(VI) Case illustration

Scenario:

Ms. A and Mr. B are a couple with a 10-year-old son. Their son suffered a leg injury some years ago which resulted in his left leg being taken apart. Recently, they have encountered some unhappy incidents at work, and in school, which they considered discriminatory.

Question 1:
Ms. A works as a sales-coordinator in a food company. A new male colleague reported for duty last week with the job title of "administration officer". Ms. A knows that they are both doing administrative work, but with different job titles. The thing she considers unfair is that the salary of that male colleague is higher than hers by $2,000. Is this unlawful under the Sex Discrimination Ordinance?Answer 1

Question 2:
Ms. A's boss asked her to have sex with him when they were on a business trip in China. Is she protected under the SDO if sexual harassment takes place outside Hong Kong?Answer 2

Question 3:
A security guard near their home openly teases their son about his disabled leg. Is this unlawful under the Disability Discrimination Ordinance?Answer 3

Question 4:
Mr. B has been diagnosed with a respiratory illness and he needs to see a doctor regularly. His boss has since commented on his sick leave record, and the inconvenience caused to other colleagues during his absence. Just a month ago, he was hospitalized for one week due to his worsening health. When he returned to work, he was dismissed on the basis that he had taken too much sick leave. Is it unlawful for his employer to dismiss him because he suffers from a chronic illness and therefore requires regular medical treatment?Answer 4

Question 5:
Their son wants to participate in an extra curricular activity organized by a school club. However, the club believes that he may not be able to perform the activity due to his leg disability. Can the club refuse to allow him to participate in the activity?Answer 5

Question 6:
Their son has been teased by his classmates because of his disability. Is the school liable for acts of harassment and vilification committed by a student against another student with a disability?Answer 6

Answer 1

If it can be proved that the two persons have similar qualifications and are doing similar work, but Ms. A is paid less and afforded lower status due to her gender/sex, this may amount to unlawful sex discrimination.

The Equal Opportunities Commission has given some guidelines in relation to the terms and conditions of employment for both genders (including remuneration and job title). For details, please refer to clause 12 of the Code of Practice of Employment under the SDO (issued by the Commission).

Answer 2
Yes. With reference to section 11 and section 14 of the SDO, if she is employed by a Hong Kong company and works mainly or wholly in Hong Kong (i.e. she only takes business trips outside Hong Kong occasionally), the harasser is still liable for sexual harassment even though the unlawful act is committed outside Hong Kong .

For more information on how to deal with sexual harassment, please refer to the relevant question and answer.

Answer 3
Harassment (in the context of disability discrimination) is any unwelcome conduct on account of a person's disability where it can be reasonably anticipated that the person would be offended, humiliated or intimidated (e.g. insulting remarks or offensive jokes about a person's disability). Harassment of a person with a disability is unlawful under the DDO.

Vilification is an activity in public which incites hatred towards, serious contempt for, or severe ridicule of people with a disability. For example, if a person speaks openly in public that people with a disability are useless and a burden to society, this may amount to vilification. Vilification against a person with a disability is also unlawful under the DDO.

In view of the above, the security guard may be liable for harassment and vilification under the DDO.

Answer 4
When a serious illness prevents an employee from performing the inherent requirements of the job, the DDO permits the employer to terminate him. However, the law also requires the employer to consider providing reasonable accommodation (e.g. allowing time-off for medical treatment in the subject case) to the employee with the disability, so as to enable that employee to perform the inherent requirements of the job.

If Mr. B's employer dismissed him without first making, or trying to make that accommodation, his employer might be in breach of the DDO. However, if his employer can prove he has experienced unjustifiable hardship in providing such accommodation (e.g. it seriously hinders Mr. B's job duties or the company does not have adequate financial/human resources to make or continue the relevant arrangements), his employer could claim exemption under the DDO and in that case the dismissal would not be unlawful.

Employers should also note the provisions in the Employment Ordinance with regard to granting sick leave. For details, please go to the relevant section of the Employment Disputes topic.

Answer 5
The school should not make any assumptions regarding the abilities of students with disabilities and should not arbitrarily identify such students as not being capable of performing certain types of activities. Instead, the school should discuss special needs with disabled students themselves, and/or their parents, and determine what is necessary to accommodate those needs.

The school may consult the Education Department, special schools or rehabilitation organizations when necessary with a view to providing reasonable accommodation for the students with disabilities and ensuring that extra curricular activities are flexible enough to meet the individual needs of the students. Reasonable a ccommodation is considered as measures or action taken in order to provide equal opportunities for students with disabilities, such as the provision of aids, facilities or services to meet their individual needs.

The school may have violated the Disability Discrimination Ordinance if it does not provide reasonable accommodation to disabled students unless providing such accommodation would impose unjustified hardship on the school (e.g. the school would suffer financial difficulty when providing such accommodation).

In order to eliminate discrimination against students with disabilities, educational establishments should set up a separate policy regarding this matter, or include in their existing policy a specific section on the goal of equal opportunities for students with disabilities. For details of such policies, please refer to section 11 in the Code of Practice on Education under the DDO (issued by the Equal Opportunities Commission).

Answer 6
Students should understand that they could also be liable under the DDO, and schools should also explain this liability to their students.

Students should not harass or vilify any other students or staff members in school. Generally, a school is not liable under the DDO for acts committed by its students. However, if a school has knowledge of discriminatory acts committed by its students against another student with a disability, but it fails to take any action to punish the discriminator(s) or to protect the disabled student, the school may be liable for discrimination under the DDO. For example, the school may be liable for disability discrimination under the following circumstances:

A school often disciplines its students who bully other students in school whenever such bullying acts come to its attention. A student walks with crutches because she had polio. Her classmates have teased her several times when she walks. Sometimes her crutches were even taken away by her classmates. She reported the incidents to the school each time but the school did not take any action either to discipline the harassers or to prevent similar harassing acts from recurring. In that case, the school may also be liable for the discriminatory acts of the harassers.

Going back to the subject question, if the school did nothing to help their son or to punish the harassers, that school would be liable.

For the purpose of teaching students not to harass or vilify persons with disabilities or to avoid possible legal liability, the Equal Opportunities Commission has published the Code of Practice on Education . Every school must take all reasonably practicable steps to avoid acts of harassment or vilification from occurring.