Protected Grounds
There are four anti-discrimination ordinances in Hong Kong:
- Sex Discrimination Ordinance (Cap. 480);
- Disability Discrimination Ordinance (Cap. 487);
- Family Status Discrimination Ordinance (Cap. 527); and
- Race Discrimination Ordinance (Cap. 602).
Together the ordinances protect against discrimination on the grounds of sex, pregnancy, marital status, family status, disability and race.
The first two ordinances came into effect in 1995, with the third – the Family Status Discrimination Ordinance – coming into effect two years later in 1997. Some 12 years then passed before Hong Kong enacted its fourth and latest anti-discrimination ordinance protecting against discrimination on the grounds of race.
History of Discrimination Laws
Hong Kong’s anti-discrimination legislation has always trailed behind similar protections afforded in other developed common law jurisdictions. Hong Kong’s Race Discrimination Ordinance, for example, was only enacted in 2009. By way of contrast, the United Kingdom and Australia enacted similar anti-discrimination legislation during the mid-1970s.
Give the time it has taken for Hong Kong to enact basic anti-discrimination laws that were prevalent – indeed commonplace – in many developed jurisdictions during the 1970s, 80s and 90s, it is hardly surprising that Hong Kong is yet to enact legislation to prevent against discrimination on other grounds that are now typically protected by way of ‘modern’ anti-discrimination legislation, such as religion and belief; sexual orientation; gender assignment or identification and/or age.
In this regard, Hong Kong trails behind most developed jurisdictions, common or civil law, notably including its close neighbour Taiwan, which this year enacted comprehensive laws protecting against discrimination on the grounds of: race, class, language, thought, religion, political affiliation, place of origin, place of birth, gender, gender orientation, marital status, appearance, facial features and disability.
Exception for Public Sector Workers
Although employees do not have the protection of comprehensive anti-discrimination legislation, employees in the public sector – government workers – may obtain protection from discrimination under the Hong Kong Bill of Rights (Cap. 383) which provides at Articles 1(1):
“The rights recognized in this Bill of Rights shall be enjoyed without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
The additional rights afforded to employees in the public sector rose to prevalence in the case of Leung Chun Kwong v Secretary for the Civil Service, Commissioner for Inland Revenue [2018] HKCA 318 wherein Mr. Leung, a Senior Immigration Officer, successfully argued that his same-sex partner should be entitled to receive spousal medical and dental benefits.
Code of Practice
A “Code of Practice Against Discrimination in Employment on the Ground of Sexual Orientation” for employers was issued by the Government in 1998 for the purpose of eliminating discriminatory practices and behaviour in the workplace that concerned sexual orientation.
The ultimate drawback of the Code is that it is voluntary, self-regulating and not legally binding or enforceable.
About 300 organisations have adopted the Code – many of them are global or multi-national organisations. In total, the companies adopting the Code account for about 500,000 employees from a workforce of about 4 million people.
Since the Code has been in existence for over 20 years these statistics are not exactly impressive. Moreover, although the Code is voluntary, it would seem that organisations have only really taken notice of it when they have been urged to do so by the Government.
Since its implementation of the Code, the Government has described itself as firmly committed to promoting equal opportunities for all, including people of different sexual orientations and opposed to any form of discrimination on the ground of sexual orientation. It is somewhat perverse, therefore, that despite this commitment, the Government rigorously opposed the granting of medical and dental benefits in Leung, forcing him to litigate his claim to the Court of Final Appeal.
Changes on the Horizon
In 2014 the Hong Kong Equal Opportunities Commission undertook a public Discrimination Law Review. The focus of the Discrimination Law Review was to look at developing the four current anti-discrimination ordinances rather than expand anti-discrimination protection into new areas.
The Review reported significant interest in the development of laws to protect against discrimination on the grounds of age, sexual orientation, gender identity, intersex status, religion or belief, and also language. However, of the 70 or so recommendations made three years ago, only 8 have been taken forward, the key employment / workplace recommendations being:
- Protection from discrimination for breastfeeding
- Protection from harassment in co-work-spaces
- Expansion to Race Discrimination Ordinance
- Expansion of anti-harassment protections
Our team at Hugill & Ip has extensive experience in dealing with Employment and Labour Law issues – so kindly get in touch with us to find out how we can help.
Until end of this year, our team at Hugill & Ip will cover specific issues related to LGBT rights, estate planning, discrimination and confidentiality. We wish to make the community in Hong Kong better aware of matters and legal protections afforded to individuals affected by HIV and AIDS as part of the Wills of Concern charity campaign.
To learn more about this joint campaign with AIDS Concern, kindly click on this link or feel free to ask questions at campaigns@hugillandip.com
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.
