Let reason drive COVID policy
debates, not discrimination
Recently,
a restaurant reportedly posted a notice saying that it would not serve
customers who have participated in the Universal Community Testing Programme
(UCTP).
Whether
you are a UCTP skeptic or supporter, consider, for the moment, resisting the
urge to toe your party’s line and to base your position about the incident on
an “us versus them” mindset.
Instead,
why don’t we break down the issues, see what the law says, and apply it as it
is?
The
facts: the notice claimed that UCTP participants were likely to have been
infected with COVID-19, and that they have an “intelligence quotient lower than
65” and therefore would not be able to appreciate the “high quality” of the
food served by the restaurant. Hence the policy to turn them away.
Can
this lead to unlawful disability discrimination?
The
underlying issues are: (i) whether infection with COVID-19 is a disability;
(ii) whether having an “intelligence quotient lower than 65” is a disability;
(iii) whether being perceived as
COVID-19 carriers or people with the said intelligence level (even when this is
not true) amounts to having a “disability” from the perspective of relevant
laws; (iv) whether rejecting customers based on these perceptions constitutes
unlawful disability discrimination; and (v) whether there is any exemption in
relation to infectious diseases.
The
answers to all these questions lie in the Disability
Discrimination Ordinance (DDO).
The
definition of “disability” under the DDO is perhaps wider than many would
imagine. It includes the “presence in the body of organisms capable of causing
disease or illness” (e.g. viruses like COVID-19), and the total or partial loss
of a person’s “mental functions” (e.g. a limited intellectual capacity, phrased
in the notice as an “intelligence quotient lower than 65”).
Notably,
the definition not only covers disability that currently or actually exists,
but also disability that is “imputed” to a person, i.e. thought or assumed to
exist in that person, as in the case of the said notice.
Under
the DDO, it is unlawful for a restaurant, or any service provider for that
matter, to treat its customers less favourably on the ground of disability,
whether real or imputed. Although the law provides an exception for
discrimination based on an infectious disease listed under the Prevention and
Control of Disease Ordinance (e.g. COVID-19), it applies only where the
discriminatory act is “reasonably necessary” to protect public health.
A
decisive issue, then, is whether refusing to serve UCTP participants based on
the assumption that they are likely to have been infected with COVID-19
constitutes a “reasonably necessary” measure for the purpose of protecting
public health.
Notwithstanding
the accusations among untrusting citizens about the UCTP’s cost-effectiveness
and data-handling procedures, there is no evidential proof supporting the
assumption that UCTP participants are susceptible to contracting COVID-19
during the testing process. It follows that the exemption is unlikely to be
applicable here.
As
for assuming that certain customers have an “intelligence quotient below 65”
and consequently turning them away, the exemption again does not apply for an
all-too-obvious reason: a loss of mental functions is not an infectious
disease. Plainly put, it is unlawful for a restaurant to reject customers
because they are believed to be of a lesser intellectual level.
While
no one has come forward to the EOC yet with a complaint about the notice, we
earnestly hope that the public would not condone such a blatant encouragement
of discriminatory attitudes and practices.
From
calling COVID-19 the “Wuhan virus” and “Kung Flu” to ridiculing political
opponents who have come down with the coronavirus (in one instance a patient
was openly mocked by a news report as a “virus queen” after having contracted
the virus and possibly transmitting it to family members), it is now apparent
that many of the debates surrounding governments’ responses to the pandemic,
both in Hong Kong and globally, are conducted at times with needlessly
divisive, discriminatory and stigmatising language.
While
the threshold for the offence of “vilification” under the DDO and Race
Discrimination Ordinance is high – it involves engaging in a public activity
that incites “hatred, serious contempt or severe ridicule” against a person on
the grounds of disability or race, the spirit of the law is clear: the freedom
of speech or opinion, though seen by many (misguidedly) as an absolute right,
should not override the right to equality and non-discrimination.
Of
course, there will always be debates about public policies, COVID-related or
otherwise. They are invaluable insofar as they are accurately informed and help
refine policymaking. But when we allow conversations to be coloured by
discriminatory language, and reason to give way to recriminations, we inevitably
lose focus, and along with it, potential allies.
We
must do better than this.
Ricky CHU Man-kin
Chairperson, Equal Opportunities
Commission
(A
version of this article was published by Hong
Kong Free Press on 15 September 2020.)