The Disability Discrimination Ordinance and People with Mental Illness/Ex-mental 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 a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgement or that results in disturbed behaviour, and includes disabilities which previously existed but no longer exists. Thus, if you do have mental illness/ex-mental 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, 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 mental 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 openly in public that people with a mental 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).
In reality, person with a mental illness or ex-mental 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 your employer to ask you to have medical examination in order to discriminate against you. However, it is not unlawful if the medical examination is relevant to the duties and responsibilities of the job and helps the employer to determine whether you are able to perform the inherent requirements of the job.
Your colleagues' behaviour may amount to discrimination or harassment under the DDO, if they behave that way on the ground of your mental or ex-mental 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 unlawful for an employer to dismiss you on the ground of mental illness. Under the legislation, an employer has to determine whether you can perform the inherent requirements of a job. If not, the employer has a duty to provide any special services or facilities to help you perform the inherent requirements which do not impose unjustifiable hardship on him/her. For example, an employee with mental illness which can be controlled by medicine is responsible for general clerical duties. As long as the employee can perform the inherent requirements of the job, the employer cannot dismiss that employee on the ground of the illness.
Under the DDO, it is unlawful to do so. Unless the provision of goods, services or facilities to people with mental or ex-mental illness will cause unjustifiable hardship to the provider. For example, a restaurant, which does not welcome people with a mental illness to dine in it, is committing an unlawful act. It is also unlawful for the service provider to discriminate in the terms and conditions and the forms of the provision of goods, services or facilities. For example, if a restaurant permits people with a mental illness to dine in it, but seats them on their own, away from the other diners, this may amount to discrimination.
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 mental illness in the terms or conditions for admission, by denying or limiting access to benefit, service or facility, by expelling those students or by subjecting them to any other detriment on the ground of their mental illnesses.
An educational establishment has a duty to provide services or facilities to help unless by providing such services or facilities, it would impose unjustifiable hardship on the educational establishment. Whilst it is impossible to generalise about the characteristics of all people with a mental illness, when asked how their mental illness affects their functioning in learning, some students with mental illness cite difficulty in maintaining concentration. Therefore, the teaching staff of the educational establishment may need to make accommodation such as sitting arrangement to reduce noise or visual distractions.
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 mental illness.
No, you can 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 of 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.