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Confidentiality
The principle of confidentiality should be observed
in any policy on racial harassment. This means
that any information relating to a complaint
of racial harassment will only be disclosed
on a need-to-know basis. Employers need to
ensure that managers understand this principle
when handling complaints. The observance of
principle of confidentiality gives assurance to the
complainant that management appreciates the
sensitive nature of racial harassment and that the
details of complaint will not be disclosed to any
third party.
11
Guidelines on the setting up of such a policy are contained in the
Code of Practice on Employment under the Race Discrimination
Ordinance published by the EOC.
Discrimination on the ground of race is
unlawful
Employees and workers are entitled to work free
from discrimination and harassment on the ground
of race under the Race Discrimination Ordinance
(RDO). Employers should not discriminate or
harass any of their employees and workers on
the ground of one’s race (including race, colour,
descent, national origin or ethnic origin) and are
required to take reasonably practical steps to
prevent such discrimination or harassment from
happening.
The race of a person does not affect his or her
ability to do a job, so long as he or she possesses
the relevant qualifications, skills and personal
qualities required by the job. Employers must not
assume that people belonging to certain racial
groups are not suitable for employment.
By making recruitment decisions on the basis of
consistent selection criteria, the employer’s interest
is served because each individual is assessed
according to his or her capabilities to carry out
a given job and will not be judged by irrelevant
considerations, such as race
12
. Employers should
ensure that employees handling applications and
conducting interviews are trained not to assume
that people belonging to certain racial groups are
not suitable for employment or to use race as a
ground for determining who should be offered
employment.
Exception where race is a genuine occupational
qualification (S11, RDO)
Except for situations specified under Section 11 of
the RDO, i.e. where the race of the employee is
a Genuine Occupational Qualification (GOQ) for
the job, race may not be a ground for refusing
employment for job applicants and offering
opportunities to employees in promotion, transfer,
or training.
(11) Race as a Genuine
Occupational Qualification
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In what circumstances is race a GOQ for a job?
•The job involves participation in a dramatic
performance or other entertainment in a capacity
for which a person of a particular racial group is
required for reason of authenticity.
•The job involves participation as an artist’s or
photographic model in the production of a work
of art, visual images or sequences of visual
images for which a person of a particular racial
group is required for reason of authenticity.
•Thejobinvolvesworkinginaplacewherefood
or drink is provided to and consumed by the
public in a particular setting for which in that
job, a person of that racial group is required for
reasons of authenticity.
•The holder of the job provides persons of a
particular racial group with personal services
promoting their welfare, and those services can
most effectively be provided by a person of that
racial group.
•Thejobinvolvesprovidingpersonsofaparticular
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.
Is GOQ an automatic exception?
NO, GOQ is not an automatic exception for race
discrimination. In each case it will be necessary
for the employer who claims GOQ to show that
GOQ does apply to the particular job in question
and the court will then examine the claim strictly.
For example, the situation in point no. 4 above
was held by the Court of Appeal in England as
not to apply to managerial and administrative jobs
because the job holders did not provide personal
services and did not have direct contact with
service recipients of particular racial group.
12
Please also read “The Use of Consistent Selection Criteria” in
this publication for further information on the subject.
Discrimination on the ground of disability is unlawful
People are entitled to equal consideration for jobs
regardless of whether or not they have a disability.
The Disability Discrimination Ordinance (DDO)
provides that discrimination on the ground of
disability is unlawful. Under the DDO, employers
are not allowed to discriminate against persons
with a disability, in respect of a particular job,
except in the following circumstances:
(a) where absence of a disability is a Genuine
Occupational Qualification (GOQ) of the job;
(b) where the person with the disability would be
unable to carry out the inherent requirements
of the job.
Exception where absence of a disability is a GOQ
Given the general rule that discrimination on the
ground of disability in employment is not allowed,
the DDO recognises that, for certain jobs, absence
of a disability is a GOQ. In respect of such jobs it is
not unlawful for the employer to discriminate against
persons with the disability as regards to whom they
offer employment, promotion, transfer or training.
In what circumstances is absence of a disability
a GOQ?
The DDO prescribes two situations where being a
person without a disability is a GOQ for a job:
(a) The essential nature of the job requires a person
without a disability for reasons of physiology
or authenticity in dramatic performances. For
example, the requirement of a person who is
not a wheelchair user may usually constitute a
GOQ for a job as a fashion model. Similarly, a
woman with severe visual impairment may be
refused a job as an actress to play the role of
someone who has no visual impairment.
(b) The nature or location of the establishment is
such that the employee has to live in premises
provided by the employer but the available
premises do not have facilities for persons with
the disability in question. However, before the
(12) Absence of Disability
as a Genuine Occupational
Qualification
