Hong Kong’s anti-discrimination ordinances - the Sex Discrimination Ordinance (SDO), the Disability Discrimination Ordinance (DDO), the Family Status Discrimination Ordinance (FSDO), and the Race Discrimination Ordinance (RDO)-prohibit discrimination against a person on the grounds of sex, marital status, pregnancy, disability, family status1, and race. These ordinances are applicable in different areas, including employment; education; provision of goods, services, or facilities; and disposal or management of premises. Real estate agents and landlords are bound by these ordinances.
1. Why is it important to understand the anti-discrimination ordinances?
It is important to understand the anti-discrimination ordinances as estate agents and landlords would be liable if they violate the anti-discrimination ordinances in the provision of goods, facilities, and services or in the disposal or management of premises. By understanding and adhering to these ordinances, you would be avoiding time consuming equal opportunities complaints or litigation and promoting good business practices which, in turn, will enhance your business opportunities. Furthermore, by fulfilling these legal obligations, you would also be helping to promote a harmonious society in Hong Kong
As a tenant or home buyer, it is important to understand your rights under the anti-discrimination ordinances and the channel for redress if you have been discriminated against on any of the prohibited grounds.
2. When does discrimination happen?
Discrimination occurs when a person is treated less favourably on account of one of the prohibited grounds mentioned above, or when the same requirement is applied to all persons but is in practice discriminatory in its effect. Discrimination may arise in circumstances such as the following:
When a landlord refuses to rent his/her property or an estate agent refuses to provide service to a prospective tenant because he/she comes from a certain race or has a disability;
When a landlord refuses to rent his/her property to or an estate agent refuses to serve a prospective tenant because of the race or disability of the tenant’s near relative;
When a landlord requires a prospective tenant to submit his/her tax return or a letter of guarantee from the tenant’s employer, which are not normally required, because of his/her race or family status;
- When a landlord evicts a tenant because of any prohibited ground under the anti-discrimination ordinances, i.e., sex, marital status, pregnancy, family status, disability and race.
It is unlawful for a landlord to sexually harass tenants, prospective tenants, or real estate agents, or to harass them due to their race or disability. Additionally, it is unlawful for an estate agent to sexually harass landlords, tenants, prospective tenants, or their representatives, or to harass them because of their race or disability.
It is unlawful to victimise2 a person because he/she has made or assisted someone to make a complaint under the four anti-discrimination ordinances, or intends to make or assist someone else to lodge a complaint. Furthermore, it is unlawful to victimise someone because he/she has served as a witness in a discrimination complaint.
5. Are there any exceptions?
- When a landlord is living on the rented premises and if the landlord does not use an estate agent or advertise for the purpose, he/she may decide to whom he/she would rent the premises.
- When a landlord or his/her near relative3 is living in the rented premises and shares accommodations with others living on the premises who are not part of the landlord or near relative’s household and the premises constitute “small premises”, a landlord may decide to whom to rent the premises.4
6. What are the rights of a tenant or a prospective buyer/tenant?
As a prospective tenant or buyer, you have the right to receive services in similar terms, manner, and quality from estate agents regardless of your sex, marital status, pregnancy, disability, family status, or race. For instance, an estate agent who refuses your request for a service, asks you for a higher commission, quotes a higher price, or excludes property search because of any of the said grounds would be violating Hong Kong’s anti-discrimination ordinances.
As a tenant, you also have the right to have access to all the housing facilities just like other tenants regardless of your sex, marital status, pregnancy, disability, family status, or race.
7. Can someone with a disability make changes to a rental property?
A tenant with a disability may make reasonable alterations to the premises which he/she occupies as long as:
- He/she pays for them;
- The alteration does not involve alteration of other premises which are occupied by another person;
- The tenant agrees to restore the accommodation back to the condition prior to the alterations at the expiry of the lease and it is reasonably practicable to restore the premises so; and
- It is reasonably likely that the tenant will fulfill the agreement to restore the accommodation.
For the avoidance of doubt, landlords are reminded that they also need to comply with their obligations under Buildings Ordinance and the mandatory barrier-free requirements under the Buildings (Planning) Regulations.
8. What can a prospective tenant or buyer do if they think they are discriminated against, harassed, or victimized by the estate agent?
If you feel you are being discriminated by the estate agent because of your sex, marital status, pregnancy, disability, family status, or race, you may want to raise these issues with the management of the real estate agency. A good real estate agency should respond to your complaint and make an effort to resolve your complaint internally.
You may also lodge a complaint with the Equal Opportunities Commission (EOC). The law requires that complaints be lodged with the EOC in writing within 12 months from the time of the incident. You can submit your complaint by mail, fax, electronic mail, online or in person. If you have a language problem, the EOC can also provide you with an interpreter upon request.
In addition, you may initiate legal proceedings within 24 months under the anti-discrimination ordinances before the District Court.
9. Who is liable for an unlawful act?
The Landlord/Estate Agent
Landlords and estate agents will be personally liable for their own acts if they violate the anti-discrimination ordinances.
A landlord may be liable for an estate agent’s discriminatory acts done with his/her authorisation as if they are his/her own acts. Therefore it would be prudent to tell your estate agent not to discriminate when planning his/her service for you. An estate agent will also be liable for aiding a landlord’s discriminatory act even if he/she acts on the landlord’s instructions. However, the estate agent will not be liable if he/she can prove that he/she relied on a statement by the landlord that such discriminatory act is not unlawful, and it is reasonable for the estate agent to rely on such a statement.
The Real Estate Agency
The real estate agency may be vicariously liable for its employees’ act of unlawful discrimination or harassment unless the agency can show that it has taken reasonable steps to prevent its employees from doing so.
10. What happens when a claim of discrimination or harassment is made to the EOC?
The EOC will investigate into the complaint and attempt to facilitate a settlement by conciliation. If a settlement cannot be reached, the complainant may apply for other forms of assistance, including legal assistance, from the EOC.
11. What kind of settlement can I achieve through conciliation?
The conciliation settlement, negotiated and agreed upon by the parties, may include:
- An apology;
- An agreement to provide or to renew a lease;
- Financial compensation;
- Undertaking to change an organisation’s policy or procedures.
If you need further information regarding your rights under Hong Kong’s anti-discrimination ordinances and the complaint handling procedures of the EOC, please contact:
Equal Opportunities Commission
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