15 February 2011
1. On what grounds is it unlawful to discriminate in Hong Kong?
It is unlawful to discriminate on the grounds of sex, marital status, pregnancy, family status, disability and race.
2. Does marital status discrimination include common law marriages?
No. Marital status discrimination only covers the state or condition of being single, married, married but living separately and apart from one's spouse, divorced or widowed. So, it does not cover defacto or common law marriages.
3. Does disability discrimination only cover a disability an employee has now or is it broader?
It is broader. The definition of "disability" is defined very broadly under the DDO and will include most types of sickness such as the common cold or stress. It also includes a disability which presently exists, previously existed but no longer exists, may exist in the future or is imputed to a person. So, an employer may be open to challenge if he treats less favourably an individual who used to have, say, a chronic back problem even if this problem no longer exists. Similarly, an employer would be acting unlawfully if he disadvantages an individual on the basis that he assumes that the individual has a low stress threshold, even if this is subsequently found to be untrue.
4. Can I refuse to hire someone because their spouse is employed by a competitor?
This could potentially amount to unlawful family status or mental status discrimination. However, refusal to employ the person will not be unlawful family status discrimination if you can demonstrate that there is a significant likelihood of collusion between the spouse and the employee which would result in damage to your business.
There is also a current court case with an interlocutory decision which suggests that the above could also amount to unlawful marital status discrimination. However, at the time of writing, we do not yet have a final decision on this point.
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