The latest Hong Kong Poverty Situation Report, released by the Census and Statistics Department last month, was widely covered by the media because of its dire finding that more than one in every five Hongkongers were living below the poverty line in 2020.

This translates into a record-breaking 1.65 million people, although around a million were lifted out of poverty after receiving Government assistance. Still, it begs a question of particular interest to us at the Equal Opportunities Commission (EOC): Do people with disabilities bear a disproportionate burden of poverty?

The report provides no answer but reveals that data analysis is in progress following a relevant survey conducted in 2019-20. The only indicators currently available are to be found in a separate 2013 report. That year, the pre-intervention poverty rate for people with disabilities hit 45.3%, far higher than the territory-wide figure of 19.9%. While gainful employment is often considered the best route out of poverty, it was found that the proportion of unemployed people with disabilities at working age (18 to 64) almost doubled that of the overall population.

The crux of the problem lies in the lukewarm interest in hiring talents with disabilities among employers at large. In fact, when the EOC rolled out the inaugural edition of the Equal Opportunity Employer Recognition Scheme last December, while we received an encouragingly enthusiastic response overall – with 420 applications from organisations employing a total of more than 220,000 people – the number of entries in the disability inclusion category was relatively low.

The apathy can be attributed to a general reluctance to carry out, or even learn about, workplace or policy adjustments that can enable people with disabilities to fulfil the requirements of the job, and an assumption that these changes would often be costly and burdensome.

The EOC therefore has been advocating for the introduction of a distinct duty under the Disability Discrimination Ordinance to provide reasonable accommodation for people with disabilities, among other recommendations submitted to the Government in 2016 based on a comprehensive review of the city’s anti-discrimination legislation.

This is not some radical idea that comes out of nowhere. The United Nations Convention on the Rights of Persons with Disabilities, which has been in force in the People’s Republic of China, including the Hong Kong SAR since 31 August 2008, explains reasonable accommodation as the “appropriate modification and adjustments” necessary to ensure that people with disabilities can exercise “all human rights and fundamental freedoms” on an equal basis with others, without “imposing a disproportionate or undue burden” on the party making the accommodation.

Examples may include installing screen-reading software for employees with visual challenges, captioning training videos for deaf or hard-of-hearing employees, or allowing employees to work from home when they experience temporary mobility difficulties.

Of essence here is a shift of mindset, from what is academically known as the medical model of disability – one that focuses on the individual and pathology – to a social, right-based model that addresses institutional and attitudinal hurdles to inclusion. Put simply, disability is not inherent in a person, but rather results from social barriers.

Our law needs to evolve to reflect this modern approach to protecting disability rights already adopted in other common law jurisdictions, such as Great Britain (England, Wales and Scotland) and Australia where a failure to comply with the duty may constitute discrimination.

The good news is that Hongkongers have shown an overwhelming consensus in favour of law reform. Last month, the EOC published a survey of 1,501 people aged 15 or above in Hong Kong, among which 92.5% agreed it is “very or quite important” to amend the Disability Discrimination Ordinance by introducing a distinct duty to make reasonable accommodation for people with disabilities.                                   

We are aware that some employers, especially small and medium sized enterprises (SMEs), worry that such a duty would increase their financial burden. Such kneejerk concerns stem from a misunderstanding of the proposed duty, which would only require accommodation where it is “reasonable” and not disproportionate.

Reasonableness itself is a wide and flexible concept designed to accommodate different circumstances. What is reasonable in one context may not be so in another. One factor is the precise needs of the person with disability concerned. Another is the financial position of the duty bearer. A local SME working on a shoestring budget, for example, can hardly be expected to take the same steps as a well-resourced multinational corporation.

Additional safeguards can be put in place in the legislation to prevent employers from being subject to undue burden. Under the Equality Act 2010 in Great Britain, for instance, the duty does not apply where an employer does not know, and cannot reasonably be expected to know, that an employee or a job applicant is or may be a person with disability.

It is worth noting that the idea of accommodation is not entirely absent from the Disability Discrimination Ordinance in its current form. Under section 12(2)(ii), an employer who discriminates against an employee or a job applicant with disability may raise a defence if the latter, because of his or her disability, cannot carry out the inherent requirements of the job unless provided with accommodating facilities or services that would cause an unjustifiable hardship to the employer. Section 4 further provides that the reasonableness of the accommodation is a factor in determining whether there is unjustifiable hardship.

Still, this is a somewhat oblique way to incorporate the concept of reasonable accommodation into the law, and it may well appear unfathomable to the general public. The EOC maintains that the introduction of an express requirement, that is, a positive duty to provide reasonable accommodation can offer greater clarity for all, as well as stronger protection for people with disabilities against discrimination.

Indeed, the duty should not be limited to employment settings. It should cover other key areas of public life, including education, service provision and access to premises, in order to empower people with disabilities to fully participate in society.

And I am optimistic that people will recognise the importance of this much-needed reform. The EOC’s experience in conciliating and settling disputes tells us that many parties – when given the chance – are willing to address the needs of people with disabilities and implement change, from the construction of ramps at building entrances, to the installation of visual fire alarms inside public housing units with residents who face hearing challenges.

Most recently, we are pleased to see a policy change by the MTR to now assist two wheelchair users to board and deboard the same train using a portable ramp provided by station staff upon request. Previously, portable ramp assistance was only available to one wheelchair user per train.

As people around the world celebrate International Day of Persons with Disabilities (3 December) this month, I still remember vividly the outpouring of support in Hong Kong for the city’s delegation at the Tokyo Paralympics just a few months ago. Beyond the fanfare, Hong Kong must demonstrate a sustained commitment to advancing the rights and well-being of people with disabilities. An earnest look at how to introduce a duty of reasonable accommodation would be the perfect way for the Government to honour this commitment.

 

Ricky CHU Man-kin

Chairperson, Equal Opportunities Commission

(An abridged version of this article was published in the South China Morning Post on 4 Dec 2021.)