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。



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?


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

Will Ripley
They should be protected: are they always?


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.


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


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.


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?


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.


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


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.


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.


Adam Hugill
Yes! 對的

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


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.


Will Ripley
So you would also qualify potentially under…


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


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?


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.


Will Ripley
How do you prove it?


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.


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


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.


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?


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.


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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