Disability Discrimination Ordinance
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.
Under the DDO, a disability means total or partial loss of a person’s bodily or mental functions, total or partial loss of a part of the body, the presence of organisms causing disease or illness (such as HIV), the malfunction, malformation or disfigurement of a part of the person’s body, or a disorder, illness or disease that affects a persons perception of reality, emotions or judgement or that results in disturbed behaviour, and learning difficulties. A disability includes not only a disability which presently exists, but also a disability which previously existed but no longer exists, which may exist in the future or which is imputed to a person.
The legislation protects any person against discrimination on the ground of disability. If you are a person with a disability, you are certainly protected under the DDO. However, even though you may not be a person with a disability, you are also protected under the law if:
- An associate of yours is a person with a disability, and you are discriminated against because of your association with him/her. An associate includes a spouse, another person living with a person with a disability, relative, carer and a business, sporting or recreational partner;
- You are imputed to have a disability and you are discriminated against because of this; or
- It is believed you may have a disability in the future, and you are discriminated against because of this.
Unlawful Acts under the DDO
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 disability may amount to disability harassment. Under the DDO, disability harassment is unlawful in key areas of public life, such as employment, education, and the provision of goods, services and facilities.
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 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.
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.
In addition, the DDO renders disability harassment between workplace participants at a common workplace unlawful, even where there is no employment or employment-like relationship between them. A “workplace participant” covers persons working in the same workplace, including an employer, an employee, a contract worker, a principal, a commission agent, a partner, an intern and a volunteer.
It is unlawful for an employer to discriminate against a job applicant or an employee on the ground of disability. However, under certain circumstances, an employer may specify a job applicant or an employee should not be a person with a certain type of disability:
- because such person would be unable to carry out the inherent requirements of the particular employment. For example, an employer may specify that persons who are wheelchair bound need not apply for jobs as gym instructors, as an inherent requirement of the job of gym instructors is to be physically fit and agile, in order to help people to use the gym equipment and to show them how to work out.
- because being a person without a disability is a genuine occupational qualification for a job. For example, the essential nature of a job calls for a person without a disability for reasons of physiology or, in dramatic performances, for reasons of authenticity. In such case, a person with serious visual impairment may be denied to play a role demanding good visual ability.
The inherent requirements of a job are those that are necessary for the goals of the job to be achieved. In the context of people with disabilities, care must be taken not to confuse the goals the job is meant to achieve with the way in which the job is carried out. The latter is not necessarily an inherent requirement. In determining whether or not a person with a disability can carry out the inherent requirements of the job, an employer is required to take into account:
(a) the person’s past training, qualifications and experience relevant to the particular employment;
(b) in the case of a serving employee, his/her work performance; and
(c) other relevant factors.
For example, a delivery worker who needs to lift objects of at least 50 kg, lifting 50 kg is an inherent requirement of this job. Physically abled or without an illness may not necessarily be an inherent requirement of this job.
(Details please refer to the Good Management Practice Series published by the EOC)
It is unlawful for a service 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 disability. However, if a student, because of his/her disability, cannot meet the reasonable requirement of an educational establishment set to its students, the educational establishment may refuse to admit the student.
It is unlawful for any employer to discriminate in respect of recruitment exercises and this applies to jobs offered by the Government. It is also unlawful for the Government to discriminate against a person with a disability in the performance of its functions or the exercise of its powers, except in respect of any act done under any immigration legislation on entry into and departure from Hong Kong, or an act done to comply with a requirement of an existing statutory provision.
It is not unlawful to discriminate against an employee who has an infectious disease, if it is reasonably necessary for the protection of public health. “Infectious diseases” under the DDO means the diseases set out in the Prevention and Control of Disease Ordinance (Cap 599) and any communicable disease specified by the Director of Health in the Government Gazette. For the purpose of this exception under the DDO, neither HIV infection nor AIDS are to be treated as infectious diseases.
The DDO was enacted to ensure that there are equal opportunities between people with and without a disability. It is not unlawful to provide to people with a disability, or a certain type of disability, goods or access to services, facilities or opportunities to meet their special needs in relation to employment, education, clubs or sport, the provision of premises, goods, services or facilities or in helping them develop the ability to live independently.
Lodging a Complaint with the EOC
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 services or facilities, you can lodge a complaint with the goods, services or facilities provider or request for improvement;
- lodge a complaint with the 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.
If you would like to lodge a complaint with the EOC, you should do it within 12 months after the event has taken place. If you decide to take legal proceedings to the District Court, you should do it within 2 years after the event has taken place.
Yes. According to the law, a complaint can be lodged by an aggrieved person or a representative complainant. For representative complaint, the representative must show that he/she has been authorised by the aggrieved person with a disability to lodge the complaint. If you have not been authorised, you can still report the case to the EOC. After receiving the complaint, the EOC will follow up on the issues accordingly.
Yes. This treatment is considered to be victimisation, which is also a form of unlawful discrimination under the DDO. If such a 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.
You need to lodge a complaint in writing and provide the following information:
- the details and the date of the matter;
- your personal information (name, contact, disability etc.);
- name of the respondent(s) (or name of the company) and contact;
- the reasons or evidence supported your claim of discrimination, harassment or
- vilification on the ground of disability;
- the detriment or emotional disturbance suffered from the discriminatory acts; and
- information of witnesses
If you have difficulties in preparing a complaint in writing, please contact the EOC Office. Our staff will understand the reasons of your difficulties and your need so as to consider providing assistance accordingly.
Complainant can be an individual or a group. You may ask someone to represent you to lodge a complaint but the representative complainant should get your authorisation in prior.
Investigation and Conciliation
Upon receiving a complaint in writing, the EOC will ascertain whether there had been an unlawful act that fell within the remit of the anti-discrimination ordinances, and whether the complaint was lodged by an aggrieved person or her/his authorised representative.
Once a case has been classified as a complaint, the EOC will assign a case officer to handle it. The case officer will notify the respondent of the complaint and request a response. The case officer may also write to the complainant, seeking further information or clarification of certain points, and may also ask about witnesses or documentary proof that might support the allegation(s). At all stages of complaint-handling, the EOC will adhere to the principles of impartiality and confidentiality, as well as its established procedures, and adopt a “victim-centric” approach, which seeks to recognise and pay special attention to the needs of victims, while managing their expectations.
The EOC will decide not to conduct or discontinue an investigation into a complaint if:
- the EOC is satisfied that the act complained of is not unlawful by virtue of a provision of the DDO;
- the EOC is of the opinion that the person aggrieved does not desire that the investigation be continued;
- a period of more than 12 months has elapsed beginning when the act was done;
- the EOC determines that the complaint should not be a representative complaint; or
- the EOC is of the opinion that the complaint is frivolous, vexatious, misconceived or lacking in substance.
The EOC is required by law to investigate into a complaint and effect a settlement through conciliation. The conciliator of the EOC assists both parties to examine the issues that led to the complaint, identify points of agreement and negotiate a settlement to the dispute. Conciliation is entirely voluntary. The conciliator does not act for either party of the complaint, but would maintain independent and impartial, while adhering to the principle of confidentiality during the conciliation process. The conciliator would discuss the issues in dispute by asking questions designed to help all parties exchange information, develop and examine options for resolution, draft the settlement agreement according to the wishes of the parties and record the outcome.
Settlements vary and may include a letter of apology, financial compensation, enactment of equal opportunities policies, etc. Settlement agreements are equivalent to contracts and are legally binding. Read the EOC brochure on conciliation for additional information.
If the complaint cannot be resolved through conciliation, you may apply to the EOC for legal assistance to go to court. The Legal and Complaints Committee of the EOC will consider and decide on the applications, taking into account the circumstances of each case and a set of established principles. Assistance may include the giving of legal advice, representation by the EOC’s lawyers, legal representation by outside lawyers or any other form of assistance the EOC considers appropriate.
Yes, anyone can go to court directly and initiate civil proceedings under the law without going through the EOC.