Ms' Cammy Liu

1
Equal Opportunities Commission and the Ordinances

• Ms. Cammy Liu
• Senior Training Consultant
• Equal Opportunities Commission

2
Workshop Outline

• Section 1 The Equal Opportunities Commission
  Anti-discrimination ordinances
• Section 2 Liability
• Managers roles
• Managing complaints
• Section 3 Case studies

3
Section 1

• The EOC and the Anti-discrimination Ordinances

4
Equal Opportunities Commission

• Statutory body established in 1996
• Fully financed by the HKSAR government
• Chairperson and 16 committee members, all
  appointed by the HKCEO
• Office in Wanchai for daily operation

5
Functions of the EOC

• Legislation ongoing review and update
• Complaint resolution
• Investigation conciliation
• Providing legal assistance
• Public education
• TV/Radio programmes, community exhibitions,
  publications, teaching material etc.
• Corporate training
• Institutes, banks, media, hotels, groups from
  China, etc.

6
What is Equal Opportunity?

• Giving ALL people the same treatment?
• Giving BETTER treatment to women?
• Giving BETTER treatment to people with a
  disability?

7
The Principles of Equal Opportunities

• Everybody is born equal
• Abandoning traditional stereotypes
• Respecting individual capabilities

8
The Principles of Equal Opportunities

• Reasonable support and assistance to those in
  need
• Creating a fair ground for competition
• Appropriate and professional behaviour in the
  workplace

9
The 3 Anti-Discrimination Laws

• Sex Discrimination Ordinance
• (SDO, Cap. 480, 1996)
• Disability Discrimination Ordinance
• (DDO, Cap. 487, 1996)
• Family Status Discrimination Ordinance
• (FSDO, Cap. 527, 1997)

10
5 Grounds for Unlawful Discrimination

• It is unlawful to give less favourable treatment
  to a person on the ground of his/her
• Sex
• Male / female
• Marital Status
• Single, married, widowed, separated, divorced
• Pregnancy
• Disability
• Family Status

11
Prescribed Fields

• Employment
• Provision of Goods, Services Facilities

• Education
• Disposal or management of premises
• Clubs
• Sports
• Government activities
• Access to premises, etc.

12
Employment

• Recruitment Selection
• Compensation Benefits
• Promotion Transfer
• Training Development
• Termination Redundancy

13
Provision of Goods, Services Facilities

• Restaurant, karaoke, hotel
• Public transport
• Bank
• Insurance
• Medical service, etc.

14
The 7 Types of Unlawful Acts
Indirect Discrimination
Disability Harassment
Direct Discrimination
Sexual Harassment
Victimisation
Serious Disability Vilification
Disability Vilification
15
Direct Discrimination

• A person is treated
• less favourably
• than someone else
• in comparable circumstance
• on the grounds of
• sex, marital status, pregnancy,
• disability or family status

16
Example of Direct Discrimination

• John applied for a Receptionist position
• The recruiter told him that only female
  applicants will be considered
• John was denied the job opportunity because he is
  a man
• Is the job requirement reasonable?

• Direct discrimination on the ground of sex

17
Indirect Discrimination

• Imposing the same requirement or condition on
  everyone
• But it has an unfair effect on certain groups of
  people
• The requirement can hardly be justified

18
Example of Indirect Discrimination

• A bank is recruiting a filing clerk
• Open to both genders
• At least 57 tall
• Access the high cabinets with ease

• Which group of people is subject to unfair
  treatment?
• Is the height requirement reasonable?
• What type of discrimination is this?

19

• The following 3 elements need to be present in
  order to constitute Direct or Indirect
  Discrimination
• Ground
• Prescribed Field
• Detriment

20
Disability Harassment
21
Definition of Disability

• Caused by the presence of organisms, virus, by
  accidents, or even for unknown reasons
• Affect the physical movement, thought processes,
  perception of reality, emotions, or judgment etc.
• Curable or non-curable
• Noticeable or unnoticeable

22
Types of Disability

• Physical
• Loss / deformation of limbs
• Facial disfigurement
• Long term illnesses
• Terminal illnesses Cancer / AIDs

23
Types of Disability

• Mental
• Mental disorders
• Autism
• Learning difficulties
• Sensory
• Visual Impairment
• Hearing Impairment
• Speech Impairment

24
Person with a disability

• Also includes
• Those who currently have a disability
• Those who have had but no longer have a
  disability
• Those who may have one in the future
• Those who are thought to have or are being
  treated as though they have a disability

25
What is Disability Harassment?

• Unwelcome conduct
• Towards a person with a disability
• Where a reasonable person would anticipate that
  the victim would be
• Offended
• Humiliated
• Intimidated

26
Is this Disability Harassment?

• Ah Ming is a person with visual impairment
• His colleagues often
• Call him the blind man or the retard
• Imitate his finding the way and laugh at his
  back
• Ask him embarrassing questions
• How come you can find a job? Normal people cant
  find a job these days, eh?

27
Disability

• Covers
• Physical disabilities
• Mental disabilities
• Sensory disabilities
• Sicknesses
• Terminal illnesses

28
Sexual Harassment
29
Sexual Harassment

• Unwelcome conduct
• Of a sexual nature
• A reasonable person would anticipate that the
  victim would be
• Offended
• Humiliated
• Intimidated

30
Unwelcome Conduct of a Sexual Nature

• Uninvited
• Unwelcome
• Not responded to

31
Unwelcome Conduct of a Sexual Nature

• Could be
• Physical
• Verbal
• Visual
• Non-Verbal

32
Sexual Harassment - Physical

• Touching
• Patting
• Hugging
• Brushing up
• Standing too close
• But it has to be unwelcome conduct of a sexual
  nature where a reasonable person would anticipate
  that the victim would be offended, humiliated,
  intimidated

33
Sexual Harassment - Visual

• Poster, photograph, magazine
• E-mail, website, screen saver
• Staring, peeping

34
Sexual Harassment - Verbal

• Intrusive questions
• Sexually suggestive comments
• Laughing at a persons body figure

35
Sexual Harassment Non-Verbal

• Whistling
• Blinking eyes
• Love notes

36
Sexual Harassment Also Includes

• A person, alone or together with other persons,
  engages in conduct of a sexual nature which
  creates a sexually hostile or intimidating work
  environment
• Foul language
• Dirty jokes
• Sexist jokes

37
In Employment and Provision of Goods, Services
and Facilities
Unlawful to commit Sexual Harassment or
Disability Harassment
Employee
Other Employees
Employee
Customers
38
What About ???
Discrimination or Harassment
Employees
Customers
39
Employers Vicarious Liability

• Employers must protect all employees from
  unlawful discrimination and harassment
• In the course of employment
• In service provision
• To be discussed in the next section

40
Family Status

• The person has a caring responsibility for an
  immediate family member
• Immediate family member is related by
• Blood
• Marriage
• Adoption
• Affinity

41
Is this Family Status Discrimination ?

• Andy must leave the office on time every Thursday
• To take his mother to the hospital for a kidney
  dialysis
• No other relatives could help
• Andy was denied the opportunity for promotion

42
Victimisation

• A person receives less favourable treatment
• because he (or she)

• Made a complaint
• Indicated he is going to make a complaint
• Acted as a witness
• Took legal action

43
Is this Victimisation ?

• Ah Ming is a person with visual impairment. His
  colleagues often call him the blind man and
  laugh
• Ah Ming lodged a complaint to his supervisor
• Supervisor warned him
• Youd better keep quiet
• If you keep on complaining, I cant guarantee
  anything
• A week later, Ming was transferred out

44
Victimization

• Many people are afraid to complain about
  discrimination or harassment
• They fear that they may
• lose their jobs
• jeopadise their career prospects
• damage work relationships

45
Victimisation

• It is stated in the law that
• It is unlawful to victimize someone for bringing
  a complaint
• People should be encouraged to come forward and
  bring up their concerns
• Organisations must take active measures to
  prevent victimisation

46
Disability Vilification
Activity in Public
Incite Hatred
Persons with Disability
Serious Contempt
Severe Ridicule
47
Example of Vilification

• At the entrance of a housing estate
• Some tenants set up a counter
• Prop up banners
• AIDs patients are dirty
• AIDs clinic must move out!

48
Serious Vilification

• Activity in public
• Threatening physical harm to disabled persons or
  damages towards premises or property
• Inciting others to do the same

• Criminal offence
• Fine at Level 6 (50,001 - 100,000)
• Imprisonment for 2 years
• EOC will refer these cases to the police

49
Example of Serious Vilification

• The tenants
• Picketed the route to the AIDs clinic
• Hit any clinic user with a broom
• Throw water at the clinic staff

50
Instructing, Inducing, Aiding

• It is unlawful to
• Instruct
• Induce
• Threaten
• someone to discriminate / harass
• It is also unlawful to (knowingly) aid another in
  an act of discrimination / harassment

51
Who has legal liabilities?

• The individual committing an unlawful act
• In employment
• In the provision of banking service, etc.
• Employer
• Vicariously liable for any unlawful act committed
  by their employees in the course of employment

Will be discussed after the break
52
Section 2 Liability, Managers Roles,
Managing Complaints
53
Personal Liability

• An individual who discriminates or harasses other
  people is personally liable for his unlawful acts

54
Personal Liability - Example

• Sam, who had lost his right arm, wished to apply
  for a credit card
• A bank teller refused to accept his application
• How can you sign properly?
• It is additional risk for us!
• You are wasting my time!
• Other bank staff within the earshot shared the
  amusement
• Who has personal liability here?

55
Vicarious Liability

• The employer is vicariously liable for their
  employees unlawful actions
• In the course of employment
• In the provision of goods, services and
  facilities
• The employer is also vicariously liable if they
  fail to protect their staff from unlawful
  discrimination and harassment in the above fields

56
Who are your Employees?

• Full time / part time staff
• Permanent / temporary staff
• Contract workers
• Consultants
• Agents
• Paid / unpaid workers

57
In the course of employment

• In the workplace
• In a work-related place
• Temporary work outside HK
• Staff functions
• Recreational
• Sports
• Charity
• Paid time / unpaid time

58
Defence to Vicarious Liability

• The employer must take reasonable and practical
  measures to prevent its employees from performing
  unlawful acts

59
Reasonable Practical Measures

• The 4 useful measures
• Appoint an Equal Opportunity officer
• Develop and implement an EO policy
• Establish a complaint handling procedure
• Provide awareness training for all employees

60
Guidelines and Support

• Clear guidelines, policy and communication are
  useful defences
• When a staff member could suspend service to a
  rude/abusive customer
• Support they could get from supervisor
• Support available from EO officer

61
The Way Forward

• Develop a good workplace culture in which
  everyone
• Respects
• Trusts
• Takes responsibility
• Values differences
• Provide staff with clear guidelines, education
  and training

62
Declaration

• All the materials used in this training are for
  workshop participants reference only, and they
  are no substitute for legal advice.
• Reproduction or reuse of the materials by the
  client is subject to express permission by the
  EOC.
• The materials could be used for the other staff
  of your organisation, as long as the source is
  duly acknowledged, and that prior declaration is
  made to the EOC on how the information will be
  used in your organisation, e.g. the extent of the
  use and the number of copies that will be made,
  etc.
• If you have any enquiries or you need further
  information, please contact the Equal
  Opportunities Commission at our hotline [phone]
  or visit our website at www.eoc.org.hk .