I have been receiving emails from one of my classmates. I have asked him to stop and he keeps on doing it. Are his actions unlawful?
Sexual harassment does not have to be physical in nature. It can be through spoken words, emails, letters, phone calls, and the like. His actions are not lawful in Hong Kong.
- What is a disability?
Pursuant to the Disability Discrimination Ordinance (DDO), a disability includes:
(a) total or partial loss of the person's bodily or mental functions, such as visual impairment, hearing impairment, intellectual disability, bone fracture, colour blindness etc;
(b) total or partial loss of a part of the person's body, such as physical disability or handicap;
(c) the presence in the body of organisms causing disease or illness, such as HIV, hepatitis, influenza etc;
(d) the malfunction, malformation or disfigurement of a part of the person's body, such as paralysis caused by brain damage, cleft lips, diabetes, heart disease, burns, diarrhoea etc;
(e) a disorder or malfunction that results in learning difficulties, such as dyslexia; and
(f) a disorder, illness or disease that affects a person's perception of reality, motions or judgement or that results in disturbed behaviour, such as schizophrenia, depression etc.
In addition, 'disability' includes not only a disability that presently exists, but also a disability that previously existed but no longer exists, such as mental illness of ex-mental patients; that may exist in the future or that is imputed to a person. For instance, an energetic student is imputed as a person with hyperactive disorder.
- A student with a disability wants to participate in an extra curricular activity organized by a school club. However, the club believes that he/she may not be able to perform the activity on the ground of his/her disability. Can the club refuse that student from participating in the activity?
School should not make any assumption of the abilities of students with disabilities by identifying them as not capable to perform certain type of activities. Instead, the school should discuss with the students and/or their parents about their needs and the necessary accommodation. 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 individual needs of the students.
- Are educational establishments required to set up special policies for equal participation in school for students with disabilities?
In order to eliminate discrimination against students with disabilities, educational establishments should set up a separate policy or to include in their existing policy a specific section on the goal of equal opportunities for students with disabilities. For contents of such policy, please refer to section 11 in the Code of Practice on Education under the DDO ('the Code') in the website of Equal Opportunities Commission.
- Are parents responsible for the disclosure of their children's disability or special needs to the school? If the non-disclosure results in the school failing to meet the special needs of their children, is the school legally liable?
The disclosure of children's disability or special needs by their parents will be useful for schools to make any necessary accommodations on curriculum, services and facilities so as to create a learning environment that fits the students' needs. If the disability of a student is not apparent, and the school is not aware of his or her disability, the school is generally not liable for failing to provide special assistance to the student. However, as students with a disability may not be able to express themselves clearly, teachers should have the sensitivity to the students’ special need and discuss proactively with the students or their parents about their needs.
- Is the school liable for acts of harassment and vilification done by a student to another student with a disability?
Students should understand their liability under the DDO. They should not harass or vilify any other students or staff members in school. Generally a school is not liable under the DDO for the acts committed by its students. However, if a school has knowledge of unlawful acts committed by its students against another student with a disability, it may be liable for discrimination under the DDO. For example, the school under the following circumstance may be liable of disability discrimination:
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 the 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.
As a result, whether it is for the purpose of teaching students not to harass or vilify the persons with disabilities or to avoid possible legal liability, schools should refer to the Code and take all reasonably practicable steps to avoid acts of harassment or vilification from occurring.
- Students are allocated in different classes according to their academic ability. These students are respectively instructed with English and their mother tongue as a learning medium. Does this practice amount to disability discrimination?
In most cases, allocating students based on their academic ability without considering their disabilities will not amount to direct disability discrimination. Whether such practice amounts to indirect disability discrimination is subject to the justifiability and the underlying rationale. If the school can provide good justification, generally there would not be any indirect disability discrimination.
- I have been asked to act as a witness in a complaint case and would like to know what would happen if there are retributions?
The law protects witnesses as well as complainants against being victimization. If a person or a witness for the complaint suffers retribution, the person can lodge a complaint with the EOC (Equal Opportunities Commission).
- My boss asked me to have sex with him when we were on a business trip outside Hong Kong. Am I protected under the SDO (Sex Discrimination Ordinance) when the sexual harassment takes place outside Hong Kong?
Yes. If you are employed by a Hong Kong company and you work mainly or wholly in Hong Kong, the harasser is liable for sexual harassment even though the unlawful act is committed outside Hong Kong.
- My colleague has pornographic pictures on his computer screen in the office and likes to discuss it loudly with the other men within my hearing. This embarrasses me but they refuse to stop. Is this lawful behavior?
The display of the pornographic pictures in workplace may amount to the creation of a sexually hostile environment, which is unlawful. The employer should provide a working environment that is not sexually hostile. Therefore, you can lodge a complaint against the employer for vicarious liability and against your co-workers for causing the sexually hostile environment.
- I am a human resources manager of a catering company. We have been looking for a chef recently. It is our normal practice to ask our prospective employees to attend pre-employment medical check-ups. An applicant who has passed the interview is diagnosed to have an infectious disease. Are pre-employment medical check-ups unlawful? Can I refuse him the job?
Pre-employment medical examination is not an unlawful act under DDO, but test results should not be used for the purpose of discriminating against prospective employees. My advice is that unless you can show that it is necessary for public health reasons, it would be unlawful to refuse to offer the appointment solely or partly on the ground of his infectious disease. Most of the infectious diseases, such as tuberculosis, would be cured after proper treatment. Therefore, I suggest that if the applicant satisfies all requirements for the job, you could offer him the position subject to his recovery from the illness.
- I was diagnosed with a serious illness so I need to see a doctor regularly. My supervisor has since commented on my sick leave record, and the inconvenience caused to other colleagues during my absence. Just a month ago, I was hospitalized for a few weeks due to my worsening health. When I returned to work, I was dismissed on the basis that I had taken too much sick leave. Is it unlawful for my employer to dismiss me because I suffer from a chronic illness and therefore require regular medical treatment?
When a serious illness prevents an employee from performing the inherent requirements of the job, the DDO permits the employer to terminate him/her. However, the law requires an employer to consider providing reasonable accommodation (e.g. allowing time-off for medical treatment) to an existing employee with a disability, to enable him/her to perform the inherent requirements of the job. If the employer dismisses the employee without making those accommodations, the employer might be in breach of the DDO. But if an employer experiences unjustifiable hardship in providing such accommodations, the employer could claim exemption under the DDO.
- I responded to a job advertisement in the newspaper and was told that the job is for women only. Can I lodge a complaint with the EOC (Equal Opportunities Commission)?
Yes. The SDO applies to both men and women. An employer cannot treat a man less favorably than a woman. They can only do so in exceptional circumstances where being a man or a woman is a genuine occupational qualification for a particular job.
- I am not married and recently became pregnant, but my employer said our company's health insurance only covers married women. What can I do?
The EOC recently conciliated a case for an unmarried pregnant woman. We told the employer and the insurance company that if there is insurance coverage for married women, then unmarried women must also be covered. Otherwise, this could amount to discrimination on the ground of marital status, which is covered under the SDO.
(Extracted from the website of Equal Opportunities Commission)