A number of ethnic minority concern groups and individuals have recently expressed concern to the Equal Opportunities Commission (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. The EOC calls on all employers to avoid discriminating against employees based on their race or disability.

The EOC is responsible for implementing four anti-discrimination ordinances in Hong Kong, including the Race Discrimination Ordinance (RDO) and the Disability Discrimination Ordinance (DDO). The RDO protects people against discrimination, harassment and vilification on the ground of their race. Under the RDO, it is unlawful to discriminate, harass or vilify a person on the ground of his/her race. The RDO offers protection in various areas including employment, education, and provision of goods, facilities or services. 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. It is unfair to stigmatise and blame a whole segment of society or community based on the behavior or rather misfortune of a few people who may become part of a cluster as we have seen periodically happen.

The COVID-19 falls within the definition of disability under the DDO, which includes the presence of organisms causing or capable of causing disease or illness in the body. Besides existing disability, the law 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). However, under the DDO, it is not unlawful to discriminate against an employee with a 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.

When considering whether a certain act is “reasonably necessary”, employers should take into account the fact that the Government has been monitoring the latest developments of the pandemic and implementing 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, Chairperson of the EOC said, “The EOC opposes all forms of discrimination, and sincerely hopes that all sectors of society can set aside prejudices and fight the virus in solidarity. We must follow reason at all times, and avoid discriminatory language and behaviour that may fuel social tension and conflict. We also calls on employers to adopt consistent policies to treat all employees equally and avoid discriminating against employees based on their race or disability such as COVID-19. Empathy and solidarity are what we need now for Hong Kong to overcome this unprecedented challenge. This is a time for us to come together as one human race. The virus makes no distinction; it would be a folly for us to.”

If members of the public have any questions or believe that they are being discriminated against because of their race, disability, sex and/or family status, please contact the EOC for enquiry and assistance.

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Equal Opportunities Commission
10 February 2021