IV. 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 in the areas of:
- employment (including partnerships, trade union memberships, vocational training, etc.);
- 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.
A. General matters
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?
n 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.
3. 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:
- the person’s past training, qualifications and experience relevant to the particular employment;
- in the case of an existing employee, his/her work performance; and
- 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.
4. 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.)
5. 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.
6. 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 How to Complain .
7. 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 theinherent 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.
B. Physical disability
1. 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.
2. 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.
3. 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.
C. Mentally handicapped
1. 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. Examples of these special services or facilities can be found on the EOC’s leaflet . 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 .
2. 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.
3. 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 .
D. Mental illness / ex-mental illness
1. 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 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.
2. 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.
E. Hearing or visual impairment
1. 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 .
2. 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.
F. Chronic (persistent) illness
1. 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.
2. 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 under the CLIC website.
G. HIV/ AIDS
1. 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.
2. 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);
- 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.