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Discrimination


Article contributed by
special arrange with the
Equal Opportunities Commission

Medically unfit for employment?


Paul successfully applied for the job of "workman" but was later refused employment by the company on the grounds of his disability.

"After months of unemployment, I was so happy to learn that I was accepted by a large organization and given the position of "workman". I was asked to undergo a pre-employment medical examination. But things changed when I received the examination results," Paul related.

"The personnel department informed me that I was medically unfit for the post and they had to withdraw the employment offer. Frustrated and upset, I consulted my private doctor and was told that I had thalassemia trait. But the doctor said that I was physically fit and could lead a normal life. He advised that with regular exercise, I should be able to fulfill the responsibilities of the position. I believed I had been discriminated against because of my illness. Therefore, I lodged a complaint with the Equal Opportunities Commission (EOC)."

EOC investigators looked into the complaint and sought information from the employer. According to the employer, the complainant was rejected on medical grounds as he was diagnosed anemic. The company's in-house doctor produced a report stating that Paul's condition could lead to fatigue, liver damage and an enlarged spleen. Paul would not be able to perform the inherent requirements of the job, which required a great deal of physical labor. As a workman he would work in a maintenance depot where there was no air-conditioning and the work would involve moving and lifting extremely heavy objects.

The EOC sought advice from an external medical panel to see whether the company's in-house doctor had given a fair assessment, taking into account the job duties of a"workman". The panel pointed out that there was insufficient evidence to conclude that the complainant was anemic. Conditions such as tiring easily as described by the in-house doctor were not unique to people with thalassemia trait. The clinical report showed no evidence of either liver damage or an enlarged spleen. One of the inherent requirements of the job, namely, to lift extremely heavy objects, also seemed doubtful as lifting is usually done by equipment.

The EOC passed on the advice of the medical panel to the employer and suggested that they should reconsider. Shortly afterwards, a conciliation meeting was held and the employer agreed to offer the job to the complainant.

Good management practice: Can you refuse to employ someone because of disability?

Under the Disability Discrimination Ordinance (DDO), it is unlawful to discriminate against a person with a disability by refusing or deliberately omitting to offer that person employment unless the absence of disability is a genuine occupational qualification of the job or the person with the disability would be unable to carry out the inherent requirements of the job.

Q & A about the Disability Discrimination Ordinance

Q1 As an employer, can I ask prospective employees to attend pre-employment medical check-ups?
A1 A1: Pre-employment medical examination is not prohibited under the DDO but the results of these tests should not be used for the purpose of discriminating against prospective employees. Thus it is recommended the tests be relevant to assessing whether an applicant is able to perform the inherent requirements of the job.

Q2 I feel I have been discriminated against because of my disability when applying for a job. But, I'm afraid if I go to the EOC with my complaint, the company may give me the job but make my life difficult later. Does that ever happen in cases you deal with?
A2 Generally this does not happen. The EOC is bound by law to settle disputes through conciliation. This is a voluntary process in which conflicting parties work out a settlement through a conciliator, an EOC officer. The role of the conciliator is to assist both parties in examining the issues that have led to the complaint, identify any points of agreement and reach a solution in an attempt to resolve the complaint. Thus, should you lodge a complaint with the EOC, the disagreement should be resolved amicably and no hostility should result between you and your employer. If any hostility does result, you have the right to complain of victimization.

This is because the law protects complainants against being victimized. This means if you make a complaint of discrimination under the DDO against your employer, he or she is not allowed to treat you less favorably. If he or she treats you less favorably, or is hostile towards you, this could amount to victimization and you can lodge another complaint with the EOC.

   
 
Source : Equal Opportunities Commission


Taken from Career Times 09 August 2002

(Last review date: 23 August 2013)


Disclaimer: The opinions expressed in this article are those of the contributor.

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