Employers shouldn’t let unfounded COVID fears lead to racial discrimination against employees
A number of civil society groups have recently expressed concern to the EOC over incidents of employers in the construction industry reportedly banning South Asian workers from going to work, even after they had tested negative for COVID-19. On the contrary, Chinese workers and those of other ethnicities with negative results were allowed to resume work. In light of the gravity of the issue, the EOC released a statement on 10 February 2021, calling on all employers to avoid unlawfully discriminating against employees based on their race or an imputed disability such as COVID-19.
The Race Discrimination Ordinance (RDO) enforced by the EOC applies to various areas of public life, such as employment, education, and provision of goods, services and facilities. Assuming that a non-Chinese employee and a Chinese employee have both taken a COVID-19 test as required by the Government and received a negative result, it may be unlawful under the RDO for the employer to subject the former to unfavourable treatment based on his/her race, such as by banning him/her from resuming work.
In addition, the Disability Discrimination Ordinance (DDO) provides for a wide definition of disability, which includes the presence in the body of organisms causing or capable of causing disease or illness, such as COVID-19. Besides existing disability, the DDO covers disability that “previously existed”, “may exist in the future”, or is “imputed” to a person (even if the person being discriminated against does not in fact have this disability).
Under the DDO, it would not be unlawful for an employer to discriminate against an employee on the ground of disability if: (i) the disability is an infectious disease listed under the Prevention and Control of Disease Ordinance (e.g. COVID-19); and (ii) the discriminatory act is “reasonably necessary” to protect public health.
In assessing whether an act is reasonably necessary, employers should take into account the fact that the Government has already implemented measures in line with the latest developments of the pandemic, including social distancing rules and mandatory testing for specific communities. If an employer, without reasonable grounds, assumes that employees of a certain race have contracted COVID-19 and consequently subjects them to unfavourable treatment, such as by banning them from going back to work, it may not be a “reasonably necessary” act for the purpose of protecting public health, and therefore may contravene both the RDO and DDO.
Mr Ricky CHU Man-kin, EOC Chairperson said, “Empathy and solidarity are what we need now for Hong Kong to overcome this unprecedented challenge. The virus makes no distinction; it would be a folly for us to.”