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Legal Update

The Race Discrimination Ordinance Begins to Come to Life

29 October 2008
Mayer Brown JSM Legal Update

The Equal Opportunities Commission has published a draft Code of Practice on Employment under the Race Discrimination Ordinance ("RDO").  This is an important document. It sets out the provisions of the RDO in an easy to read format. It is designed to educate employers and employees and, in particular, should enable employers to begin to plan for the impact of the Ordinance.

This paper considers both the impact of the Code and revisits some of the key aspects of the RDO in light of the examples provided in the Code.
Full Update
The Code of Practice
The Code is not, in itself, legislation. Therefore a breach of the Code will not automatically result in a breach of the RDO. However, the RDO expressly states that in determining whether or not an employer has complied with the provisions of the RDO a court may take into account whether or not the employer has complied with any provision of the Code. It follows, therefore, that an employer who complies with a recommendation set out in the Code is unlikely to be prosecuted for breach of the underlying legislation.
In drafting the Code, the Equal Opportunities Commission ("EOC") has had to walk a fine line.  On the one hand it needs to explain the race discrimination legislation, including the restrictions and the numerous exemptions. On the other hand the EOC does not have any cases which have been heard by the Hong Kong courts (obviously) and, therefore, it is difficult for the EOC to give concrete examples of situations which may or may not comply with the legislation. 
Perhaps unsurprisingly, therefore, the 54 page Code comprises almost exclusively a precis of the employment related sections of the RDO with certain uncontroversial or obvious examples sprinkled throughout. 
Nonetheless, the EOC should be applauded for the document which they have produced.
The Race Discrimination Ordinance
What is unlawful under the RDO?

There are three main prohibitions under the RDO. These are:

  • discrimination
  • harassment
  • vilification
It is unlawful to "discriminate" against an employee or applicant for a job in the areas covered by the RDO. The term "discriminate" includes direct and indirect discrimination as well as victimisation.
Direct racial discrimination is where a person is treated less favourably than another on the grounds of the "race" of that person.
Indirect racial discrimination is where:
  • a requirement or condition is applied to a group of persons,
  • a smaller proportion of persons from a particular racial background can comply with such condition or requirement,
  • that group suffers a detriment as a result of not being able to comply with the condition or requirement, and
  • the condition or requirement is not "justifiable".
A condition or requirement may only be considered "justifiable" if:
  • it serves a legitimate objective and bears a rational and proportionate connection with the objective, or
  • it is not reasonably practicable for the alleged discriminator not to apply the requirement or condition.
An example of indirect discrimination may be a prohibition on facial hair in the workplace. As certain ethnic groups prohibit shaving (Sikhs), such condition may amount to indirect race discrimination.
When comparing persons of different racial groups then the "relevant circumstances" for comparison must be either the same or not materially different.
Segregating a person from other persons on the grounds of their race is treating that person less favourably than other persons and, therefore, may be an act giving rise to unlawful discrimination.
Should an individual treat one person less favourably than another on the grounds that the first person has a "near relative" of a particular race then this will also be discrimination.  "Near relative" means spouse, parent, child, grandparent, grandchild or sibling.
It is also unlawful discrimination to victimise a person. Victimisation occurs where an individual is treated less favourably than other persons on the grounds that the person had:
  • brought proceedings under the RDO,
  • given evidence or information in connection with such proceeding,
  • done anything by reference to the RDO in relation to the person doing the discrimination, or
  • alleged that the "discriminator" or any other person has committed an act which would amount to a contravention of the RDO.
Victimisation does not, however, occur when an allegation is made by an individual and the allegation is false and not made in good faith.
Racial harassment is also prohibited.  Racial harassment occurs where a person:
  • engages in unwelcome conduct on the grounds of the race of the complainant where a reasonable person would have anticipated that such person would be offended, humiliated or intimidated, or
  • engages in conduct that renders hostile or intimidating the environment in which the complainant works or carries out related activities.
Calling employees derogatory names based on their ethnic group is likely to amount to harassment. Also, inappropriate racial jokes or pictures making fun of a particular ethnic group in the workplace may amount to unlawful harassment.
Any act done in public (which may include certain workplaces) to incite hatred towards a person or class of persons on the grounds of that persons race is unlawful vilification.
Act done for more than one reason
Where an act is done for two or more reasons and one of those reasons is the race of a person then the act is treated, for the purpose of the RDO as having been done solely due to the race of the person.
What is "race"?
The term "race" means "race, colour, descent or national or ethnic origin".
This definition reflects that in the legislation of several other jurisdictions. As such there is some caselaw on which the EOC has been able to draw to provide some assistance in the Code.
The draft Code examines each of the elements of the "race" definition in turn. 
Caucasian, Asian, African and Hispanic persons (for example) all have different bodily features. One of the most obvious differences may be the skin colour, but there are many others including shape of eyes and nose as well as hair colour. Discrimination on the basis of any feature which forms part of the makeup of one or more groups, but not of all groups, may amount to discrimination.
Differentiation on the basis of the descent of a person may be unlawful. In this context descent means "from where the individual comes". So, if a person comes from a different "class" by birth (e.g. under the Hindu caste system) and is treated less favourably due to such fact then this may amount to unlawful discrimination.
National origin is different from nationality. Scottish persons have a specific national origin, but are British by nationality. However, a national origin must, presumably, have some roots in a "nation".
Ethnic origin need not be connected to a nation. However, in order for a group to have an identifiable ethnic origin it must satisfy certain requirements which are established by caselaw and which have also been set out in the Code. They are that the group must share a long history and have its own common cultural traditions, ways of life, family and social customs and manners.
There is a material cross over between religions and ethnic groups. So, Sikhs are an ethnic group, as are Jews. However muslims and catholics are not. Gypsies are an ethnic groups but English speaking Welshmen are not.
When do the restrictions apply?
The relevant "heads" of unlawful racial discrimination for employment purposes are precisely the same as for the Sex Discrimination Ordinance. 
In relation to the hiring process it is unlawful to discriminate "at an establishment in Hong Kong" (see below) against a person:
  • in the arrangements for the purposes of determining who should be offered employment,
  • on the terms of employment offered, or
  • by refusing to make an offer of employment.
So, only holding interviews on a Saturday (which is the holy day for the Jewish race) may amount to racial discrimination as it is limiting the ability for Jewish persons to apply for the job.
In relation to existing employees, it is unlawful to discriminate "at an establishment in Hong Kong" against an employee:
  • in the terms of employment granted to the employee,
  • in relation to granting the employee access to opportunities for promotion, transfer or training, or
  •  by dismissing the employee or subjecting them to any other detriment.
Requiring employees to attend a course prior to being eligible for promotion and only running such course on a Saturday may be unlawful discrimination against Jews (see "Recruitment section" above).
Small employers and domestic helpers
There is an exemption for small employers. This exemption applies to any employer who employs (together with any associated employers) five or less employees. Such exemption will last for three years from 16 July 2008. The small employer exemption does not cover victimisation.
The small employer exemption does not apply in respect of domestic helpers. However, domestic helpers are expressly excluded from discrimination (i.e. direct or indirect discrimination), but continue to be protected in relation to victimisation or discrimination due to the race of a near relative.
There is a limited exemption in relation to provisions concerning death or retirement made before the commencement date of the Ordinance.
Meaning of "establishment in Hong Kong"
There is a presumption that an act is carried out at "an establishment in Hong Kong" unless the employee "does his or her work wholly or mainly outside Hong Kong". 
There is a special provision for employment on ships registered in Hong Kong or on aircraft registered in Hong Kong and operated by a person whose principal place of business is Hong Kong. In these circumstances there is, once again, an assumption that employment on such craft is employment at an establishment in Hong Kong unless the employee does his or her work wholly or mainly outside Hong Kong.

What are the exemptions to unlawful acts?
The exemptions fall into three broad categories :
  • areas which are not considered to be racial discrimination
  • exceptions relating to a specific job or type of job
  • special measures
Areas which are not "racial" discrimination
Expressly excluded from "race" for the purposes of determining whether something has been done on the grounds of the race of a person are the following considerations:
  • whether the person is an indigenous villager of Hong Kong New Territories,
  • whether or not an individual is a Hong Kong permanent resident (or has a right of abode or to land in Hong Kong),
  • the length of residence in Hong Kong of an individual, or
  • the nationality, citizenship or resident status of a person as stated in their passport, travel document or other document.
A "racial group" can comprise two or more distinct racial groups.
So, requiring an employee to be of a certain nationality or not to have a particular passport is not unlawful. Similarly, employing non-permanent Hong Kong identity cardholders on different terms to permanent identity cardholders is permitted.
Exceptions relating to specific jobs or types of jobs
Where a job requires an individual to be of a particular racial group (i.e. it is a "genuine occupational qualification for the job") then it is not unlawful :
  • to make particular arrangements only to employ from that particular racial group, or
  • to refuse to make an offer to a person who is not within that particular racial group.
Similarly, it is not unlawful to refuse a transfer or promotion to an individual from a particular racial group where the job promotion or transfer requires an individual from a different racial group.
A "genuine occupational qualification" applies only in five specified circumstances. These are:
  • dramatic performances
  • artistic or photographic model
  • working in a place where food or drink is provided and a person of a particular racial group is required for reasons of authenticity
  • the job involves providing persons of a particular racial group with personal services which can most effectively provided by a person of a particular racial group
  • the job involves providing persons of a particular racial group with personal services and the circumstances require familiarity with the language, culture and customs of such racial group
A Thai restaurant can therefore hire only Thai waiters. If, however, it hires a non-Thai waiter it would be unlawful to pay the non-Thai waiter less than the Thai waiters.
It is permissible to bring persons of a particular race into Hong Kong in order to train them where the employment of those persons is to take place outside Hong Kong.
It is not unlawful for an employer to give preferential treatment to an employee or job applicant where an employer can demonstrate that:
  • the employment requires skills, knowledge or experience which are not readily available in Hong Kong,
  • the person employed:
    • possesses those skills, knowledge or experience, and
    • is recruited or transferred from a place outside Hong Kong, and
  • the preferential treatment is "reasonably done" having regard to:
    • "the prevailing terms of employment offered to persons with those skills, knowledge or experience in places outside Hong Kong,
    • any other "relevant circumstances (other than the race of the person)".
This exception attempts to deal with the issue of employing individuals from overseas on "expatriate terms". In order to take advantage of this exemption the employer must be able to demonstrate that the skill, knowledge or experience of the individual is not readily available in Hong Kong and must show that the provision of preferential terms is "reasonably done" (whatever that means).
There is also a grandfathering provision for the differential treatment of expatriates and locals. This exemption will apply in respect of:
  • an individual employed by an employer before the commencement date of the RDO who continues in employment with such employer (or transfers to an associated company of the employer),
  • a judicial officer employed prior to 27 November 1997 who continues in employment (as well as particular categories of judicial officer employed before 1 January 1999), and 
  • certain public officers employed prior to 1 January 1999.
The terms "local terms of employment" and "overseas terms of employment" are defined by reference to the conditions of service which apply "primarily to the appointment or employment by the employer concerned of a person who is a Hong Kong permanent resident" (or not, as the case may be).
This is an attempted grandfathering provision for employees who have historically been employed on expatriate terms. 
Special measures
Where a particular group or category of persons from a specific race have been disadvantaged in the past it is not unlawful for an employer to take positive steps to enable such persons to compete on equal terms with others.
Before implementing special measures the Code recommends obtaining empirical evidence to demonstrate the disadvantage suffered and to justify the special measures.
Who is liable?
An employer is liable for the acts of its employees unless it can show that it took reasonably practicable steps to prevent the unlawful act from occurring.
On a practical level the minimum an employer should put in place is a written policy prohibiting discrimination and harassment. Without such policy it is very difficult for an employer to persuade a court that it has taken reasonable steps to stop unlawful discrimination or harassment. However, a policy is no use unless the employer can also show that employees are aware of the existence and meaning of the policy.  As such a training programme is strongly recommended.
The Code sets out a variety of issues which should, ideally, be covered by such a policy.

For further information, please contact:
Duncan Abate ( )
Hong Tran ( )

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