Discrimination on the grounds of sex, pregnancy, marital status (Sex Discrimination Ordinance "SDO"), disability (Disability Discrimination Ordinance "DDO"), family status (Family Status Discrimination Ordinance "FSDO") and race (Race Discrimination Ordinance "RDO") is prohibited by legislation in Hong Kong. Each of the above anti-discrimination legislation prohibits direct and indirect discrimination on the grounds of a prohibited attribute (i.e. sex, disability, family status, marital status, pregnancy or race).

Direct and indirect discrimination

n        Direct discrimination occurs if an employer treats a person with a specific attribute "less favourably" than another person without that attribute in comparable circumstances.

n        Indirect discrimination occurs if an employer imposes a requirement or condition that would disproportionately disadvantage a person of a particular group (defined by a prohibited attribute). An example of indirect discrimination in the case of sex discrimination would be where the discriminator treats women and men in the same way by imposing a height requirement. The requirement disadvantages women as a smaller proportion of women would be able to satisfy the condition than men. Indirect discrimination is only unlawful if it cannot be "justified".

n        Employers may take account of certain specific exemptions set out in the respective ordinances. They include:

o        Genuine occupational qualifications (SDO, RDO, DDO)

o        Inherent requirement of the position (DDO)

o        Small employers employing no more than 5 employees (Applicable to RDO only with grace period ending on 10 July 2011.)

o        Special skills, knowledge or experience (RDO)

o        Significant likelihood of collusion with an immediate family member who is an employee (FSDO)

Discrimination by way of victimisation and unlawful harassment

The anti-discrimination legislation also prohibits discrimination by way of victimisation and unlawful harassment.

n        Discrimination by way of victimisation means treating a person less favourably on the ground that the person has made allegations of unlawful discrimination or harassment, or has taken steps to enforce one of the anti-discrimination legislation.

n        Unlawful harassment generally means unwanted behaviour towards a person where the harasser would have anticipated the victim to be offended, humiliated or intimidated. The anti-discrimination legislation prohibits harassment on the grounds of sex, race or disability.

Liability of employers

n        Each anti-discrimination ordinance provides that an employer will normally be held vicariously liable for an unlawful act of an employee in the course of employment regardless of whether the act was done with the employer's consent or knowledge. However, an employer can avoid vicarious liability by demonstrating that it took such steps as were reasonably practicable to prevent the employee from committing the unlawful act.

n        As good practice, employers should establish a transparent anti-discrimination policy, and take special care when determining discretionary benefits and evaluating employees in appraisals.