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Race Discrimination Ordinance – The Impact on Employers

2009-01-01

The Race Discrimination Ordinance (“the Ordinance”) is expected to come into full effect in April 2009. The Equal Opportunities Commission (“the EOC”) has issued a draft Code of Practice on Employment (“the Code”) to explain how the Ordinance protects people from racial discrimination in employment-related matters.

Unlawful Acts under the Ordinance 

The Ordinance has set out numerous conducts that are regarded as unlawful. However, employers would mostly be concerned with the following unlawful conducts:-

·         Racial discrimination (direct/indirect)

  • Discrimination on the basis of the race of the spouse or a relative of a person
  • Racial harassment

Direct Racial Discrimination

Direct discrimination happens when a person treats another person less favourably (i.e., in a different and worse way) than other people because of that person’s race.

Indirect Racial Discrimination

Indirect discrimination will occur where a requirement or condition is imposed generally, but it is more difficult for a person of a particular race to meet the requirement. However, the requirement or condition may be justifiable if its objective is legitimate and it is a proportional and appropriate means to achieve that objective. An obvious example would be a requirement for staff to wear uniform. The question will then be whether this requirement has an adverse impact on or causes a disadvantage to any racial group, and if so, whether it is justifiable.

Discrimination on grounds of near relative’s race

Discrimination on the grounds of the race or ethnicity of person’s spouse, parent or child (including born out of wedlock, adopted or step child), grandparent or grandchild, sibling and in‐laws of a person is prohibited as well. Thus, if an employee is not chosen for promotion simply because his wife is of South Eastern Asian origin, the employee could bring an action against his employer for discrimination in his own name.

Racial Harassment

Under the Ordinance, racial harassment has 2 meanings, i.e., Unwelcome conduct harassment and Hostile environment harassment. A person harasses another person if, on the ground of the race of that other person or a near relative of that other person, the first-mentioned person engages in unwelcome conduct (which may include an oral or a written statement), in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated by that conduct. A person also harasses another person if, based on similar grounds, the first-mentioned person, alone or together with other persons, engages in conduct that creates a hostile or intimidating environment for the second-mentioned person.

Impact on Employers

The Ordinance applies to actions taken by employers in relation to job applicants, employees and contractors. Employers will also be vicariously liable for the acts of their employees. The employer can only escape from being held liable for employees’ unlawful acts if he can show that he has taken reasonably practicable steps to prevent the employee from doing the act.

In that respect, the Code has provided the elements of ‘good practice’ which are especially relevant to taking reasonably steps to prevent employees acting unlawfully. Some practical steps an employer should consider would be:-

·         To emphasis to the employees that racial discrimination and harassment is not acceptable.

·         To ensure that the company’s equal opportunities policy meets the requirements of the Ordinance and, if no such policy exists, putting one in place.

·         To regularly monitor and review the organization’s practices, procedures and policies to ensure that they are consistent with the equal opportunities policy and that the policy is applied in a consistent manner to all staff from recruitment to termination.

·         To provide training to all managers and employees and ensure that all employees are aware of the Ordinance, the employer’s equal opportunities policy and how they apply.

·         To provide proper channels to deal with any grievances and complaints, and that when grievances and complaints do occur, they are dealt with properly by appropriate remedial action.

Other Unlawful Acts

Depending on the nature of the company, other unlawful acts covered in the Ordinance may be just as, if not more, relevant than those aforementioned. For example, in addition to racial harassment, both employers and employees should note that work activities may be regarded as activities in public, and that any activity in public may be unlawful if it is done to incite hatred towards, serious contempt for, or severe ridicule of other people because of their race. Such an activity is called vilification under the Ordinance.

Therefore, it is of grave importance that employers understand the Ordinance thoroughly and to adhere to the Code so as to protect themselves against any breach under the Ordinance.


For enquiries, please contact our Litigation & Dispute Resolution Department:

E: ldr@onc.hk                                             T: (852) 2810 1212

W: www.onc.hk                                          F: (852) 2804 6311

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.
Published by ONC Lawyers © 2009

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