It may seem odd that Hong Kong : Asia's business hub a diverse modern metropolis and a city of live has no remedy for individuals experiencing private racial discrimination. Ethnic minorities form 5% of the population in Hong Kong and those who face racial discrimination whether in employment, housing, provision of medical services, education or transport have no protection. This is despite laws against discrimination in other areas such as gender, family status and disability.
The much debated Race Discrimination Bill (the "Bill") was only passed by the Legislative Council on 10 July 2008. The Bill aims to make racial discrimination and harassment in prescribed areas and vilification on the ground of race unlawful, and to prohibit serious vilification on that ground. It also seeks to extend the jurisdiction of the Equal Opportunities Commission to cover racial discrimination, harassment and vilification.
This Bill targets 6 different areas and this article focuses on the provisions concerning employment.
1. Main Acts In The Workplace Outlawed Under The Bill
Discrimination Against Job
It is unlawful for an employer to discriminate against a job applicant on racial ground :-
- in arrangements which the employer makes for the
purpose of determining who should be offered that
- in the terms on which the employer offers that other
person employment; or
- by refusing, or deliberately omitting to offer, the
other person that employment.
- in arrangements which the employer makes for the purpose of determining who should be offered that employment;
Discrimination Against Employees
It is also unlawful for an employer to discriminate against an employee on racial ground :-
- in the terms of employment which the employer affords
- in the way the employer affords the employee access
to opportunities for promotion, transfer or training, or
to any other benefits, facilities or services, or by
refusing or deliberately omitting to afford the employee
access to them; or
- by dismissing the employee, or subjecting him or her
to any other detriment.
- in the terms of employment which the employer affords that employee;
For a period of 3 years after the Bill is enacted, apart from discrimination by way of victimization, the aforesaid provisions do not apply to any employment where fewer than 5 persons (inclusive of the number employed by any associated employers of that employer) are employed by the employer.
2. Major Exceptions
Some acts mentioned above will not be treated as a breach, where, being of a particular racial group is a genuine occupational qualification for the job. For example, the job involves participation in a dramatic performance or other entertainment in a capacity for which a person of that racial group is required for reasons of authenticity, or the job involves providing persons of that racial group with personal services of such nature or in such circumstances as to require familiarity with the language, culture and customs of and sensitivity to the needs of that racial group, and those services can most effectively be provided by a person of that racial group, etc.
Employment Intended To Provide Training In
Skills To Be Exercised Outside Hong Kong
It is not unlawful if an employer carries out any acts for the benefit of a person not ordinarily resident in Hong Kong in or in connection with employing the person at an establishment in Hong Kong. Where the purpose of that employment is to provide the person with training in skills which the person appears to the employer to intend to exercise wholly outside Hong Kong.
Employment Of Person With Special Skills,
Knowledge Or Experience
The Bill also contains an exception for employment that requires special skills, knowledge or experience not readily available in Hong Kong. The employee in question must possess such skills, knowledge or experience and is recruited or transferred from a place outside Hong Kong. If any acts mentioned in paragraph 1 above were reasonably done by the employer for such person with special skills knowledge or experience in places outside Hong Kong such acts shall not be regarded as unlawful.
Existing Employment On Local And Overseas Terms
For existing employment falling into the meaning in Schedule 2 of the Bill, the employers are allowed to differentiate treatment towards employees under local contract and those under overseas contract. Different treatment is also permitted between employees from different countries but under the same set of overseas contracts.
3. Next Step Forward
There is no timetable for the enactment of the Bill but it is expected to be in place by the first quarter of 2009. It is feared that the Bill will lead to substantial increase in litigation against employers and the Equal Opportunities Commission will be providing a code of practice on employment to raise awareness and understanding of the new legislation.
Employers are advised to pay close attention to the development of the Bill as it is expected to have major impact on human resources management and relationship with and among employees.
Lawyers in our Employment Department will be happy to provide you with a copy of the Bill or assist you with any queries you may have on any employment matters.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.