Discrimination and HIV Status

Discrimination and HIV Status

Discrimination and HIV Status 1276 678 Adam Hugill
Reading Time: 4 minutes

Will Ripley and Adam Hugill discuss the legal protections available regarding discrimination based on disability and/or HIV status. In Hong Kong you cannot be denied employment or be discriminated because of your HIV status. Such protections also extend to your family and friends who could be stigmatised because of your HIV status, even when such status is only perceived by individuals or organisations discriminating against you.

Visit our Wills of Concern campaign to find out more about how we are raising funds for AIDS Concern by writing wills for donations until end of 2019.

Will Ripley和Adam Hugill討論了針對殘疾和/或愛滋病毒感染狀況歧視的法律保障。在香港,一個人不會因為愛滋病病毒感染狀況而被拒絕就業或受到歧視,此類保護措施還擴展到他的家人和朋友,保障他們免於因為他的愛滋病病毒感染狀況而受到侮辱。

由即日起至2019年12月31日我們會以撰寫遺囑為關懷愛滋籌款。欲知詳情請參閱Wills of Concern。


TRANSCRIPT

 

Will Ripley
People living with HIV and AIDS often face discrimination. It could be in the workplace, it could be in a school environment, here in Hong Kong are they protected under the law?

愛滋病病毒感染者經常受到歧視
這可以發生在工作間,亦可以發生在學校處境中
在香港他們有受任何法律的保障嗎?

Adam Hugill
Yes, Hong Kong has pretty progressive laws to protect against discrimination on the grounds of HIV. Disability is widely defined under the Ordinance to cover all forms of physical, mental and even infectious diseases, including HIV and so it is very much covered so that people with HIV should be protected against indirect or direct discrimination, harassment or vilification.

有的, 香港有相對先進的法律以保障愛滋病病毒感染者免受歧視
《殘疾歧視條例》中,殘疾被廣泛定義為身體或心智方面的機能喪失,亦包括感染如愛滋病病毒等傳染病
所以條例保障愛滋病病毒感染者免受直接或間接的歧視、騷擾及中傷

Will Ripley
They should be protected: are they always?

他們應該受到保護,但實際上呢?

Adam Hugill
The law is there and intended to protect people and it means that they have right of recourse if they do suffer discrimination.

目的在於保障人的法律已經存在,所以如果有人受到歧視,他們享有追索權

Will Ripley
We know that it still happens. Are there any exceptions?

沒錯仍會發生
但有例外嗎?

Adam Hugill
In the workplace there is an exception if you can show that it is an inherent requirement of the job not to have that disability so that would mean that there has to be a key purpose for the job not to have HIV and, before preparing this interview, I tried to think of professions where you could justify that and I can’t think of any.

在工作間有一例外,就是沒有該殘疾是僱用的固有要求
所以這表示沒有感驗愛滋病病毒要是這份工作的一個重要要求
接受訪問之前
我曾嘗試但卻想不出任何一個合此情況的職業

Will Ripley
Can your employer ask you to reveal and disclose your status and what not. I mean, how much privacy are you entitled to?

僱主可以要求僱員公開他的感染狀況嗎?
一個人有多大程度的私隱?

Adam Hugill
Some employers ask for medical checks before you commence employment, but that shouldn’t include an HIV test unless the employer can justify why they need that for the inherent requirement of the job, and I cannot see how this can ever be justified.

有些僱主會在僱用前要求僱員進行身體檢查,但這不應該包含愛滋病病毒測試
除非僱主能對收集此資訊作為僱用的固有要求提出合理解釋
但我不認為他能提出任何合理解釋

Will Ripley
What kind of job would actually…you don’t know?

甚麼類型的工作會需要?沒有嗎?

Adam Hugill
I can’t think of a job that you could say that, because of your HIV status, you shouldn’t be able to have that job and be that legitimate.

我想不出任何工作會因為一個人感染愛滋病病毒而合理地不僱用他

Will Ripley
So you cannot be denied employment as a result of a positive? Exactly, that shouldn’t happen. And yet a lot of people are so afraid that they don’t get tested because they are fearful because of that exact kind of discrimination.

所以感染愛滋病病毒不是一個不僱用的原因?
沒錯,那不應該發生
但許多人也因為害怕這種歧視而選擇不進行愛滋病病毒測試

Adam Hugill
Yes! 對的

Will Ripley
It’s not just people living with HIV who could be stigmatized, right?

被污名化的不只是愛滋病病毒感染者,對嗎?

Adam Hugill
That’s right! Family and friends of somebody who has HIV could be equally stigmatised. The legislation is wide enough to include protection against associates, and associate is very widely defined to include essentially family and friends, so anybody that people associate with, so if that person suffers discrimination, as a result of being a friend with somebody with HIV, then that person would have the rights to bring claims for discrimination. Similarly, if you are perceived to have HIV, so your employer perceives that – because of your lifestyle or because you have a friend who has HIV – you might have HIV then that’s also protected against.

其實條例非常廣泛,亦保障與殘疾人士有聯繫的人士,這當然包括其家人和朋友
所以如果一個人因為是愛滋病病毒感染者的朋友而受歧視
他將有權因受歧視而提出申索
同樣地,如果一個人因為他的生活方式或因他有感染者朋友,而被僱主認為他有感染愛滋病病毒
該人亦受此條例保障

Will Ripley
So you would also qualify potentially under…

所以該人亦會因此而受條例保障

Adam Hugill
So you would qualify and have a right of recourse if you had suffered discrimination because your perceived infection.

如果被認為受感染而受歧視,該人會因此而受條例保障而且有追索權

Will Ripley
What does somebody need to do – obviously a lot of documentation – if they feel they’ve been discriminated against? What advise would you give?

如果認為自己受到歧視,該如何處理?你有任何建議嗎?

Adam Hugill
Discrimination is usually in a very subtle form. People don’t tend to be very blatant with it, so you tend to have inferred discrimination.

歧視通常並不明顯,人通常不會公然歧視別人,所以一般也是推斷的歧視

Will Ripley
How do you prove it?

該如何證明?

Adam Hugill
It’s difficult, but we advise clients to keep detailed notes. I advise clients to keep diaries of things that are said, comments that are made in the office, things that are overheard and that’s in itself and trying to find people to support your version of events. It’s usually in the form of subtle things: malicious gossips, isolating people from office, excluding them from meetings, and it’s just a matter of keeping detailed notes and documenting them.

這是困難的,但我們一般建議客人留下詳細敘述
將懷疑歧視者所說的話,或在工作間的評價等記錄在日記內
記錄下來後亦嘗試找人支持你的說法
一般也是不明顯的,例如惡意中傷,在工作間被孤立,或在會議中被排除
把事件詳細記錄下來

Will Ripley
It seems it must be a very difficult thing to prove in a court of law.

看來在法庭上較難舉證

Adam Hugill
Before somebody would go to the District Court, I would always advise them to file a complaint with the Equal Opportunities Commission, the EOC is not a Court but they have strong investigative powers so they will take on board your complaint, they will write to your employer – if it’s in an employment context – and ask questions, ask follow up information, obtain documents, take witness statements, and they have very strong powers to compel that and they tend to do a very good job to get to the bottom of discrimination, if it has happened.

在到區域法院之前,我會建議他們先到平等機會委員會
平等機會委員會有很強的蒐證能力
他們會受理你的投訴,如果歧視發生在工作間,他們也會寫信予你的僱主並詢問情況
也會追問資料、取得文件及取得證人證詞,他們有能力做到
如果歧視真有發生,他們能夠追查到底

Will Ripley
Sadly the stigma does exist, so I am sure that there are people out there who are living with this discrimination and probably are too afraid to come forward, what would you tell those people?

可惜污名化真實存在,而我肯定有人會因為太害怕而不敢告發歧視者
你有何建議?

Adam Hugill
If you want to prevent discrimination unfortunately the only way to do it is to come forward. The EOC would keep things very confidential. If you were to take the matter to Court, you can apply for what is called an Anonymity Order, so you would file your case under the name of AB or something like that so you don’t have to have your name on public records.

如果你想避免歧視再次發生唯一的方法是勇敢站出來
平等機會委員會會將所有資料保密
如果將事件帶上法庭,你可以申請匿名令
這樣你便可以匿名方式進行申索,在公開資料中亦不會留下真實姓名

Adam Hugill

Adam Hugill

Adam advises on a wide range of contentious and non-contentious legal and commercial issues, with a special emphasis on employment law in Hong Kong and the Asia Pacific region.

All articles by : Adam Hugill
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