Member Article

The Race Discrimination Ordinance (RDO) came into force last week on 10 July 2009 following the passage of the Code of Practice on Employment under the RDO (Code) in the Legislative Council on 9 July 2009.  Accordingly to reports in the South China Morning Post, one organisation has already said that it has prepared two cases for the Equal Opportunities Commission to tackle under the RDO. Employers must, therefore, ensure that they are fully prepared for and aware of the provisions of the RDO and the Code to avoid claims being brought against them.

The RDO makes acts such as discrimination or harassment on the ground of race unlawful. 'Race' is defined as meaning the race, colour, descent or national or ethnic origin of a person. Other grounds, such as nationality, citizenship, resident status, length of stay or indigenous villager status of a person are not grounds of race under the RDO.

In broad terms, racial discrimination occurs when, because of the race of the other person, one person treats another person less favourably than he or she would treat others. Racial discrimination may take the form of direct or indirect discrimination and also includes discrimination on the basis of the race of a near relative, discrimination by way of victimisation, racial harassment, racial vilification and discriminatory advertisements.

There are certain exceptions to racial discrimination which include where race is a genuine occupational qualification for the job and for certain overseas terms. There is also a 'grandfather clause' for existing employees on overseas terms at the time the RDO comes into effect. However, employers should be aware that these exceptions are fairly limited in scope. For example, the exception for certain overseas terms will only apply where the person possessing the special skills, knowledge or experience is recruited or transferred from a place outside of Hong Kong.

For more information on the detailed provisions of the RDO please see our Greater China HR Update issued on 23 July 2008. 

 

Following the implementation of the RDO, employers should:

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  have in place revised policies and procedures which include race discrimination and have communicated the revised policies and procedures to employees. The Code provides certain recommendations as to what the policy should include in terms of racial equality

  
  
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  have provided training to all employees on racial discrimination and the applicable provisions of the RDO (especially people involved in short-listing and interviewing applicants and managers involved in appraisals, promotions, transfers or dismissals)

  
  
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  ensure that all recruitment decisions are based on consistent selection criteria and the selection criteria do not make reference to race

  
  
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  ensure that application forms do not suggest that the employer wishes to take into account any race related factors not relevant to the job. The Code recommends that race related information should only be sought for purposes of making any special arrangement, for example, with regard to dates or times coinciding with religious festivals or observance, or dietary needs or cultural norms and the purposes for requesting or using such information should be clearly stated. The Code also recommends that this information should be detachable from the rest of the application form and should not be made known to members of selection panels before the interview

  
  
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  ensure that interviewers only ask questions which relate directly to the essential requirements of the job and avoid asking questions about a person's race, descent or national or ethnic origin.  Failure to do so may lead to a presumption that the reason for any refusal was a discriminatory one under the RDO

  
  
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  ensure that terms and conditions of employment, the assignment or work and duties, the practices, rules, terms, policies, conditions and requirements on access to any benefit, facilities or services do not treat any employee less favourably on the ground of his or her race . This applies to commissions, bonuses, allowances, pensions, health insurance plans, annual leave, merit or performance pay, or any other fringe benefits available to employees

  
  
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  ensure that the assessment criteria of any appraisal system are examined to ensure that employees are promoted on merit and criteria adopted (for example, any language requirement) are not discriminatory on the ground of race. Measurable standards for evaluating job performance should be established, and

  
  
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  ensure that employees are not dismissed, made redundant, or given unfavourable treatment on the ground of race or irrelevant race-related factors such as language, appearance or attire.