1.1 What is race?

Race in relation to a person is the race of that person, such as being Chinese or Indian etc.; the colour of that person, such as being black, brown or white etc.; the person’s “descent”, such as his or her caste, and inherited status or social stratification; the national origin of that person, such as being a Sri Lankan, or the ethnic origin of that person such as being a Tamil.

1.2 Is discrimination based on religion or language considered as discrimination on the ground of race under the RDO?

Discrimination based on religion or language is not by itself considered as discrimination on the ground of race under the RDO. However, a requirement, condition or provision relating to religion and/or language may lead to indirect discrimination. Please see question 4 for detailed explanation.

1.3 What is the applicability of the RDO?

The RDO is applicable to all employers, including the employers of foreign domestic helpers. The RDO allows employers of foreign domestic helpers to select their helpers on the basis of race. The other provisions in the RDO become applicable once the employment contract takes effect, which may be at the time when the helper enters Hong Kong (in the case where the helper has to wait for her/his employment visa outside Hong Kong), or when the approval to work is issued by the Immigration Department (in the case where the new helper is not required to leave Hong Kong pending the approval from the Director of Immigration).

The RDO applies even when the helper has to perform her/his duties outside Hong Kong for a short period of time, such as when the employer takes the helper along for holiday.

1.4 What is discrimination?

A person may claim discrimination under the RDO if she/he is treated less favorably because of her/his race. This is called direct discrimination.

Indirect discrimination in employment may occur when an employer imposes a requirement which applies to everyone regardless of their race. However, as a result of that requirement, people from a certain race are disadvantaged (because only a smaller proportion of members from that racial group can comply with such a requirement compared with people from other racial groups) and there is no justification for the employer to impose such a requirement. For instance, if an employer requires his/her domestic helper to eat pork or pig products only without making alternative arrangements, this could pose a problem for the Indonesian domestic helpers, majority of whom are Muslims, and may be subjecting them to a detriment. They may also feel pressurized to quit their jobs due to this condition.

1.5 What is racial harassment?

Racial harassment is any unwelcome conduct towards another person on the ground of his or her race. There are two types of racial harassment:

(1) Unwelcome conduct harassment

Section 24 (12) of the RDO prohibits an employer and other household members to engage in unwelcome conduct on the ground of the domestic helper’s race. Examples of such act may include:

• an oral or a written statement containing derogatory remarks or insults;
• racial jokes, banter, ridicule or taunts;
• using offensive tone when communicating with people on the ground that they belong to certain racial groups;
• selectively imposing excessive workload on people of certain racial groups;
• name calling; or
• unnecessarily picking on the individuals from particular racial groups.

(2) Hostile environment harassment

The employer, alone or together with other persons, engages in conduct that creates an environment which intimidates the domestic helper on the ground of her/his race. For instance, an employer allows other household members to put up a poster or newspaper clipping which contains derogatory remarks about the domestic helper’s race. This could make their domestic helper feel offended or intimidated even though the employer or the household members did not intend to offend or intimidate their helper.

1.6 Discrimination by way of victimization

Discrimination by way of victimization occurs if an employer or his/her family member treats the helper less favourably by reason that the helper has done or intends to do or is suspected to have done or intending to do the following:

1. Lodge a complaint under the RDO;
2. Give information or evidence in connection with a complaint brought under the RDO;
3. Allege that someone has contravened the RDO (except where the allegation is false and not made in good faith).

The following example could constitute discrimination by way of victimization. A domestic helper complains to her employer that she was harassed by one of the employer’s family members, who hurled racial slurs at her, and informs that she would lodge a complaint to the EOC if the practice did not stop. As a result, the employer decides to terminate the helper’s contract. In such a situation, the helper can claim that she has been discriminated by way of victimization by the employer.

1.7 Racial vilification

RDO section 45 makes it unlawful for a person, by any public activity, to incite hatred towards, serious contempt for, or severe ridicule of another person(s) on the ground of race. An activity in public includes any form of communication to the public or conduct observable by the public.

For instance, if an employer becomes angry in public over the domestic helper’s mistake and starts blaming the mistake on her race aloud and such remarks contain serious contempt for or severe ridicule of the helper, this could be considered as racial vilification. Putting a statement on the Internet accessible by the public which incites hatred, serious contempt or severe ridicule towards someone on the ground of race could also be considered as racial vilification.

1.8 What is the employer’s liability?

Under the RDO, employers are liable for their own act and the unlawful acts committed by their employees. Employers may also be liable for creating a hostile or intimidating environment for the domestic helper if the employer encourages or knowingly allows other household members to harass the helper (even if the employer does not engage in the harassment himself or herself). The employer should take reasonably practicable steps to prevent such incident from happening, especially if the helper brings the harassment to the employer’s attention.

An employer may also be liable for a discriminatory act if the employer authorizes the employment agency to recruit a helper of a particular race who would be willing to work for less than the contractual entitlement. While the RDO allows the employers of foreign domestic helpers to select their helpers based on their race, it prohibits an employer from offering less favourable terms and conditions of employment based on the employee’s race. Therefore, under the RDO, it is unlawful for an employer to ask an agent to recruit a helper from a particular race so that the employer can pay that helper less than another helper from a different race. The agency will be held liable if it knowingly aids the employer in such an unlawful act, ie. to offer less favourable employment terms to the domestic helper based on her/his race.

2.1 For employers

3.1 How can I lodge a complaint with the EOC?

The law requires that complaints be lodged with the EOC in writing. Complaints can be submitted online, or by mail, facsimile, electronic mail or in person. You may make use of the complaint form provided by the EOC.

A complainant can approach the EOC if she or he has difficulties in writing their complaints or have questions about the anti-discrimination ordinances and the complaints procedures. You can call the EOC hotline on 2511 8211 or e-mail to EOC at complaint@eoc.org.hk to request for assistance. If you have language problem, we can also provide you with an interpreter upon request.

3.2 Who can lodge a complaint?

You can either lodge it yourself or appoint a representative to do it on your behalf.

3.3 Is there any time limit for lodging a complaint?

You should do it within 12 months from the time the incident occurred if you wish to lodge a complaint with the EOC. If you decide to take legal proceedings with the District Court, you should do so within two years.

3.4 What should be included in the complaint?

Complaints should include:

• Date and details of the incident
• Personal information such as name and contact information
• Name and contact details of the respondent(s)
• Information supporting your claim of unlawful acts
• Details of any detriment or emotional disturbance you have suffered because of the discriminatory act
• Information on witness(es) and their contact details

3.5 Can I still lodge a complaint if I have to leave Hong Kong immediately?

You can lodge a complaint with us even if you are not in Hong Kong. You can lodge a complaint personally from home country and we will communicate with you through letters, emails, telephone calls or other suitable means. You can authorize your friend, relative, trade union or other representative in Hong Kong to represent you in the complaint. However, your presence in Hong Kong may be required at a later stage.

3.6 How does the EOC investigate into the complaint?

Upon receipt of the complaint the EOC will first assess the case (additional information may be requested) and then notify the respondent(s) about the complaint. The EOC will show the respondent(s) the relevant details or evidence of the complaint and ask for their response to the complaint and answer to questions posed to them. Responses are then made available to the complainant for rebuttal. Witness statements are taken and pertinent materials gathered to determine if the case should proceed to conciliation or be discontinued. All information gathered during the investigation stage is kept confidential from third parties but may be used in court proceedings. The time taken by the EOC in investigating a complaint will not be counted in the two years limitation period for taking legal action in the District Court.

3.7 What is conciliation?

Conciliation is a voluntary process, when different parties are brought together to look for ways to resolve the dispute. Conciliation looks for common ground to help resolve the matter to the satisfaction of both parties so that both can move beyond the dispute. As the conciliation process allows for both parties in the dispute to have their say, it is possible for each side to come to a better understanding of the other's position. This can help to eliminate misunderstandings based on incorrect assumptions or information and to achieve a real change in attitude. All information gathered in the conciliation process is kept confidential and will not be used for court proceedings.

3.8 How does the EOC conciliate the complaint?

Generally, an officer of the EOC will act as the conciliator assisting both parties to examine the issues that led to the complaint, identify points of agreement and negotiate a settlement of the dispute. The settlement agreement is equivalent to a contract and is legally binding. The conciliator would act fairly and impartially to help the parties resolve their problems. The terms of settlement would depend on the nature of the dispute and mutual agreement of the parties. It could be in the form of reinstatement, letter of apology or monetary settlement. Please read the EOC brochure “What is Conciliation” for additional information.

3.9 What are my options if conciliation fails?

If the conciliation fails, the complainant can apply to the EOC for legal assistance. Legal assistance could include legal advice, representation by the EOC’s lawyers or outside lawyers or any other forms of assistance the EOC considers appropriate. Applications for legal assistance are considered by the Legal and Complaints Committee of the EOC. Alternatively, the complainants can also commence legal proceedings by taking the matter to Court themselves, or, approach the Legal Aid Department of the Hong Kong SAR Government for assistance.

4.1 Communicating your needs clearly to each other before employment

Some domestic helpers do not eat pork or pig product due to their religion. Therefore an employer’s requirement for a Muslim domestic helper to handle pork or eat pork needs to be clearly stated before offering employment. On the other hand, if the employer has concerns about the colour of the domestic helper’s praying clothes or the headscarf, it is advisable that this issue be discussed before recruitment of the domestic helper. Similar discussions should be held on the issues of holiday, sleeping arrangement, working arrangement, dress code, etc. It is also advisable for employers to explain their habits and state expectations so that the domestic helper knows exactly what is expected from her/him.

4.2 Understanding each other’s culture better

Many people from South East Asian countries consider it impolite to look into their employer’s eyes when speaking to them. Therefore, domestic helpers who come from these regions may look downwards during conversation with their employers. Employers may interpret this as being disrespectful, when in fact this is not the intention of the helper.

Likewise, many South East Asians prefer to eat rice three times a day. They also consider touching someone on their head, pointing with fingers or toes as rude. Therefore, a friendly gesture from the employer may be misinterpreted as an insult. For instance, Thais consider their heads a sacred part of their bodies. Therefore, they feel uncomfortable to have anything hanging above their heads. On the other hand, some Chinese employers consider white colour, which many domestic helpers use for their prayer clothes, as a colour connoting bad luck. Therefore, we encourage employers and foreign domestic helpers to learn about each other’s culture to reach mutual understanding.

4.3 Understanding the religious requirements of the domestic helper

A Christian domestic helper would like to go to Church on Sundays. A Buddhist and a Hindu domestic helper may need to visit temples from time to time. A Muslim domestic helper may want to wear a headscarf and pray five times a day, fast during Ramadan (an auspicious month for Muslims when they only eat and drink before sunrise and after sunset), and celebrate Muslim festivals by mass prayer and visiting friends and relatives.

We encourage employers to discuss the above requirements with their domestic helpers before commencement of work, such as which room the domestic helper can use to pray, the preferred colour of headscarf/praying clothes, alternative arrangement for the domestic helper who needs to go to church on Sunday or to the temple or pray during the Muslim festivals, etc.

Some employers are also religious. Therefore, we encourage employers to communicate their religious needs or practices to their domestic helpers.

4.4 Avoiding racial slurs and commenting on the other’s race

Employers and domestic helpers should not use racial slurs at any time or pass comments on each other’s race, religions, culture or habit.

4.5 Informing household members about the RDO and promoting racial equality and harmony at home

To prevent racial discrimination or harassment at home, the employers are advised to emphasize the importance of adhering to the RDO to their household members and also to promote racial equality and harmony at home. It is important for other household members, including all domestic helpers employed in the household to understand their liability under the RDO.

4.6 Maintaining direct communication

Employers are advised to maintain direct communication with the domestic helpers based on mutual respect, so that they understand that they can speak to the employer if they feel they are receiving less favourable treatment or being harassed during their employment. We encourage domestic helpers to communicate with their employers if they feel they are being treated less favourably so that the employer can address the issue. We also encourage employers to use plain language, which is easier to understand, while communicating with domestic helpers in order to avoid misunderstanding.

4.7 Striking a balance between the employers’ needs and their helpers’ cultural, racial and religious needs

Employers are advised to maintain a balance between their needs and their helpers’ needs. They are also advised to address their helper’s concern whenever their helper approaches them on specific employment issue. Creating a working condition which is based on mutual respect for each other will create a long term harmonious working relationship and win-win situation for all.