Disability Discrimination and Cancer

Disability Discrimination and Cancer

Disability Discrimination and Cancer 1200 900 Adam Hugill
Reading Time: 5 minutes

The Disability Discrimination Ordinance, Cap. 487 (“DDO”) was introduced to protect disabled individuals in various elements of their lives, with reference to: employment, education, access to premises and many more.

When hit with an illness like cancer it is important to be aware of the protections that might be afforded to you. In an employment context, it is also imperative that employers understand their responsibilities – discrimination may not always be intentional but can still occur.

What is a disability?

For someone to be discriminated against on the grounds of disability, they must fall within the definition of “disabled”. Section 2(1) of the DDO defines disability as:

  • “(a) total or partial loss of the person’s bodily or mental functions;
  •  (b) total or partial loss of a part of the person’s body;
  •  (c) the presence in the body of organisms causing disease or illness;
  •  (d) the presence in the body of organisms capable of causing disease or illness;
  •  (e) the malfunction, malformation or disfigurement of a part of the person’s body;
  •  (f) a disorder or malfunction that results in the person learning differently from a person without         the disorder or malfunction; or
  • (g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behavior”

This definition is incredibly wide. Cancer could potentially fall under a number of these categories but will likely fall under (c).

The DDO’s definition of disability, includes a disability that “presently exists; previously existed but no longer exists; may exist in the future; or is imputed to a person”. These protections extend to the associates of a disabled person.

What is disability discrimination?

The term “discrimination” encompasses many situations, but can usefully be categorised into two main types: “direct discrimination” and “indirect discrimination”.

Direct discrimination occurs when an employee is treated “less favorably” than another employee due to their disability. To determine whether or not discrimination has occurred, the Equal Opportunities Commission (“EOC”) or Courts will investigate the treatment and determine if the person would have received this treatment “but for” their disability.

Indirect discrimination is when a person is a victim of discrimination that is not directed at them but has led to a disadvantage regardless. An example of this would be only having access to a public building by stairs. This is indirect disability discrimination as it prevents people who cannot climb stairs from entering the building.

Harassment or vilification of someone with a disability is also illegal under the DDO. Harassment is any action which can reasonably be viewed as causing offense, humiliation or intimidation. Vilification is a public action which encourages dislike or mocking of someone due to an attribute they hold.

What actions should I take?

It is important to first identify if discrimination has taken place and then determine whether the discrimination has taken place due to an attribute that is protected by law. Once this has been established a complaint should be lodged with your employer. Larger employers and multi-national companies will often have in place a grievance policy / procedure that should be followed. If no such policy is in place you will likely need to lodge a complaint to your company’s management.

If you are unable to resolve the matter internally (or if the discrimination happened at top-management level) you can take it further with the Equal Opportunities Commission or take it to the District Court.

To lodge a complaint with the EOC you will need to do it in writing, and it will need to include:

  • all the details of the discrimination that has taken place;
  • your personal information;
  • your employer’s information;
  • any evidence you have;
  • information on the detriment you have suffered; and
  • any witness(es) contact details.

Once the complaint is received, the EOC will investigate the complaint to determine whether it is valid. The EOC will also try to assist the parties in conciliating and settling any complaint.

The EOC is not a judicial body and cannot make any final ruling. However, if the EOC consider a complaint to be valid, it can assist the individual in bringing an action in the District Court.

If you lodge a complaint and receive worse treatment from your employer as a result, this is illegal under section 7 of the DDO and is classified as “victimisation”. It is important to keep a record of all discrimination and victimisation that takes place, as this will help you and your solicitors build a stronger case and provide a clear timeline with evidence.

Time limits?

Claims for discrimination are subject to a limitation period of two years. It can sometimes be tricky determining when this period starts or finishes, especially if you have been subject to continuous discrimination over time.

Complaints to the EOC must generally be made within one year of the act occurring, however, they may be prepared to extend this deadline in exceptional circumstances.

If you make a complaint to the EOC, then the clock for the two-year limitation period to being an action in the District Court is stopped for the duration of the EOC’s investigation. This has the effect of extending the two-year deadline.

How to avoid discrimination?

From the employer’s point of view, unfavorable treatment is not illegal. Any act done that includes discrimination against a person’s specific attribute that is protected by the law is, however, unlawful. Therefore, employers need to be very careful with actions they take and be sure not to include any unlawful discrimination. If an act is done for multiple reasons, and one of those reasons is discriminatory, then the entire act will be considered discriminatory.

When it comes to employing someone, it is unlawful to discriminate against a job applicant on the grounds of their disability. However, if the job has “inherent requirements” needing certain capabilities then an employer can specify that certain disabilities are not suitable to be applicable to the job (section 12(2) of the DDO). The inherent requirements are the requirements needed to carry out the goals of a job. Employers must be very cautious in how they apply the inherent requirements rule and base any decisions on evidence (often expert medical evidence) and not their own perceptions or assumptions regarding an individual’s disability. An inherent requirement cannot be used to disregard a certain applicant if their disability doesn’t affect the person’s ability to do the job.

An employer is entitled to request medical information for determining if an applicant has any infectious diseases, if they can carry out the inherent requirements or would need specialist facilities to perform the inherent requirements.

Our take

If you believe you have suffered discrimination or are being accused of discrimination, then Hugill & Ip can provide the clarity and direction you need to tackle a discrimination case. Cancer is an extensive disease that is likely to affect you one way or another. Providing support is essential and it is crucial that widespread awareness is raised to help fight this awful disease.

This month Hugill & Ip has joined the World Cancer Day’s #IAmAndIWill campaign in support of Asian Fund for Cancer Research (AFCR). The firm will be donating part of its profits, helping to spread cancer awareness and raising funds from other corporations and individuals. Every contribution counts to fund cancer research and to save the lives of cancer patients.

Get involved in any way you can. Together we can create change.

For additional information about the campaign, please click on the following link. For donations, you can access AFCR “Ways to Give” link and set up gifts as one-off, monthly, in memoriam or in honor.

 

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.

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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