What is race discrimination?

The Race Discrimination Ordinance (Cap. 602) (“Ordinance”) prohibits race discrimination in Hong Kong.

Racial discrimination

Under section 4, a person (the discriminator) discriminates against another person if on the ground of the race of that person, the discriminator treats that person less favourably than the discriminator treats or would treat other persons.

Meaning of race, on the ground of race, racial group and
comparison of cases of persons or different racial groups

Under section 8, “race” means the race, colour, descent or national or ethnic origin of a person, and includes a race, colour, descent or national or ethnic origin that is imputed to the person.

A comparison of the case of a person of a particular racial group with that of a person not of that group must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

Act done for racial and other reason

Under section 9, if an act is done for two or more reasons and one of the reasons is the person’s race, then the act is taken to be done for the reason of that person’s race (whether or not it was the dominant or substantial reason for doing the act).

Discrimination against applicants and employees

Under section 10, it is unlawful for an employer to discriminate against an employee by dismissing him/her, or subjecting him/her to any other detriment.

Gweilo

Most (if not all) our local readers know, the Cantonese slang “Gweilo” (鬼佬), which literally translates to “ghost man”, is commonly used in Hong Kong to describe a foreigner, in particular, Caucasians. The term was believed to have been first used by Cantonese-speaking locals in the Pearl River Delta to describe the first white people they saw in the 16^th century.^[i] It is debatable whether the term is pejorative. In a community survey conducted by SCMP newspaper, it appears to be no clear consensus in the community (both expatriates and locals included) as to whether the word is racially pejorative.^[ii] 

The question

If I call a foreign co-worker a “gweilo”, is that racial discrimination?

When the Equal Opportunities Commission (“EOC”) was asked whether the word “gweilo” could be regarded as harassment under the law, their spokesman said that it would depend on several factors including the actual circumstances of the case, the context of the particular situation and the relationship between the parties involved.^[iii]

The “Gweilo” case

In February 2022, the District Court handed down a landmark judgment in Haden, Francis William v Leighton Contractors (Asia) Ltd [2022] 1 HKLRD 995, [2022] HKDC 152, a high-profile racial discrimination case (dubbed as the “Gweilo” case) that has attracted much media attention. The District Court considered whether the use of the words “gweilo” and “foreigner” at work was race discrimination, and whether the employee’s race was the reason for the termination of his employment.

Background

Mr Francis William Haden (“Mr Haden” or “Employee”) was employed by Leighton Contractors (Asia) Limited (“Employer”) in 2010.

In August 2016, the Employer assigned Mr Haden to work on the construction of the Tseung Kwan O to Lam Tin Tunnel (“Project”) as the Blasting Team Leader, where the contractor was a joint venture between the Employer and the Employer’s joint venture partner (“Joint Venture”).

In February 2017, the Employer terminated Mr Haden’s employment due to his difficulties in communicating and working with others.

In May 2017, Mr Haden filed a race discrimination complaint against the Employer with the EOC.

In September 2018, he commenced proceedings in the District Court claiming over HK$1 million in damages with other reliefs. In his claim, Mr Haden alleged that he was terminated not because he was a poor performer, but because he was culturally and racially different from the rest of the surface blasting team and as such, they would not communicate with him. This all happened against a backdrop of racial hostility where racially and culturally inappropriate words such as “gweilo” and “foreigner” undermined any true integration between races within the Joint Venture.

The Law

Race discrimination is unlawful under the Ordinance.

The 2-stage test

The consideration of a claim of direct discrimination involves two questions:

1.        the Comparator Question: Whether the respondent (i.e. the Employer) had treated the claimant (i.e. the Employee) less favourably than it treated or would treat others; and

2.        the Causation Question: Whether the less favourable treatment (if any) was on the ground of the claimant’s race.

The approach

On the Comparator Question, the Court recognised that the identification of an appropriate comparator may cause unnecessary complication. Therefore, the Court looked at the Causation Question first and then the Comparator Question by comparing Mr Haden with a hypothetical comparator.

In a claim for racial discrimination, the burden is on the claimant to prove discrimination on the balance of probabilities.  Once the Court is satisfied that the claimant is able to show from the primary facts that inferences could be drawn from the circumstances that disclosed a possibility of discrimination (because there are rarely instances of overt acts of discrimination), the Court would look to the respondent for an explanation.  If there is no reasonable or satisfactory explanation put forward, then the Court would be entitled to infer discrimination as a matter of common sense.

Factual findings

In Haden, there was no direct evidence that the Employer dismissed Mr Haden because of his race. Mr Haden asked the Court to infer racial discrimination based on the following primary facts:

1.        he was competent and technically very good at his job;

2.        he had been bypassed and his role as the Blasting Team Leader was usurped;

3.        he had raised the issue of racism at a meeting held with the project director of the Project;

4.        the term “gweilo” was said on the Project; and

5.        there was a lack of process in his termination.

The Court considered the above matters in turn to decide whether the findings of fact to be made would be adequate to support an inference that the Mr Haden’s employment had indeed been terminated on the ground of his race. After examining the extensive evidence given by both sides, the Court found that Mr Haden’s employment was not terminated on the ground of race but due to his poor working relationship with others and his inability to work as a team. Mr Haden’s claim was dismissed. 

Is it okay to call a foreign co-worker a “gweilo”?

Regarding Mr Haden’s claim that the term “gweilo” was frequently used during discussions between his fellow Chinese co-workers, which, as alleged by Mr Haden, showed racial hostility in the work context, on the facts of the case, the Court found that the Employee failed to prove that there was a background of racial hostility in the Project he was involved in.

The Court was of the view that the use of the term “gweilo”, even if it was used in a workplace, would not necessarily carry a derogatory meaning. One must consider the context in which the term “gweilo” was used.

Takeaway

Discords between colleagues, regardless of race, are common at workplace. When there are co-workers of difference races, discriminatory acts can take place. Employers should be mindful in managing risks of racial discrimination claims.

Whilst the use of term “gweilo” at workplace may not be discriminatory, it can be depending on the context. The court may infer race discrimination from the facts and circumstances that disclose a possibility of discrimination. Once the court is satisfied that there is a possibility of discrimination at the workplace, it will look to the employer for an explanation. Therefore, it is best practice to avoid the use of the term “gweilo”.

Employers should put in place measures to manage the risks of racial discrimination claims, such as internal policies on anti-discrimination, proper record keeping and equal opportunity recruitment. Employers should obtain legal advice and assistance in setting up and reviewing anti-discrimination policies.