(a)    Discrimination against Job Applicants

It is unlawful for an employer to discriminate against a job applicant on racial ground :-

(i)         in arrangements which the employer makes for the purpose of determining who should be offered that employment;

(ii)       in the terms on which the employer offers that other person employment; or

(iii)      by refusing, or deliberately omitting to offer, the other person that employment.

(b)    Discrimination against Employees 

It is also unlawful for an employer to discriminate against an employee on racial ground :-

(i)         in the terms of employment which the employer affords that employee;

(ii)       in the way the employer affords the employee access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford the employee access to them; or

(iii)      by dismissing the employee, or subjecting him or her to any other detriment.

For a period of 3 years after the Bill is enacted, apart from discrimination by way of victimization, the aforesaid provisions do not apply to any employment where fewer than 5 persons (inclusive of the number employed by any associated employers of that employer) are employed by the employer.

2.     Major Exceptions

(a)    Genuine Occupational Qualification

Some acts mentioned above will not be treated as a breach, where, being of a particular racial group is a genuine occupational qualification for the job. For example, the job involves participation in a dramatic performance or other entertainment in a capacity for which a person of that racial group is required for reasons of authenticity, or the job involves providing persons of that 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, etc.

(b)    Employment Intended to Provide Training in Skills to be Exercised Outside Hong Kong

It is not unlawful if an employer carries out any acts for the benefit of a person not ordinarily resident in Hong Kong in or in connection with employing the person at an establishment in Hong Kong.  Where the purpose of that employment is to provide the person with training in skills which the person appears to the employer to intend to exercise wholly outside Hong Kong. 

(c)    Employment of Person with Special Skills, Knowledge or Experience

The Bill also contains an exception for employment that requires special skills, knowledge or experience not readily available in Hong Kong. The employee in question must possess such skills, knowledge or experience and is recruited or transferred from a place outside Hong Kong. If any acts mentioned in paragraph 1 above were reasonably done by the employer for such person with special skills knowledge or experience in places outside Hong Kong such acts shall not be regarded as unlawful.

(d)    Existing Employment on Local and Overseas Terms of Employment

For existing employment falling into the meaning in Schedule 2 of the Bill, the employers are allowed to differentiate treatment towards employees under local contract and those under overseas contract. Different treatment is also permitted between employees from different countries but under the same set of overseas contracts.

3.     Next Step Forward

There is no timetable for the enactment of the Bill but it is expected to be in place by the first quarter of 2009. It is feared that the Bill will lead to substantial increase in litigation against employers and the Equal Opportunities Commission will be providing a code of practice on employment to raise awareness and understanding of the new legislation.

Employers are advised to pay close attention to the development of the Bill as it is expected to have major impact on human resources management and relationship with and among employees.