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:
- To prohibit discrimination because of sex, marital status or pregnancy. It also prohibits sexual harassment.
- To prohibit discrimination because of the various types of disability, including: physical disability, mental handicap, mental illness, hearing impairment, visual impairment, chronic (persistent) illness and HIV/AIDS.
- To prohibit discrimination because one has to take care of a family member(s).
- To prohibit discrimination against because of a person’s race.
For a brief introduction of the above ordinances, please visit Daily Lives Legal Issues > Anti-discrimination > Introduction to the existing anti-discrimination ordinances in Hong Kong .
2. 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 cover those 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.
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. Section 40 of the SDO also tells us that it is unlawful for the goods/services/facilities providers to sexually harass their customers/recipients.
If you want to know more examples on sexual harassment, please visit Daily Lives Legal Issues > Anti-discrimination > Sex discrimination .
3. 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 has the effect of impacting adversely more on persons with a disability than others, and such condition or requirement cannot be justified as genuinely necessary.
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.
Vilification is an activity in public which incites hatred towards, serious contempt for, or severe ridicule of people with a disability.
Discrimination, harassment or vilification of persons with a disability (or their associates) is unlawful under the Disability Discrimination Ordinance .
For more about Disability Discrimination Ordinance , please visit Daily Lives Legal Issues > Anti-discrimination > Disability discrimination .
4. 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 Disability Discrimination Ordinance 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 Disability Discrimination Ordinance , the same as people with other types of disabilities.
If you want to know whether an employer can dismiss an employee on the basis of his/her chronic illness, please visit Daily Lives Legal Issues > Anti-discrimination > Disability discrimination .
5. 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. 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 Family Status Discrimination Ordinance .
For more details about the Family Status Discrimination Ordinance , please visit Daily Lives Legal Issues > Anti-discrimination > Family status discrimination .
6. Do employers of foreign helpers who select their helpers on the basis of race violate the Race Discrimination Ordinance?
The Race Discrimination Ordinance (“RDO”) allows employers of foreign domestic helpers to select their helpers on the basis of race. However, 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.
For more information on race discrimination, please visit Daily Lives Legal Issues > Anti-discrimination > Race discrimination .
7. 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 Equal Opportunities Commission (EOC) (Telephone no.: 2511 8211).
- 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.
If you want to know how to lodge a complaint with the EOC, please visit Daily Lives Legal Issues > Anti-discrimination > How to complain .