The Disability Discrimination Ordinance and People with a Visual 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 visual 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 visual 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 openly in public that people with a visual 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 an eye test if the employer wants to use the information to determine whether you:
- 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 eye 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).
Employers should comply with the employed-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 visual impairment. For example, it is not unlawful for you to be refused a computer-related job because you cannot use computers. It is unlawful, however, for you to be refused a computer-related job because the company presumes that all visually impaired persons cannot use computers but, in fact, you can.
It is when you cannot perform the inherent requirements of the job. However, the DDO requires employers to meet the needs of people with a disability by providing reasonable accommodation to them.
In reality, a person with a visual 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.
Reasonable accommodation refers to adjustments that an employer can make, to assist you to perform the inherent requirements of the job. For example, the employer could accept job applications submitted on tape, allow the use of visual aids by those with low vision in a written test, or give extra equipment and support to existing employees who lose their sight to help them stay in their jobs.
An employer has to provide reasonable accommodation to you unless it causes unjustifiable hardship to do so, in which case the employer has to show that the hardship is unjustified.
In a high-risk workplace, the employer is obviously concerned about the health and safety of all employees. This does not automatically rule out people with a visual impairment. There is sometimes an assumption that people with a visual impairment would be a danger to themselves and to others. This is not true as it depends on the extent of the impairment and the nature and location of the work.
The same principles apply here in that the employer cannot refuse to employ you on the ground of your disability alone. The employer still has to consider the issues of inherent requirements and reasonable accommodation (please refer to Q8 - Q13). For example, a person with low vision could still work in a laboratory if adequate visual aid is provided.
Your colleagues' behaviour may amount to discrimination or harassment under the DDO, if they behave that way on the ground of your visual impairment. 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 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 banks. For example, it is unlawful if a restaurant refuses to serve you because the staff assume people with a visual impairment may spill food and drink, or to ask you to sit away from the rest of the customers because of your visual impairment.
Under the DDO, the provider can claim that it would cause them unjustifiable hardship to provide goods, services and facilities to a person with a disability. However, the provider will still have to show that the hardship is unjustified.
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 visual impairment, cannot meet the reasonable requirement of an educational establishment set to its students, the educational establishment may refuse to admit the student.
You can take one or more of the following courses of action:
(a) 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;
(b) 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;
(c) lodge a complaint with the Equal Opportunities Commission (EOC); and/or
(d) 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 visual impairment.
No, you can also lodge a complaint through a representative. However, the representative must show that he or 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 EOCO'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.