The Race Discrimination Ordinance ("RDO") comes into force today, 10 July 2009. This is the same day as the final version of the Code of Practice on Employment under the Race Discrimination Ordinance is published on the Equal Opportunities Commission ("EOC") website!
What does the RDO do?
The RDO prohibits discrimination, harassment, victimisation and vilification on the grounds of a person's "race". It applies in several areas of society, the most important of which are employment and the provision of goods and services to the public.
What are the 'hot spots'?
Key points to note in relation to this new legislation are:
- The relationship between a person's religion and his or her "race".
Certain religions also comprise ethnic groups and therefore a "race" (e.g. Jews, Hindus and Sikhs). As such, imposing conditions or requirements which disproportionately impact any of these groups will potentially be indirect discrimination.
- The relationship between a person's language ability and his or her "race".
A person's language is related to their "race" (e.g. a greater proportion of Han Chinese speak Putonghua than Caucasians). As such great care needs to be taken in how language is used for recruitment, advertising and in the provision of services.
There are many other potential pitfalls, but those above are possibly the most acute and immediate.
Does the Code of Practice help?
Unfortunately the Code of Practice on Employment is of limited use. It has become an increasingly political and diluted document over the legislative process (for example, the number of illustrations in the Code has reduced from the original 50 to the current 16). This is disappointing.
As a side note perhaps the most disappointing element of the Code is the EOC's insistence to include reference to the principles of "equal pay for equal work" and "equal pay for equal value" in the Code. Neither of these principles currently exist in Hong Kong and they have no place in a Code explaining specific legislation.
What should I do now?
This legislation has teeth. It is important that employers understand the restrictions and take steps to identify and minimise their own areas of risk.
Immediate steps would include putting in place an anti-discrimination policy covering race discrimination (as well as sex, disability, family status, pregnancy and marital status).
We will be amending our Guide to Discrimination Law in Hong Kong shortly and will circulate a link to this document.
In the meantime the RDO and the Code can be accessed from the following links:
For inquiries related to this Client Alert, please contact:
Duncan Abate (firstname.lastname@example.org)
Hong Tran (email@example.com)