Key Points:

  • Race-based discrimination prohibited in hiring, employment and termination
  • Exceptions include “familiarity with the language, culture and customs”
  • Employers may favor Hong Kong permanent residents, people indigenous to Hong Kong or those with long family history or long-term residence in Hong Kong

The Race Discrimination Ordinance, passed July 10, 2008 and enforced by the Equal Opportunities Commission (EOC), aims to protect employees, prospective employees, partners and independent contractors from race-based discrimination in terms of hiring, terms and conditions of employment, and termination. It prohibits direct and indirect discriminatory harassment, retaliation and “serious vilification,” as well as prohibiting employers from taking unfavorable actions against people who have either complained of discrimination or participated in a proceeding related to the terms of the Ordinance.

There are certain exceptions to the prohibited conduct outlined in the Ordinance. Explicitly excluded are decisions based on “genuine occupational qualification,” such as times when “familiarity with the language, culture and customs of and sensitivity to the needs of that racial group” is required, and when "those services can most effectively be provided by a person of that racial group.” Also, an employer operating “a place where food or drink is (for payment or not) provided to and consumed by members of the public” may lawfully limit hiring to a specific race if “a person of that racial group is required for reasons of authenticity.”

The definition of race in the Ordinance is a person’s “race, color, descent or national or ethnic origin,” and the Ordinance also prohibits discrimination against a person due to the race of a “near relative” (spouse, parent, child, sibling, grandparent, grandchild or one of these types of relatives in the spouse’s family). However, favorable action is permitted based on immigration status; also, an employer is permitted to favor expatriates who have acquired skills not readily available in Hong Kong or skills to be used outside of Hong Kong. Employers are also not prohibited from favoring permanent residents of Hong Kong, people indigenous to Hong Kong those with a long family history in Hong Kong or those who have resided in Hong Kong for a certain period of time.

Employers are legally liable under the Ordinance if an employee commits a discriminatory act within the scope of their employment, regardless of the employer’s knowledge or lack of approval. The employer does, however, have a defense if he or she “took such steps as were reasonably practicable to prevent the employee from doing that act.” Employers should review their employee handbooks and policies to see whether they comply with the Ordinance and whether or not any changes are necessary.