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Legal Update

Discrimination Bitesize

16 March 2011
Mayer Brown JSM Legal Update

1. What does "race" mean in the Race Discrimination Ordinance?

The term "race" in the RDO is defined to mean the "race, colour, descent or national or ethnic origin" of a person.

While this may appear straightforward, it is not.

"Colour" includes not just the colour of a person's skin, but also the person's hair or eye colour.

"Descent" refers to the social caste or the inherited status of a person (e.g. castes in Indian society). Therefore, treating an employee less favourably because he/she has been born into a particular caste would amount to unlawful race discrimination.

"National origin" is not equivalent to nationality or citizenship, but refers to the nation to which a person belongs. So, although an English person and a Scottish person may hold the same United Kingdom passport, they are from different national origins.

"Ethnic origin" refers to a group of people who share a long history, have their own cultural traditions, way of life, family and social customs and manners. An example would be Sikhs or Jews or gypsies.

2. Is a specific religion a "race" under the RDO?

A religion itself is not a race. However, given the broad definition of "race", there will be a crossover with certain religions which also comprise an "ethnic group". These could include Jews, Sikhs and Hindus. In contrast, Muslims or Catholics will not comprise an "ethnic group" because they do not share a unique history and cultural and social traditions, they are genuinely global religions.

3. What does not constitute "race" under the RDO?

The RDO sets out certain specific exceptions to "race" (mostly for administrative reasons). So, excluded from "race" for the purposes of the RDO are acts done on any of the following grounds:

  • that the person is or is not an indigenous inhabitant of the New Territories of Hong Kong (a particular area of Hong Kong which is on the mainland of China)
  • that the person is or is not a Hong Kong permanent resident or has or has not the right of abode or the right to land in Hong Kong. Hence, refusing to employ a person because he does not have a Hong Kong permanent ID card would not amount to discrimination on the ground of race
  • the length of residence in Hong Kong of a person. Hence, only interviewing candidates who have resided in Hong Kong for not less than two years would not amount to discrimination on the ground of race
  • the nationality, citizenship or resident status of a person under the law of any country or place concerning nationality, citizenship, resident status or naturalisation of or in that country or place.

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