What is employment discrimination and what is workplace discrimination?

Employment discrimination occurs when a job candidate is being treated unfavourably or less favourably than other candidates. Similarly, workplace discrimination happens when an employee is being treated unfavourably or less favourably than other employees. Under Hong Kong’s anti-discrimination law, employment or workplace discrimination is prohibited. It is unlawful to discriminate against a job candidate or employee based on certain grounds.

Grounds of employment or workplace discrimination

As stipulated in the Sex Discrimination Ordinance (Cap. 480), the Disability Discrimination Ordinance (Cap. 487), the Family Status Discrimination Ordinance (Cap. 527) and the Race Discrimination Ordinance (Cap. 602), it is unlawful to discriminate a job candidate or employee based on the following grounds unless any exemption applies:

• Sex
• Disability
• Family Status
• Marital status
• Pregnancy
• Race (including colour, race, and descent or ethnic/national origin)

Forms of employment or workplace discrimination

The four ordinances mentioned above prohibit various forms of employment or workplace discrimination, including:

• Direct discrimination: This occurs when a job candidate or employee is treated less favourably than another candidate or employee based on the prohibited grounds, e.g. a promotion is not offered to a woman but to a man who is less qualified.
• Indirect discrimination: This occurs when a policy, rule or practice equally applies to everyone but has a disproportionate effect on a group of people, e.g. specifying in a job advertisement or promotion that candidates can only apply if English is their first language.
• Victimisation: This happens when someone at the workplace punishes you for making or supporting a complaint about employment or workplace discrimination.
• Vilification: This happens when someone conduct an act to incite hatred towards or to seriously ridicule or contempt for another person based on race or disability.
• Harassment: This occurs when someone conducts an act that is unwelcomed or unwanted by another person based on the prohibited grounds. Examples of these offensive conducts may include name calling, offensive jokes, mockery or ridicule, interference with work performance and intimation.
• Issuance of instructions to discriminate against a job candidate or employee based on the prohibited grounds

In June 2020, the Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020 came into force. The Ordinance was enacted to improve protection against discrimination. Some of the changes made to the existing law by the Ordinance include:

• Amending the Sex Discrimination Ordinance (Cap. 480) to also prohibit unlawful discrimination based on the ground of breastfeeding
• Extending the scope of unlawful disability, sexual and racial harassment to “workplace participants” so long as they attend or work in the same workplace: Workplace participants refer to volunteers, interns or barristers’ pupils who do not have any employment relationship with the person that engages them. Having extended the scope, volunteers, interns and pupils will be personally liable for committing any act of harassment during their voluntary service or internship. Likewise, those who engage volunteers, interns or pupils can be vicariously liable for any unlawful act of harassment committed by the volunteers, interns or pupils.
• Extending the scope of protection under the Race Discrimination Ordinance (Cap. 602): The Ordinance also prohibits unlawful race discrimination by treating a person less favourably based on the thought or assumption that they are of a particular race when they may not actually be. It is also made unlawful to discriminate against or harass someone based on the race of any “associate” of that person. An associate can be the concerned person’s spouse, relative, carer or cohabitee, or someone who is in a sporting, recreational or business relationship with the concerned person.
• Like the Sex Discrimination Ordinance (Cap. 480), extending the scope of protection under the Disability Discrimination Ordinance (Cap. 487) and the Race Discrimination Ordinance (Cap. 602) to also prohibit racial and disability harassment by customers and service providers during the providing of acquiring services, facilities or goods
• Removing the intention exclusion under the Sex Discrimination Ordinance (Cap. 480), the Family Status Discrimination Ordinance (Cap. 527) and the Race Discrimination Ordinance (Cap. 602): Damages may be awarded to successful claimants for unlawful indirect sex, family status and/or race discrimination even if the other party has not intended to treat them less favourably.

Key takeaways

• There is employment or workplace discrimination if a job candidate or employee is being treated unfavourably or less favourably than other candidates or employees.
• Hong Kong’s anti-discrimination law has made it unlawful to discriminate against someone in the workplace based on sex, disability, family status, marital status, pregnancy and/or race.

Bibliography:

1. Hong Kong Government, ‘Discrimination in the Workplace’: https://www.gov.hk/en/residents/employment/labour/discrimination.htm
2. Equal Opportunities Commission, ‘Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020 is now in force!’: https://www.eoc.org.hk/s/Discrimination_Ordinance_Amendments_2020/indexE.html
3. Equal Opportunities Commission, ‘Discrimination Laws: An Overview’: https://www.eoc.org.hk/eoc/graphicsfolder/showcontent.aspx?content=our%20work-eo%20works

‍