The Disability Discrimination Ordinance and People with a Physical Disability
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 physical disability which means if you do have such a disability, 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 pupilage 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 physical disability. 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 openly in public that people with a physical disability 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.)
In reality, a person with a physical disability 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.
You may frankly tell your employer that all people with a physical disability want to work independently and not to depend on the help of other colleagues. Your employer can provide reasonable accommodation in the workplace. For example, your employer can check the access to the building, the steps, the office corridors and toilets, to see whether these facilities need any alteration; your employer can install some special facilities for people with a disability; he/she can provide you with flexi-hours in the office, so that you can perform the inherent requirements of the job.
Employers should comply with the employment-related provisions under the DDO unless there are good reasons for them not to do so. The employment-related provisions covers all employment matters including recruitment, promotion, transfer, training, dismissal, redundancy, employment terms and so forth.
It is unlawful for an employer to claim that you cannot perform the inherent requirements of a job without considering the provision of reasonable accommodation, and to treat you less favourably than people without a physical disability.
For example, you had a work injury on your arm. After you had physiotherapy, you have recovered and have the ability to work. However, your employer fired you because you were frequently absent from work in the period when you had the treatment. This act also contravenes the provision of the DDO.
Under the DDO, the developers and property management companies should provide access for people with a physical disability unless this would impose unjustifiable hardship. For example, access includes having a ramp for the use of wheel-chair users. Buildings should have at least one lift for the wheelchair users. Developers and property management companies should also note that providing access to people with a disability includes providing it in such a way that they can use it without the help of others. In addition, there should be handrails installed and barriers such as pots or litter bins should be placed out of the way so that the access of people with a physical disability will not be hindered.
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 physical 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 physical impairments.
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.
Under the DDO, it is unlawful for a person who provides goods, services and facilities to refuse to provide altogether or to provide them at a lower standard, to people with a disability without good reason. For example, it is unlawful if a restaurant refuses to serve you because you are a wheelchair user and the staff assume that you will obstruct the passage of other diners, or if they ask you to sit away from the rest of the customers.
Not providing toilet facilities for people with a disability is unlawful under the DDO. If a certain area is marked in the building plan for toilet facilities to people with a disability at the time of approval from the Building Department, the property management or the users of the building cannot alter these facilities. Such persons should prohibit the abuse of toilet facilities for people with a disability and prevent the storage of things in the toilets. They should keep the toilets clean and properly maintain the facilities inside, such as the toilet bowl, handrail and washing basin.
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 physical disability.
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 also 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.