The Disability Discrimination Ordinance and People with a Hearing Impairment
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 total or partial loss of a person's bodily functions. This includes hearing impairment which means if you do have such an impairment, you are equally protected under the DDO as people with other types of disabilities.
This protection also extends 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, another person living with a person with a disability, relative, carer and a business, sporting or recreational partner.
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, 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
This protection also extends 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 people with a disability more adversely, is to their detriment, 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 hearing impairment. 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 that people with a hearing impairment are useless and a burden to society, this may amount to vilification. Vilification against a person with a disability is unlawful under the DDO.
The DDO applies to all employers in Hong Kong, unless the employee does his/her work wholly or mainly outside Hong Kong. (Please note that the exemption to "small employers", whose employees do not exceed 5 persons, expired on 3 August 1998.)
An employer can ask you to take a hearing test if he/she wants to use the information to determine whether you:-
|(a)||would be able to carry out the inherent requirements of the job; or|
|(b)||would need special services or facilities in order to perform the inherent requirements of the job.|
If you are asked to take a hearing 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 a hearing impairment can, like other people, take up most jobs. An employer should be able to tell you about the inherent requirements of a job. 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.
Yes, the prospective employer should allow the candidate to use the hearing aid in order to compete with other candidates on a fair basis. Treating a candidate less favourably because he/she requires the use of a hearing aid is unlawful under the DDO.
The employment-related provisions under the DDO cover all employment matters including recruitment, training, promotion, employment terms, and dismissal. It is unlawful for an employer to treat you less favourably on the ground of your hearing impairment, unless there is good reason for them to do so. For example, it is unlawful if an employer refuses to employ you to the post of typist simply because he thinks that you cannot communicate with other colleagues effectively.
If you cannot perform the inherent requirements of the job, an employer may dismiss you. However, the DDO requires employers to meet the needs of people with a disability by providing reasonable accommodation, such as making changes to employment arrangements and the workplace and by providing equipment to help them. For example, the employer may use more written communication, such as memos, and e-mail, rather than verbal communication to give instruction to the hearing impaired employees.
Your colleagues' behaviour may amount to discrimination or harassment under the DDO, if they behave that way on the ground of your hearing disability. If they publicly incite hatred towards, serious contempt for, or severe ridicule of, a person with a disability, this may amount to vilification.
Under the DDO, your employer has a responsibility to provide a workplace that is free from discrimination, harassment and vilification. This means that your employer may be held responsible for your colleagues' behaviour, even though your employer may not approve or know of it.
It is unlawful for your employer to fire you because of your hearing impairment alone. Under the law, your employer has to firstly determine whether you can perform the inherent requirements of your job. In the event that 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/her.
It means when a person who provides goods, services and facilities refuses to provide them altogether, or provides them at a lower standard to people with a disability, without good reason. The DDO applies to goods, services and facilities that are available to the general public. It does not matter whether they are paid for or provided for free. Examples of places where you obtain goods, services and facilities are department stores, restaurants and gymnasiums respectively. It is unlawful for the owner of the restaurant to give you a lower standard of service because of your hearing impairment.
Under the DDO, it is unlawful to do so without good reason. It is also unlawful for an educational establishment to discriminate against people with a hearing impairment in the terms or conditions for admission, by denying or limiting access to benefit, service or facility, by expelling these students or by subjecting them to any other detriment on the ground of their hearing impairments.
It is unlawful for a provider to refuse the provision of goods, services or facilities, or for an educational establishment to deny admission to or expel a student on the ground of his/her disability. However, if a student, because of his/her hearing impairment, cannot meet the reasonable requirement of an educational establishment set to its students, the educational establishment may refuse to admit the student.
Educational establishments have the responsibility to provide help, for example, to provide access to the building, or to provide aiding equipment and to flexibly extend the testing hours unless this would impose unjustifiable hardship.
You can take one or more of the following courses of action:
- if the complaint is job-related, you can lodge a complaint with your organisation's management or seek other forms of appropriate help from your organisation;
- if the complaint is related to the provision of goods, services or facilities, you can lodge a complaint with the goods, services or facilities provider or request for improvement;
- lodge a complaint with the Equal Opportunities Commission (EOC); and/or
- take your case to 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/her knowledge, belief or suspicion of your hearing impairment.
No. you can lodge a complaint through a representative. However, the representative must show that he/she has been authorised by you to lodge the complaint.
Once a complaint is lodged in writing, the EOC will investigate into the matter. Following this, the EOC will try to settle 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 court, you may apply to the EOC for assistance in respect of the legal proceedings. Assistance may include giving advice, representation by the EOC's lawyers, legal representation by outside lawyers or any other form of assistance the EOC considers appropriate. Apart from that, you may apply to the Legal Aid Department for legal assistance or bring the case to court without legal representation.
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.