Submission to the Hong Kong Government

in Response to its Proposed

Code of Practice Against Discrimination in Employment on the Grounds of Sexuality

In November 1997, the Hong Kong Government released a Draft Code of Practice against Discrimination in Employment on the Ground of Sexuality. The Government has prescribed a consultation period, ending 31 December 1997, during which comments on the Code of Practice are to be submitted.

I. General

(A) Inadequacy of voluntary codes

The United Nations Human Rights Committee has confirmed in its ruling in Toonen v. Australia that the obligation on states to prevent discrimination (described in full in Human Rights Monitor's comments on the Government's Draft Code of Practice against Discrimination in Employment on the Grounds of Race) includes an obligation to prevent discrimination on grounds of sexual orientation.

In these circumstances voluntary codes, which can be followed or ignored at will are inadequate. By failing to legislate to outlaw discrimination on grounds of sexual orientation, the Government is in breach of its obligation under Article 2(1) of the International Covenant on Civil and Political Rights.

The Hong Kong Government had the opportunity to legislate all the time but regrettably so far the Government has lobbied hard against all private member bills outlawing discrimination on the grounds of sexuality.

(B) Shortcomings of this code

It is clear that the first draft of the Home Affairs Bureau's Code of Practice against discrimination in employment on the ground of sexual orientation did not involve the input of any lesbian or gay man because it clearly misses the boat on perhaps the most significant component of any such plan. The missing component is the strategy which makes clear to the public that sexuality discrimination will not be tolerated.

The Code of Practice originally drafted by the government is almost completely drawn up on the basis of standard "good management?policies, and does not address the real issue of lesbians and gay men in Hong Kong. The Code of Practice makes a very incorrect assumption that everyone knows who the lesbians and gay men are, and that they are in fact already being denied jobs, promotions and general fair treatment by employers -- but this is not where the significant issue lies. Being lesbian, bisexual or gay is not the same as being handicapped, female, non-Chinese, old, or a member of other groups because members of those groups cannot hide. Being lesbian or gay in the employment arena of Hong Kong means making a choice between disclosure or secrecy. This issue is not even tangentially addressed until the end of the document.

It has been estimated that fewer than 5% of lesbians or gays are "out?in the Hong Kong work place. Those that have come out and have not been fired or otherwise discriminated against are extremely lucky to be working in such an accepting environment, but this is not to say that they are given the same respect as others in the organization. The 95% who have not come out spend enormous amounts of time and energy concealing their sexuality. Of course this is frustrating and de-motivating for the employee, but results in lost productivity to the employer due to the energy and time this concealment requires.

Of course there is a loss to an organization if a good employee who is either gay or lesbian is fired, or denied benefits, or career advancement for the simple reason of sexuality. And it is good that this issue is beginning to be addressed. But the larger issue to the employer is the time, energy, and loss of employee motivation caused by the 95% of the lesbian and gay employees who are "in the closet.?Unfortunately, this issue is hardly addressed at all in the Code. All lesbian and gay employees are aware of the cost of hiding their sexuality, and this issue should be addressed.

II. Specific issues

We now address some of the more outstanding issues in the Code of Practice in the sequential order that they are presented to the reader.

(A) Purpose of the Code

The bullet points two talks about "morality,?the ICCPR, respect all before the issue of costs are mentioned. Business people are in the business of making money, and the cost issue should be highlighted more. The last bullet point addresses one issue of cost and competitiveness, but does not address the issue of lost productivity due to concealment.

(B) Legitimizing Non-Observance

The Code mentions that "it may not always be feasible for everyone to follow all of the good practices recommended in this Code. But we encourage all concerned to do so to the best of their ability.?This has the effect of giving the reader the full legitimacy to completely ignore the Code. As the Code is not legally binding, all readers will be fully aware that they are under no obligation. This clause should be removed from the document as in the eyes of many employees, continuing harassment of suspected homosexuals may actually be "the best of their ability.?/P>

(C) Attempts to Define Source of Discrimination Not Useful

Attempts to define where discrimination comes from should be removed. No one cares, this is not important, and only serves to confuse the reader. Including references to promoting equal opportunities is an extremely sensitive issue as it could very well cause a backlash against those it attempts to protect just as opponents of "affirmative action?programs in the USA claimed this gave people "special rights?greater than anyone else in the society had. Lesbians and gays in Hong Kong are not asking for special rights at all, and no one wants to see a similar situation arise.

(D) Wrong Assumptions

The most important part of the code on consistent selection criteria need substantial re-working. This section is so theoretical that it is obvious the author has never been involved in any human resources related issues before. This section is based on two utterly improbable premises. The first being that employers have policies such as "we don't hire homosexuals? the second being that "everyone knows who the homosexuals are.?Both of these assumptions are incorrect, and any human resources practitioner who takes his or her job seriously already follows all the guidelines.

(E) A More Proactive Approach

This section should be far more proactive. As it stands, this clause is no change at all from the way businesses are currently behaving. What should be done to eliminate discrimination on the ground of sexual orientation in employment is to educate the public in the place of employment continuously and repetitively. There are many ways to do this, and limits are only created by lack of creativity. It is important to include such an anti-discrimination clause in the corporate human resources policy manual, but efforts should be made continuously to send the message that lesbians and gays are welcome and in fact encouraged to come out of the closet, and that harassment based on sexuality will result in discipline. It is far too easy to include an anti-discrimination clause in a human resources policy and then do nothing else. As Michael Suen claimed, "education is the best way to eliminate discrimination.?And this concept should be followed.

Some ideas are as follows:

Issue a letter to all company employees from the President stating clearly that lesbians, bisexuals and gays are welcome in the organization. They in fact should be encouraged to come out, and stop spending time on effort to conceal their sexuality.

In large organisations establish a gay and lesbian support group within the organization headed by a high ranking lesbian or gay employee. The purpose would be to discuss ways to cope in the work environment, and to develop a sense of community among these employees.

Hang posters in public places such as the company bulletin board, lunch room, or wherever all staff congregate which proclaim that lesbians and gays are welcome in the organization.

Make disciplinary measures as a result of harassment a publicly known phenomenon. This will show that the company is serious about equal opportunity.

Include lesbians and gays in all areas of policy making concerning equal opportunity.

In the USA an annual "coming out day?has been highly successful in both encouraging people to come out of the closet, and sending the message to both lesbian and gay and non-gay employees that no one will be discriminated against. The possibility of encouraging such events should be considered.

III. Conclusion

Discrimination based on sexuality has been ongoing for thousands of years and it will take a major ongoing effort to educate the public in order to change behaviour. The present Code of Practice is marginally better than doing nothing at all, but is unlikely to make a significant difference to the extend of prejudice, discrimination and harassment.

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1997 (c) Hong Kong Human Rights Monitor