Understanding Employment Discrimination & Affirmative Action

Lecture 6: Discrimination and Affirmative Action Reference: http://www.eoc.org.hk

1.What is Discrimination in employment? -When the decisions on hiring, promotion, pay, fringe benefits and other terms and conditions of employment directly affect the economic interests of employees. e.g. reject a person merely because of that’s person’s race/gender Intent: when there is a significant intent to treat the members of a group differently, e.g. Refusal to hire blacks or has a policy of hiring blacks only for a job. Arguments from employers that may be justifiable: they do that just for business/religious concern: Catholic priests, a female president for a woman’s college.

2. Forms of Discrimination Sex Discrimination : Religious Discrimination Race Discrimination Age Discrimination Discrimination against Handicapped Family Status Discrimination

2. Forms of Discrimination Sex Discrimination : Sex Discrimination Ordinance (SDO) Discrimination on the basis of sex, marital status and pregnancy, and sexual harassment are made unlawful under this law.The law applies to both males and females.

2. Forms of Discrimination Sex Discrimination: A) direct discrimination - Direct discrimination: when a person is treated less favorably than another person of the opposite sex, with a different marital status, or who is not pregnant. E.g. you are rejected for a job because the employer wants to hire a person of another sex; you are single and pregnant but employer says maternity benefits are only for those legally married. Pregnancy discrimination can occur if you are terminated at the end of your maternity leave.

2. Forms of Discrimination Sex Discrimination: B) indirect discrimination - Indirect discrimination occurs when a condition or requirement, which is not justifiable, is applied to everyone but in practice adversely affects persons of a particular sex or marital status, or those who are pregnant. For example, if your employer penalizes you for not working overtime because you are not able to do so as you are pregnant. If your employer cannot prove that the overtime requirement is justified, then it can be indirect discrimination.

2. Forms of Discrimination Sex Discrimination: -Marital status discrimination: an application of jobwhere a marital status is required. E.g. if a landlord will only rent to married persons, if an employer gives different benefits to whom are single, married, or divorced. - Pregnancy discrimination: an employer refuses to hire a pregnant woman; an employer dismisses or transfers a pregnant woman into a lower paying position; an employer dismisses a woman on her return from maternity leave

2. Forms of Discrimination 1. Sex Discrimination: Q: Can an employer refuse to employ an applicant because of sex? A:It is unlawful for an employer to discriminate against a job applicant/employee base on sex. But if a person's sex is a genuine occupational qualification (GOQ) for the job, it is not unlawful. i.e. if the job can only be done by a male or a female. This is not the same as the employer thinking that males are not suitable as clerks or women as managers. For example, a retirement home may want to hire female assistance to help with providing care to female retirees.

2. Forms of Discrimination 2. Religious Discrimination: The basic law provides for freedom of religion, the Bill of Rights Ordinance prohibits religious discrimination

2. Forms of Discrimination 2. Religious Discrimination: Employers are prohibited from discriminating against employees/applicants because of their religion in hiring, firing, and other terms and conditions of employment. Employers may not treat employees or applicants more or less favorably because of their religious beliefs or practices. E.g. an employer may not refuse to hire individuals of a certain religion, may not impose stricter promotion requirements for persons of a certain religion, and may not impose more or different work requirements on an employee because of that employee's religious beliefs or practices.

2. Forms of Discrimination 2. Religious Discrimination: -Employees cannot be forced to participate (or not participate) in a religious activity as a condition of employment. Employers must reasonably accommodate employees' sincerely held religious practices unless doing so would impose an undue hardship on the employer, such as allowing flexible scheduling, voluntary substitutions or swaps, job reassignments and lateral transfers, policies and/or procedures. Employers must allow employees to participate in religious expression, unless which would impose a hardship on the employer. Employers must take steps to prevent religious harassment of their employees by implementing an anti-harassment policy and having an effective procedure for reporting, investigating and correcting harassing conduct.

2. Forms of Discrimination 2. Religious Discrimination: e.g. after the September 11 attacks in the US, discrimination against Muslims has increased worldwide. Muslim organizations in England note that hostility, verbal abuse, and unfair media coverage have become more frequent. Muslim organizations in Hong Kong have reported difficulties in getting jobs because some Muslim men wear a moustache, which is uncommon among Chinese men. Employment practices and religion Giving information to your employer You don’t have to give information to your employer about your religious beliefs, but if you do, it will help them meet the needs of religious employees. Any information you give should be confidential (and anonymous if possible).

2. Forms of Discrimination 2. Religious Discrimination: Employment practices and religion -Time off and facilities (eg a prayer room), Friday afternoon has a particular religious significance for Jewish and Muslim staff - Religious holidays Sunday for Christians, etc.- Clothing Employer should make sure dress code doesn't discriminate against employees. - Food Try to arrange employees’ request about food if such does not affect business, such as some religious prohibited food (pork for Muslin, Beef for Hindu, meat for Buddhist)

2. Forms of Discrimination 3. Race Discrimination: http://www.amrc.org.hk/5301.htm “ 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.”- United Nations International Convention on the Elimination of all forms of Racial Discrimination (ICERD) 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)).

2. Forms of Discrimination 3. Race Discrimination: http://www.amrc.org.hk/5301.htm It may happen in Job Search(e.g. white/blace color) and Terms of Conditions (e.g. Underpayment, abuse, lack of holiday)

2. Forms of Discrimination 4. Age Discrimination: When an employee/applicant receives unfair/different treatment in the employment because of age. It may occur during recruitment, promotion, transfer or training, terms of conditions of employment, appraisal, redundancy schemes, retirement policies and procedures for handling complaints and grievances. http://www.labour.gov.hk/eng/plan/AgeDiscrimination.htm

2. Forms of Discrimination 4. Eliminating age discrimination in employment: Consistent selection criteria: to provide clear guidelines for use by organization in recruitment, training, promotion, transfer, redundancy and dismissal situation. Advertising: Employers should advertise for jobs based on consistent selection criteria as to encourage application from suitable candidate of all ages; avoid specifying age requirements when placing advertisement; request for photos should not be made; consideration should be given about the need to review date of birth on application form.

2. Forms of Discrimination 5. Handicapped Discrimination: Disability Discrimination Ordinance -To protect people with a disability against vilification, discrimination, harassment because of disability. Direct discrimination: A disabled person is treated less favourably than another without a disability in similar situation; Indirect discrimination: when a requirement is applied to everyone, but in practice affects people with a disability more adversely, is to their detriment.

2. Forms of Discrimination 5. Handicapped Discrimination: Q:Can an employer refuse to employ or dismiss me if I am a person with a disability? A: It is unlawful discriminate against a job applicant/ employee due to disability. But under certain circumstances, an employer may specify a job applicant or an employee should not be a person with a certain type of disability.

2.Affirmative Action平權保護 Affirmative action: Organizations analyze their workforce to access possible underutilization of womenand minorities. (鼓勵錄用女性和少數族群的政策) The purpose of this action in employment is to establish fair access to employment opportunities and to create a work community that is an accurate reflection of the demographics of the qualified workforce.

公平難定 http://mrnick.sinaman.com/writing20030624.htm 今天看到一則新聞，美國最高法院裁定公立大學在招生時可優先錄取少數族裔學生，但招生時需符合「平權措施」﹝Affirmative Action﹞，即是對於成績相同或相近的學生，大學可以優先考慮非洲裔、西班牙裔和印第安裔考生。法院稱這種做法符合政府促進學生來源多元化的目標，也不違反憲法中的平等原則。一些少數族裔的大學生得悉結果後在校園內慶祝。另外，一九九九年密歇根大學曾在招生時對三個少數族裔的考生加分、實行低於白人和其他族裔的招生標準，法院則裁定密歇根大學給予少數族裔的考生過多優勢。這兩項裁決有沒有矛盾呢？「平權措施」是在成績相同或相近的學生之下考慮的，注意是「成績相同或相近的學生」。密歇根大學自行替少數族裔的考生加分，那變相是偏袒少數族裔的考生。所以法院這兩項裁決是沒有矛盾。這次裁決是美國最高法院二十五年來首次對「平權措施」的干預。「平權措施」營造一個多元文化的教育環境。但「平權措施」只照顧三個族裔的考生：非洲、西班牙和印第安裔。換言之，其他少數族裔的考生是得不到保障的。張五常曾在〈從法律面前人人平等說起〉﹝一九八三年﹞一文討論過相類似的問題。他記述了加州大學因為要滿足政府的反歧視法則而配固定學位給黑人學生，情況與密歇根大學對三個少數族裔的考生加分的做法相似。一位白人考生投考加州大學，成績比黑人學生好，卻因加大那些規則而未被取錄。白人考生將不滿訴諸法律，並且獲判勝訴。張五常最後指出：「要絕對做到法律面前人人平等，是不可能的。」無疑，要做到絕對公平是不可能的。怎樣才算公平呢？男女工人一起工作，男的要搬五十斤的東西，女的亦要搬五十斤的東西才算公平嗎？大學招生只考慮考試成續才算公平嗎？很多時候，人們會以為有利於自己的就是公平。例如那些得悉裁判結果後在校園內慶祝的少數族裔學生。李天命討論女性主義時亦有相似的例子：「當男女之別對其有利的時候﹝例如運動比賽分開男女子組﹞，就肯定那男女之別；當男女之別對其不利的時候，就否定那男女之別，聲稱那分別只不過是『性別定型』，是『傳統父權社會的男性霸權對女性空間的侵犯壓抑』所導致的結果。」﹝見《從思考到思考之上》﹞　　公平難定。可以的，便盡量做到；不可以的，也不要執著吧。

Against Support • Affirmative action leads to reverse discrimination. • Affirmative action lowers standards of accountability needed to push employees to perform better. • Applicants admitted on this basis are often ill-equipped • It would help lead a truly color-blind society. • It is condescending to minorities to say they need affirmative action to succeed. • It demeans true minority achievement; i.e. success is labeled as result of affirmative action rather than hard work and ability. • Diversity is desirable and won't always occur if left to chance. • Minorities/women starting at a disadvantage need encouragement. • Affirmative action draws people to areas of work they may never consider otherwise. • Some stereotypes may never be disappeared without affirmative action taken. • Affirmative action is needed to compensate minorities for centuries of slavery Should affirmative action policies, which give preferential treatment based on minority status, be eliminated? 2.Affirmative Action-Argument

Understanding Employment Discrimination & Affirmative Action