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Herman Poon's Powerpoint notes on Race Discrimination Ordinance
2008-12-05 Race Discrimination Ordinance Herman Poon, 5 December 2008, Friday Tea Workshop 1. The Ordinance • Enacted in July 2008 • Effective date – EOC general functions (e.g., issue code of practice): October 2008 – Other provisions: mid-2009 • Similar to other discrimination ordinances • Define discrimination • Making it unlawful in different areas of activities (called “Fields”) • Civil liability – Damages, loss of income, injury to feelings, punitive damages – Declaration, – order to employ or perform reasonable act to redress loss or damage 2. Fields • Employment – Recruitment – Terms and conditions of work – Termination – Reference letters after termination • Goods, services and facilities – Refusal, manner, terms • Disposal and management of premises – Refusal, terms • Educational establishment – Admission, terms, expulsion • Government – Other Discn. Ord.: all functions and powers; but not RDO 3. Discrimination • Race discrimination – Less favourable treatment (direct discn.) – Application of same requirement or condition (indirect discn.) • Near relative (less favourable treatment) • Victimization (less favourable treatment) 4. Direct discrimination • Difference in treatment less favourable • On the ground of race (could be one of many reasons) • Comparator can be hypothetical • Discn. can be perpetrated by people of same race • Some people of the same race not treated adversely may be relevant as evidence, but not necessarily an answer • Segregation is less favourable treatment • Ill motive relevant but not necessary – discn may not even be conscious and may be subjectively well intended • Direct evidence is rare • Where circumstantial evidence discloses realistic possibility of race discrimination, court would look to defendant for explanation and may draw inference from circumstantial evidence in the absence of satisfactory explanation 5. Indirect discrimination • Same application of requirement or condition to people of different races • Adverse impact or disadvantage for people of particular racial group(s) • Not justifiable • Requirement or condition • In order to …, you must … • Compliance – practical difficulty • Comparison of complying proportions • Group A (5/20) 25% • Group B (60/80) 75% • Group A is disadvantaged • Justifiable • Legitimate objective • Rational and proportionate connection to the objective • Balance between discriminatory effect and the need • consideration of alternatives • Burden is on the defendant • Dress code • Language • Employment • Official communications • Goods, services and facilities • Methods of communication • Inherent element of service/product • Justifiable, resources, practical limitations 6. Exceptions • Genuine occupational qualification • Skills and knowledge outside Hong Kong • Existing local and overseas terms • Special measures • Training arrangements and encouragement to underrepresented groups • Nationality and immigration law • Statutory authority 7. Harassment • Unwelcome conduct • On the ground of race (personal or near relative) • Hostile or intimidating environment • Objective element • Employer or employee ～ employee • Service providers ～ customer • Teacher or student ～ student 8. Vilification • Incite hatred, serious contempt, and severe ridicule against people on ground of their race by public activity • Serious vilification – vilification threatening physical harm to person or property – Criminal offence, max sentence fine at level 6 ($100,000) and 2 years imprisonment 9. Race • Race 種族 • Colour 膚色 • Descent 世系 – Forms of social stratification (caste system) • National origin 民族 • Ethnic origin 人種 10. Not Race • Indigenous inhabitants • Permanent residency, right of abode, permission to land and remain, restriction or condition of stay • Length of residency • Nationality, citizenship or resident status of other countries 11. EOC • Eliminate discrimination, harassment and vilification • Promote equal opportunity • Settlement of dispute by conciliation • Review the working of legislation • Other functions – Code of practice, formal investigation, complaint handling, legal assistance 12. Code of Practice • Consultation on employment code ends on 19 Jan 2009 • Aims to explain how the law works • Suggest good practice: Information from stakeholders on practical issues and solutions • Code does not impose legal liability directly 13. Equal Opportunities Commission Tel: 2511 8211 Fax: 2511 8142 19F, Cityplaza Three, 14 Taikoo Wan Road, Taikoo Shing, Hong Kong http://www.eoc.org.hk |
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