EOC warns of continued discriminatory practices amid COVID-19
In response to media enquiries, the EOC issued a statement on 31 August 2020, condemning a notice put up by a restaurant saying that it would not serve customers who have participated in the Universal Community Testing Programme (UCTP).
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.
The EOC believes that the notice represents a blatant encouragement of discriminatory attitudes and practices that cannot and should not be tolerated by any society that values basic human rights.
Three points related to the Disability Discrimination Ordinance (DDO) are worth noting in this instance:
- “Disability” is defined widely under the DDO. 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”).
- The DDO not only covers disability that currently or actually exists. It also applies to 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.
- It is unlawful under the DDO for a service provider 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. Since there appears to be no reasonable grounds for the assumption in the first place, the exemption is unlikely to be applicable here.
As for assuming that certain customers have an “intelligence quotient below 65” and turning them away because of this assumption, the exemption for infectious diseases clearly does not apply. Plainly put, under the DDO, a restaurant, or any service provider for that matter, cannot reject customers simply because they are believed to be of a lesser intellectual level.
Over the past few months, the EOC has spoken out on several occasions against the wave of name-calling, stigmatisation and discrimination touched off by COVID-19. Addressing the issue once again in an article published on 9 September 2020, Mr Ricky CHU Man-kin, EOC Chairperson wrote, “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.”