The Disability Discrimination Ordinance and People with a Chronic Illness
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 total or partial malfunction of a person's body, the malfunction, malformation or disfigurement of a part of a person's body; the presence in the body of organisms causing disease or illness. The definition includes the chronic illnesses such as stroke, epilepsy, Alzheimer's disease, retinitis pigmentosa, glaucoma, asthma, pneumoconiosis, cardiac disease, haemophilia, thalassaemia, rheumatoid arthritis, systemic lupus erythematosus, liver failure, diabetes, renal failure, spinal cord injury, ankylosing spondylitis, psoriasis, cancer, AIDS and so forth. That means if you are a person with a chronic illness, 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 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 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 chronic illness. 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 chronic illness 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 a job applicant to provide medical information if he/she wants to use the information to determine whether the job applicant:
|(a)||would have any infectious disease under the DDO;|
|(b)||would be able to carry out the inherent requirements of the job; or|
|(c)||would need special services or facilities in order to perform the inherent requirements of the job.|
If you are asked to provide medical information and you think it is not for the reasons above, you can seek advice or lodge a complaint with the Equal Opportunities Commission (EOC).
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, an inherent requirement of being a light goods vehicle driver may be the ability to drive long distances on one's own. 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)
In reality, a person with a chronic illness can, like other people, take up most jobs. Of course, they should follow the advice of a medical practitioner to take medicines or attend follow-up appointments. 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.
It is unlawful for an employer to dismiss you on the ground of your chronic illness or the regular treatment for your illness. The DDO requires employers to know whether an employee can perform the inherent requirements of a job. If not, the employer has a duty to provide special services or facilities in helping the employee to perform the inherent requirements unless this would impose unjustifiable hardship. For example, the employer of an employee who has renal disease should consider allowing the employee in question to work flexible hours so as to receive proper dialysis treatment.
Your colleagues' behaviour may amount to discrimination or harassment under the DDO, if they behave that way on the ground of your chronic illness. 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 against the law for the providers of goods, services and facilities to refuse you access to the facilities or services in question on the ground of your chronic illness unless the provider shows that this would impose unjustifiable hardship to him/her. Claiming unjustifiable hardship for providing facilities or services to people with a chronic illness will depend on the individual facts of the case. The factors that are taken into account include the seriousness of the chronic illness and the extent of safety to people with a chronic illness of the entertainment facilities and services in question. For example, having a person with pneumoconiosis to play the roller coaster can hardly cause unjustifiable hardship. On the contrary, having a person with serious cardiac illness to play the roller coaster can cause the provider unjustifiable hardship. This is because the provider may have to pay large amount of compensation or the business would be affected if the person with serious cardiac illness dies.
Under the DDO, it is unlawful for an educational establishment to deny the service to you unless this would impose unjustifiable hardship. Educational establishments have the duty to provide special services or facilities to help people with a disability study, for example, providing software to enlarge the prints on screen for the low vision students who suffer from retinitis pigmentosa 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 services or facilities, you can lodge a complaint with the 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 chronic illness.
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 victimization, 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.