Introduction

GENERAL OVERVIEW

Hong Kong employers and employees have become increasingly aware of their rights and obligations under the anti-discrimination legislation since the passing of the Sex Discrimination Ordinance (SDO) and Disability Discrimination Ordinance (DDO) in 1995, the Family Status Discrimination Ordinance (FSDO) in 1997 and the Race Discrimination Ordinance (RDO) in 2008.

In the relatively short period since their coming into force, the anti-discrimination ordinances have seen companies in Hong Kong revise their human resources policies, provide internal grievance mechanisms and recognise the legal rights of their employees to work in an environment free of discrimination and harassment. This has required expenditure of resources on developing policies and practices to ensure compliance with the requirements of the ordinances and to reduce the risk of legal liability.

However, a large proportion of Hong Kong employers still do not have a written anti-discrimination policy. Bearing in mind the potential liability of employers for acts of their employees (see below) as well as the increasing number of claims being brought under the anti-discrimination ordinances this is a situation which we anticipate will rapidly change over the coming years.

This Guide considers the application of the various anti-discrimination ordinances in the employment relationship, the Guide is only meant to provide a general understanding of discrimination law in Hong Kong and is not intended to be formal legal advice. The area of discrimination law is constantly moving forward in new and novel ways. The first step in minimising the risk of breaching the anti-discrimination laws is to be aware of it so that issues can be identified and dealt with in a timely manner

An Outline of Discrimination Generally

THE ELEMENTS OF UNLAWFUL DISCRIMINATION

Not all acts of discrimination are unlawful. For example, there is no protection against discrimination on the basis of age, religious beliefs or sexual orientation. Nor is there any equal pay legislation.

Only discrimination based on one of the protected attributes under the anti-discrimination ordinances will be unlawful. The protected attributes are sex, marital status, pregnancy, breastfeeding, disability, race and family status.

Each of the anti-discrimination ordinances has certain concepts in common. In order to determine whether or not an act constitutes unlawful discrimination it is necessary to ask:

  • Has there been "discrimination"?
  • Is the act of discrimination for a prohibited reason?
  • Even if both of the above elements are met and there is prima facie "unlawful discrimination", does an exception permitting the discriminatory conduct apply?

HAS THERE BEEN "DISCRIMINATION"?

There are essentially two types of "discrimination" under the anti-discrimination ordinances. These are known as direct discrimination and indirect discrimination.

Direct discrimination

Direct discrimination occurs if an employer treats a person with a protected attribute (i.e., sex, marital status, pregnancy, breastfeeding, disability, race or family status) "less favourably" than another person without the attribute in comparable circumstances.

The Court adopts a 4-stage test to determine if a treatment or conduct constitutes direct discrimination, namely:

  • There is a difference in treatment between a complainant and the compared person,
  • The relevant circumstances between the two persons are the same or at least not materially different,
  • The treatment given to the complainant is less favourable than that given to the compared person, and
  • The difference in treatment is on the basis of one of the protected attributes.

Examples of direct discrimination include:

  • Refusing to hire a job applicant because the applicant has diabetes (prohibited under the DDO as disability discrimination), or
  • Not promoting an employee because the employee is pregnant (prohibited under the SDO as pregnancy discrimination).

Indirect discrimination

Indirect discrimination is more difficult to identify. Indirect discrimination occurs if an employer applies a requirement or condition equally to all applicants or employees but:

  • The proportion of persons with a protected attribute who can comply with the requirement is considerably smaller than the proportion of persons without the attribute,
  • The employer cannot show the requirement or condition to be justifiable irrespective of the attribute, and
  • The person suffers a detriment because that person cannot comply with the requirement.

An example of indirect discrimination in the case of sex discrimination would be where the discriminator treats women and men in the same way by imposing a height requirement (e.g., job applicants must be at least 190cm tall). The requirement disadvantages women (i.e., sex discrimination) as a smaller proportion of women would be able to satisfy the condition than men.

Less obvious perhaps would be the introduction of a new shift system which adversely impacts part-time employees. It has been held in the UK that this is also sex discrimination as, at least in the UK, a considerably higher proportion of women tend to work part-time than men.

REASON OR REASONS FOR DISCRIMINATION

For the purposes of the anti-discrimination ordinances, if an act is done for two or more reasons and one of the reasons is the protected attribute of the person (whether or not it is the dominant reason for doing the act), the act is treated as having been done solely for the protected attribute.

Therefore, an employer needs to ensure that the protected attribute plays no part in any decision which is unfavourable to the employee.

IS THE ACT OF DISCRIMINATION FOR A PROHIBITED REASON?

The SDO prohibits discrimination on the grounds of sex, pregnancy, marital status and breastfeeding. The DDO prohibits discrimination on the ground of disability. The FSDO prohibits discrimination on the ground of family status. The RDO prohibits discrimination on the ground of race.

Each of the SDO, DDO, FSDO and RDO prohibits direct and indirect discrimination in a number of areas including employment.

In relation to job applicants an employer must not discriminate on the basis of a protected attribute:

  • In the arrangements the employer makes for the purpose of determining who should be offered employment (e.g., the venue for job interviews should be accessible by disabled persons),
  • In the terms on which the employer offers employment to a successful job applicant (e.g., offering a person employment but on less favourable terms than if they were of a different sex or race, not disabled or did not have a particular family status), or
  • By refusing or deliberately omitting to offer employment to an applicant.

In relation to employees, an employer must not discriminate on the basis of a protected attribute:

  • In the way the employer affords the employee access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford the employee access to them (e.g., having a policy of not permitting pregnant women to attend training courses),
  • In the terms of employment the employer affords the employee, or
  • By dismissing the employee, or subjecting the employee to any other detriment.

DOES AN EXCEPTION APPLY?

Each of the SDO, DDO, FSDO and RDO contains defences to discriminatory acts which would otherwise be unlawful. Although similar, each ordinance has slightly different exceptions. Details of the particular exceptions relevant to each ordinance are set out in the subsequent sections of this Guide.

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