumstances may well have changed and the GOQ may no longer be inapplicable.
For more information regarding sex discrimination on employment matters, please refer to the Code of Practice on Employment under the Sex Discrimination Ordinance (issued by the EOC).