A. Direct Discrimination
Ms. A is a Nepalese who applied for the position of receptionist. She impressed a potential employer with her excellent language skills in both Cantonese and English during a phone interview and was consequently invited to a face-to-face interview. But when Ms. A’s appearance revealed that she was of Nepalese origin, the potential employer told her that the position had already been filled and declined to interview her. A Chinese applicant with poorer qualifications was subsequently hired. Does this amount to racial discrimination?
Yes. This amounts to direct discrimination under section 4(1)(a) of the Race Discrimination Ordinance ("RDO"), because the employer treated Ms. A less favourably than another applicant on the ground of her race.
B. Indirect Discrimination
Mr. B is a Filipino who cannot read or write Chinese, but is fluent in spoken Cantonese. He applied for the position of security guard in the lift lobby of a residential building, with the responsibility of ensuring the safety of the residents by allowing access only to residents and verified visitors. In the interview, he was asked to take a written test in Chinese, but failed to complete it. He was not offered the job. Does this amount to racial discrimination?
Arguably, this case could be considered to be a form of indirect discrimination because the employer applied a criterion which, although applied to all candidates equally, would be harder for persons of particular racial backgrounds to meet. This could constitute indirect discrimination unless the employer was able to show that proficiency in reading and writing Chinese was a “genuine occupational requirement” for the job, an exception provided for under section 10 of the RDO.
In the example above, the rejection would probably constituted racial discrimination unless the employer could show that Mr. B could not have carried out his duties effectively as a security guard without the ability to read and write Chinese. Such a justification would invite the scrutiny of the courts as to whether a security guard needs to read and write Chinese to carry out his or her duties.
B. Indirect Discrimination
Mr. C is a Sikh. Hee needs to keep and maintain a beard as part of his religion. He works in a goods-packaging factory and was told that the company has a blanket ban on beards for health and safety reasons. It is known, however, that facemasks could be used as to address the safety and health concerns without requiring a person to shave off his beard. Is the requirement that Mr. C must shave his beard or face termination a form of racial discrimination?
Yes. This amounts to indirect discrimination pursuant to section 4(1)(b) of the RDO, because the blanket ban on beards is a requirement that, although applied equally to all persons, is likely to be to the detriment to persons similarly placed to Mr. B for reason that he could not comply with iton account of his religion. Furthermore, the ban would be unjustifiable, despite the apparent justification for the requirement, because there is a practicable alternative, which can fulfill the occupational need for meeting the health and safety requirements in question.
In general, any restriction prohibiting persons from wearing customary clothing (such as turbans) central to their identity is discriminatory, unless it can be shown that it is a necessary measure to protect the safety of the employee and that there are no practical alternatives which could achieve the same result without the discriminatory policy.
C. Discrimination by way of victimization
Mr. C in the above scenario finds out after perusing the CLIC website that he has a legitimate basis for complaining against his employer for the discriminatory policy. He is, however, concerned that he will be dismissed if he does any of the following:
- files a religious discrimination complaint;
- takes legal action;
- asks a colleague to act as a witness against racial discrimination; or
- asks a colleague or friend to help him lodge a complaint or take legal action.
Should he be concerned?
The act of treating a person less favourably than others because that person or a third person has taken an action that is protected under the RDO constitutes discrimination by way of victimisation. If the employer dismissed Mr. C for the legitimate exercise of any of these protected courses of action under the RDO, that would constitute discrimination by way of victimization and is prohibited pursuant to section 6 of the RDO.
D. Racial Harassment
Ms. D works in a restaurant and is the only Indonesian employee in the restaurant. Her colleagues call her “cha-mui” (female of East Asian origin), a name that she finds offensive. She wants to know if there is anything she can do about it.
The employer and her colleagues are guilty of racial harassment by reason of the unwelcome, abusive, insulting or offensive behavior of name-calling directed at Ms. D’s race, making her feel humiliated, embarrassed or even threatened.
Under section 7(1) of the RDO, racial harassment can take any form – physical, visual, verbal or non-verbal. Even a single incident may constitute racial harassment. The reference to her as ‘cha-mui’, therefore, violated the terms of the RDO because the verbal insult or unwelcome abusive language made Ms. D feel humiliated and embarrassed.
E. Racially Hostile Environment
Mr. E is of Pakistani descent and works as a clerk. He noticed that there were signs put up on a noticeboard in his workplace recently, which read “Pakistanis are terrorists! We don’t want terrorists in Hong Kong!” Although the signs were not directed at him personally, he felt extremely uncomfortable and offended given that the message suggested that some of his colleagues harboured a hostile attitude towards Pakistanis. Does this amount to the creation of a racially hostile environment?
Section 7(2) of the RDO protects employees against an intimidating work environment created by racially prejudiced or unwelcome conduct or behavior towards a person that interferes with the person’s work performance. To establish liability under section 7(2) of the RDO, the behavior in question does not need to be directly or consciously targeted at a particular person. It can be conduct of a general nature, verbal or otherwise, which gives rise to feelings of hostility towards people of a particular background, who would feel uncomfortable or prejudiced in such an environment. Mr. E’s case, therefore, would be a clear case of discrimination by creating a racially hostile environment.
F. Racial Vilification
Ms. F is a Nepalese. One day, whilst she was waiting for a bus at the bus stop, a Chinese male started shouting loudly, “I hate to see South Asians intruding into my homeland! They are so dirty. They eat with their hands! You there, don’t stand so close to her or you’ll get infected with the diseases she has!” The other people at the bus stop did not react to the statement; they simply looked away. However, Ms. F felt extremely upset and wanted to know if she had a claim under the RDO against the Chinese male.
Yes. The conduct of the man amounted to racial vilification under section 45 of the RDO. He engaged in conduct in public which incited hatred, serious contempt for, or severe ridicule of Ms. F because of her race. For the purposes of a claim of racial vilification, it does not matter whether other people were actually incited by the remarks.
F. Serious Racial Vilification
What if a situation similar to scenario above occurred but the man had instead shouted at Ms. F, saying, “I hate South Asians! Stay away from me or I will beat you up!”?
Since the racist incitement in this scenario involves the threat of physical harm, the man would probably have committed the offence of serious vilification pursuant to section 46 of the RDO, for which the maximum penalty is a fine of $100,000 and imprisonment for a maximum of two years.
Serious vilification also occurs if the threat is directed at the target’s property.
*Some examples are adapted from the publication entitled “Race Discrimination Ordinance and I” published by the Equal Opportunities Commission.