Anti-discrimination
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2. Under what circumstances can an employer refuse to employ or dismiss a person with a disability? Suppose I have a serious leg injury, does it mean that I have no chance to take up a job?

In general, it is unlawful for an employer to discriminate against a job applicant or an employee on the grounds of disability. The Disability Discrimination Ordinance ("DDO") applies to all employers in Hong Kong unless their employees wholly or mainly work outside Hong Kong (section 11 and section 14 of the DDO).

However, the above protection for job applicants or employees with a disability is not absolute. An employer may specify that a job applicant or an employee should not be a person with a certain type of disability because such person would be unable to carry out the inherent requirements of that particular employment ( section 12(2) of the DDO). For example, an employer may specify that persons who are wheelchair bound need not apply for jobs like gym instructors, as an inherent requirement of the job of gym instructors is to help people use the gym equipment and perform the relevant demonstrations.

Applying the above gym instructor example, if you have a leg injury (in which you cannot perform the demonstrations) and you apply for this job, the employer can turn down your application on the grounds that you cannot carry out the inherent requirements of the job.

How can one assess whether a job applicant/employee with a disability can carry out the inherent requirements of a job?

The inherent requirements of a job are those that are necessary for achieving the goals of the job (i.e. the duties and responsibilities that an employee must be able to perform/undertake). In determining whether or not a person with a disability can carry out the inherent requirements of the job, the employer is required to take into account:

  1. the person's past training, qualifications and experience relevant to the particular employment;
  2. in the case of an existing employee, his/her work performance; and
  3. other relevant factors (e.g. Is the injury/disability a permanent or temporary one? If it is a temporary disability, when is the approximate date of recovery?).

For example, if a typist is required to type at least 50 words per minute, then typing 50 w.p.m. is an inherent requirement of this job. Having no physical disability or being without any illness may not necessarily be an inherent requirement of this job.

Applying the above typist example, if you have a leg injury (but you can type at least 50 w.p.m.) and you are now handling this job, the employer will violate the DDO if he/she dismisses you on the grounds that you cannot carry out the inherent requirements of the job.

How will I know if I can perform the inherent requirements of a job?

In reality, a person with a physical disability can, like other people, take up many jobs. An employer should be able to tell you about the inherent requirements of the job. To help you find out, try to get a copy of the job description beforehand and study the list of duties and responsibilities. The job interview should also be used as an opportunity to ask more questions about the nature of the work involved.

(A note to employers: If job applicants or existing employees cannot perform the inherent requirements of a particular job, employers must consider whether it is feasible to provide "reasonable accommodation" to help them perform the job duties. For more information on this matter, please go to question 7.)

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