Discrimination and harassment in Hong Kong

Introduction

Hong Kong law prohibits discrimination and harassment (and related victimisation) and vilification on certain grounds in employment.

Grounds on which discrimination is prohibited

Unless an exemption applies it is unlawful to discriminate on the grounds of sex, pregnancy, marital status, family status, disability, and race (which includes race, colour, descent or national or ethnic origin), (each a “protected attribute”).

Codes of practice in employment have been produced by the Equal Opportunities Commission (EOC) to provide employers with guidance on the application of the legislation. The codes themselves are non-binding but a failure to comply with their recommendations can be used as evidence in proceedings under the anti-discrimination legislation.

Forms of discrimination

The law prohibits direct discrimination, indirect discrimination, victimisation, vilification, and harassment. It is also unlawful to issue instructions to discriminate on one of the prohibited attributes.

Direct discrimination occurs where an employer treats a person with a particular protected attribute less favourably than the employer would treat a person without that attribute in the same or similar circumstances.

Indirect discrimination occurs where a requirement or condition is imposed on all employees equally but it has a disproportionate impact on a group of persons who share a protected attribute (ie pregnant persons or persons of a particular sex, marital status, family status, disability or race).

Victimisation occurs where a person is treated less favourably than others would have been treated on grounds that the person has brought proceedings or given evidence or information in any proceedings brought under the anti-discrimination legislation, or alleged that a contravention of that legislation has occurred, or (in each case) intends to do so.

Vilification occurs where a person does any act in public to incite hatred towards, serious contempt for, or severe ridicule of a person or persons on the grounds of disability or race. It is irrelevant whether any person is actually incited by that act.

Can discrimination be justified?

There are limited exemptions for discrimination. It will not be unlawful to discriminate against a person who, because of his/her disability, is unable to perform the inherent requirements of the job or will require the provision of services and facilities which would cause unjustifiable hardship to the employer in order to carry out those requirements.

A requirement or condition that may discriminate (indirectly) against a person with a particular protected attribute will not be unlawful if it can be justified on objective business grounds.

Prohibited discrimination in practice

Discrimination is prohibited throughout the whole employment cycle, ie in relation to recruitment (including the advertisement of vacancies), terms of employment, opportunities for promotion, transfers, training, provision of benefits, facilities or services, renewal of contracts, disciplinary action, and dismissal.

Harassment

Sexual harassment, disability harassment and racial harassment are unlawful.

Sexual harassment includes any unwelcome sexual advance or request for sexual favours, or any unwelcome conduct of a sexual nature, in circumstances where a reasonable person would have anticipated that the other person would be offended, humiliated or intimidated. It also includes creation of a sexually hostile or intimidating environment.
Disability harassment refers to unwelcome conduct on account of a person’s disability or that of an “associate”. (“Associate” includes a person’s spouse, relative, carer, or a person with whom he/she is co-habitating on a genuine domestic basis.)

Racial harassment refers to unwelcome conduct or conduct which creates a hostile environment on account of a person’s race, or on account of the race of that person’s near relative.

Employers’ liability

An employer can be held vicariously liable for any acts of discrimination committed by an employee in the course of employment. Liability does not arise if the employer is able to show that it took such steps as were reasonably practicable to prevent such conduct from occurring.

Diversity training for staff

There is no express statutory requirement to have diversity training for staff but a lack of diversity training may harm an employer’s defence in discrimination proceedings. Training is also recommended in the codes of practice.

Enforcement

A person with a complaint can either lodge a complaint with the EOC or, alternatively, file a claim directly with the District Court. The EOC has a statutory obligation to investigate complaints lodged with it and to endeavour to effect a settlement by way of conciliation. Where it concludes that a complaint has merit, the EOC can provide support (including legal representation) in any subsequent legal court proceedings.

Remedies

A successful applicant in court proceedings may be awarded damages for injury to feelings and loss of past and future earnings and benefits (such as housing and retirement benefits). Punitive damages can also be awarded, though this is less common. Awards for compensation are uncapped.

Further details relating to discrimination and harassment in Hong Kong are available from our International Employment Issues (IEI) microsite here.