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The Disability Discrimination Ordinance and People with Intellectual Disabilities

This leaflet is produced by the Equal Opportunities Commission. It gives general information about the rights of people with intellectual disabilities under the Disability Discrimination Ordinance. The Equal Opportunities Commission has also produced a Good Management Practice Series consisting of information leaflets in relation to the Disability Discrimination Ordinance and the Code of Practice on Employment. The Commission would like to take this opportunity to thank the organisations concerned for the advice given.

For further information, please contact:
Equal Opportunities Commission
16/F., 41 Heung Yip Road,
Wong Chuk Hang, Hong Kong.
Tel.: 2511-8211

What is the Disability Discrimination Ordinance (DDO)?

It is a law that has been enacted to protect people with a disability against discrimination, harassment and vilification on the ground of their disability.

Am I protected under the DDO if I am a person with intellectual disabilities?

Yes, because the definition of disability under the DDO includes the total or partial loss of a person's mental functions. This includes intellectual disabilities which means if you do have such a disability, you are equally protected under the DDO as people with other types of disabilities.

This protection also extends to your associates. It is unlawful for your associates to be discriminated against, harassed or vilified on the ground of your disability. Under the DDO, an associate includes a spouse, another person living with a person with a disability, relative, carer and a business, sporting or recreational partner.

What is my protection under the law?

The law gives you protection against discrimination, harassment or vilification in the areas of :

--	employment (including partnerships, trade union memberships, vocational training, etc.)
--	education
--	access to, disposal and management of premises (Premises are places that can be accessed by the members of public.)
--	provision of goods, services and facilities
--	practising as barristers (Any offer of pupillage and training provided to barristers.)
--	clubs and sporting activities

This protection also extends to your associates.

What is discrimination?

Discrimination can be direct or indirect.
Direct discrimination occurs when, on the ground of disability, a person with a disability is treated less favourably than another person without a disability in similar circumstances.
Indirect discrimination occurs when a condition or requirement is applied to everyone, but in practice affects people with a disability more adversely, is to their detriment, and such condition or requirement cannot be justified.

What is harassment?

Harassment is any unwelcome conduct on account of a person's disability where it can be reasonably anticipated that the person would be offended, humiliated or intimidated. For example, insulting remarks or offensive jokes about a person's intelligence. Harassment against a person with a disability is unlawful under the DDO.

What is vilification?

Vilification is an activity in public which incites hatred towards, serious contempt for, or severe ridicule of people with a disability. For example, if a person speaks openly in public that persons with intellectual disabilities are useless and a burden to society, this may amount to vilification. Vilification against a person with a disability is unlawful under the DDO.

Does the DDO apply to all employers in Hong Kong?

The DDO applies to all employers in Hong Kong, unless the employee does his/her work wholly or mainly outside Hong Kong. (Please note that the exemption to "small employers", whose employees do not exceed 5 persons, expired on 3 August 1998.)

If a person with intellectual disabilities takes out insurance, can an insurer refuse to provide the service or ask for a higher premium?

It is unlawful for an insurer to refuse to provide the service, unless the decision is affected by reference to reasonable actuarial data from a source on which it is reasonable to rely. Regarding the increase of premium, it is not unlawful for an insurer to ask for higher premium after a reasonable assessment of the risk has been done.

What will we do if a person with intellectual disabilities is denied service in a restaurant?

Under the DDO, it is unlawful for any person to refuse the provision of goods, services or facilities to another person on the ground of disability. It is unlawful for a restaurant to refuse the provision of service to a person because he/she has intellectual disabilities. The person with intellectual disabilities can lodge a complaint with the Equal Opportunities Commission (EOC) or take the case to court.

10.

If my child has intellectual disabilities and I want to apply a mainstream kindergarten for him/her, but am rejected, does the kindergarten contravene the DDO? Further, does the kindergarten have responsibility to provide special services or facilities to help my child study?

10:

It is unlawful for the kindergarten to refuse the admission of the child because he/she has intellectual disabilities, unless the provision of educational service to the child would impose unjustifiable hardship.
The kindergarten has the responsibility to provide special services or facilities for the children with intellectual disabilities to help them study, unless the provision of such services or facilities would impose unjustifiable hardship.

11.

Can an employer treat an employee less favourably because he/she has intellectual disabilities?

11.

No. It is unlawful for an employer to treat an employee less favourably because he/she has intellectual disabilities. An employer should uphold the principle of "equal work, equal pay" in terms and conditions of employment. In other words, employees with intellectual disabilities are entitled to have equal pay when they do similar work as employees without intellectual disabilities.

12:

If my colleagues openly tease a colleague with intellectual disabilities about his/her intellectual disabilities and he/she was unhappy about it, is it discrimination?

12:

Your colleagues' behaviour may amount to discrimination or harassment under the DDO, if they behave that way on the ground of your colleague's intellectual disabilities. If they publicly incite hatred towards, serious contempt for, or severe ridicule of, a person with a disability, this may amount to vilification.

Under the DDO, your employer has a responsibility to provide a workplace that is free from discrimination, harassment and vilification. This means that your employer may be held responsible for your colleagues' behaviour, even though your employer may not approve or know of it.

13:

I want to rent a flat. All terms and conditions have been agreed between the landlord and me. However, after learning that I am going to live with a relative who has intellectual disabilities, the landlord refuses to rent the flat to me. Does the landlord contravene the DDO?

13:

If the landlord refuses to rent the flat to you because your relative has intellectual disabilities, he/she has contravened the DDO.

14.

Can a bank refuse applications from person with intellectual disabilities to open an account?

14.

Under the DDO, it is unlawful for a bank to refuse a person's application to open an account because the person has intellectual disabilities, unless the bank shows that the person is legally incapable to enter into a contract when he/she opens an account.

15:

If my relative or friend has intellectual disabilities and I feel that he/she is being discriminated against, what can I do?

15:

You can take one or more of the following courses of action:

(a)	if the complaint is job-related, you can lodge a complaint with your organisation's management or seek other forms of appropriate help from your organisation;
(b)	if the complaint is related to the provision of goods, services or facilities, you can lodge a complaint with the goods, services or facilities provider or request for improvement;
(c)	lodge a complaint with the Equal Opportunities Commission (EOC); and/or
(d)	take your case to court.

Remember to make a record of what has happened as soon after the incident as possible while your memory is still fresh. This information will help you recall details at a later date when you want to take action. If the discrimination involves verbal abuse, try to record word for word what was said. This is particularly important if you feel you are being harassed or vilified in public.

16:

Does person with intellectual disabilities need to prove he/she has intellectual disabilities before a complaint can be lodged?

16:

No, this is not necessary as long as you can show that the discriminator discriminated against your relative or friend based on his/her knowledge, belief or suspicion that your relative or friend has intellectual disabilities.

17:

If my relative or friend has intellectual disabilities and is discriminated against, does he/she have to lodge a complaint with the EOC by his/her own self?

17:

No. He/She can lodge a complaint through a representative. However, the representative must show that he/she has been authorised by person with intellectual disabilities to lodge the complaint.

18:

What happens when I lodge a complaint with the EOC on behalf of my relative or friend?

18:

Once a complaint is lodged in writing, the EOC will investigate into the matter. Following this, the EOC will try to settle the matter between you and the other party concerned by conciliation. If the complaint cannot be resolved and you decide to take the case to court, you may apply to the EOC for assistance in respect of the legal proceedings. Assistance may include giving advice, representation by the EOC's lawyers, legal representation by outside lawyers or any other form of assistance the EOC considers appropriate. Apart from that, you may apply to the Legal Aid Department for legal assistance or bring the case to court without legal representation.

19:

What if my relative or friend receives even worse treatment after I have lodged a complaint?

19:

This treatment is considered to be victimisation, which is also a form of unlawful discrimination under the DDO. If such treatment happens, your relative and friend is protected under the law and should immediately inform the people who are dealing with your complaint, i.e. solicitor or the EOC, depending on the course of action you have chosen.

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