Short Guide to Employers on Racial Discrimination Ordinance

The Racial Discrimination Ordinance (RDO) which was passed in July 2008 finally came into force on 10 July 2009. This is a significant milestone in the development of anti-discrimination law in Hong Kong.
Unlawful Acts under the RDO
The RDO prohibits discrimination, harassment, victimization and vilification on the ground of race. Race is defined under the RDO as a persons race, colour, descent, national or ethnic origin. The definition does not extend to resident status, length of residency in Hong Kong, nationality and citizenship, or indigenous villager status of a person. The definition also does not include religion and language, although discrimination on the basis of religious practice or language may discriminate against certain racial groups.
There are however specific exceptions under the RDO. For example, race may be a genuine occupational qualification where personal services from a particular racial group are required such as in the entertainment or food industry. Domestic helpers are also expressly excluded from the protection of the racial discrimination provisions in the RDO in respect of recruitment. Further, the differential treatment for employees on local terms from their colleagues on expat terms continue to be allowed if those terms of employment existed when the RDO came into force. For new hires, differential terms must be justified on the basis of the expatriate employee having skills, knowledge or experience not readily available in Hong Kong.
Vicarious Liability of Employers
An employer will be vicariously liable for any unlawful acts under the RDO committed by its employee regardless whether the employer knew or approved of the employees unlawful conduct. However, the employer may avoid liability if it can show that it had taken steps which were reasonably practicable to prevent the unlawful conduct of the employee from occurring.
Code of Practice on Employment
The Equal Opportunities Commission (EOC), Hong Kongs discrimination law watchdog, issued the Code of Practice on Employment pursuant to the Race Discrimination Ordinance (Code), which also came into effect on 10 July 2009. The Code provides practical guidance to both employers and employees on the operation of the RDO in the workplace. It contains recommendations on good employment procedures and practice and provides illustrations on how the principles and concepts in the RDO may be applied in the field of employment.
The Code recommends that employers take the following steps :-
- adopt an equal opportunities policy that represents the employers commitment to racial equality;
- provide a framework for action to promote racial equality and putting it into practice;
- disseminate the policy to all employees and ensure that employees understand that racial discrimination and harassment is unlawful under the RDO;
- review the employment processes so as to comply with the RDO by ensuring that race is not a factor in recruitment, promotion, training, transfer, terms and conditions of employment in respect of pay, bonus and other benefits, as well as termination of employment and redundancies;
- put in place appropriate procedures for complaints to be properly investigated and provide appropriate remedial action;
- ensure that the development, implementation and review of the policy be jointly undertaken between management and employees.
The Code provides a sample policy on racial equality for reference that may be adopted by employers. Although the Code is not legally binding, compliance with the Code will assist an employer in showing that it has complied with the RDO in any legal action commenced under the RDO.
Enforcement Action
An employee or a job applicant who claims racial discrimination, harassment, vilification and victimization may commence action in the District Court. The Court has the power to declare any contract made in contravention of the RDO void, order that a person be employed, re-employed or promoted, and award damages, including punitive and exemplary damages.
As an alternative to legal proceedings, a complaint may be lodged with the EOC which has the power to conduct an investigation with a view to facilitate settlement of any dispute by conciliation.
Lawyers in our Employment Department will be able to assist you in formulating an equal opportunities policy or answer any queries in respect of the RDO and any employment matter.
ABOUT THE AUTHOR: Angela Wang & Co
Angela is a graduate from the National University of Singapore and has practised with major international law firms in Singapore, Australia and Hong Kong. Angela regularly advises major international clients including well known Fortune 500 companies on a wide range of corporate matters including the takeover of listed companies, IPOs, substantial asset restructuring, capital fund raising, cross border private equity transactions and structured financing in Hong Kong China and South East Asia. She also acts for China state owned enterprises and Chinese domestic companies and entrepreneurs in their various investments overseas.