Policy Statement & Submission

Submission of the
Hong Kong General Chamber of Commerce on
Anti-Racial Discrimination Legislation

The Hong Kong General Chamber of Commerce welcomes the “Legislating Against Racial Discrimination” consultation paper. We strongly support the basic principle that all members of society are entitled to equal protection from all forms of racial discrimination. As such, the Chamber does not agree with the characterization that opposition to anti-racial discrimination legislation arises mainly from local chambers of commerce. The Chamber also recognize that under our international commitments, Hong Kong needs to codify this principle.

We recognize that the Hong Kong Bill of Rights Ordinance already proscribes racial discrimination in the public sector, and believe that extension of this protection to the private sector is a logical next step. Moreover, and as reflected in the 2001-02 surveys, fully 75 percent of the 80 responding organizations supported legislation, and less than 9 percent were opposed.

In consultation with our members, we have come to the conclusion that those who oppose legislation do so for reasons other than the principles under consideration. Those views, we believe, arise from concerns over the cost of complying with the law, rather than from racist attitudes. Such concerns need to be taken into consideration in drafting the text of the law, and in the interest of building a stronger consensus, therefore, it is necessary that the law minimize the cost of implementation to business.

Among the concerns raised in our discussions were fears that a “quota system” mentality might take hold in Hong Kong, whereby diversity encroaches on merit as a condition of employment, promotion or other commercial decisions. Where there is true discrimination, we support action to bring it to a halt, but we would not wish to enter into a type of “affirmative action” program.

In conjunction with legislation, therefore, we believe it would be useful to issue a code of best practices. To this end, the Chamber recommends that the Government provide more concrete examples of the definition of racial discrimination (e.g., the meaning of “descent”) and expand on the examples provided in the consultation paper regarding various types of discrimination such as direct and indirect. In this way, the general public and employers will have clear guidelines to follow.

In response to the request for views on whether the proposed legislation should apply to recent migrants, the Chamber acknowledges that the increase in the number of Mainlanders taking up residence in Hong Kong is said to have created a kind of “social discrimination”. If this is the case, we believe it exists on a sliding scale that changes depending on such factors as family and social connections and the length of time the Mainlander has spent in Hong Kong. As such, it is better dealt with through concerted education programs than through specific legislation.

Below, we are pleased to submit our views on five key issues: jurisdiction, exemptions, protection of contract employees, vicarious liability and the cost of implementation. In the appendix, we also include examples where clarification would be useful.

Jurisdiction over all forms of discrimination should remain with the Equal Opportunities Commission (EOC). We agree that the EOC should be empowered to respond to and investigate independently cases of suspected discrimination. We do not believe it is necessary or useful to create a separate body dedicated to a specific aspect of unequal opportunities, nor to we believe separate bodies will better facilitate either implementation or further legislative developments in the years to come.

We would support EOC empowerment to obtain information for the purposes of conducting formal investigations provided that such powers are restricted to cases where a complaint has been formally lodged with the EOC. Participation in broader surveys should be voluntary in nature.

It will be very important for the EOC to be seen as above politics and worthy of public trust. This perception is necessary to ensure that the EOC can be effective in undertaking the task of eliminating racial discrimination. To this end, we urge the government to give careful consideration to all EOC appointments to ensure that there is no politicization or even the appearance of politicization.

Exceptions should, in principle be minimized. We support the three-year adjustment period for SMEs and the concept that charities or similar organizations may proactively support specific racial groups without being in violation of the spirit of the law.

Contract employees are identified in paragraph 47 as protected under the proposed legislation. However, we believe it is important to spell out the circumstances under which a sub-contractor's actions may expose the principal to legal action. To require contractors to be responsible for the employment practices of sub-contractors should be included in a “best practices” code of ethics, rather than as a statutory requirement.

To this end, we would urge that this legislation include specific language such as is found in other anti-discrimination legislation permitting a defense by way of reasonable action. If the principal is able to prove he or she took reasonable and practicable steps to prevent a sub-contractor from practicing racial discrimination, the principal should not be in breech of the law solely because of the sub-contractor's actions.

The issue of vicarious liability needs to be treated carefully. We believe the draft legislation should make clear whether an employer will be limited to liability for acts done “in the course of employment” or if the employer may rely on the defense that “all reasonably practicable steps” in relation to an employee were taken to prevent discrimination. This distinction, that an unlawful act would occur only if the action was in the course of employment AND the employer had not taken reasonable steps to prevent its occurrence, should be reflected in the law.

We are concerned, moreover, that vilification is presented in the consultation document as an act that could, under some circumstances, take place in the course of employment. We note that the concept of vilification is not present in other anti-discrimination legislation and we comment that we cannot imagine a situation where such an act might be considered to take place “in the course of employment”. We therefore urge that great caution be exercised in the standard of proof and employer's liability clauses.

The standard of proof required to bring a case of discrimination is unclear. Given the risk of loss of reputation in an unproven case, it may be argued that more than the usual “balance of probabilities” standard of proof should be required. Defining the appropriate standard would provide important clarity to all parties.

The cost of implementing this necessary legislation is of concern to the business community. Existing anti-discrimination laws allow for damages by way of compensation for any loss or damage suffered, and punitive or exemplary damages. We are concerned that these penalties and compensation are open-ended, and would urge that the legislation specify some ceiling. For example, compensation for damages might be linked to the equivalent of a certain number of months pay.

We also are concerned at the cost to government, and would not wish to see the Equal Opportunities Commission greatly expanded, tribunals established for handling discrimination cases or other additional expenses to the public purse.


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The Chamber believes that Hong Kong's reputation as a world-class city will be enhanced by the implementation of well-considered and minimally disruptive legislation against racial discrimination, and further that our reputation would suffer should such legislation be unnecessarily delayed. We also believe that minimizing companies' administrative obligations in complying with such legislation is a competitive advantage that should be considered in drafting the law.




Appendix

Examples where policy intent is unclear:


1) An employer is recruiting a native English speaker. Two candidates apply, a native English speaker (Mr. A), and a non-native English speaker (Mrs. B), who claims native-standard command of the language.

· Would testing Mrs. B's language skills, but not those of Mr. A be considered discriminatory? Would choosing not to incur the expense of testing Mrs B's language skills, and deciding to hire Mr. A, be considered discriminatory?


2) A company advertises a vacant position which does not require specific multilingual skills, but does so only in one language.

· Has the company breached the intent of the law?


3) A company advertises in Hong Kong for an employee at $50,000 per month but does not attract suitable candidates. It then decides to advertise overseas – and not in Hong Kong – for the same position at a salary of $70,000 per month.

· Has the employer breached the intent of the law?


4) An employer requires current employees to improve their linguistic capabilities, and initiates periodic testing to confirm their progress. Native speakers of the language are not required to take the test.

· Has the employer breached the intent of the law?


5) For the same work, an employer offers greater compensation (e.g., a housing allowance) to an employee from overseas as compared to a local employee.

· Has the employer breached the intent of the law?


6) Due to limited language skills, a shop assistant attends to a local person first, even though someone of foreign descent has been waiting longer.

· Has the employee breached the intent of the law?

7) The scope of the law, covering “race, colour, descent, or national or ethnic origin” does not include reference to nationality or citizenship. Would it be a breach of the intent of the law to deny employment or otherwise disadvantage an individual based on nationality?