ANTI-DISCRIMINATION

I. Introduction to the existing anti-discrimination ordinances in Hong Kong

Before introducing Hong Kong's existing anti-discrimination ordinances, it will be helpful for you to have a general idea of what is considered to constitute discrimination in Hong Kong.

"Direct discrimination" occurs when a person is treated less favorably than another person of the opposite sex, with a different marital status, who is not pregnant, who does not have to take care of his/her child, or who does not suffer mental/physical disability, or of different race.

In order to prove discrimination, there must be a comparison of treatment. For example, discrimination may occur if you are rejected for a job because the employer wants to appoint a person of the opposite sex (with similar working experience and educational background). Another example of direct discrimination is that you are single and pregnant but your employer says that maternity benefits only available to those employees who are legally married.

"Indirect discrimination" occurs when a condition or requirement, which is not justifiable, is applied to everyone, but in practice it adversely affects persons of a particular sex or marital status, those who have to take care of their children, those who are pregnant, or those who have mental/physical disabilities, or those on the basis of his/her race. Example: You are not able to work overtime because you are pregnant. Your employer penalizes you for not working overtime, but your employer cannot prove that the overtime requirement is necessary for all employees.

A person (or company) who directly or indirectly discriminates against another person may incur legal liabilities.

The above section briefly introduces the various types of discriminatory conduct that are regulated under the existing anti-discrimination ordinances in Hong Kong. This section also explains the general meanings of "direct discrimination" and "indirect discrimination", and the functions of the Equal Opportunities Commission.

1. What are the major anti-discrimination ordinances in Hong Kong?

The Hong Kong Bill of Rights Ordinance (Cap. 383) generally stipulates that all persons are equal before the law and the law shall prohibit any discrimination on any ground. This principle is materialized through the enactment of the following four ordinances:

• Sex Discrimination Ordinance (Cap. 480)
• Disability Discrimination Ordinance (Cap. 487)
• Family Status Discrimination Ordinance (Cap. 527)
• Race Discrimination Ordinance (Cap. 602)

The Sex Discrimination Ordinance ("SDO") and the Disability Discrimination Ordinance ("DDO") were implemented in two phases. The non-employment related provisions came into effect on 20 September 1996. The remaining employment related provisions were brought into force on 20 December 1996.

It is unlawful under the SDO to discriminate against or harass a person on the grounds of sex, marital status or pregnancy in the following areas of activity:

• employment;
• education;
• provision of goods, services or facilities;
• disposal or management of premises;
• eligibility to vote for and to be elected or appointed to advisory bodies;
• participation in clubs;
• activities of the Government;
• practising as barristers (any offer of pupilage and training provided to barristers).

Under the DDO, it is unlawful to discriminate against, harass or vilify a person with a disability in public, or discriminate or harass a person on the grounds of disability in the following areas of activity:

• employment;
• education;
• provision of goods, services and facilities;
• access to premises;
• disposal or management of premises;
• participation in clubs and sporting activities;
• activities of the Government;
• practising as barristers (any offer of pupilage and training provided to barristers).

Starting from 21 November 1997, it is unlawful to discriminate against a person who has "family status". "Family status" generally means the status of having responsibility for the care of an immediate family member. An "immediate family member", in relation to a person, means someone who is related to the person concerned by blood, marriage, adoption or affinity. The areas of activity for which a person may lodge a complaint under the Family Status Discrimination Ordinance ("FSDO") are the same as those under the SDO.

The Race Discrimination Ordinance ("RDO") is an anti-discrimination law enacted in July 2008. The RDO has come into operation since 10 July 2009. Under the RDO, it is unlawful to discriminate, harass or vilify a person on the ground of his/her race in the following areas of activity:

• employment;
• education;
• provision of goods, facilities or services;
• disposal or management of premises;
• eligibility to vote for and to stand for election to public bodies, etc;
• offering of a pupilage or tenancy in a barrister's chambers;
• participation in clubs.

2. What are the functions and duties of the Equal Opportunities Commission (EOC)?

The Equal Opportunities Commission is a statutory body set up in 1996 to implement the Sex Discrimination Ordinance ("SDO"), the Disability Discrimination Ordinance ("DDO"), the Family Status Discrimination Ordinance ("FSDO") and the Race Discrimination Ordinance ("RDO") in Hong Kong. It is an independent body and is publicly funded by the Government. Generally speaking, it works towards the elimination of discrimination on the grounds of sex, marital status, pregnancy, disability, family status (in relation to those who need to take care of their family members) and race.

The Commission undertakes the following three major functions:

a) Investigation and Conciliation

• it investigates complaints lodged under the SDO, the DDO, the FSDO and the RDO;
• it encourages reconciliation between parties in dispute;
• it may provide assistance in respect of legal proceedings before the District Court (where reconciliation fails) if the complainant chooses to take his/her case to court; and
• it initiates formal investigations that are in the public interest.

b) Legislation, Codes of Practice and Guidelines

(*Note: The Codes of Practice are not equivalent to the ordinances, but any contravention of the Codes may be used as evidence in legal proceedings against the relevant discriminators. Examples of the Codes of Practice issued by the Commission include: Code of Practice on Employment , the Code of Practice on Education under the Disability Discrimination Ordinance and the Race Discrimination Ordinance Code of Practice on Employment.)

• the commission issues Codes of Practice (*note) and guidelines on the elimination of discrimination and the promotion of equal opportunities;
• it keeps the SDO, the DDO, the FSDO and the RDO under review, and proposes amendments to the Government where necessary.

c) Education and Promotion

• the commission creates better understanding of discrimination and inequality through research and public education;
• it coordinates and communicates with the Government and non-Government organizations on issues of equal opportunities.

II. Sex Discrimination

Discrimination on the basis of sex, marital status, pregnancy and sexual harassment are prohibited under the Sex Discrimination Ordinance ("SDO"). The law applies to both females ( section 5 of the SDO) and males ( section 6 of the SDO) and covers the following eight fields:

• employment;
• education;
• provision of goods, services or facilities;
• disposal or management of premises;
• eligibility to vote for and to be elected or appointed to advisory bodies;
• participation in clubs;
• activities of the Government;
• practising as barristers (any offer of pupillage and training provided to barristers).

Although the provisions of the SDO also apply to the Government, some areas are exempt from the law. These include:

• acts performed under any immigration legislation;
• entry into and departure from Hong Kong;
• acts done for the purpose of complying with the requirements of other existing statutory provisions (e.g. different physical requirements between male and female police officers, and other exceptions listed in schedule 5 of the SDO).

If you are being discriminated against because of your sex, marital status or pregnancy, you may find the above section useful. This section also covers sexual harassment.

1. Can an employer refuse to employ me because of my gender/sex? Under what circumstances can an employer use "genuine occupational qualification" as an excuse for sex discrimination?

It is unlawful for an employer to discriminate against a job applicant or an employee on the basis of gender/sex. However, if a person's sex is a "genuine occupational qualification" (GOQ) for the job (i.e. the job can only be done by a male or female), it is then not unlawful. In other words, if the job can only be done by a man, the employer is entitled to appoint a male employee and accordingly will be exempt from any liability regarding sex discrimination in recruitment, promotion, transfer or training in respect of that job.

This is not the same as the employer thinking or just guessing that males (or females) are not suitable for a particular job. For example, the employer may have violated the Sex Discrimination Ordinance if he/she thinks that only a female can take up the post of secretary, and then specifies that requirement on the relevant job advertisement. The GOQ must reflect that the job can only be done by a particular sex for essential reasons. For example, a retirement home may want to hire female attendants to help with providing intimate care to female retirees.

With reference to section 12 of the SDO, the circumstances under which sex is a GOQ for a job are highlighted below:

• The essential nature of the job requires a man or a woman because of physiology or for authenticity in dramatic performances or other entertainment. For example, in the modeling of clothes to be worn by a particular sex, or playing the role of a particular sex in a film.
   
• The job requires a man or a woman to preserve decency or privacy. For example, the requirement of a male to work as an attendant in a male changing room.
   
• The job is likely to involve the employee working or living in a domestic setting and the employee will have significant physical or social contact with the person living there. For example, domestic helpers or companions to elderly people.
   
• The nature of work or the working location requires the employee to live in premises provided by the employer and the only available premises do not provide both separate sleeping accommodation and sanitary facilities for either sex. For example, working on a small boat or at a remote site.
   
• The employment establishment/organization is a single-sex company or in a single-sex part of a company where people receive special care, supervision or attention; and the essential character of that company or the part of it requires a person of the same sex to do the job. For example, a male warden in a male prison or a female attendant working in a section of a hospital for female patients only.
   
• The holder of the job provides individuals with personal services promoting their welfare or education, or similar personal services, and such services are most effectively performed by one sex. For example, a female counsellor at a shelter home for battered women or a female social worker at a girls' home.
   
• The job needs to be held by a man (or a woman) because it is likely to involve the performance of duties outside Hong Kong in a place where the customs or laws do not permit a woman (or a man) to effectively perform such duties. For example, a sales manager who is required to negotiate business deals in a country where the customs would forbid the involvement of a woman.
   
• The job is one of two to be held by a married couple. For example, where a married couple is employed as foster parents at a children's home.

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:

1. 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;
2. It would be reasonable for such employees to carry out those duties; and
3. 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).

3. How would a person's age co-relate to sex discrimination? Is it unlawful if different age requirements are applied to males and females when they apply for jobs or obtain goods/services?

In case a different age requirement is applied to men and women when they apply for a job, or obtain goods or services (or have dealings in relation to other specified fields), the relevant employer or goods/services provider may have committed sex discrimination.

An example can be found in a Court of Appeal case in 2001 ( Helen Tsang v Cathay Pacific Airways Ltd.). In this case, the employer had applied a different retirement age to male flight attendants (who retire at the age of 55) and female flight attendants (who retire at the age of 40). It was held that such policy was contrary to the Sex Discrimination Ordinance. (Note: The above case is only used to help illustrate the answer to the subject question. It does not represent the existing staff retirement policy of the above mentioned company.)

4. What is sexual harassment? Under the Sex Discrimination Ordinance, is sexual harassment prohibited in all environments?

Sexual harassment is any unwelcome or uninvited sexual behaviour which is generally regarded as offensive, humiliating or intimidating. This includes unwelcome sexual advances or unwelcome requests for sexual favours . The harasser may incur legal liabilities and may be liable to pay compensation to the victim.

According to section 2(5) and section 2(8) of SDO, acts of sexual harassment can be done by any person to a man or a woman. The provisions concerning sexual harassment also apply to homosexual relations. For example, a man can be sued under the SDO if he sexually harassed another man, and likewise a woman who harassed another woman.

Acts of sexual harassment may be carried out directly or indirectly in physical or verbal forms. Here are some examples:

• unwelcome physical contact (e.g. hugging, kissing or touching);
• staring or leering;
• brushing up against the body;
• intrusive questions about one's private life;
• sexually offensive gestures.

Sexual harassment also includes the creation of a sexually hostile or intimidating work environment by engaging in unwelcome or uninvited sexual behaviour, for example

• sexually suggestive comments or jokes;
• displaying sexually explicit pictures or posters;
• insults or taunts based on sex;
• wolf whistling.

(Note: The forbiddance of creating a sexually hostile or intimidating work environment under the current provisions of the SDO does not apply to the other environments except in the workplace/employment related environments.)

Some acts of sexual harassment may even amount to criminal offences in which the harasser may be liable to a fine or imprisonment, for example:

• making obscene phone calls;
• indecent exposure;
• sexual assault (indecent assault or rape).

In reply to the second part of the subject question, you should note that the provisions of the SDO which govern sexual harassment do not apply to all environments. Broadly speaking, they only apply to the workplace/employment related environment and educational establishments. For the latter one, note that sexual harassment is not only prohibited between teachers and students, but it is also prohibited among students themselves. The third situation in which the provisions may apply is during the provision of goods, services and facilities. Section 40 of the SDO tells us that it is unlawful for the goods/services/facilities providers to sexually harass their customers/recipients, and vice versa.

5. What can you do if you are sexually harassed?

Ignoring sexual harassment does not make it go away, but may make it worse because the harasser may misinterpret no response as approval of the behaviour. The Equal Opportunities Commission has recommended some informal and formal strategies that can be used:

• Speak up at the time. Tell the harasser that his/her behaviour is unwelcome and has to stop;
• Keep a written record of the incidents, including dates, time, places, presence of any witnesses, nature of the harassment (what the harasser said and did) and your responses;
• Tell someone you trust;
• Identify an expert or counsellor who can provide emotional support and information about informal and formal institutional procedures;
• Write a letter/note to the harasser;
• Report it officially (e.g. to a senior staff in the company or the school principal);
• Complain to the Equal Opportunities Commission (please refer to Part VI: How to Complain);
• Contact the police and/or file a lawsuit.

The judgment of a District Court Equal Opportunities Action in 2000 (please click here if you want to read the whole judgment) has explained that whether or not sexual conduct is unwelcome and unlawful depends on two questions: i) whether the complainant welcomed or accepted the conduct at the relevant time (but not whether a "reasonable person" would have welcomed it); and ii) whether the circumstances were such that the harasser should have realized that his/her approaches were unwelcome.

Most sexual harassment court cases requires the victim to prove that "unwelcome sexual conduct" has occurred, therefore, it is very important that you expressly tell the harasser to stop right at the beginning of the incident. Otherwise, you may have great difficulty proving the existence of "unwelcome sexual conduct" if you subsequently lodge a complaint or institute legal proceedings.

6. If an incident involving sexual harassment happened in an office or another part of the workplace, to what extent may the employer be held responsible or liable?

With reference to section 46 of the SDO, employers may also be liable for acts of sexual harassment committed by their employees in the course of employment, regardless of whether or not the acts were done with the employers' knowledge or approval. However, it is a defence for the employers to show that they have taken reasonably practicable steps to prevent employees from committing such acts. The Code of Practice on Employment under the Sex Discrimination Ordinance (issued by the Equal Opportunities Commission) contains some practicable steps or guidelines for employers' reference. The important points are highlighted below:

• employers should issue a policy statement to employees which expressly states that sexual harassment at work is unlawful and will not be permitted;
• the statement should also expressly state that employees have a right to complain if they are suffering from sexual harassment;
• a co-ordinator, preferably with special training, should be designated to establish and administer both formal and informal complaints procedures.

There may be both formal and informal ways of dealing with complaints of sexual harassment. The two approaches are both valid and can be included in a sexual harassment policy. The approach to take will usually depend on the wishes of the complainant. Employers need to set out clear procedures for both approaches and make the information available to all staff. This is particularly important in helping staff to understand the steps involved when making a complaint of sexual harassment.

Confidentiality would also strengthen any policy regarding handling sexual harassment. In short, any information relating to a complaint of sexual harassment must only be given out on a need-to-know basis. Employers need to ensure that managers understand this principle when dealing with such complaints. Adopting such a principle gives assurance to the complainant or potential complainant that management appreciates the sensitive nature of sexual harassment and that the details of complaint will not be disclosed to other colleagues.

For more information on how to formulate a policy on handling sexual harassment at work, please refer to clauses 19 – 22 of the Code of Practice.

7. What is marital status discrimination?

Marital status discrimination occurs when a particular marital status is required without reasonable or substantial grounds. Examples include a landlord only renting a flat to married persons ( section 29 of the SDO), or an employer giving different benefits to employees who are single, married or divorced where such benefits are not related to their work performance ( section 7 of the SDO).

Note that marital status discrimination is different from family status discrimination (see Part IV: Family Status Discrimination).

8. Can an employer refuse to employ a job applicant because she is pregnant?

The following acts may be considered as pregnancy discrimination:

• an employer refuses to hire a pregnant woman (but not because her qualifications or capabilities are inadequate for the job);
• an employer dismisses a pregnant woman, or transfers her to a lower paying position;
• an employer dismisses a woman on her return from maternity leave.

It is unlawful to discriminate against a job applicant because she is pregnant ( section 8 of the SDO). If a pregnant woman is the best qualified candidate, she should be selected for the job. However, if the position is a temporary one that requires the work to be done within a short period of time, it may be reasonable for the employer not to employ a pregnant applicant.

There is a case study about pregnancy discrimination on the Equal Opportunities Commission website.

9. Can an educational establishment or a service provider refuse to provide services or facilities to me because of my sex, pregnancy or marital status?

It is unlawful for a service provider to refuse to provide goods, services or facilities on the basis of sex, pregnancy or marital status ( section 28 of the SDO).

Under section 25 of the SDO, it is also unlawful for an educational establishment to deny admission to, or expel a student, because of these reasons (except in the case of a single-sex school).

10. What if I receive even worse treatment after I have lodged a complaint? If my friend is being discriminated against because he acts as a witness for me, can my friend also lodge a complaint?

This treatment is considered as "victimisation", which is prohibited under section 9 of the SDO. The law protects complainants as well as witnesses against victimisation. If such treatment occurs, you and your friend should immediately inform the people who are dealing with your complaint (e.g. your organisation's complaints officer, staff representative, solicitor, or the Equal Opportunities Commission, depending on the course of action you have chosen).

For more details on how to lodge a complaint, please go to Part VI: How to Complain.

III. Disability Discrimination

Referring to section 2(1) of the Disability Discrimination Ordinance ("DDO"), a disability means:

• total or partial loss of the person's bodily or mental functions;
• total or partial loss of a part of the person's body;
• the presence in the body of organisms causing disease or illness (such as HIV/AIDS);
• the presence in the body of organisms capable of causing disease or illness;
• the malfunction, malformation or disfigurement of a part of the person's body;
• a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction (e.g. learning difficulties); or
• a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

A disability includes not only a disability that presently exists, but also a disability which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.

The DDO protects any person with the above disabilities against discrimination, harassment or vilification (see question 1) in the areas of:

• employment (including partnerships, trade union memberships, vocational training, etc.);
• education;
• access to premises (property that can be accessed by the public);
• disposal and management of premises (including private property);
• provision of goods, services and facilities;
• clubs and sporting activities;
• Government activities;
• practising as barristers (any offer of pupillage and training provided to barristers).

This protection also extends to the associates (such as spouses or parents) of the disabled persons. In other words, even if you are not a person with a disability, you are still protected under the law if:

• you are associated with another person with a disability, and you are discriminated against because of your association with the disabled person (an associate includes a spouse, another person living with a person with a disability, a relative, a care taker, or a business/sporting/recreational partner);
• you are imputed to have a disability (being considered as having a disability) and you are discriminated against because of this;
• it is believed that you may have a disability in the future, and you are discriminated against because of this.

The types of disability discrimination covered in the above section include: physical disability, mental handicap, mental illness, hearing impairment, visual impairment, chronic (persistent) illness and HIV/AIDS.

IV. Family Status Discrimination

Under section 2 of the Family Status Discrimination Ordinance ("FSDO"), family status means the status of a person who has the responsibility for the care of an immediate family member. An immediate family member is a person who is related by blood, marriage, adoption or affinity. The types of blood relationships covered include mother, father, brother, sister, son, daughter, grandmother, grandfather, grandchild, aunt, uncle, cousin, nephew and niece. The relationship of marriage is that of a husband and wife who are lawfully married. The relationship of adoption is that of a child who is lawfully adopted by a person who is not his/her natural parent. Relationships of affinity are those created by marriage, and include, for instance, mothers-in-law and fathers-in-law.

Direct discrimination may occur when a person is treated less favourably than another person on the grounds of family status. For example, a woman is transferred to a less favourable job after childbirth because her employer thinks that she has to take care of her child and will not be able to take business trips.

Indirect discrimination may occur when a condition or requirement that is not justifiableis applied to everyone, but in practice adversely affects persons who have family status. For example, a company insists that all its employees work overtime and a widower who has to take care of his young children cannot comply with that condition. The company then dismisses him. The widower feels aggrieved because, as a single parent, he cannot comply with that condition. If the company cannot justify why each and every employee must work overtime, this could be a case of indirect discrimination on the grounds of family status.

A person who has a family status is protected in the following areas:

• employment;
• education;
• provision of goods, facilities or services;
• disposal or management of premises;
• eligibility to vote for and to be elected or appointed to advisory bodies;
• participation in clubs;
• activities of Government;
• practising as barristers (any offer of pupillage and training provided to barristers).

If you are being discriminated against because you have to take care of a family member(s), the above section will tell you more about your rights and protection.

V. Race Discrimination

Under the Race Discrimination Ordinance ("RDO"), it is unlawful to discriminate, harass and vilify a person on the ground of his/her race. With the RDO in place, people of different races can live and work as one community. The RDO offers protection in several areas including the following:

• employment;
• education;
• provision of goods, facilities or services;
• disposal or management of premises;
• eligibility to vote for and to stand for election to public bodies, etc;
• offering of a pupillage or tenancy in a barrister's chambers;
• participation in clubs.

The RDO provides the following exceptions under which the decisions made because of, or having an impact on, race would not be unlawful:

• genuine occupational qualification (RDO section 11);
• employment intended to provide training for skills to be used outside Hong Kong (RDO section 12);
• employment of persons with special skills, knowledge or experience (RDO section 13);
• existing local and overseas employment terms (RDO section 14);
• cemetery, crematorium or columbarium;
• special measures

If you are being discriminated against because of your race, the above section will tell you more about your rights.

VI. How to complain

If you have been discriminated against, you should first complain to the person responsible for the discriminatory conduct. If the complaint is job-related, you can lodge a complaint with your organization's management or seek other forms of help from your staff association or labour union (if you belong to one). If the complaint is related to the provision of goods, services, facilities, or an educational establishment, you can lodge a complaint with the relevant service providers and request improvement.

If you fail to get any positive reply after complaining to the discriminator, you can lodge a complaint with the Equal Opportunities Commission (EOC). Alternatively, you may bring your case to the District Court.

If you have been treated badly because you acted as a witness or provided information for a friend or colleague who lodged a complaint, you can also lodge a complaint of "victimisation" (see section 9 of the SDO, section 7 of the DDO , section 6 of the FSDO or section 6 of the RDO ). You should immediately inform those who are dealing with your friend's or colleague's complaint such as their representing lawyer or the EOC.

Remember to make a record of what has happened as soon as possible while the incident is still fresh in your mind. The information will help you recall details at a later date should you wish to lodge a complaint, or take legal action.

VII. Case illustration

Scenario:

Ms. A and Mr. B are a couple with a 10-year-old son. Their son suffered a leg injury some years ago which resulted in his left leg being taken apart. Recently, they have encountered some unhappy incidents at work, and in school, which they considered discriminatory.

1. Ms. A works as a sales-coordinator in a food company. A new male colleague reported for duty last week with the job title of "administration officer". Ms. A knows that they are both doing administrative work, but with different job titles. The thing she considers unfair is that the salary of that male colleague is higher than hers by $2,000. Is this unlawful under the Sex Discrimination Ordinance?

If it can be proved that the two persons have similar qualifications and are doing similar work, but Ms. A is paid less and afforded lower status due to her gender/sex, this may amount to unlawful sex discrimination.

The Equal Opportunities Commission has given some guidelines in relation to the terms and conditions of employment for both genders (including remuneration and job title). For details, please refer to clause 12 of the Code of Practice of Employment under the SDO (issued by the Commission).

2. Ms. A's boss asked her to have sex with him when they were on a business trip in China. Is she protected under the SDO if sexual harassment takes place outside Hong Kong?

Yes. With reference to section 11 and section 14 of the SDO, if she is employed by a Hong Kong company and works mainly or wholly in Hong Kong (i.e. she only takes business trips outside Hong Kong occasionally), the harasser is still liable for sexual harassment even though the unlawful act is committed outside Hong Kong.

For more information on how to deal with sexual harassment, please refer to the relevant question and answer.

3. A security guard near their home openly teases their son about his disabled leg. Is this unlawful under the Disability Discrimination Ordinance?

Harassment (in the context of disability discrimination) is any unwelcome conduct on account of a person's disability where it can be reasonably anticipated that the person would be offended, humiliated or intimidated (e.g. insulting remarks or offensive jokes about a person's disability). Harassment of a person with a disability is unlawful under the DDO.

Vilification is an activity in public which incites hatred towards, serious contempt for, or severe ridicule of people with a disability. For example, if a person speaks openly in public that people with a disability are useless and a burden to society, this may amount to vilification. Vilification against a person with a disability is also unlawful under the DDO.

In view of the above, the security guard may be liable for harassment and vilification under the DDO.

4. Mr. B has been diagnosed with a respiratory illness and he needs to see a doctor regularly. His boss has since commented on his sick leave record, and the inconvenience caused to other colleagues during his absence. Just a month ago, he was hospitalized for one week due to his worsening health. When he returned to work, he was dismissed on the basis that he had taken too much sick leave. Is it unlawful for his employer to dismiss him because he suffers from a chronic illness and therefore requires regular medical treatment?

When a serious illness prevents an employee from performing the inherent requirements of the job, the DDO permits the employer to terminate him. However, the law also requires the employer to consider providing reasonable accommodation (e.g. allowing time-off for medical treatment in the subject case) to the employee with the disability, so as to enable that employee to perform the inherent requirements of the job.

If Mr. B's employer dismissed him without first making, or trying to make that accommodation, his employer might be in breach of the DDO. However, if his employer can prove he has experienced unjustifiable hardship in providing such accommodation (e.g. it seriously hinders Mr. B's job duties or the company does not have adequate financial/human resources to make or continue the relevant arrangements), his employer could claim exemption under the DDO and in that case the dismissal would not be unlawful.

Employers should also note the provisions in the Employment Ordinance with regard to granting sick leave. For details, please go to the relevant section of the Employment Disputes topic.

5. Their son wants to participate in an extra curricular activity organized by a school club. However, the club believes that he may not be able to perform the activity due to his leg disability. Can the club refuse to allow him to participate in the activity?

The school should not make any assumptions regarding the abilities of students with disabilities and should not arbitrarily identify such students as not being capable of performing certain types of activities. Instead, the school should discuss special needs with disabled students themselves, and/or their parents, and determine what is necessary to accommodate those needs.

The school may consult the Education Department, special schools or rehabilitation organizations when necessary with a view to providing reasonable accommodation for the students with disabilities and ensuring that extra curricular activities are flexible enough to meet the individual needs of the students. Reasonable a ccommodation is considered as measures or action taken in order to provide equal opportunities for students with disabilities, such as the provision of aids, facilities or services to meet their individual needs.

The school may have violated the Disability Discrimination Ordinance if it does not provide reasonable accommodation to disabled students unless providing such accommodation would impose unjustified hardship on the school (e.g. the school would suffer financial difficulty when providing such accommodation).

In order to eliminate discrimination against students with disabilities, educational establishments should set up a separate policy regarding this matter, or include in their existing policy a specific section on the goal of equal opportunities for students with disabilities. For details of such policies, please refer to section 11 in the Code of Practice on Education under the DDO (issued by the Equal Opportunities Commission).

6. Their son has been teased by his classmates because of his disability. Is the school liable for acts of harassment and vilification committed by a student against another student with a disability?

Students should understand that they could also be liable under the DDO, and schools should also explain this liability to their students.

Students should not harass or vilify any other students or staff members in school. Generally, a school is not liable under the DDO for acts committed by its students. However, if a school has knowledge of discriminatory acts committed by its students against another student with a disability, but it fails to take any action to punish the discriminator(s) or to protect the disabled student, the school may be liable for discrimination under the DDO. For example, the school may be liable for disability discrimination under the following circumstances:

A school often disciplines its students who bully other students in school whenever such bullying acts come to its attention. A student walks with crutches because she had polio. Her classmates have teased her several times when she walks. Sometimes her crutches were even taken away by her classmates. She reported the incidents to the school each time but the school did not take any action either to discipline the harassers or to prevent similar harassing acts from recurring. In that case, the school may also be liable for the discriminatory acts of the harassers.

Going back to the subject question, if the school did nothing to help their son or to punish the harassers, that school would be liable.

For the purpose of teaching students not to harass or vilify persons with disabilities or to avoid possible legal liability, the Equal Opportunities Commission has published the Code of Practice on Education. Every school must take all reasonably practicable steps to avoid acts of harassment or vilification from occurring.

1. If I want to lodge a complaint with the Equal Opportunities Commission, what information do I need to provide? How can I lodge a complaint?

You need to lodge your complaint in writing and provide the following information:

• details of the discriminatory acts and the dates involved;
• your personal information including your name and contact information. Other information required includes: sex or state of pregnancy (for sex discrimination), nature of your disability (for disability discrimination), or marital status and number of children (for family status discrimination), or race (for race discrimination);
• name of the discriminator/respondent (i.e. name of the person or company that discriminated against you) and their contact information;
• information supporting your claim of discrimination, harassment, vilification or victimisation;
• details of any detriment or emotional disturbance you have suffered because of the discriminatory acts;
• information pertaining to any witness(es), such as their contact information and what they witnessed.

If you have difficulties in preparing a written complaint, you can call the EOC enquiry hotline at 2511 8211 or e-mail the EOC at complaint@eoc.org.hk .

You may lodge your complaint through the EOC's on-line complaint form, by fax at 2106 2324, by post, or in person at 16/F., 41 Heung Yip Road,Wong Chuk Hang, Hong Kong.

After a complaint is received, the EOC will first investigate the complaint and decide if the complaint has substantial grounds. If the complaint does not have substantial grounds, it will be discontinued. If there are substantial grounds, the EOC may proceed to conciliation or decide to start legal proceedings.

2. Is there any time limit for lodging a complaint?

If you would like to lodge a complaint with the EOC, you need to do it within 12 months of the incident. If you decide to take legal proceedings to the District Court, you need to do it within 24 months of the incident. You should try to seek legal advice before taking any legal action.

3. Can a group of persons lodge a single complaint? Must I (as an aggrieved person) lodge a complaint with the EOC myself?

The complainant may be an individual or a group of individuals.

An aggrieved person can be represented by another person(s) for the purpose of lodging a complaint. A representative complainant must show that he/she has been authorized by the aggrieved person to lodge the complaint. Even if such a person has not been authorized, he/she may still report the case to the EOC. After hearing about the case, the EOC may look into the matter independently.

4. How does the EOC handle a complaint? Under what circumstances will the EOC discontinue the investigation of a complaint?

The EOC is required by law to investigate the complaint. Allegations by the complainant are sent to the respondent/discriminator for comment. Responses (if any) are then made available to the complainant. Witness statements are taken and pertinent materials are gathered to see if the case should be discontinued or proceed to conciliation (see the next question). All information gathered during the investigation stage is kept confidential from third parties but may be used in court proceedings.

The EOC may decide not to conduct or to discontinue an investigation into a complaint if:

• more than 12 months have passed since the discriminatory act was done;
• the act complained of is not unlawful;
• the aggrieved person does not desire to continue with the investigation;
• the complaint cannot be pursued appropriately only as a representative complaint (i.e. the complaint should be personally lodged by the aggrieved person instead of being lodged through a representative);
• the complaint is frivolous, vexatious, misconceived or lacking in substance.

5. How does the EOC conciliate a case? Can the aggrieved person request conciliation?

After receiving a complaint, the EOC must first carry out an investigation and decide whether to discontinue the case, or proceed to conciliation. When the investigation is completed, either side can also request that the case be settled through conciliation. However, conciliation is completely voluntary and either party can stop the process at any time.

The conciliator of the EOC assists both parties to examine the issues that led to the complaint, identify points of agreement and negotiate a settlement to the dispute. The conciliator does not represent either side but only acts as a facilitator.

What are the advantages of conciliation?

• Conciliation is free;
• It is less time consuming than going to court;
• Unlike court cases, there is no media exposure to the individual parties;
• It is less formal compared to court trial.

What settlement terms can I ask for during the conciliation procedure?

Terms depend on the circumstances of the dispute. Normally, it is a reversal of the situation that led to the complaint. For example, if a person was dismissed, he could ask to be re-employed. If he was denied a promotion or transfer, he could ask for the promotion or transfer. If training was denied, he could ask for the admission of the training course. Any of these items could be made as a condition in the settlement term. Other possible items include:

• a letter of apology;
• implement of equal opportunities policies;
• financial settlement/compensation;
• construction of physical access, etc. (for physical disability cases)

For more information about the conciliation procedure, please go to the EOC webpage.

6. What if the conciliation is not successful? If I cannot afford legal costs, can I get legal assistance from outside sources?

If the conciliation is not successful, the complainant can apply to the EOC for legal assistance to commence a civil lawsuit in the District Court. The granting of legal assistance by the EOC is not guaranteed. It may be granted if the EOC thinks that it is unreasonable, because of the complexity of the case or the complainant's position in relation to the respondent, to expect the complainant to deal with the case unaided.

Legal assistance may include the giving of legal advice, representation by the EOC's lawyers, legal representation by outside lawyers or any other form of assistance the EOC considers appropriate. A committee of the EOC considers all applications. If you wish to seek further information from the EOC, please click here.

If you fail to get legal assistance from the EOC, you may consider the Legal Aid Scheme run by the Legal Aid Department. Before obtaining legal aid, you need to go through a financial means test and a case merits test. For more details, please go to another topic – Legal Aid.

7. Can I bring my case to court directly without going to the EOC? What possible compensation or remedial action can I obtain through legal action?

Any aggrieved person can go to the District Court directly and initiate a civil lawsuit under the law without going through the EOC. However, you are strongly recommended to consult a lawyer before taking legal action.

On the other hand, the EOC cannot entertain applications for legal assistance (see question 6) unless you have been through its complaints system and conciliation has proved to be unsuccessful. In such cases, the EOC may grant legal assistance if it thinks it is appropriate to do so.

Examples of compensation or remedial action include damages (compensation) for injury to feelings, financial compensation (e.g. for loss of income), a written apology, or provision of reasonable accommodation (to assist the complainant to perform their work duties, or attend school, etc.).

1. Is there any grace period under the Race Discrimination Ordinance ("RDO")? If so, when does it end? To which group of people does it apply?

The Race Discrimination Ordinance has come into operation since 10 July 2009. But there is a grace period for small employers, which ended on 10 July 2011.

For the first 3 years after the enactment of the RDO (July 2008), there is a grace period during which RDO section 10(1) and 10(2) (provisions making discrimination under the RDO in employment unlawful) do not apply to employers who employ no more than 5 employees. If a company is controlled by another company or if 2 companies are controlled by a third person, the employees of both companies are included for the purposes of counting the number of employees.

The grace period does not apply to acts of harassment on the grounds of race or discrimination by way of victimization. All employers may not at any time harass their employees on the ground of race or discriminate against them by way of victimization. The grace period also does not apply to the employment of domestic helpers.

Even during the grace period, if an employer at any time has more than 5 employees, the RDO will apply in respect of any acts of discrimination on the ground of race done at that time.

2. Does the RDO cover all employers in Hong Kong?

Yes, the RDO applies to all employers in Hong Kong except where their employees work wholly or mainly outside Hong Kong.

3. Do employers of foreign helpers who select their helpers on the basis of race violate the RDO?

The RDO allows employers of foreign domestic helpers to select their helpers on the basis of race.

The other provisions in the RDO become applicable once the employment contract takes effect, which may be at the time when the helper enters Hong Kong (in the case where the helper has to wait for her/his employment visa outside Hong Kong), or when the approval to work is issued by the Immigration Department (in the case where the new helper is not required to leave Hong Kong pending the approval from the Director of Immigration).

The RDO applies even when the helper has to perform her/his duties outside of Hong Kong for a short period of time, such as when the employer takes the helper along for holiday.

4. What is Race?

According to RDO, race in relation to a person means the race, colour, descent, national or ethnic origin of the person. Racial group means a group of persons identified by reference to race, colour, descent, national or ethnic origin. References to a person's racial group refer to any racial group into which the person falls.

5. Is RDO applicable to discrimination on the ground of religion?

Religion itself is not race.

A group of people defined by reference to religion is not a racial group under the RDO. RDO does not apply to discrimination on the ground of religion. However, some requirements or conditions relating to religion may indirectly discriminate against certain racial groups, and when this is so the RDO may apply.

6. What is racial discrimination?

In general terms, racial discrimination is about treating people less favorably on the basis of their race.

There are two forms of racial discrimination: direct and indirect. For details, please go back to Part I: Introduction to the existing anti-discrimination ordinances in Hong Kong.

7. What is discrimination by way of victimization?

Racial discrimination also occurs by way of victimization if a person treats another person less favourably than other people because that person or a third person has done an act protected under the RDO, such as making or planning to make a race discrimination complaint, taking legal action, acting as witness against race discrimination or helping somebody else to do so.

Example: A manager of Nepalese origin is discriminated against by way of victimization if he complains that he was paid less annual bonus than another manager of Chinese origin on the ground of race, and the company decides to dismiss him by reason that he makes this complaint.

8. What is racial harassment?

Racial harassment can be in any form—physical, visual, verbal or non-verbal—and even a single incident may constitute racial harassment. Racial harassment is any unwelcome conduct towards another person on the ground of his or her race. There are two types of racial harassment:

Unwelcome conduct harassment

If a person engages in an unwelcome, abusive, insulting or offensive behavior because of another person's or his/her near relative's race, which makes him feel threatened, humiliated or embarrassed then it is racial harassment.

Example: Engaging in name calling, which people of certain racial groups may find offensive or impolite, or using a disparaging or offensive tone when communicating with people on the ground of their race could be racial harassment.

Hostile environment harassment

It also occurs if a person creates a racially hostile environment for another person because of his/her or his/her near relative's race. Racial harassment is unlawful under the law. For instance, an employer allows other household members to put up a poster or newspaper clipping which contains derogatory remarks about the domestic helper's race.

9. What is racial vilification?

It is an activity in public which incites hatred, serious contempt for, or severe ridicule of a person because of his/her race. Any racist incitement involving threat of physical harm to persons or their property or premises is considered serious vilification and is liable for fine to a maximum of $100,000 and imprisonment for a maximum of two years under Sections 45 and 46 of the RDO.

For instance, if an employer becomes angry in public over the domestic helper's mistake and starts blaming the mistake on her race aloud and such remarks contain serious contempt for or severe ridicule of the helper, this could be considered as racial vilification.

Putting a statement on the Internet accessible by the public which incites hatred, serious contempt or severe ridicule towards someone on the ground of race could also be considered as racial vilification.

10. Can an employer refuse to offer me a job interview or position in his/her organisation because I am a Filipino and cannot read Chinese ?

An employer cannot deny somebody a job interview or position just because of his/her race. The employer would have to prove that proficiency in reading Chinese language is a justifiable job requirement if he/she rejects a candidate on this ground. Otherwise, it could constitute discrimination.

Scenario-based examples

A. Direct Discrimination

Scenario

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?

Answer

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

Scenario

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?

Answer

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

Scenario

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?

Answer

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

Scenario

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:

1. files a religious discrimination complaint;
2. takes legal action;
3. asks a colleague to act as a witness against racial discrimination; or
4. asks a colleague or friend to help him lodge a complaint or take legal action.

Should he be concerned?

Answer

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

Scenario

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.

Answer

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

Scenario

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?

Answer

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

Scenario

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.

Answer

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

Scenario

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!”?

Answer

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.

1. An employer knows that dismissing a pregnant employee may be unlawful, so he intends to dismiss that employee after she has given birth to her child. Would that employer still be liable under the law?

Under section 8 of the Family Status Discrimination Ordinance, it is unlawful for an employer to discriminate against an employee on the basis of his/her family status (i.e. the duty to take care of an immediate family member) by dismissing that employee.

There was a District Court Equal Opportunities Action in 2005 ( Lam Wing Lai v YT Cheung (Ching Tai) Ltd.) in which the Plaintiff, who had been dismissed by her employer due to her pregnancy and family status, was awarded compensation for injury to feelings as well as loss of income.

If an employer dismisses an employee only because the employer thinks that the employee has to take care of her child and cannot work overtime or take business trips etc., then that employer would have violated the FSDO.

2. Can an educational establishment (e.g. an evening school or university) or a service provider refuse to provide me with services or facilities because I need to take care of my family members?

It may be unlawful for an educational establishment to deny admission to, or expel a student, on the basis of family status. In other words, the school cannot deny your admission only because you have to take care of your family members, unless there are exceptional circumstances such as you insist on attending classes with your child together.

It may also be unlawful for a goods/services provider to refuse to provide goods, services or facilities to you only because you have to take care of your family members.

3. What can I do if I feel I am being discriminated against?

You can take action in one or more of the following ways:

• If the complaint is job-related, you can lodge a complaint with your organisation's management or seek other forms of help from the staff association of your company, the labour union of your particular business/profession (if you belong to one), or social workers.
• If the complaint is related to the provision of goods, services or facilities, you can lodge a complaint (or a request for improvement) with the provider of the goods/ services/facilities.
• Lodge a complaint with the EOC (see Part VI: How to Complain).
• Take your case to court.

Remember to write down a record of what has happened as soon as possible while the incident is still fresh in your mind. The information will help you to recall details at a later date should you wish to lodge a complaint or take court action.

1. What is the general meaning of discrimination, harassment and vilification in relation to a person's disability?

Discrimination can be direct or indirect. Direct discrimination occurs when, on the grounds of a disability, a person having a disability is treated less favourably than another person without the disability would be treated in similar circumstances. Indirect discrimination occurs when a condition or requirement is applied to everyone, but in practice affects people with a disability more adversely, is to their detriment, and such condition or requirement cannot be justified.

Harassment is any unwelcome conduct on account of a person's disability where it can be reasonably anticipated that the person would be offended, humiliated or intimidated (e.g. insulting remarks or offensive jokes about a person's disability).

Vilification is an activity in public which incites hatred towards, serious contempt for, or severe ridicule of people with a disability. For example, if a person speaks openly in public that people with a disability are useless and a burden to society, this may amount to vilification.

Discrimination, harassment or vilification of persons with a disability (or their associates) is unlawful under the DDO.

2. Under what circumstances can an employer refuse to employ or dismiss a person with a disability? Suppose I have a serious leg injury, does it mean that I have no chance to take up a job?

In general, it is unlawful for an employer to discriminate against a job applicant or an employee on the grounds of disability. The Disability Discrimination Ordinance ("DDO") applies to all employers in Hong Kong unless their employees wholly or mainly work outside Hong Kong (section 11 and section 14 of the DDO).

However, the above protection for job applicants or employees with a disability is not absolute. An employer may specify that a job applicant or an employee should not be a person with a certain type of disability because such person would be unable to carry out the inherent requirements of that particular employment ( section 12(2) of the DDO). For example, an employer may specify that persons who are wheelchair bound need not apply for jobs like gym instructors, as an inherent requirement of the job of gym instructors is to help people use the gym equipment and perform the relevant demonstrations.

Applying the above gym instructor example, if you have a leg injury (in which you cannot perform the demonstrations) and you apply for this job, the employer can turn down your application on the grounds that you cannot carry out the inherent requirements of the job.

How can one assess whether a job applicant/employee with a disability can carry out the inherent requirements of a job?

The inherent requirements of a job are those that are necessary for achieving the goals of the job (i.e. the duties and responsibilities that an employee must be able to perform/undertake). In determining whether or not a person with a disability can carry out the inherent requirements of the job, the employer is required to take into account:

1. the person's past training, qualifications and experience relevant to the particular employment;
2. in the case of an existing employee, his/her work performance; and
3. other relevant factors (e.g. Is the injury/disability a permanent or temporary one? If it is a temporary disability, when is the approximate date of recovery?).

For example, if a typist is required to type at least 50 words per minute, then typing 50 w.p.m. is an inherent requirement of this job. Having no physical disability or being without any illness may not necessarily be an inherent requirement of this job.

Applying the above typist example, if you have a leg injury (but you can type at least 50 w.p.m.) and you are now handling this job, the employer will violate the DDO if he/she dismisses you on the grounds that you cannot carry out the inherent requirements of the job.

How will I know if I can perform the inherent requirements of a job?

In reality, a person with a physical disability can, like other people, take up many jobs. An employer should be able to tell you about the inherent requirements of the job. To help you find out, try to get a copy of the job description beforehand and study the list of duties and responsibilities. The job interview should also be used as an opportunity to ask more questions about the nature of the work involved.

(A note to employers: If job applicants or existing employees cannot perform the inherent requirements of a particular job, employers must consider whether it is feasible to provide "reasonable accommodation" to help them perform the job duties. For more information on this matter, please go to question 7.)

3. If an employee has an infectious disease or AIDS, can the employer dismiss that person?

It may be lawful to discriminate against (including dismiss) an employee who has an infectious disease, if it is reasonably necessary for the protection of public health (i.e. to prevent the spreading of such disease to other colleagues or customers). However, it is generally NOT acceptable to dismiss a person or discriminate against them on this basis unless the job is such that there is a risk of spreading the disease through physical or bodily contact.

Under the DDO, infectious diseases are the diseases set out in Schedule 1 of the Prevention and Control of Disease Ordinance (e.g. tuberculosis and viral hepatitis) and any communicable disease specified by the Director of Health in the Government Gazette.

According to section 61 of the DDO, however , neither HIV infection nor AIDS is to be treated as an infectious disease. In that case, it may be unlawful to discriminate against an employee with AIDS.

Employers should also note that many infectious diseases can be cured after proper treatment. Therefore, the granting of sick leave is always an alternative to immediate dismissal.

Before dismissing an employee with an infectious disease, the employer must comply with the provisions of the Employment Ordinance (please refer to another topic – Employment Disputes) and should consult a lawyer if necessary.

4. What if I receive even worse treatment after I have lodged a complaint? If my friend is being discriminated against because he/she acts as a witness for me, can my friend also lodge a complaint?

This treatment is considered as "victimisation", which is prohibited under section 7 of the DDO. The law protects complainants as well as witnesses against being victimised. If such treatment occurs, you and your friend should immediately inform the people who are dealing with your complaint (e.g. your organisation's complaints officer, staff representative, solicitor, or the Equal Opportunities Commission, depending on the course of action you have chosen).

For more details on how to lodge a complaint, please go to Part VI: How to Complain.

5. If my relative or friend is a disabled person and is being discriminated against by others, can I represent him/her to lodge a complaint with the Equal Opportunities Commission?

Yes. A person being discriminated against by others can lodge a complaint through a representative. However, the representative must show that he/she has been authorised by the complainant to lodge the complaint. For more details on how to lodge a complaint, please go to Part VI: How to Complain.

6. If I'm looking for a job, can an employer require me to provide medical information/records?

An employer can ask a job applicant to provide medical information if he/she wants to use the information to determine whether the job applicant:

• would have any infectious disease under the DDO;
• would be able to carry out the inherent requirements of the job ( section 42(3) of the DDO); or
• would need special services or facilities in order to perform the inherent requirements of the job (section 42(3) of the DDO).

If you are asked to provide medical information not for the reasons above, you can refuse to provide such information. If your employer insists on collecting such medical information, you may lodge a complaint with the Equal Opportunities Commission.

Employers must also comply with the six data protection principles (under the Personal Data (Privacy) Ordinance) when they collect medical information from potential employees. Appropriate security measures must be taken in order to protect such information against unauthorized access.

7. If a physically disabled person can handle a particular job with some special facilities/aids, is the employer required to make the relevant adjustments/alterations at the workplace, or could the employer just refuse to employ (or dismiss) that person?

With reference to Code of Practice on Employment under the DDO (issued by the Equal Opportunities Commission), if a person with a disability can perform the inherent requirements of the job with some adjustments, including the provision of certain services or facilities, employer is required to consider making such adjustments. Making adjustments that are required to ensure equal opportunities for people with a disability is commonly referred to as providing reasonable accommodation. Reasonable accommodation may be made at any stage of employment, according to the needs of the person with the disability.

If you are a person with a physical disability, you may frankly tell your employer that all people with a physical disability want to work independently and not to depend on the help of other colleagues. Your employer must try to provide reasonable accommodation in the workplace. For example, your employer can check the access to the building, the steps, the office corridors and toilets, to see whether these facilities need any alteration; he/she may install some special facilities for people with a disability; he/she may also provide you with flexi-hours in the office, so that you can perform the inherent requirements of the job.

However, according to clause 11.8 of the Code of Practice and section 12(2) of the DDO, it may be lawful to discriminate against (e.g. refuse to employ or dismiss) a person with a disability if providing reasonable accommodation would impose unjustifiable hardship on the employer. That is to say, the person or organisation that provides the reasonable accommodation to the disabled person would suffer a lot as a result. The most typical examples of unjustifiable hardship are the poor financial circumstances of the employer, and the huge amount of expenditure (including recurrent expenditure) required to be made by the person or company claiming unjustifiable hardship.

It clearly may be difficult for persons/organisations with limited resources to spend a lot of money making adjustments in order to provide reasonable accommodation for an employee with a disability. The DDO allows the financial capacity of an organisation to be taken into account. For more information on this issue, please refer to clause 11.18 of the Code of Practice or section 4 of the DDO.

(Note that the principles of reasonable accommodation and unjustifiable hardship apply to cases relating to physical disability as well as other kinds of disability.)

If a dispute is brought to court and the employer claims unjustifiable hardship in defence of not providing reasonable accommodation, the burden of proving the expense is not justifiable falls on the employer.

In short, an employer must not claim that a disabled person cannot perform the inherent requirements of a job without first considering the provision of reasonable accommodation, or treat that person less favourably than people without a physical disability.

8. I am a physically disabled person and I always have difficulty in taking a taxi. Should the taxi driver help me on every occasion? What if the driver refuses to offer taxi services to me?

According to section 26 of the DDO, it is unlawful to discriminate against or harass persons with a disability during the provision of services, and this includes taxi services. Taxi drivers may be violating the DDO if they refuse to offer taxi services to disabled persons.

The Equal Opportunities Commission has published a document entitled "Guidelines for Taxi Services" and some of the important points contained are highlighted below:

• If a mobility-impaired passenger has difficulty in boarding and alighting from the taxi independently, the driver should offer assistance to the passenger, and if necessary, help the passenger place properly in the taxi any wheelchair or other auxiliary aid(s). A driver who has difficulty in providing such assistance to a passenger should clearly explain his/her difficulty to the passenger.
• To facilitate the boarding and alighting of taxis by persons with a disability in restricted zones, the Transport Department and the Hong Kong Council of Social Service have prepared a "Certificate for Picking Up or Setting Down of Passengers with Disabilities in Restricted Zones" for use by persons with a disability. Applicants can contact the Hong Kong Council of Social Service at 2864 2929 or visit the Transport Department's webpage to get more information. Persons with a disability should take this certificate with them at all times for presentation to taxi drivers upon request if they wish to board or alight taxis in restricted zones. However, they should not board/alight taxis on expressways or in 24-hour restricted zones.
• Drivers should take care that their conduct (verbal or otherwise) does not offend, upset or humiliate a passenger on the grounds of that passenger's disability or on the grounds of the disability of a person accompanying that passenger.

9. I am a wheelchair user. Do I have equal opportunities in respect of access to public buildings and social facilities?

Under section 25 of the DDO, developers and property management companies should provide access for people with a physical disability unless this would impose unjustifiable hardship (see section 4 of the DDO). For example, a ramp for the use of wheel-chair users should be provided at the access. Buildings should have at least one lift that is suitable for wheelchair users.

Developers and property management companies should also note that providing access to people with a disability includes providing access in such a way that disabled people can use it without the help of others. In addition, handrails should be installed, and any barriers such as flowerpots or litter bins should be placed out of the way so that the access of people with a physical disability will not be hindered.

10. Toilets for people with disabilities are sometimes used as store rooms. Is this unlawful under the Disability Discrimination Ordinance?

According to section 26 and section 27 of the DDO, not providing toilet facilities for people with disabilities may be unlawful. If certain areas were shown as toilet facilities for disabled people on the architectural/building plans of the building at the time those plans were approved by the Buildings Department, the property management company, the owners, and the users/tenants of the building are not allowed to alter those facilities. The management company or the property owners should prohibit the abuse of toilet facilities for people with disabilities (e.g. the storage of goods in toilets). They should also keep the toilets clean and properly maintain the facilities inside, such as the toilet bowl, handrail and washing basin.

11. My child is mentally handicapped and I have applied for a place for him at a mainstream kindergarten. The kindergarten eventually rejected me. Has the kindergarten contravened the Disability Discrimination Ordinance? If my child is admitted, does the kindergarten have a responsibility to provide special services or facilities to help him with his studies?

As mentioned before, the definition of disability under the DDO includes the total or partial loss of a person's mental functions. This includes a mental handicap and thus you and your child are protected under the DDO. With reference to section 24 of the DDO, it is unlawful for an educational establishment (including a kindergarten) to refuse the admission of a child because of his/her disability, unless the child is not capable of performing the actions or activities reasonably required by the educational establishment in relation to students at that educational establishment.

Clause 13 of the Code of Practice on Education under the DDO (issued by the Equal Opportunities Commission) has set out some guidelines regarding admission and selection criteria. The most important of these guidelines is that educational establishments should assess the competence of applicants with disabilities using the same standard that they use for applicants without disabilities. In addition, all applicants (with or without disabilities) should go through the same selection process. Educational establishments should avoid adopting separate forms or selection panels for applicants with disabilities, unless a need for special arrangements has been identified.

If your child is admitted, the kindergarten has the responsibility to provide some special services or facilities for him in order to help him study. However, the kindergarten may refuse to provide such services or facilities if they would impose unjustifiable hardship on the kindergarten. For example, it is lawful for the kindergarten not to provide extra classes or visual aids to help your child if the kindergarten does not have adequate human and financial resources to do so.

For a more detailed explanation of what can be considered "unjustifiable hardship", please refer to clause 12.3 of the Code of Practice or section 4 of the DDO.

12. If my colleagues openly tease a mentally handicapped colleague about his/her mental handicap and he/she is unhappy about it, is this discrimination?

Your colleagues' behaviour may amount to discrimination or harassment under the DDO, if they behave that way because of your mentally handicapped colleague's disability. If they publicly incite hatred towards, serious contempt for, or severe ridicule of, a person with a disability, this may amount to vilification.

Under the DDO, your employer has a responsibility to provide a workplace that is free from discrimination, harassment and vilification. This means that your employer may also be held responsible for your colleagues' behaviour, even though your employer may not approve or know of it. However, your employer may be exempt from this liability if the company has already implemented a policy to handle discrimination, harassment and vilification relating to disability (e.g. complaint handling measures). For more information on such a policy, please refer to clauses 17-19 of the Code of Practice on Employment, which is issued by the Equal Opportunities Commission.

13. I want to rent a flat. The landlord and I have already agreed to all the terms and conditions. However, after learning that I am going to live with a relative who is mentally handicapped, the landlord refused to rent the flat to me. Has the landlord contravened the Disability Discrimination Ordinance?

If the landlord refuses to rent the flat to you only because your relative is mentally handicapped, he/she may have contravened section 28 of the DDO.

14. Can an employer refuse to employ me, give me less favourable employment terms, or dismiss me on the basis of my mental illness?

The definition of disability under the DDO includes a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour, and includes disabilities that previously existed but no longer exist. Thus, if you currently have a mental illness (or you used to have a mental illness but have now recovered), you are protected under the DDO as people with other types of disabilities.

In addition, the employment-related provisions under the DDO cover all employment matters including recruitment, training, promotion, employment terms, and dismissal. It may be unlawful for an employer to refuse to employ you, give you less favourable employment terms, or dismiss you on the grounds of mental illness.

The employer has to determine whether or not you can perform the inherent requirements of the job. If you cannot perform the inherent requirements of the job in question, the employer can refuse to employ you or dismiss you. However, under existing legislation, the employer has a duty to provide special services or facilities in order to help you perform the inherent job requirements as long as the provision of such services/facilities would not impose unjustifiable hardship (see question 7) on that employer.

As long as the employee can perform the inherent requirements of the job, the employer cannot discriminate against that employee on the grounds of mental illness.

15. Can a person or company refuse to provide goods, services or facilities to me due to my mental illness?

Under the DDO, such refusal is unlawful unless the provision of goods, services or facilities to people with mental or ex-mental illness will cause unjustifiable hardship (see section 4 of the DDO) to the provider. Section 27 of the DDO has listed out some examples of goods, services and facilities covered by the legislation. Here is an example from daily life:

• A restaurant that does not welcome diners who have a mental illness may be committing an unlawful act.

   

  It may also be unlawful for a service provider to discriminate with respect to the terms and conditions and the form of provision of goods, services or facilities. Therefore, if a restaurant permits people with mental illnesses to dine in it, but seats them on their own, away from other diners, this may also amount to discrimination.

16. Can a person with a hearing impairment use a hearing aid when attending a recruitment interview?

The prospective employer should allow the candidate to use the hearing aid in order to compete with other candidates on a fair basis (see clause 12.8 of the Code of Practice on Employment issued by the Equal Opportunities Commission). Treating a candidate less favourably because he/she requires the use of a hearing aid is unlawful under section 9 of the DDO.

17. Can an employer refuse to employ me on the basis of my visual impairment because the workplace is considered to be of high risk?

In a high risk workplace, the employer is obviously concerned about the health and safety of all employees. Nevertheless, this does not automatically rule out people with a visual impairment. There is sometimes an assumption that people with a visual impairment would be a danger to themselves and to others. This may not be true as it depends on the extent of the impairment and the nature and location of the work.

The same principles apply here in that the employer cannot refuse to employ you with the reason of your visual impairment alone. The employer still has to consider the issues of inherent requirements and reasonable accommodation.

18. Am I protected under the Disability Discrimination Ordinance if I have a chronic illness? What are some examples of chronic illness?

Yes, because the definition of disability under the DDO includes total or partial malfunction of a person's body, the malfunction, malformation or disfigurement of a part of a person's body, and the presence in the body of organisms causing disease or illness.

This definition covers chronic illnesses such as stroke, epilepsy, Alzheimer's disease, retinitis pigmentosa, glaucoma, asthma, pneumoconiosis, cardiac disease, haemophilia, thalassaemia, rheumatoid arthritis, systemic lupus erythematosus, liver failure, diabetes, renal failure, spinal cord injury, ankylosing spondylitis, psoriasis, cancer, AIDS and so forth. That means if you are a person with a chronic illness, you are equally protected under the DDO, the same as people with other types of disabilities.

19. Can an employer dismiss me on the basis of my chronic illness or because I need to have regular medical treatment?

It may be unlawful for an employer to dismiss you on the grounds of your chronic illness or the regular treatment for your illness. The DDO requires employers to first analysis whether an employee can perform the inherent requirements of a job.

If the illness is so serious that makes you unable to perform the inherent requirements of your job, your employer can dismiss you. However, before doing so, your employer must provide special services or facilities to help you perform the inherent requirements of your job, unless this would impose unjustifiable hardship upon your employer. For example, the employer of an employee who has renal disease should consider allowing the employee in question to work flexible hours so as to receive proper dialysis treatment, unless this arrangement would seriously hinder his/her job.

Employers and employees must also note the provisions in the Employment Ordinance with regards to granting sick leave. For details, please go to the relevant section of the Employment Disputes topic.

20. Am I protected under the Disability Discrimination Ordinance if I am infected with HIV/AIDS? If I turn up for help at any hospital or clinic, can it refuse to treat me?

The answer to the first question is "yes", because the definition of disability under the DDO includes the presence of organisms in the body that cause or are capable of causing disease or illness. This includes HIV infection, which means if you are infected with HIV, you are equally protected under the DDO, the same as other persons with a disability.

The hospital or clinic cannot refuse to treat you on the grounds that you have HIV/AIDS, unless it can show that providing treatment to you would impose unjustifiable hardship on it ( section 4 of the DDO). This is not expected to happen in normal circumstances.

21. If I am looking for a job, can the employer require me to take an HIV test?

An employer can lawfully request medical information from a job seeker if he/she wants to use the information to check whether the job seeker:

• has an infectious disease as defined under the DDO (but the law specifically excludes HIV infection as an infectious disease, see question 3 for more details) ;
• would be able to carry out the inherent requirements of the job ( section 42(3) of the DDO); or
• would need special services or facilities in order to perform the inherent requirements of the job (section 42(3) of the DDO).

Since HIV is not listed as an infectious disease, the only reason for making a request for medical information lawfully falls within any of the three grounds mentioned above. If the HIV test is irrelevant to the inherent requirements of the job, the employer has no right to such information and you can refuse to take the test. If your employer insists, you can lodge a complaint with the Equal Opportunities Commission.

General matters

Physical Disability

HIV/AIDS

Mentally Handicapped

Mental Illness/Ex-mental Illness

Hearing or Visual Impairment

Chronic (persistent) illness

VIII. Related Websites

• Equal Opportunities Commission
• Labour Department
• Transport Department
• Hong Kong Council of Social Service
• Hong Kong Judiciary
• Legal Aid Department
• Hong Kong e-Legislation
• Hong Kong Legal Information Institute