Proposal to amend Race Discrimination Ordinance to outlaw “intra-racial discrimination” and address discrimination and harassment relating to people from Mainland China

Earlier this week, the Equal Opportunities Commission (the “EOC”) in its update to the Legislative Council (“LegCo”) had reiterated its plan to:-

• “… tackle discrimination, harassment and vilification between people from Hong Kong and those from the Mainland through legislation …”

Currently, the Race Discrimination Ordinance (“RDO”) provides:-

• in section 8(1) that:-

  “race (種族), in relation to a person, means the race, colour, descent or national or ethnic origin of the person, and includes a race, colour, descent or national or ethnic origin that is imputed to the person;”

• in section 8(3)(b) that the following characteristics (among others) are excluded from the definition of “race”:-
  • Hong Kong permanent resident status;
  • right of abode or right to land in Hong Kong;
  • length of residence in Hong Kong; and
  • the nationality, citizenship or resident status of the person under the law of any country or place;

• in section 8(5), that for the purpose of determining if there has been discriminatory treatment, a comparison is to be made between:-

  “ … a person of a particular racial group with that of a person not of that group must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.” [underlined is our emphasis]

The combined effect of the above provisions is that if a Chinese person treats another Chinese person less favourably or harasses that person on racial ground in Hong Kong, it is unlikely to be considered unlawful under the RDO.

There is currently no detailed and concrete proposal for the intended legislative amendments above. It is unclear whether it will expand or elaborate on the statutory definition of “race” in the RDO to include, for example, an accent of a person and the birthplace/ specific region of origin of a person.

Employers should remain vigilant and keep themselves updated of any changes to the anti-discrimination legislations in Hong Kong. Employers should also consider seeking legal advice promptly if in doubt.

Russell Bennett and Mark Chiu

For specific advice on your situation, please contact:

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.