Employment Update, Hong Kong - September 2008

26 August 2008

Roberta Chan

Legislation

New Race Discrimination Law – Implications for Hong Kong Employers

Background

The Race Discrimination Ordinance (the “Ordinance”) was passed on 10 July 2008 and its enactment has marked another step forward by the HKSAR government to put in place a framework of anti-discrimination laws.

New Legislation


  1. Definition of “Race”
    “Race” is defined as the race, colour, descent, national or ethnic origin of a person.

  2. Unlawful Acts
    Unlawful acts include direct discrimination, indirect discrimination, discrimination based on the race of a near relative, victimisation, racial harassment and vilification.
    Direct discrimination means a person (the discriminator) treats another person less favourably than the discriminator treats or would treat other persons.

    Indirect discrimination occurs where the discriminator imposes a requirement equally on a group of persons, which places a minority portion of that group, who are of a certain race, at a disadvantage as they are less likely to comply with the requirement than persons who are not of that racial group; and that requirement cannot be justified for reasons unrelated to race.

    The Ordinance prohibits racial harassment which is defined as follows:

    (a) unwelcome conduct towards a person on the grounds of his own or his near relative’s race when a reasonable person would anticipate that this would offend, humiliate or intimidate that person; and
    (b) creating a hostile or intimidating environment in a person’s place of work, study or training on the grounds of that person’s race or the race of his near relatives.

    The Ordinance also prohibits racial vilification. This is conduct which involves publicly inciting hatred towards, serious contempt for, or severe ridicule of another person or persons on the ground of their race.

  3. Discrimination and Harassment in the Employment Field
    The Ordinance has provisions which deal specifically with racial discrimination in the workplace. An employer is prohibited from discriminating against an employee on the ground of race in the following situations:

    - Offers of employment
    - Terms of employment
    - Promotion
    - Transfers
    - Training
    - Other benefits, facilities or services
    - Dismissals

  4. Exemptions
    The Ordinance does provide for certain exemptions.

    An employer is allowed to discriminate in certain situations if there is a genuine occupational requirement for an employee to be from a particular racial group.

    An employer is also permitted to discriminate on the ground of race in the recruitment or transfer of a person from outside Hong Kong if the relevant occupation requires, and the employee possesses, special skills, knowledge or experience which are not readily available in Hong Kong.

Effect on employers

It should be noted that an employer will be vicariously liable for an employee’s contravention of the Ordinance in the course of his employment, irrespective of whether those acts are done without the employer’s knowledge or approval. In light of this, it is prudent for employers in Hong Kong to provide proper training to their employees regarding the provisions of the Ordinance, develop and issue appropriate company policies and also review their recruitment practices.