Hong Kong Ordinances

DISABILITY DISCRIMINATION ORDINANCE - SECT 12

Exception where absence of disability is genuine occupational qualification

(1) In relation to discrimination-

   (a)  section 11(1)(a) or (c) shall not apply to any employment where being
        a person without a disability is a genuine occupational  qualification
        for the job;

   (b)  section 11(2)(a) shall not apply to opportunities for promotion or
        transfer to, or training for, such employment.

(2) Section 11(1)(a) and (c) and (2)(c) shall not apply to an employer who
discriminates against a person with a disability, if taking into account -

   (a)  the person's past training, qualifications and experience relevant to
        the particular employment;

   (b)  where the person is already employed by the employer, the person's
        performance as an employee; and

   (c)  all other relevant factors that it is reasonable to so take into the
        account, the person because of the person's disability-

        (i)    would be unable to carry out the inherent requirements of the
               particular employment; or

        (ii)   would, in order to carry out those requirements, require
               services or facilities that are not required by persons without
               a disability and the provision of which would impose an
               unjustifiable  hardship on the employer.

(3) Being a person without a disability is a genuine occupational 
qualification for a job only where-

   (a)  the essential nature of the job calls for a person without a
        disability for reasons of physiology or, in dramatic performances or
        other entertainment, for reasons of authenticity, so that the
        essential nature of the job would be materially different if carried
        out by a person with a disability;

   (b)  the nature or location of the establishment makes it impracticable for
        the holder of the job to live elsewhere than in premises provided by
        the employer, and the only such premises which are available for
        persons holding that kind of job are lived in, or normally lived in,
        by persons without a disability and, subject to subsection (5), are
        not equipped with accommodation and facilities for persons with a
        disability where the alteration of those premises to be so equipped
        would impose an unjustifiable hardship on the employer; or

   (c)  the job needs to be held by a person without a disability because of
        restrictions imposed by a provision specified in Schedule 3.

(4) Subsection (3) applies where some only of the duties of the job fall
within any paragraph of that subsection as well as where all of them do.

(5) Paragraph (b) of subsection (3) shall not apply in relation to the filling
of a vacancy where the applicant for that vacancy, being a person with a
disability, proposes to the employer that, on appointment to the vacancy, he
will make reasonable alterations to that part of the premises to be occupied
by him as accommodation if-

   (a)  the applicant undertakes to restore the premises to their condition
        before alteration on leaving the premises;

   (b)  in all the circumstances it is likely that the applicant will perform
        the undertaking;

   (c)  in all the circumstances, the action required to restore the premises
        to their condition before alteration is reasonably practicable;

   (d)  the alteration is at that applicant's expense; and

   (e)  the alteration does not involve alteration of other premises occupied
        by any other person.

(6) Paragraph (a), (b) or (c) of subsection (3) shall not apply in relation to
the filling of a vacancy at a time when the employer already has employees
without a disability-

   (a)  who are capable of carrying out the duties falling within that
        paragraph;

   (b)  whom it would be reasonable to employ on those duties; and

   (c)  whose numbers are sufficient to meet the employer's likely
        requirements in respect of those duties without undue inconvenience.
        (Enacted 1995)