Hong Kong’s Race Discrimination Ordinance
By Jennifer Van Dale and Diana Purdy-Tsang
Baker & McKenzie LLP
Hong Kong prepares to enforce new Race Discrimination Ordinance protecting employees against discrimination in the workplace.
Hong Kong’s Legislative Council passed the Race Discrimination Ordinance in July 2008, and the first provisions became effective in October 2008. The Code of Practice for Employment published by the Equal Opportunities Commission is nearing finalization, and is currently with the Legislative Council for final vetting.
Once the Code of Practice is approved, the substantive provisions of the Race Discrimination Ordinance (notably, those that render race discrimination, harassment and victimization unlawful) are expected to come into effect. While no firm date has been announced by the Hong Kong Government, it should be sometime in 2009, according to the latest information from the Equal Opportunities Commission. Implementation of the Ordinance will be delayed until July 2011 for small employers with fewer than five employees.
The Ordinance prohibits discrimination, harassment, vilification and victimization based on “race”. “Race” is defined as “race, color, descent or national or ethnic origin”. Although “national origin” is included in the definition, “nationality” is not. Citizenship, resident status, right of abode, length of stay and indigenous inhabitant status are not covered by the Ordinance and it therefore does not prohibit discrimination on these grounds. Immigration and citizenship laws are not intended to be affected by the Ordinance.
While it protects employees against racial discrimination, the Ordinance also has provisions that permit differential treatment on the ground of race. The Ordinance provides for an exemption from its requirements in a number of exceptional cases such as where race is a genuine occupational requirement, or in the case of certain expatriates hired from outside Hong Kong. The greatest impact of this exception will likely be felt when hiring expatriate staff who are already working in Hong Kong but wish to be re-engaged by a new employer also on expatriate terms. These staff will not meet the requirement of being hired from outside Hong Kong and therefore will not be exempted under the Ordinance if they are re-hired in Hong Kong.
Employers should note that while individual employees may be liable for their own discriminatory acts in the workplace, the employer can also be liable for those acts even if it did not approve of or know about them. Employers may avoid liability by showing that they took all reasonably practicable steps to avoid such unlawful acts. To do this, employers must at least have policies in place prohibiting racial discrimination. These policies cannot exist in a vacuum, however. They must be made known to employees, and training should be provided to all employees on what discrimination is and what conduct is not acceptable in the workplace. In addition, recruitment guidelines should be drawn up that cover advertisements, interview questions, and selection criteria to ensure that objective criteria are used when hiring and promoting staff.