The Rights of the Individual - Sexual2

Code of Practice against Discrimination in Employment on the Ground of Sexual Orientation

A. Introduction

1. Purpose of the Code

1.1 This Code, issued by the Government of the Hong Kong Special Administrative Region, is to facilitate self-regulation on the part of employers and employees in eliminating discriminatory practices in employment. It seeks to promote equal employment opportunities among all persons - irrespective of their sexual orientation - and reaffirms Government's commitment to the elimination of all forms of discrimination. That commitment is founded on the belief that -

all human beings are born equal and have the inherent right to equal opportunities in every aspect of their lives, irrespective of their sexual orientation or, indeed, any other status. This is a fundamental tenet of the International Covenant on Civil and Political Rights, the Basic Law and the Bill of Rights;
all human beings have a right to just and equitable conditions of work, to be rewarded for their work on the basis of their merits, to compete on equal terms for a place to live and to enjoy access to facilities on the same basis. To deny them this right on the ground of their sexual orientation is morally wrong and irrational, as are all forms of discrimination;
people of different sexual orientation perform all the normal duties and responsibilities as citizens and contribute to society in the same way and to the same extent as everyone else. They are entitled to the same respect and consideration accorded to all human beings; and
discrimination is costly: when people are passed over for recruitment into or promotion within organisations simply because they are of different sexual orientation, those organisations deny themselves the advantage of employing and retaining the best people available. In competitive markets, they handicap themselves in the pursuit of performance and profit.

The Government is committed to following the practices recommended in this Code. We encourage all concerned to do so to the best of their ability.

1.2 Although this Code concerns equal opportunities in employment, the principles that it upholds apply to all aspects of life. The Government encourages everyone to apply these principles in all their dealings with other people, whoever they may be, with all the respect that is the natural and inalienable right of all human beings.

2. Definitions

2.1 In this document -

"sexual orientation" means heterosexuality (sexual inclination towards persons of the opposite sex), homosexuality (sexual inclination towards persons of the same sex), and bisexuality (sexual inclination towards persons of both sexes);
"discrimination" means any distinction, exclusion, restriction or preference based on sexual orientation, or perceived sexual orientation stemming from stereotypical assumptions, which has the purpose or effect of nullifying or impairing rights and freedoms. It does not refer to measures voluntarily taken - in the spirit of promoting equal opportunities - to help persons of different sexual orientation to overcome disadvantages. It should be noted that differences of treatment will not amount to discrimination if -
- their purpose is reasonable and objective;
- they have been adopted in pursuit of a legitimate aim; and
- they are reasonably proportional to the aim to be realised.
"harassment" means being subjected to unwelcome verbal or physical conduct on grounds of a person's sexual orientation. Physical abuse, threats, offensive jokes, taunts and insults are all examples of the kind of harassment that people may experience in the workplace. It can go beyond the treatment of persons of different sexual orientation themselves: harassment can affect people who are in some way associated with those persons. For example: people may be taunted or insulted because, while they are not (say) of a different sexual orientation themselves, they are known to have friends who are.
"vilification" means any activity in public that incites hatred towards, serious contempt for, or severe ridicule of, a person or persons because of their sexual orientation. In this context, "activity in public" means doing anything whatever that so incites other people.

B. Eliminating discrimination on the ground of sexual orientation in employment

3. Consistent selection criteria

3.1 It is recommended that employers apply consistent selection criteria for all aspects of employment, including recruitment, promotion, transfer, training, dismissal and redundancy as well as terms and conditions of employment.

3.2 Such criteria should not make reference to sexual orientation. They should be specifically related to the job, such as -

the type of experience the job holder should have, for example, merchandising experience;
the amount of experience required for the job, for example, five years in the relevant field;
the educational qualifications, if necessary, for example, a diploma in merchandising;
the specific technical and managerial skills, for example, ability to use certain types of computer software, proficiency in Cantonese and/or English;
the personal qualities required for the job, such as willingness to travel, willingness to meet people of different backgrounds; and
the physical and other skills required for the job, for example, hand-eye co-ordination for delicate assembly work.

3.3 It is recommended that these criteria and the terms and conditions of employment -

be made known to all employees and job applicants on request;
are circulated to all employees on a regular basis, particularly at times such as the annual performance appraisal and promotion exercises; and
are re-examined from time to time to see whether they need updating.

Special circumstances

3.4. Government does not condone discrimination of any kind and considers that a person's sexual orientation should not be a consideration in the selection process. But it accepts that there may be very special circumstances where it could be a consideration, such as where the job entails -

employment in the domestic environment, particularly where the employee is required to live in the employer's home. The Government firmly upholds the principle of equal opportunities for all. But it considers that a balance must be struck between that right and the right of individuals to determine who may enter or live in their homes; or
the job entails the performance of duties entirely or substantially outside Hong Kong, particularly in countries where the laws or customs are such that the duties could not, or could not effectively, be performed by the applicant.

C. Guidelines for employers

4.1. It is recommended that personnel/human resources staff handling applications - or informal enquiries prior to application - are trained to avoid acts of discrimination. The following paragraphs set out points for consideration at each stage of the recruitment process.

Advertising

4.2 Discrimination at this stage of the recruitment process can be avoided by ensuring that the contents of advertisements follow consistent selection criteria as discussed in section 3.

Internal recruitment

4.3 Where vacancies are to be filled by promotion or transfer, it is recommended that employers let all eligible employees know this.

Vetting applications

4.4 At the pre-interview stage, it is recommended that all applications - wherever they come from - are processed in exactly the same way. It is also recommended that application forms avoid questions that may suggest an intention to take account of factors that would, or might, discriminate on the ground of sexual orientation.

Interviewing

4.5 It is recommended that -

personnel staff, line managers and all other employees involved in the staff recruitment process, are trained to recognise discriminatory practices, to avoid them, and not to instruct or put pressure on others to discriminate;
questions asked at job interviews relate only and directly to the essential requirements of the job;
where it is necessary to assess whether personal circumstances will affect performance of the job, interviewers discuss this objectively without questions that may suggest that the candidate's sexual orientation may influence the outcome of the interview;
information necessary for personnel records be collected after the job offer has been made;
immediately after the interview, interviewers record the assessment they have formed of the applicant's ability to meet the selection criteria. This will help to ensure a fair and balanced assessment of applicants' strengths and weaknesses. It will also serve as a valuable explanation and defence against any unfounded suggestions of bias;
the interview records show the reasons why applicants were or were not appointed. Again, this could help to counter possible allegations of discrimination; and
employers retain interview records for a reasonable period of time (say, 12 months) - or after any complaints that may have arisen have been resolved, whichever is later - then destroy them.

Shortlisting

4.6 It is recommended that shortlists be drawn-up on the basis of consistent criteria that provide objective standards for assessing the experience and capability of each applicant. Employers are also encouraged to -

guard against making assumptions about the abilities of persons of particular sexual orientation; and
train personnel staff to recognise the danger of such assumptions and to make comparisons based on criteria that are applied equally to everyone and relate specifically to the actual requirements of the job.

Tests

4.7 If tests are used for selection purposes, it is recommended that they are -

specifically related to the job and/or the career requirements and measure applicants' actual or potential ability to do or be trained for the job;
professionally designed wherever possible; and
reviewed regularly to ensure that they remain relevant and free from bias, either in content or in scoring.

Recruitment through employment agencies or employment services

4.8 Where recruitment is done through outside agencies, employers are encouraged to advise them to follow the recommendations in this Code. In particular, they are encouraged to make it clear that -vacancies are open to all qualified applicants, regardless of sexual orientation.

5. Terms and conditions of employment, benefits, facilities and services

5.1 Government is committed to the principle of equal pay for equal work and encourages all employers to share that commitment. The principle does not mean that all employees should be paid the same wage/salary regardless of their performance or productivity. Rather, it means that - in principle - all employees are entitled to the terms and conditions of employment or access to employment or access to benefits¹ , facilities or services commensurate with their rank, duties, seniority and experience and any other special circumstances of their employment, irrespective of their sexual orientation.

6. Appraisal, promotion, posting and training

6.1 All employees are entitled to the opportunities for promotion, posting or training (etc.) commensurate with their ability, rank, seniority and experience. Again, their sexual orientation is not a relevant consideration. To ensure that access to these things is non-discriminatory, it is recommended that -

where an appraisal system exists, employers examine the assessment criteria to ensure that employees are promoted on merit and that the criteria adopted are not discriminatory. It is good practice to establish measurable standards for evaluating job performance;
employers organise selection for promotion along the same lines as those recommended for recruitment in section 4. This would entail detailed assessment of all candidates' abilities and qualities against objective and consistent criteria;
where opportunities for promotion, training, or posting arise, employers inform all eligible employees of the conditions and procedures for application;
where promotion is by nomination, ensure that all suitable candidates are considered and that nobody with potential is overlooked;
keep records of notes taken in the course of considering candidates for promotions, posting and training. It is recommended that employers retain these records for a reasonable time (say, 12 months) - or after any complaints that may have arisen have been resolved, whichever is later - and then destroy them;
review rules that restrict or preclude posting between certain jobs and change them if they are found to be discriminatory; and
examine policies and practices on selection for training, and other opportunities for personal development with a view to ensuring that they do not entail discrimination.

7. Dismissals, redundancies and unfavourable treatment of employees

7.1 It is recommended that employers -

ensure that employees' sexual orientation is not a ground for disciplinary action or dismissal. Persons of a particular sexual orientation should not be dismissed or disciplined for performance or behaviour which would be overlooked or condoned in those of other sexual orientations;
review redundancy procedures to ensure that there is no discrimination;
ensure that conditions of access to voluntary redundancy benefits are available on equal terms to all employees in the same or similar circumstances;
ensure that employees' sexual orientation is not taken into account if/when it is necessary to put part of the work force on short-time working or to lay off some employees but not others; and
keep records of dismissals and redundancies for a reasonable period of time (say, 12 months) - or until any complaints that may have arisen have been resolved - whichever is later - and then destroy them.

8. Grievance procedures

8.1 It is recommended that employers -

establish internal grievance procedures to deal with complaints concerning discrimination, harassment² , or vilification within their organisations. Employers are encouraged to explain these procedures to all staff and to review them from time to time to ensure that none of them are - or might be - discriminatory;
advise employees to use the internal grievance procedures where appropriate;
together with their employees, draw up rules for redressing grievances. The rules should be acceptable to all concerned and be made known to everyone in the organisation. They should encourage discussion/conciliation between the parties, perhaps including provision for a neutral third party to mediate on a 'good offices' basis. The third party (possibly but not necessarily a senior management representative) should be well respected by all concerned;
deal with all complaints of discrimination, harassment or vilification effectively and confidentially, respecting the rights of both the complainant and the respondent. It is important to avoid the common assumption that people who make such complaints are simply being over-sensitive; and
handle disciplinary procedures uniformly and without regard to an individual's sexual orientation.

9. Equal employment opportunities policy

9.1 Organisations are encouraged to -

make a commitment to employment procedures and practices that are non-discriminatory and that provide equal opportunities for all employees;
issue a clear policy statement that discrimination, harassment and vilification at work will not be permitted on any grounds whatever. Employees should have a right to complain should these occur; and
to assign responsibility for giving effect to this policy to a member of senior management.

10. Implementing anti-discrimination policy

10.1 Employers are encouraged to -

involve employees in the development and review of the policy;
state the policy clearly;
make the policy known to all employees and to all job applicants. Where the policy statement is detailed and/or lengthy, employers are encouraged to tell applicants - in advertisements and invitations to interview - at least the main points/gist of the company's equal opportunities policy;
provide training to all employees who may be involved in human resource matters;
make all new recruits aware of the equal opportunities policy; and
take all reasonably practicable steps to ensure that a standard of conduct or behaviour is observed to prevent persons of certain sexual orientations from being intimidated, harassed or otherwise subjected to unfavourable treatment.

11. Monitoring the policy

11.1 It is recommended that the policy be monitored regularly to ensure that it is working in practice. One approach might be to set up a joint committee of management and employee representatives. This may not be necessary or practical for small organisations. Nevertheless, small organisations are encouraged to involve employees in monitoring their equal opportunities policies wherever practical.

D. The employee's role

12. Eliminating discrimination

12.1. Employees can help to eliminate discrimination by becoming familiar with the subject, so that they do not inadvertently discriminate against someone or inadvertently aid their employers to do so.

12.2. Whenever appropriate, employees could also encourage their employers to formulate policies against discrimination and to implement preventive measures. They are encouraged to participate in the development and review of anti-discrimination policies within their organisations.

12.3. Employees are encouraged to be supportive of friends or colleagues who have lodged - or intend to lodge - complaints about discrimination. Harassment and vilification are deeply offensive and hurtful. By supporting colleagues who face such things, we share our rejection of the attitudes that underlie them and help to create a more pleasant and congenial working environment for all.

¹"Benefits" include fringe benefits, commissions, bonuses, allowances, pensions, health insurance plans, annual leave, merit and performance pay, or any other benefits available to employees generally.

²Clearly, too, the workplace should be free of criminal intimidation, which is beyond the scope of this Code. Should occurrences of that nature come to their attention, employers and/or employees should immediately contact the Police.