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  • Tangent: Hong Kong’s new anti racial discrimination workplace laws

    Posted by Dr. ARUDOU, Debito on July 22nd, 2008

    Handbook for Newcomers, Migrants, and Immigrants to Japan\Foreign Residents and Naturalized Citizens Association forming NGO\「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japan
    Hi Blog.  Here’s a post I got from friend Mak talking about how other societies deal with matters of racial discrimination.  Hong Kong, according to the article below, already has specific laws against discrimination by gender, family status, and disability.   Now it has made racial discrimination in the workplace illegal.

    Glad to hear it.  What’s keeping you from doing the same, Japan?  Arudou Debito in Sapporo

    =================================
    From: “AW&Co”
    Date: July 21, 2008 2:35:37 PM JST
    Subject: New Racial Discrimination Laws in the Hong Kong Workplace

    New Racial Discrimination Laws in the Hong Kong Workplace
    July 2008

    It may seem odd that Hong Kong : Asia’s business hub a diverse modern metropolis and a city of live has no remedy for individuals experiencing private racial discrimination. Ethnic minorities form 5% of the population in Hong Kong and those who face racial discrimination whether in employment, housing, provision of medical services, education or transport have no protection. This is despite laws against discrimination in other areas such as gender, family status and disability.

    The much debated Race Discrimination Bill (the “Bill”) was only passed by the Legislative Council on 10 July 2008. The Bill aims to make racial discrimination and harassment in prescribed areas and vilification on the ground of race unlawful, and to prohibit serious vilification on that ground. It also seeks to extend the jurisdiction of the Equal Opportunities Commission to cover racial discrimination, harassment and vilification.

    This Bill targets 6 different areas and this article focuses on the provisions concerning employment.

    1. Main Acts in the Workplace outlawed under the Bill

    (a) Discrimination against Job Applicants

    It is unlawful for an employer to discriminate against a job applicant on racial ground :-

    (i) in arrangements which the employer makes for the purpose of determining who should be offered that employment;
    (ii) in the terms on which the employer offers that other person employment; or
    (iii) by refusing, or deliberately omitting to offer, the other person that employment.

    (b) Discrimination against Employees

    It is also unlawful for an employer to discriminate against an employee on racial ground :-

    (i) in the terms of employment which the employer affords that employee;
    (ii) in the way the employer affords the employee access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford the employee access to them; or
    (iii) by dismissing the employee, or subjecting him or her to any other detriment.

    For a period of 3 years after the Bill is enacted, apart from discrimination by way of victimization, the aforesaid provisions do not apply to any employment where fewer than 5 persons (inclusive of the number employed by any associated employers of that employer) are employed by the employer.

    2. Major Exceptions

    (a) Genuine Occupational Qualification

    Some acts mentioned above will not be treated as a breach, where, being of a particular racial group is a genuine occupational qualification for the job. For example, the job involves participation in a dramatic performance or other entertainment in a capacity for which a person of that racial group is required for reasons of authenticity, or the job involves providing persons of that racial group with personal services of such nature or in such circumstances as to require familiarity with the language, culture and customs of and sensitivity to the needs of that racial group, and those services can most effectively be provided by a person of that racial group, etc.

    (b) Employment Intended to Provide Training in Skills to be Exercised Outside Hong Kong

    It is not unlawful if an employer carries out any acts for the benefit of a person not ordinarily resident in Hong Kong in or in connection with employing the person at an establishment in Hong Kong. Where the purpose of that employment is to provide the person with training in skills which the person appears to the employer to intend to exercise wholly outside Hong Kong.

    (c) Employment of Person with Special Skills, Knowledge or Experience

    The Bill also contains an exception for employment that requires special skills, knowledge or experience not readily available in Hong Kong. The employee in question must possess such skills, knowledge or experience and is recruited or transferred from a place outside Hong Kong. If any acts mentioned in paragraph 1 above were reasonably done by the employer for such person with special skills knowledge or experience in places outside Hong Kong such acts shall not be regarded as unlawful.

    (d) Existing Employment on Local and Overseas Terms of Employment

    For existing employment falling into the meaning in Schedule 2 of the Bill, the employers are allowed to differentiate treatment towards employees under local contract and those under overseas contract. Different treatment is also permitted between employees from different countries but under the same set of overseas contracts.

    3. Next Step Forward

    There is no timetable for the enactment of the Bill but it is expected to be in place by the first quarter of 2009. It is feared that the Bill will lead to substantial increase in litigation against employers and the Equal Opportunities Commission will be providing a code of practice on employment to raise awareness and understanding of the new legislation.

    Employers are advised to pay close attention to the development of the Bill as it is expected to have major impact on human resources management and relationship with and among employees.

    Lawyers in our Employment Department will be happy to provide you with a copy of the Bill or assist you with any queries you may have on any employment matters.

    ANGELA WANG & CO, Solicitors
    Hong Kong
    14th Floor, South China Building,
    1-3 Wyndham Street, Central,
    Hong Kong
    Tel : (852) 2869 8814
    Fax : (852) 2868 0708
    Email: lawyers@angelawangco.com
    Web Site: www.angelawangco.com
    Shanghai
    3708 37th Floor Westgate Tower,
    1038 Nanjing Road West,
    Shanghai 200041 PRC
    Tel : (8621) 6267 9773
    Fax : (8621) 6272 3877
    Email: shanghai@angelawangco.com
    Disclaimer: The information presented in this eNews Alert is not legal advice. Any liability that may arise from the use or reliance on the information is expressly disclaimed.

    Contributor Most Read In Hong Kong

    In February, March and June 2008, Angela Wang & Co received an award from Mondaq.com for contributing the most widely read articles in Hong Kong on its worldwide legal web site.
    ENDS

    4 Responses to “Tangent: Hong Kong’s new anti racial discrimination workplace laws”

    1. jim Says:

      its so refreshing to know that other asian countries are actively passing new laws to stop discrimination, i wonder why the GOJ has not been more proactive to support and pass new laws that stop discrimination.come to think of it last year hong kong was also among the first countries in asain to stop smoking in all public places, it must be a pretty advanced country, oops so is japan?

    2. Carl Says:

      “come to think of it last year hong kong was also among the first countries in asain to stop smoking in all public places, it must be a pretty advanced country”

      Um, yeah, just for the record: Hong Kong is not a country. It’s a special administrative region of China.

    3. jim Says:

      thank you for the correction about hong kong carl, maybe your missing my main point. discrimination is discrimination regardless if it is in a country or special administrative region…etc

    4. Carl Says:

      Yeah, we’re all aware of THAT. Some of us, however, are obviously not aware that Hong Kong isn’t a country, though. Ah well. Live and learn.

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