Racial Discrimination at work in Hong Kong

Annie Lin, December 2004

Racial discrimination at the workplace is an everyday experience of the ethnic minorities living in Hong Kong. Many people report lower wages, poorer working conditions, or even outright rejections of jobs based on their ethnic background.

The aim of this article is to look into some of these aspects of racial discrimination. Mainly I will try to look at the types of discrimination faced by low-skilled workers, as they make up the majority of the ethnic minorities.

Ethnic minority workers in Hong Kong
The majority of the 350,000 people from ethnic minorities in Hong Kong are employed as foreign domestic workers (a legal distinction from local domestic workers). Most of these people are women from the Philippines, Indonesia, and Thailand. They are migrant workers who hold employment visas and are by far the largest group who experience rampant abuse and are subjected every day to deception, extortion, poor working conditions, psychological and physical violence, and even deportation.

Besides these, around one third of the ethnic minorities are residents of Hong Kong and comprise people from Southeast and South Asian countries such as Nepal, Pakistan, India, Sri Lanka, and Bangladesh. These migrants work in the construction industry, in restaurants, in retailing, as security guards, and furniture removers. Thus most of them work in elementary occupations 1

Lastly, there are around 380,000 new immigrants 2 from mainland China, who, while being Chinese, look distinctively different from the locals, and can thus be easily identified as new immigrants. They too suffer from various types of work-related racial discrimination. Although their experiences are equally important, given the lack of space they will not be included in this article.

High unemployment among ethnic minorities
Before discussing aspects of racial discrimination it is worthwhile to look at the employment situation.

Ethnic minorities face severe problems in finding jobs, and the unemployment rate is significantly higher than for the indigenous population. A survey conducted by the Society for Community Organization (SoCO) at the end of 2003 revealed that while 42 percent of Nepalese construction workers were out of jobs by the end of 2003, the figure was 19 percent for Hong Kong’s overall construction labour population (while HK’s seasonally adjusted unemployment rate stood at 7.3 percent in the fourth quarter of 2003). Figures from other surveys, which include other minorities as well, reveal the same tendency of a disproportionately higher unemployment rate among the minorities.

Petitioning Hong Kong’s Legislative Councillors in March 2003 before the debate to introduce racial discrimination legislation initiated by Audrey Eu

What is racial discrimination?
In order to understand the different kinds of work-related discrimination problems that are prevalent in Hong Kong, it is helpful to take a look at the definition of racial discrimination. According to the United Nations International Convention on the Elimination of all forms of Racial Discrimination (ICERD), discrimination means any distinction, exclusion, restriction, or preference based on race, colour, descent, or national or ethnic origin, which has the purpose or effect of nullifying or impairing the recognition, enjoyment, or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural, or any other field of public life.

Thus when ethnic minorities do not enjoy human rights and freedom on an equal basis with the rest of society, they are discriminated against. It is important to note that discrimination need not be intended. As signified in the ICERD definition above, as soon as the effect is discriminatory, racial discrimination does take place.

More specifically, when it comes to work, minorities are entitled to economic rights equally with other people, which include:

The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration (ICERD article 5, part (e) (i)).

In the following section I will look at the discrimination that takes place in job searches and at the conditions of work. Furthermore I will examine the policies related to foreign domestic workers, followed by a discussion of whether Hong Kong’s proposed law against racial discrimination can fully protect minorities against workplace discrimination. Lastly a few recommendations for policy changes will be set forth.

Discrimination in job search
In 2001 SoCO conducted a survey about racial discrimination 3 by interviewing people from eight different ethnicities. The results showed that discrimination during job searches is a widespread phenomenon. Of those who had applied for a job within the last 10 years, 32 percent had suffered from some kind of discrimination in applying for a job (see table below) Either they were rejected because the employer knew their race, or else they were rejected on the grounds that they did not know the local language, Cantonese, even though the job did not require the ability to speak the language. Some people reported writing hundreds of applications for jobs without getting an answer.

Extent of discrimination of job search

Case history: job search discrimination
To illustrate the difficulties in searching for jobs, it is useful to observe the experiences of Rani who is from Pakistan and has lived in Hong Kong for more than 30 years. She has had several difficulties in Hong Kong finding work. After working in an international bank, she tried to find jobs in kindergartens. However, she met a lot of obstacles.

The first time was when she applied for a job in an English kindergarten in Hong Kong. At first she was accepted. However, when the kindergarten got to know that she only wears her traditional clothing because she is a Muslim, they said that she had to wear a skirt as a kindergarten teacher. However, Rani could not do that because it is not her tradition to wear a skirt. So she did not get the job.

The second time was when she saw an advertisement in the newspaper looking for native English speakers. Rani is a native English speaker so she applied for the job. When she called the employer, nothing seemed wrong, and she was invited for an interview. However, when she arrived, the employer said: “But you are not a native speaker!” “Yes, I am,” Rani replied. The employer would not consider her to be a native speaker although she speaks perfect English. The only reason why she did not get the job was that she was a Pakistani.

Discrimination in conditions of employment
When it comes to conditions of work 70 percent of those who have been employed have been discriminated against in the work place (see Table below).

Discrimination especially prevails within the following areas: When comparing themselves with other races doing the same job 41 percent of respondents claim to receive a lower salary, while 34 percent have longer working hours. Some also say that they do not enjoy any public holidays, and others say that they do not get the tea breaks that their Chinese colleagues do.

Regarding the relations between ethnic minorities and the people in their work place some people face or have faced discriminatory attitudes from their boss or colleagues in their current or a previous job. 38 percent face a discriminatory attitude from the boss, while 41 percent claim to suffer because of discriminatory attitudes from their colleagues. Some have reported that the colleagues would even say, “You’re so black!” or experienced being shouted at by the boss.

Extent of discrimination in workplace

Discriminatory employment policies
As mentioned above foreign domestic workers constitute the majority of the ethnic minority workers in Hong Kong. It is therefore relevant to mention particular difficulties they face as migrant workers.

In October 2003, the government imposed a levy on employers of foreign domestic helpers of $400 per month for a two-year contract 4 . At the same time a reduction of the legal minimum salary of domestic workers was also imposed, cutting $400 off their salary. The two-pronged policy represents indirect racial discrimination, as the reduction of the minimum wage is a badly disguised way to pay the employers’ levy – in effect a tax on one of the poorest sectors of Hong Kong’s working class. As the reduction goes to the local workforce this clearly puts ethnic minorities at a disadvantage.

Underpayment and abuse
Underpayment and abuse of foreign domestic workers are widespread and severe. The Asian Migrant Centre (AMC), a Hong Kong-based organisation, conducted Baseline Research on Gender and Racial Discrimination Towards Filipino, Indonesian, and Thai Domestic Helpers 5 in Hong Kong revealing that almost all foreign domestic workers (FDW) interviewed believed that contract violations they experience are significantly related to racial and gender discrimination. 60 percent stated that they are discriminated against and unfairly treated because they are domestic workers, and 22.2 percent ascribed the reason to their foreign status 6 .

Violations against FDWs flourish despite the fact that their work conditions are regulated by a standardised employment contract that clearly stipulates fair working conditions and a minimum salary. The research concluded that 15 percent of FDWs are paid under the official minimum wage for FDWs. More than a quarter of FDWs interviewed suffered verbal and physical abuse from all sections of Hong Kong society, including employers, shopkeepers, supervisors of public facilities, and government officials. 4.5 percent or 9,000 FDWs have been raped or subjected to sexual abuse; 15 percent or 30,000 have been cheated out of their legal minimum wage. At least 22 percent are not given the mandated one rest day per week, 26 percent are not given statutory holidays, and more than two percent have no day off at all.

Statistical tests (ANOVA) and data indicated that there is a significant relationship (95-99 percent) between abuses and the FDWs’ nationality, with more documented cases of abuse for Indonesian FDWs than Thais or Filipinos. 48 percent of Indonesian FDWs were found to be underpaid in contrast to 3.4 percent of Thais and 0.5 percent of Filipinos. And only 38.5 percent of Indonesians are given the required four rest days per month, as opposed to 95.2 percent Thais and 93.4 percent Filipinos. Lastly 57.5 percent of Indonesians are given none or one statutory holiday per year, in contrast to 7.8 percent Thais and three percent Filipinos.

However, although the government has set up a taskforce to combat problems such as underpayment among foreign domestic helpers such problems still exist.

The proposed race discrimination bill – a cure against racial discrimination in employment?
After having postponed it for more than one year, the Hong Kong SAR government has finally issued a consultation paper on legislation against racial discrimination in the private sector and plans to implement the law in the legislative year of 2005-2006. However, it is disappointing that from the very outset the government proposed including several disturbing factors in the legislation, which makes it questionable whether the law can fully protect minorities against discrimination at the work place.

Exemption of businesses
First of all there is an exemption period of three years for businesses or employers with less than six employees. This means that these employers do not have to comply with the bill in the first three years of the law’s implementation. This poses a big problem for minorities because many work for small employers such as owners of restaurants, salons, and small shops etc. The government’s argument for having such a grace period is that the employers need time to adapt to such race discrimination laws and that they may risk shutting down if the laws are imposed immediately. However, there are already three discrimination ordinances with which the employers have to comply, which means that they have had plenty of time to adapt to such laws. In fact the government itself published a Code of Practice about how to avoid discrimination in employment in 1998.

Discrimination based on language
Secondly, the government proposes not to include racial discrimination based on language or religion in the bill. Language discrimination means treating someone differently solely because of his or her native language or other characteristics of speech 7 .

A language discrimination provision would make it unlawful if ethnic minorities are denied access to government services such as the Labour Department or if they are rejected on the grounds of language in job applications if the job does not require spoken English/Cantonese.

In some countries the ethnic minorities have already integrated into society and speak the local language very well. However, this is not the case in Hong Kong. In fact according to government statistics 8 the difficulty most frequently encountered by ethnic minorities is the language problem, as many of them do not speak Chinese or even English 9 . It is therefore highly necessary to include language in the bill.

Discrimination based on religion
As mentioned above the government does not intend to legislate against racial discrimination based on religion. However, often there is an overlap between religious and racial identities. After the September 11 attacks in the US, discrimination against Muslims has increased worldwide. Muslim organisations in England note that hostility, verbal abuse, and unfair media coverage have become more frequent. Furthermore Muslim organisations in Hong Kong have reported difficulties in getting jobs because some Muslim men wear a moustache, which is uncommon among Chinese men.

The government ought to learn from the years of experience gained from overseas, where provisions already exist to make religious discrimination unlawful. Thus the United Kingdom has already put into force The Employment Equality (Religion or Belief) Regulations 2003.

Special measures
The government has stated that one of the objects of the bill is to implement the UN’s International Convention on the Elimination of Racial Discrimination (ICERD) 10 . Thus it is not only the concept of non-discrimination that must be implemented but also other provisions stated in the convention. One very important article in the convention is article 2(2) of the ICERD, which requires that governments take special measures to guarantee the equal enjoyment of human rights.

‘Special measures’ requires the government to provide methods to tackle general inequalities that specific groups may face, such as a higher unemployment rate, or lack of access to vocational training. Such an approach is different from a non-discrimination approach, which only prohibits discrimination but does not attempt to provide equality of outcome.

The proposed Race Discrimination Bill however, does not impose on public authorities a positive duty to promote equality. This duty however, already exists in race legislation abroad. In Northern Ireland the Fair Employment and Treatment Order 1998 (FETO) imposes on employers certain duties that go beyond non-discrimination. It includes obligations to monitor and periodically review to ascertain if there is fair participation and consideration of suitable affirmative action to address under-representation 11 .

A positive duty to promote equality would be an important step towards equality for ethnic minorities. A positive approach may take form as a positive duty on a public sector employer or a service provider to promote equality of opportunity, or a requirement to monitor the progress of employing ethnic minorities.

Recommendations
Hong Kong lags far behind other countries in eliminating racial discrimination at the workplace or in attempting to provide equal opportunities at the workplace. In order to obtain equality and non-discrimination I would like to propose the following recommendations:
1. The government should take measures to eliminate discrimination against ethnic minorities on wages and benefits.
2. The government should withdraw the imposition of the wage cut on foreign domestic helpers.
3. The government should extend the grounds of discrimination to include language and religion.
4. The government should reduce the three-year sunset period for businesses and employers to a maximum of one year.
5. The government should include a positive duty to provide special measures in the bill.

Notes
1 However, the Indians stand out as a more privileged group, with many of them being professionals.
2 This number is based on new immigrants from China who have resided in Hong Kong for less than seven years. However, people from the mainland who have stayed for more than seven years are often still considered to be ‘Mainlanders’.
3 Society for Community Organization 2001: Hong Kong racial discrimination study series II: Ethnic Minorities, Hong Kong.
4 As a standard employment contract lasts two years, employers have the choice of paying a lump sum of $9,600 in one go, or in four equal installments of $2,400.
5 ‘Helper’ is the Hong Kong government’s official description of domestic work.
6 Asian Migrant Centre 2001: Baseline Research on Racial and Gender Discrimination Towards Filipinos, Indonesian and Thai Domestic Helpers in Hong Kong, Hong Kong.
7 This includes ‘speak English/Chinese only’ policies; if you are discriminated against because you speak the local language with an accent; if you are told that you are not qualified for a position because you do not speak English/Chinese well enough. It also includes denying access to businesses or government services because one does not speak the local language.
8 AC Nielsen 2000: Omnibus Household Survey in the Fourth Quarter of 1999 (Characteristics of the Ethnic Minorities) Prepared for the Home Affairs Bureau, Hong Kong, table 13c.
9 According to statistics published by the Home Affairs Bureau only 11.2 percent of the ethnic minorities are fluent in Chinese, while only 60.4 percent claim to be fluent in English. Thus the rest are not fluent in the official languages of Hong Kong. A further break down by ethnicity reveals some significant differences: While 45.1 percent of the Thais who claim to be fluent in Cantonese, this only applies to 10.3 percent of the Pakistanis. And while 85.4 percent of the Indians are fluent in English, this only applies to 15.1 percent of the Pakistanis.
10 Home Affairs Bureau 2004: Legislating Against Racial Discrimination, Hong Kong: page 9.
11 Office of the First Minister and Deputy First Minister 2004: A Single Equality Bill for Northern Ireland. A Discussion Paper on options for a Bill to harmonise, update, and extend, where appropriate, anti-discrimination and equality legislation in Northern Ireland, Northern Ireland.