Ensuring equal opportunities

PUBLISHED : Wednesday, 19 October, 2011, 12:00am
UPDATED : Wednesday, 19 October, 2011, 12:00am


Anti-discrimination laws

Anti-discrimination laws aim at eliminating unfair discrimination based on sex, disability or race. Under an International Convention, the Hong Kong government is obliged to enact anti-discrimination laws. There are three main ordinances in Hong Kong:

1. Sex

The Sex Discrimination Ordinance (SDO) was passed in 1995 to tackle discrimination based on gender, marital status or pregnancy.

2. Disability

The Disability Discrimination Ordinance (DDO) was also enacted in 1995 to eliminate unfair discrimination against people that suffer from HIV, partial loss of bodily functions or mental disorders.

3. Race

The Race Discrimination Ordinance (RDO) was enacted in 2008 and came into force in 2009. It prohibits all unfair discrimination on the basis of race, nationality or ethnicity.

What the laws cover

All three laws extend to areas of employment, education, provision of goods and facilities, government services and management of property.

It is also important to note that the right to equal access is a constitutional right. If a law is found to be unlawfully discriminatory, then the courts can reject it. An example is Secretary for Justice v Yau Yuk-lung, when the courts overturned a law that had made certain homosexual acts a criminal offence.

What we mean by 'discrimination'

There are three types of discrimination that are banned by the legislation.

1. Direct discrimination

Direct discrimination happens when a person with a certain attribute (under the SDO, DDO or RDO) is treated 'less favourably' than a person in similar circumstances but without the attribute.

An example would be when a person with similar qualifications and ability is not employed based on his race, as was the case in February 2009 when a Wal-Mart store in the US did not employ a group of African Americans on the basis that they were black. A US$17.5million settlement was reached.

2. Indirect discrimination

This is when certain conditions are set that would deter or prohibit people with a specific attribute (again under the SDO, DDO or RDO) from gaining equal access to certain opportunities or services.

An example would be a height requirement of 190cm, which would favour male applicants over female applicants owing to the inherent biological characteristics of each gender.

3. Vilification

Vilification refers to any remark or action in public that would incite hatred towards people with disability, or of a particular sex, or race. An example would be a public announcement that 'all disabled people are useless'.

When discrimination is allowed

In some situations, discrimination is lawful and allowed. However, it must be shown that the attribute (either sex, race or disability) is an inherent requirement of the job or service. In a theatre performance of Othello, for example, a black man is preferred for the role of Othello to ensure the authenticity of the performance. In this case, discrimination based on skin colour would be seen as a Genuine Occupational Qualification and would serve as a defence against the anti-discrimination ordinances.

What you can do if you are discriminated against

If you believe that you are a victim of unlawful discrimination, you should first attempt to raise this issue with the relevant organisation. Often, discrimination may be unintentional or caused by miscommunication.

However, if the discrimination was intentional, then you can refer your case to the Equal Opportunities Commission (EOC). The EOC would then launch an investigation into the problem, followed by an attempt to settle your case by way of conciliation.

Conciliation is when both sides are brought together to discuss problems and look for ways to solve a dispute. Conciliation tries to find common ground to help resolve the matter to the satisfaction of both sides. As it allows both parties to have their say, this can help avoid misunderstandings.

Nonetheless, conciliation takes place on a voluntary basis and a settlement may not be reached. In this case, you may refer your complaint to the courts. The EOC would then provide legal assistance.

Two case studies on the left show how anti-discrimination laws work, as well as the practical difficulties facing such legislation.

Case Study I:

Tsang Helen v Cathay Pacific Airways Ltd

Ms Tsang was a flight attendant with Cathay Pacific. At the time, Cathay Pacific had a policy that all female flight attendants had to retire at the age of 40, while the age for male flight attendants was 55. At the age of 45, after five years of yearly contract extensions, Ms Tsang was required to retire. She then filed a complaint with the courts on the basis that company policy amounted to direct gender discrimination.

The application was approved by the courts, where it was argued that 'but for her sex', Ms. Tsang would not have been required to retire at 45. Cathay Pacific has since changed that policy and currently both male and female flight attendants have the same age of required retirement.

Case Study II:

Tong Wai-ting v Secretary for Education

Tong suffered from Down's syndrome and had been studying at a special school for 12 years. Under the education policy, after Tong turned 18, he had to leave the school unless there were vacancies. It was argued that this was unfair discrimination, since there was no age restriction in mainstream schools.

The court rejected the application. While it was true that there was no age restriction for mainstream schools, free secondary education only extends to 11years. Afterwards, applicants are admitted to Form Six only when there are vacancies and upon satisfaction of certain grade requirements. Thus the policy did not amount to unlawful discrimination.

How do we compare the two education policies when their structures are so different? This shows the practical difficulties in the definition of 'similar circumstances'.