The Racial Discrimination Ordinance ("RDO") which was
passed in July 2008 finally came into force on 10 July 2009. This
is a significant milestone in the development of
anti-discrimination law in Hong Kong.
Unlawful Acts under the RDO
The RDO prohibits discrimination, harassment, victimization and
vilification on the ground of race. "Race" is defined
under the RDO as a person's race, colour, descent, national or
ethnic origin. The definition does not extend to resident status,
length of residency in Hong Kong, nationality and citizenship, or
indigenous villager status of a person. The definition also does
not include religion and language, although discrimination on the
basis of religious practice or language may discriminate against
certain racial groups.
There are however specific exceptions under the RDO. For
example, race may be a genuine occupational qualification where
personal services from a particular racial group are required such
as in the entertainment or food industry. Domestic helpers are also
expressly excluded from the protection of the racial discrimination
provisions in the RDO in respect of recruitment. Further, the
differential treatment for employees on "local terms"
from their colleagues on "expat terms" continue to be
allowed if those terms of employment existed when the RDO came into
force. For new hires, differential terms must be justified on the
basis of the expatriate employee having skills, knowledge or
experience not readily available in Hong Kong.
Vicarious Liability of Employers
An employer will be vicariously liable for any unlawful acts
under the RDO committed by its employee regardless whether the
employer knew or approved of the employee's unlawful conduct.
However, the employer may avoid liability if it can show that it
had taken steps which were reasonably practicable to prevent the
unlawful conduct of the employee from occurring.
Code of Practice on Employment
The Equal Opportunities Commission ("EOC"), Hong
Kong's discrimination law watchdog, issued the Code of Practice
on Employment pursuant to the Race Discrimination Ordinance
("Code"), which also came into effect on 10 July 2009.
The Code provides practical guidance to both employers and
employees on the operation of the RDO in the workplace. It contains
recommendations on good employment procedures and practice and
provides illustrations on how the principles and concepts in the
RDO may be applied in the field of employment.
The Code recommends that employers take the following steps
adopt an equal opportunities policy that represents the
employer's commitment to racial equality;
provide a framework for action to promote racial equality and
putting it into practice;
disseminate the policy to all employees and ensure that
employees understand that racial discrimination and harassment is
unlawful under the RDO;
review the employment processes so as to comply with the RDO by
ensuring that race is not a factor in recruitment, promotion,
training, transfer, terms and conditions of employment in respect
of pay, bonus and other benefits, as well as termination of
employment and redundancies;
put in place appropriate procedures for complaints to be
properly investigated and provide appropriate remedial
ensure that the development, implementation and review of the
policy be jointly undertaken between management and
The Code provides a sample policy on racial equality for
reference that may be adopted by employers. Although the Code is
not legally binding, compliance with the Code will assist an
employer in showing that it has complied with the RDO in any legal
action commenced under the RDO.
An employee or a job applicant who claims racial discrimination,
harassment, vilification and victimization may commence action in
the District Court. The Court has the power to declare any contract
made in contravention of the RDO void, order that a person be
employed, re-employed or promoted, and award damages, including
punitive and exemplary damages.
As an alternative to legal proceedings, a complaint may be
lodged with the EOC which has the power to conduct an investigation
with a view to facilitate settlement of any dispute by
Lawyers in our Employment Department will be able to assist you
in formulating an equal opportunities policy or answer any queries
in respect of the RDO and any employment matter.
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.
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