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Code clarifies racism law for bosses

Dan Kadison

Workers given overview of rights

What should a European and an Asian who work for the same employer, do the same job and perform at the same level have in common in Hong Kong? Answer: their salary.

If the two workers are not being paid the same, it could be an example of racial discrimination, according to the Equal Opportunities Commission, which yesterday released its 'Code of Practice on Employment', a document that aims to explain the racial discrimination law that was passed last summer.

'The code tries to be couched in more non-legalistic language, non-lawyer language, as far as possible ... to help people understand,' said the commission's chairman, Raymond Tang Yee-bong.

The document, running to more than 50 pages, provides examples of the new law and tries to teach employers how to prevent racial discrimination while giving workers a general overview of their rights.

'The code does not directly impose any legal obligations or have any binding legal effect, and failure to observe the code will not in itself lead to liability,' the document states, but it adds: 'The courts will take into account any relevant parts of the code in deciding cases.'

The race discrimination bill, passed by the Legislative Council in July, bans such people and groups as employers, educational institutions and landlords from racially discriminating, harassing or vilifying others.

The new ordinance also extends the EOC's jurisdiction to include racial discrimination, and gives the group the powers of investigation, conciliation and legal assistance. Still, a person can sue their employer without lodging a complaint with the EOC, the code states.

The code notes that race extends to 'a person's 'race', 'colour', 'descent' or 'national or ethnic origin',' and offers illustrations to demonstrate what may likely be interpreted as unlawful discrimination.

Illustrations range from an employee from Southeast Asia who is forced to work more than his or her counterparts, to a job agency that won't find work for people of a certain origin.

The code also touches on employer and employee liability regarding racial discrimination, advising employers to make their workers aware of the ordinance, and directing them to draw up and implement an equal opportunities policy.

'In order to ensure that the policy will be implemented properly, there should be a clear allocation of responsibility,' says the code, which also lists many exceptions to the law.

For instance, Indian models can be hired by a photographer for an Indian-themed photo shoot as long as it's 'for the authenticity of the work'. The same goes for hiring only Russian waiters at a Russian restaurant in 'creat[ing] an authentic atmosphere'.

The commission, the statutory body charged with administering the law, will soon hear public comments about the code.

There are several public comment sessions scheduled for next month and participants are asked to enrol due to a limited number of spaces. Comments can also be sent to the EOC by December 8.

The code, which could be in place by March, must undergo a public consultation before going to Legco. Mr Tang said the administrative and empowering provisions of the racial discrimination law would take effect next October, and the investigation and complaint-handling provisions probably the following April.

Examples of how the code applies

1 If someone racially harasses a colleague at a company dinner outside the office, 'the employer is likely to be liable'

2 If a Thai dancer is selected for a Thai dance performance, there is no discrimination due to 'genuine occupational qualification'

3 In a recruitment exercise it would not be unlawful if an employer chooses a candidate because he has lived in Hong Kong the longest

4 If someone hires two domestic helpers of different nationalities, 'there should be equality between them'

5 An advert for Chinese dishwashers would likely be seen as unlawful, as it implies other racial groups would not be hired

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