The current law
Hong Kong has up to now 4 anti-discrimination ordinances including the Sex Discrimination Ordinance, the Family Status Discrimination Ordinance, the Disability Discrimination Ordinance and the Race Discrimination Ordinance. Employers are required to comply with these ordinances in formulating and implementing their human resources and recruitment policies. There is however currently no legislation banning sexual orientation discrimination and accordingly it is not unlawful for employers to discriminate against a potential employee or an employee based on his/her sexual orientation.
Background and recent developments
The question of whether or not to legislate to ban sexual orientation discrimination has been discussed for more than a decade. In 1996, the administration published a consultation paper on sexual orientation discrimination which revealed that a large majority of the community opposed to legislation in respect of sexual orientation discrimination. Some sectors considered such legislation to be a form of reverse discrimination against the rights of the majority who choose not to accept non-heterosexuality. There was however unanimous support for use of non-legislative measures to address sexual orientation discrimination.
In its report to the United Nations Human Rights Committee in September 2011, the government pointed out that in light of the International Covenant on Civil and Political Rights, self-regulation and education (as opposed to legislation) are the best means of addressing sexual orientation discrimination in Hong Kong then but the government will monitor public opinion closely.
Recently, there has been increasing open-mindedness towards homosexuality and the younger generation appears to have a higher level of tolerance for people with different sexual orientations. A few renowned local figures also proudly proclaimed their homosexuality and urged lawmakers to legislate to ban sexual orientation discrimination.
In November 2012, the matter was again brought to the discussion table in the Legislative Council which voted down a motion to launch a public consultation on whether to legislate to prohibit sexual orientation discrimination. Despite this, the debate between supporters and opponents of legislating for sexual orientation discrimination continues and it remains to be seen how the government will react.
Code of Practice*
Employers should note that although there is no law regulating discrimination based on sexual orientation, the government has published the Code of Practice against Discrimination in Employment on the Ground of Sexual Orientation (the “Code“) to promote equal employment opportunities among all persons irrespective of their sexual orientation. Whilst the Code is not strict law, employers are encouraged to familiarise themselves with and comply with the Code.
The Code has made a number of recommendations to employers in relation to their human resources policies. For example:
Legislating to ban sexual orientation discrimination is no doubt a highly controversial matter and there will continue to be divergent views towards it. Unless and until laws banning sexual orientation discrimination have been enacted, employers in Hong Kong are not by law prohibited from making employment decisions that take into account sexual orientation of a potential employee or an employee although it is the government’s hope that employers will comply with the Code and foster a culture of greater tolerance and respect for those who are homosexuals.
* Readers should note that the government has also issued other similar codes of practice, such as the codes of practice on employment under the Sex Discrimination Ordinance, Family Status Discrimination Ordinance, Race Discrimination Ordinance and Disability Discrimination Ordinance, as well as guidelines for employers on eliminating age discrimination in employment.