Voice

There are three Ordinances currently in operation in Hong Kong, which provide protection to persons against discrimination and harassment in certain fields or areas of life. These are the Sex Discrimination Ordinance, the Disability Discrimination Ordinance and the Family Status Discrimination Ordinance.

The Sex Discrimination Ordinance provides protection against discrimination on the grounds of sex, pregnancy and marital status. Sexual harassment and victimization are also unlawful under the Sex Discrimination Ordinance. These acts or conduct are unlawful if committed in the fields of employment, education, provision of goods, services and facilities, disposal or management of premises, eligibility to vote for and to be elected or appointed to advisory bodies, participation in clubs, and activities of Government.

The Disability Discrimination Ordinance provides protection against discrimination and harassment on the ground of disability. Vilification and victimization are also unlawful under the Disability Discrimination Ordinance. Such acts or conduct are unlawful if committed in the fields of employment, education, provision of goods, services and facilities, access to premises, disposal or management of premises, participation in clubs and sporting activities and activities of Government.

The Family Status Discrimination Ordinance provides protection against discrimination on the ground of family status. Family status means having responsibility for the care of an immediate family member. Victimisation is also unlawful under the Family Status Discrimination Ordinance, and the fields to which the Family Status Discrimination Ordinance applies are the same as for the Sex Discrimination Ordinance.

Discrimination may be direct or indirect. Direct discrimination is where one person is treated less favourably than another person in the same or similar circumstances. Not all unfair treatment amounts to discrimination: the treatment must be less favourable than treatment which has either been given to someone else, or would be given to someone else. In other words, there must be a comparison of treatment.

Indirect discrimination is where a condition or requirement is applied equally to all persons, but has the effect of disadvantaging persons with a particular attribute (that is, such as persons of a particular sex or persons with a disability) and the condition or requirement is to their detriment because they cannot comply with it, and it is not justifiable.

An aggrieved person (or a representative authorized on their behalf) may lodge a written complaint with the Equal Opportunities Commission if they feel that they have been discriminated against, harassed, victimized or vilified. The Equal Opportunities Commission has a statutory function under all three Ordinances to investigate into such written complaints and endeavour to conciliate them.

The Equal Opportunities Commission will ask the complainant for information and details about the allegations, and will also ask the Respondent to provide a response to the allegations and information which will assist the investigation. The Equal Opportunities Commission must investigate into each complaint made, unless it otherwise exercises its discretion not to conduct an investigation, or to discontinue it, on certain grounds. These include where the Equal Opportunities Commission is satisfied that the act is not unlawful by reason of a provision of the Ordinance, the Equal Opportunities Commission is of the opinion that the aggrieved person does not desire the investigation to be conducted or continued, the unlawful act complained of is more than 12 months old, or the Equal Opportunities Commission is of the opinion that the complaint is frivolous, vexatious, misconceived or lacking in substance. The Equal Opportunities Commission may also decline or discontinue a representative complaint if it thinks a representative complaint is not appropriate.

The conciliation attempted by the Equal Opportunities Commission is a voluntary process and the parties will be asked if they wish to participate and to try to resolve the dispute amicably. If the matter cannot be successfully resolved, the complainant may apply to the Equal Opportunities Commission for legal assistance to take the case to court. The Equal Opportunities Commission may grant assistance if it thinks it fit to do so, but will not assist every case no matter how deserving, as it is not a legal aid agency, and is not separately funded to take cases to court.

Complainants may also apply to the Legal Aid Department if they wish to do so, or bring proceedings themselves. In fact, complainants may issue legal proceedings themselves without even lodging a complaint in writing with the Equal Opportunities Commission. Legal proceedings under the three Ordinances are brought in the District Court.

If you feel that you have been discriminated against, or harassed, victimized or vilified under one of the Ordinances, you may wish to speak to an officer of the Equal Opportunities Commission for information about your rights under the law. For details, please telephone the Equal Opportunities Commission Enquiry Hotline number 2511 8211 during office hours from Monday to Friday. At weekends and public holidays an answer phone will record your message.

Dated: 29th October 2002