The Disability Discrimination Ordinance and People with HIV/AIDS
It is a law that has been enacted to protect people with a disability against discrimination, harassment and vilification on the ground of their disability.
Yes, because the definition of disability under the DDO includes the presence of organisms in the body that cause or are capable of causing disease or illness. This includes HIV infection, which means if you are infected with HIV, you are equally protected under the DDO as other persons with a disability.
These protections also extend to your associates. It is unlawful for your associates to be discriminated against, harassed or vilified on the ground of your disability. Under the DDO, an associate includes a spouse, cohabitant, relative, carer and a business, sporting or recreational associate.
The law gives you protection against discrimination, harassment or vilification in the areas of:
- employment (including partnerships, trade union memberships, vocational training, etc.)
- access to and disposal and management of premises (Premises are places that can be accessed by the members of public.)
- provision of goods, services and facilities
- practising as barristers (Any offer of a pupillage and training provided to barristers.)
- clubs and sporting activities
These protections also extend to your associates.
Discrimination can be direct or indirect.
Direct discrimination occurs when, on the ground of disability, a person with a disability is treated less favourably than another person without a disability in similar circumstances.
Indirect discrimination occurs when a condition or requirement is applied to everyone, but in practice affects persons with a disability more adversely, and such condition or requirement cannot be justified.
Harassment is any unwelcome conduct on account of a person's disability where it can be reasonably anticipated that the person would be offended, humiliated or intimidated. For example, insulting remarks or offensive jokes about a person's HIV status. Harassment against a person with a disability is unlawful under the DDO.
Vilification is an activity in public which incites hatred towards, serious contempt for, or severe ridicule of people with a disability. For example, if a person speaks publicly in public that people with HIV/AIDS are dangerous and should not be allowed to use community facilities, this can be a form of vilification and is unlawful under the DDO.
The hospital or clinic cannot refuse to treat you on the ground that you have HIV/AIDS, unless it can show that providing treatment to you would impose unjustifiable hardship on it. This is not expected to happen in normal circumstances.
No, people with HIV/AIDS and their families have equal access to welfare services under the same set of eligibility requirements, like any other citizen.
An employer can lawfully request medical information from a job seeker if he/she wants to use the information to determine whether the job seeker:
|has an infectious disease as defined under the DDO (and the law specifically excludes HIV infection as an infectious disease);
|would be able to carry out the inherent requirements of the job; or
|would need special services or facilities in order to perform the inherent requirements of the job.
If you are asked to take an HIV test and you think it is not for the reasons above, you can seek advice or lodge a complaint with the Equal Opportunities Commission(EOC).
In reality, a person with an HIV infection can, like other people, perform the inherent requirements of most jobs as far as his/her health condition allows. To help you find out, try and get a copy of the job description beforehand and study the list of duties and responsibilities. The interview should also be used as an opportunity to ask more detailed questions about the nature of the work involved.
Health care workers should consider receiving counselling and HIV antibody testing if they have reason to suspect that they have been infected. Please refer to "HIV infection and the health care workers - recommended guidelines" published by the Advisory Council on AIDS in 1994.
It is unlawful if you are singled out to take an HIV test by your employer who wants to confirm your HIV status for the purpose of discriminating.
(Sections 12.10-12.15 of the Code of Practice on Employment under the DDO contain more detailed guidelines for employers regarding requests for information relating to disability.)
It is unlawful for your employer to fire you because of your HIV status alone. Under the law, your employer has to firstly determine whether you can perform the inherent requirements of your job. In the event you cannot, your employer has a duty to provide any special services or facilities to help you perform those inherent requirements which do not impose unjustifiable hardship on him or her.
Your colleagues' behaviour may amount to harassment or vilification under the DDO. Apart from seeking advice or assistance from your friends or AIDS support groups, you may report the situation to the management of your organization if you think they can help you. Alternatively, you may seek assistance from the EOC. You are also entitled to take your case to the court.
Under the DDO, your employer also has a responsibility to provide a workplace that is free from harassment and vilification. This means that he or she may be held responsible for your colleagues' behaviour even though he or she may not approve or know of it.
At the moment, the employment-related provisions only apply to employers with over five employees. However, with effect from 3 August 1998, these provisions will apply to all employers.
You can take one of the following courses of action:
|lodge a complaint with your organisation's management or seek other forms of appropriate help from your organisation;
|lodge a complaint with the Equal Opportunities Commission (EOC); or
|take your case to the court.
Remember to make a record of what has happened as soon after the incident as possible while your memory is still fresh.
This information will help you recall details at a later date when you want to take action. If the discrimination involves verbal abuse, try to record word for word what was said. This is particularly important if you feel you are being harassed or vilified in public.
No, this is not necessary as long as you can show that the discriminator discriminated against you based on his or her belief or suspicion of your HIV status.
Once a complaint is lodged in writing, the EOC will investigate with the aim of settling the matter between you and the other party concerned by conciliation. If the complaint cannot be resolved and you decide to take the case to the court, you may apply to the EOC for assistance in respect of the legal proceedings. The assistance may include the giving of advice by the EOC, the EOC arranging for the giving of advice or assistance by a lawyer, the EOC arranging for legal representation, or any other form of assistance the EOC considers appropriate. Strict confidentiality is observed by the EOC in its investigation and conciliation process.
This treatment is considered to be victimisation, which is also a form of unlawful discrimination under the DDO. If such treatment happens, you are protected under the law and should immediately inform the people who are dealing with your complaint, i.e. your organisation's complaints officer, staff representative, solicitor, or the EOC, depending on the course of action you have chosen.
No, you can lodge a complaint through a representative nominated by you. The representative must show that he or she has been authorised by you to lodge the complaint.