Issues Regarding Equal Opportunity 平等機會事宜

Legislation Addressing Discrimination 針對歧視的法例

Hong Kong has four anti-discrimination ordinances: the Sex Discrimination Ordinance (Cap. 480), covering sex, marital status, pregnancy and breastfeeding; the Disability Discrimination Ordinance (Cap. 487); the Family Status Discrimination Ordinance (Cap. 527), protecting people responsible for caring for an immediate family member; and the Race Discrimination Ordinance (Cap. 602), covering race, colour, descent and national or ethnic origin. Age is not a characteristic protected by these four ordinances.

The prohibited conduct includes direct discrimination (less favourable treatment because of a protected characteristic), indirect discrimination (applying the same condition or requirement to everyone where a considerably smaller proportion of one group can meet it and the requirement cannot be justified), harassment, and victimisation (treating someone unfavourably because they have complained or helped with a complaint).

The ordinances apply to the provision of goods, facilities and services, which includes insurance. They also apply to employment, so insurers and intermediary firms must comply when recruiting and managing staff and agents. Disability is defined widely: it covers a disability that exists now, existed in the past, may exist in the future or is imputed to a person. Discriminating against someone because an associate, such as their child, has a disability is also unlawful.

The Equal Opportunities Commission (EOC) enforces the ordinances. It handles complaints, investigates, attempts conciliation and issues codes of practice. A person who has been discriminated against may also bring civil proceedings in the District Court for remedies such as damages.

‘Fair’ Discrimination in Insurance 保險中的「公平」歧視

Underwriting is itself a form of differentiation. To charge an equitable premium, an insurer must group people of similar risk together and price each group according to its risk, so that low-risk policyholders do not subsidise high-risk ones. Differentiation supported by evidence in this way is called 'fair' discrimination.

Both the Sex Discrimination Ordinance and the Disability Discrimination Ordinance contain an insurance exception. Different treatment is not unlawful if it is based on actuarial or statistical data from a source on which it is reasonable to rely, and is reasonable having regard to that data and other relevant factors. For disability, where no such data is available, the different treatment must still be reasonable having regard to other relevant factors, such as medical opinion.

Typical examples are annuity and life rates that differ for men and women according to reliable mortality tables, or an insurer adding an extra premium or an exclusion for a medical condition on the strength of a medical report. The key is that the decision rests on objective evidence and on an individual assessment of the applicant's actual circumstances.

Unfair Discrimination in Insurance 保險中的不公平歧視

Unfair discrimination means refusing cover, charging a higher premium, imposing worse terms or giving a poorer service because of a protected characteristic, without reliable data or a reasonable justification. Such conduct falls outside the insurance exceptions and may breach the anti-discrimination ordinances.

Common examples include refusing all wheelchair users as a blanket rule without assessing individual risk; relying on outdated data or stereotypes, such as rejecting someone who recovered from depression years ago without looking at current medical evidence; charging a higher premium because of an applicant's race or colour; and refusing cover because the applicant cares for an elderly parent or has a child with a disability.

It is also unfair to charge different premiums or impose different terms on people who fall within the same risk class, because this breaks the principle of the equitable premium.

Insurers and intermediaries should assess each case individually on objective evidence, keep a record of the reasons for each decision, and explain the reasons clearly to the customer when cover is declined or loaded. An insurer or employer may also be legally liable for discriminatory acts that its agents or employees carry out in the course of their duties.