The definition of “disability” under the Disability Discrimination Ordinance (Cap. 487) is very wide and covers almost all physical or psychological impairments. It also expressly includes the presence of disease and illness. HIV status is, therefore, certainly protected as a being a disability under the Ordinance.
Disabled people are protected from direct and indirect discrimination, harassment and vilification on the ground of their disability – in this case their HIV/AIDS status.
Discrimination tends to mean being treated less favourably than someone who does not have HIV/AIDS status is treated.
In the workplace context, the most obvious acts of discrimination are either not being hired or being fired due to HIV/AIDS status. Except in very limited circumstances, if someone is dismissed due to their HIV/AIDS status, it will be an act of discrimination.
Harassment means receiving unwanted attention – usually hostile in nature, as a result of someone having HIV/AIDS status. This could include, for example, being excluded from certain groups or functions. It could also include malicious gossip, taunts or other unwelcome attention.
Vilification is a public activity that incites hatred or severe ridicule of people with HIV/AIDS status.
Protection Outside of the Workplace
The Disability Discrimination Ordinance protects against discrimination in connection with education, access to public places, provision of goods, services or facilities – including clubs and sports facilities.
People with HIV/AIDS and their families have equal access to welfare services and should not be refused treatment in hospitals or clinics on the grounds of HIV/AIDS unless that hospital or clinic can show it would impose unjustifiable hardship. It is not expected that this would be a usual occurrence.
Although an employer can request medical information, including information about an infectious disease – HIV is specifically excluded from the definition of infectious diseases.
Discrimination is permitted if it can be shown that not having a particular disability is an inherent requirement of the job. Therefore, a possible exclusion would be if someone with HIV/AIDS would not be able to carry out the inherent requirements of the job. In practice it is anticipated that this ground could rarely be relied upon, indeed, it is questionable whether there are any jobs that require negative HIV/AIDS status as an inherent requirement.
An employer may ask employees to undertake a HIV test. However, the employer would need to have an extremely good reason relating to the inherent requirement of a job to justify asking someone to take such a test
Stigma and Perceived Status?
The protections under the Ordinance also applies to “Associates” of the disabled person.
Associates is also widely defined and includes spouse, cohabitant, relative, carer and a business, sporting or recreational associate.
Therefore, if a relative or even a friend is discriminated against or harassed as a result of someone else’s disability, that would be protected against under the Ordinance.
Discrimination based on perceived status is also prohibited. Therefore, it is not necessary for someone to have HIV to be discriminated against on the grounds of HIV.
In most cases the first line of legal recourse would be lodging a complaint with the Equal Opportunities Commission (EOC). The EOC is an impartial organisation that is mandated to investigate, and seek to conciliate, breaches of the equal opportunities’ legislation. While the EOC has the power to investigate and make recommendations and findings, it is not able to issue a final determination or judgment.
Therefore, if a matter is not resolved by way of informal conciliation at the EOC and there are grounds for a claim, the claim must be pursued in the District Court. In certain cases, the EOC may be prepared to facilitate or fund the litigation of a particular dispute in the District Court.
Claims for breach of the equal opportunities’ legislation are conducted using a specific truncated set of District Court rules which are designed to remove some of the usual litigation formalities and ‘fast track’ the process. Risk is also mitigated since the usual costs rule that the losing party shall pay the winning party’s costs is also removed. This being said, it can be expected that an equal opportunity’s claim in the District Court will take about 18 months to be resolved and significant legal costs may be incurred.
The Equal Opportunities Commission has published a short form guide to the application of the Disability Discrimination Ordinance and People with HIV/AIDS.
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.
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.