HK worker of African descent says he faced less favourable treatment than Chinese colleagues
A District Court in Hong Kong recently dealt with an employment discrimination case examining how anti-discrimination laws apply in workplace practices.
The ruling addressed the responsibilities of employers to implement fair policies that prevent discriminatory outcomes.
The worker, a sales representative of African descent, claimed he experienced less favourable treatment compared to his Chinese colleagues during his employment from 2018 to 2020.
His allegations focused on exclusion from meetings, reassignment to less desirable sales territories, and inconsistent performance evaluations.
The employer denied these allegations, arguing that any differences in treatment stemmed from legitimate business decisions based on performance concerns. The District Court examined whether the documented differences could be justified by non-discriminatory reasons under the Race Discrimination Ordinance.
The worker joined the company as a sales representative selling office equipment to Hong Kong businesses in early 2018. Court documents showed he initially performed well, consistently meeting or exceeding sales targets during his first six months.
The working relationship deteriorated in late 2018 after a restructuring that brought in a new senior sales manager as his direct supervisor. Evidence presented to the court included emails the worker sent to both his new manager and the human resources department expressing concerns about differential treatment.
The court heard that the worker had attempted to resolve these issues through internal channels before filing his claim under the Race Discrimination Ordinance, which prohibits race-based discrimination in employment contexts in Hong Kong.
A key aspect of the case involved the worker's exclusion from team meetings. Attendance records from January to June 2019 confirmed he had not been invited to four strategy meetings attended by other sales representatives with comparable responsibilities.
When questioned about these omissions during the hearing, the department head stated: "[The worker] wasn't invited to these meetings because they were specialised sessions for representatives handling our technology sector clients. [The worker] was assigned to our retail sector at that time."
However, the court found this explanation inconsistent with other evidence showing that two Chinese colleagues also assigned to the retail sector had been invited to these same meetings. This discrepancy became a significant factor in the court's assessment of potential discriminatory treatment.
The allocation of sales territories formed another important element of the case. Documentation showed that in March 2019, the worker's territory was changed from the central business district to an outlying area with historically lower sales potential.
The human resources director testified that territory assignments followed a rotation system designed to give all sales staff diverse client experience. The worker challenged this explanation by presenting company records showing several Chinese colleagues had remained in high-performing territories for extended periods without rotation.
The court also examined the worker's performance evaluations. His December 2018 annual review rated him as "meeting expectations" with positive comments about customer relationships.
By contrast, his July 2019 mid-year review, conducted by his new supervisor, rated him as "below expectations" despite sales figures comparable to colleagues who received better ratings.
The worker argued that the significant shift in his evaluation coincided with the change in supervision rather than reflecting genuine performance issues. Company records confirmed his sales had declined by approximately 15 percent but remained within the average range for his team during that period.
In the written decision, the court noted: "The performance evaluation process must be applied consistently across all employees. When significant discrepancies appear in how similar performance is rated among different employees, this raises questions about the objectivity of the evaluation process."
The company presented several customer complaints allegedly filed against the worker during this period as justification for the lower ratings.
However, the worker testified he had never been shown these complaints during his employment, despite company policy requiring that all customer feedback be reviewed with the relevant sales representative.
After assessing all evidence, the District Court determined that several incidents formed a pattern of less favourable treatment that the employer could not adequately justify through non-discriminatory explanations.
The judge stated in the written decision: "[The worker] has established several instances where he was treated less favourably than colleagues in comparable situations. The burden then shifts to [the employer] to provide a non-discriminatory explanation for this differential treatment, which they have failed to do in at least three significant instances."
The court found particularly unconvincing the employer's explanations regarding the worker's exclusion from meetings: "[The employer's] justification for why [the worker] was excluded from strategic meetings while similarly situated colleagues were included lacks credibility when examined against the documentary evidence."
The District Court ruled in favour of the worker on the claim of racial discrimination, awarding HK$150,000 in damages for injury to feelings and HK$45,000 for lost earnings resulting from the discriminatory treatment.
In the judgment, the court concluded: "When viewed collectively, the evidence suggests that [the worker] was subjected to treatment that differed from that of his colleagues in ways that cannot be explained by performance or business necessity. This differential treatment occurred within a context where [the worker] was visibly different from the majority of staff, and no adequate non-discriminatory explanation has been provided."
The ruling emphasised employers' responsibilities regarding anti-discrimination policies: "[Employers] must ensure that workplace policies are not just documented but are applied consistently to all employees regardless of their racial background. The evidence in this case shows that while [the employer] had anti-discrimination policies on paper, their implementation fell short in practice."
The court ordered the employer to implement mandatory anti-discrimination training for all managers and supervisors within six months, noting:
"This case demonstrates that discriminatory treatment need not be overt or intentional to be unlawful. Inconsistent application of policies and procedures can result in discriminatory outcomes even in the absence of explicit bias."
