Procedures for Handling Discrimination Complaints

1. The University is committed to fostering academic excellence in an atmosphere of openness, respect, empathy and inclusivity. The University celebrates the differences of its community members, as well as their common interests, and endeavors to provide all members of the University community the rights for equal access and opportunities in its educational programmes, facilities, activities and employment.
2. The University has a number of policies and formal procedures (e.g. Policy Against Sexual Harassment, Grievance Procedures for University Employees, Procedures for Dealing with Student Complaints, Procedure for Handling Serious Misconduct and Whistleblowing Policy) to address concern of its staff members and students.
3. The Diversity and Inclusion Policy ("the Policy") has been developed to promote a diverse and inclusive environment for staff members and students free from discriminatory acts, prejudice, hatred, intolerance, harassment and bullying. The University will not tolerate any wrongful acts referred to by the Policy. The University will take any and all necessary steps to eliminate and prevent their occurrence on campus.
4. All members of the University have a responsibility to observe and abide by the Policy and follow the Principles of Community outlined in the Policy whether in acts or in speech within the University community and in the course of participating in the university activities.

1. The University has established the Procedures for Handling Discrimination Complaints (“the Procedures”) setting out below the mechanism for dealing with allegations or complaints covered by the Policy and for providing proper redress if and when discrimination, harassment and vilification occur. Other discriminations that are not covered under the anti-discrimination ordinances of Hong Kong (for example, discrimination on the grounds of sexual orientation, gender identity, age, religion, language and socio-economic status) will be handled separately if the nature of such complaints falls under other existing procedures.
2. The Procedures apply to all staff members and students, and those who participate in the activities conducted under the name of the University, such as contract workers, service providers, interns, volunteers and job applicants. The Procedures also apply to all work-related activities including those that take place overseas, outside University or working hours.
3. Generally, the University will not respond to anonymous complaints. However, if the University considers it appropriate, it may review an anonymous complaint and take appropriate actions under these Procedures depending on the seriousness of the allegation. The examination of the anonymous complaints shall be undertaken by the Vice-President (Administration) (VP(A)) and the Convenor of the Panel Against Discrimination and Sexual Harassment (“the Panel Convenor”).

1. Staff members or students who feel that they have been subject to discrimination, harassment and vilification should act promptly. Correcting the situation immediately is in everyone's best interests. Ignoring the concerns may make the situation worse because the parties concerned may misinterpret a lack of response as approval or condonation of the behaviour. Delay in making a complaint may cause difficulty for the University in conducting a thorough investigation and collecting evidence. All relevant parties are expected to take all reasonable steps to comply with the prescribed time limits. However, the Panel Convenor may extend the time limits specified on reasonable grounds and may consider a complaint which is out of time if the Panel Convenor considers that it is fair to do so.
2. Under the Policy, any staff member or student has the right to make a complaint about discrimination, harassment or vilification which is unlawful under the anti-discrimination laws in Hong Kong. The University has zero tolerance for any infringement and will handle each complaint fairly and expeditiously in strict confidence.
3. No staff member or student of the University shall be subject to victimization or reprisal for initiating a good faith complaint or for providing information in the complaint investigation process. However, the University reserves the right to take disciplinary action against any staff member or student making a false or malicious complaint or intentionally providing false information in any complaint or investigation process.
4. Every reasonable effort shall be made to ensure confidentiality and to protect the privacy of all parties concerned, in accordance with the existing University policies and applicable laws, particularly the Personal Data (Privacy) Ordinance. All complaints will be received and handled in a confidential manner and any information relating to a complaint will only be disclosed to relevant parties on a strict need-to-know basis, particularly as regards the identities of the parties concerned.

5. Discrimination by way of victimization occurs when a person ("the discriminator") treats another person ("the victimized person") less favourably than in those circumstances he or she treats or would treat other persons, and does so by reason that the victimized person or any other person ("the third person") has:

   1. made an allegation or complaint against the discriminator or any other persons under the anti-discrimination ordinances;
   2. brought proceedings against the discriminator or any other persons under the anti-discrimination ordinances;
   3. given evidence or information in connection with proceedings brought by any person against the discriminator or any other persons under the anti-discrimination ordinances;
   4. done anything under or by reference to the anti-discrimination ordinances in relation to the discriminator or any other persons;

   or by reason that the discriminator knows the victimized person or the third person intends to do any of those things, or suspects the victimized person or the third person has done, or intends to do, any of them.

6. Under the above circumstances, the victimized person or the third person may file a complaint on the ground of victimization. If it is demonstrated that an act of victimization has been committed, the University will take actions according to the prevailing disciplinary procedures or other appropriate rules and regulations of the University.
7. The maintenance and retention of records of conciliation and investigation of complaints shall be kept for official record in strict confidence and in compliance with such policies and laws. However, if there is a criminal investigation or criminal proceeding, the University may need to provide the necessary information requested. Records may be made available to the University officials in accordance with and to the extent required by the University rules, regulations or policies or by law.
8. For an allegation that potentially may involve any breach of law, the University has the right to refer the case to the relevant law enforcement agencies for handling. In the event that the complaint is under criminal investigation by a law enforcement agency or is the subject of criminal or civil proceedings in court, the University may suspend its process. The University may resume its process if the criminal investigation is abandoned, not proceeded with, discontinued or completed, or following the dropping or completion of criminal or civil proceedings.

1. There are four anti-discrimination ordinances in Hong Kong, namely the Sex Discrimination Ordinance ("SDO"), Disability Discrimination Ordinance ("DDO"), Family Status Discrimination Ordinance ("FSDO") and Race Discrimination Ordinance ("RDO"). Under the anti-discrimination ordinances, it is unlawful to discriminate against a person on the grounds of sex, marital status, pregnancy, breastfeeding, disability, family status and race in the prescribed areas of activities, including employment, education, provision of goods, services and/or facilities, disposal and/or management of premises, and participation in clubs.
    

   a. Sexual Harassment

   The University has a separate set of Policy Against Sexual Harassment to address incidents related to sexual harassment. (Please refer to the relevant section(s) of the Policy Against Sexual Harassment for the definition of "sexual harassment"). Complaints/Incidents related to sexual harassment will be handled according to the Policy Against Sexual Harassment.

   b. Sex/Marital Status/Pregnancy/Breastfeeding Discrimination/Harassment

   1. The SDO prohibits discrimination on the grounds of sex (male/female), marital status (single/married/separated/divorced/widowed), pregnancy (during or after pregnancy) and breastfeeding (a woman who is breastfeeding a child/ a woman who is expressing breast milk/ a woman who feeds a child with her breast milk, but is not doing so at the same time the relevant act of discrimination is committed). There are two kinds of discrimination – direct discrimination and indirect discrimination.
   2. Direct discrimination occurs when a person is treated less favourably than another person of the opposite sex, with a different marital status, who is not pregnant or breastfeeding.
   3. Indirect discrimination occurs when a condition or requirement, which is not justifiable, is applied to everyone but in practice adversely affects persons of a particular sex or marital status, those who are pregnant or breastfeeding.
   4. Breastfeeding harassment means unwelcome conduct towards a breastfeeding woman which makes that woman feel offended, humiliated or intimidated. It also occurs if a person creates a hostile or intimidating environment for that woman.
       

   c. Disability Discrimination, Harassment and Vilification

   1. The DDO protects people with a disability against discrimination, harassment and vilification on the ground of their disability. There are two kinds of discrimination – direct discrimination and indirect discrimination.

      Disability covers different types of disability and includes a disability which presently exists, has existed in the past, may exist in future or is imputed to someone. It covers both the disability of the person concerned as well as of the associates.

   2. Direct discrimination occurs when, on the ground of disability, a person with a disability is treated less favourably than another person without a disability in similar circumstances.
   3. Indirect discrimination occurs when a condition or requirement is applied to everyone, but in practice affects people with a disability more adversely, is to their detriment, and such condition or requirement cannot be justified.
   4. Disability harassment means unwelcome conduct towards a person on account of that person or that person's associates' disability where a reasonable person, having regard to all circumstances, would have anticipated that the person with the disability would be offended, humiliated or intimidated. Examples of "associates" are a spouse or a relative of the person, another person who is in a business, sporting or recreational relationship with the person, and etc.
   5. Disability vilification occurs when someone, by any activity in public, incites hatred towards, serious contempt for, or severe ridicule of a person with a disability or members of a class of persons with a disability. Serious disability vilification is a criminal offence. It means the above-mentioned public activity consists of threatening physical harm, or inciting others to threaten physical harm towards, or towards any premises or property of, the person with a disability or members of a class of persons with a disability.
       

   d. Family Status Discrimination

   1. According to FSDO, family status means that a person has responsibility for the care of an immediate family member. An immediate family member is a person who is related by blood, marriage, adoption or affinity. There are two kinds of discrimination – direct discrimination and indirect discrimination.
   2. Direct discrimination occurs when a person is treated less favourably than another person on the ground of family status.
   3. Indirect discrimination occurs when a condition or requirement, that is not justifiable, is applied to everyone but in practice adversely affects persons who have family status.
       

   e. Race Discrimination, Harassment and Vilification

   1. The RDO protects people against discrimination, harassment and vilification on the ground of race. "Race" means a person's race, colour, descent, national origin or ethnic origin. It covers both the race of the person concerned as well as of the associates. Examples of "associates" are a spouse or a relative of the person, another person who is in a business, sporting or recreational relationship with the person, and etc. There are two kinds of discrimination – direct discrimination and indirect discrimination.
   2. Direct discrimination occurs when a person is treated less favourably than another under comparable circumstances because of that person's or that person's associates' race. Under the RDO, racial segregation is also a form of direct discrimination.
   3. Indirect discrimination occurs when a condition or requirement (rule, policy, practice, criterion or procedure), which cannot be justified on non-racial grounds, is applied equally to people of different races but which has an unfair effect on a particular group because:
      • only a small proportion of people from that racial group can meet that requirement compared to the proportion of people of other racial groups, and/or
      • the condition is to the detriment of the persons of that particular group because they cannot meet it.
   4. Racial harassment means a person engages in an unwelcome, abusive, insulting or offensive behaviour because of another person's or that person's associates' race, which makes that person feel offended, humiliated or intimidated. It also occurs if a person creates a racially hostile environment for another person because of that person's or that person's associates' race.
   5. Racial vilification is an activity in public which incites hatred, serious contempt for, or severe ridicule of a person because of that person's race. Serious racial vilification is a criminal offence. It means the above-mentioned public activity consists of threatening physical harm, or inciting others to threaten physical harm towards, or towards any premises or property of, a person or members of the class of persons because of their race.

2. It should be noted that under the anti-discrimination ordinances, in employment, there are special circumstances when discrimination on prohibited ground(s) would not be unlawful. For example,

   • Genuine occupational qualification under the SDO, DDO and RDO; or
   • Persons with a disability would not be able to carry out the inherent requirements of the job or there will be unjustifiable hardship to accommodate them.

   Further information on these exceptions and the definitions of the unlawful acts under the four anti-discrimination ordinances in Hong Kong can be found on Equal Opportunities Commission's website (www.eoc.org.hk).

1.Informal Resolution

1. Staff members or students who believe that they have been subject to any form of discrimination, harassment or vilification should act promptly. They should approach their immediate supervisor, unit head, departmental administrator or an advisor/resource person for help in achieving an informal resolution of the matter as soon as reasonably practicable.
2. If it is not possible to resolve the matter informally to their satisfaction, the staff members or students concerned may contact the responsible officer at the Diversity and Inclusion Office (DIO), i.e. Committee Secretary (CS) of the Committee Against Discrimination and Sexual Harassment (CADSH), for advice and assistance. The CS of CADSH shall make an initial assessment of the situation, based on the information provided, to determine whether it is a possible discrimination or harassment case. At this stage, the staff members or students concerned do not need to submit a written complaint. A flow chart on handling enquiries and complaints on discrimination, harassment and vilification is at the Attachment.
3. If it is determined that the situation is not a possible discrimination, harassment or vilification case, the case will be dismissed under these Procedures. The CS shall inform the staff or students concerned of the decision and the reason behind. If it is determined that there is a possible discrimination, harassment or vilification case under the scope as set out in paragraph B1, the CS shall inform the staff and students concerned of the available options. If the case is not under the scope of these Procedures, the CS shall, in consultation with the Director of DIO, refer the case to relevant departments/units for handling, depending on categories of the matter. Wherever deemed appropriate, the CS shall act as a coordinator to inform the staff or students concerned of the progress of the case. Requests from staff members or students will normally be handled within 10 working days.
4. For cases to be handled under these Procedures, the CS shall attempt, and if appropriate, to resolve the complaint informally with the consent of the complainant. The CS shall address the complainant's concern, understand the facts and nature of the complaint and offer proper assistance, including counselling to the individual concerned. The CS, where appropriate, shall provide the complainant with information about the Policy and the complaint procedures as well as options for dealing with the complaint and shall communicate with the respondent the allegations made in the complaint and, where appropriate, take appropriate preventive or remedial measures to address the situation.
    

2.1 Lodge a Complaint

Formal Complaint

1. If the informal process of resolving the matter fails, or if the complainant decides not to attempt any informal resolution, the complainant may make a formal complaint by completing a complaint form to the Panel Against Discrimination and Sexual Harassment (PADSH), normally within 6 months from the time the complainant knew or should have known of an alleged act.
2. Upon receipt of a written complaint, the CS shall undertake a preliminary inquiry into the complaint in order to determine whether there is prima facie evidence that any staff member or student may have engaged in discrimination, harassment or vilification. The CS may interview the complainant and the respondent to gather more information, as appropriate.
3. The CS shall submit a written report of the preliminary inquiry to the Panel Convenor for consideration, normally within 4 weeks after receipt of the written complaint.
4. The Panel Convenor may take appropriate actions including:
   1. Referring the complaint to the CS of CADSH for conducting a conciliation with the consent of the parties concerned;
   2. Referring the complaint to PADSH for an investigation;
   3. Referring the matter to a relevant outside body, e.g. a law enforcement agency;
   4. Taking other appropriate actions to resolve the complaint including referring the matter to the relevant authorities for handling in accordance with the existing University policies and procedures (e.g. Procedure for Handling Serious Misconduct, Grievance Procedures for University Employees, Procedures for Dealing with Student Complaints, Policy Against Sexual Harassment, etc.); or
   5. Dismissing the complaint.
       

2.2 Conciliation

1. Conciliation is a voluntary process and will be conducted only where both the complainants and the respondents agree to conciliation. No legal rights or remedies are forfeited by entering into conciliation. If conciliation fails to reach a settlement, the complainants can continue to enforce their rights.
2. The CS or a conciliator acceptable to both parties will normally be appointed to conduct the conciliation. If necessary, a staff member with relevant expertise or background in the field of discrimination, harassment or vilification will be invited to join the CS or the conciliator to assist in the conciliation. The conciliation interviews with the complainant and the respondent will be conducted either together or separately.
3. If a settlement can be reached during the conciliation, the parties may enter into a legally binding agreement to record the terms of settlement. The CS or conciliator will help the parties identify issues, explore possible ways to resolve the dispute, assist the parties in reaching a mutually agreed resolution, and putting an agreement in writing.
4. The conciliation should normally be completed within 30 working days from the date of the first conciliation meeting. The time limit for conciliation may be extended by the Panel Convenor on reasonable grounds and with the agreement of both parties.
5. The CS or conciliator will not monitor the performance of the agreement. It is the responsibility of the parties concerned to abide by the agreement. Either party may take action for a breach of the conciliation agreement by the other party.
6. If either party does not succeed in resolving the situation through conciliation or decides to stop the conciliation, the complainant may pursue the case through formal investigation. The complainant should make a written request for a formal investigation within 30 working days after conciliation has been completed.
    

2.3 Formal Investigation

2.3.1 Investigation

1. Upon receipt of a written request, PADSH will conduct a full and impartial investigation. At least two panelists of different gender shall be appointed by the Panel Convenor to investigate a complaint ("the Investigation Team"). Normally the investigators with appropriate training and relevant expertise or background in the field of discrimination, harassment and vilification will be appointed, and will not be a member of any faculty/department/unit in which either party is concerned. The Investigation Team shall normally be formed within 10 working days of receipt of the written complaint.
2. Persons who have an actual or potential conflict of interest in the complaint shall declare their interest and shall not be involved in related investigation.
3. Under special circumstance as deemed appropriate by the Panel Convenor, a non-staff Council member, an external member or a student representative may be invited to join the Investigation Team to assist in the investigation and secure the confidence of the parties. The CS of CADSH will act as Secretary of the Investigation Team.
4. Either the complainant or the respondent may object to the composition of the Investigation Team. The complainant and the respondent shall submit their grounds for the objection to the Panel Convenor within 5 working days after being notified of the composition of the Investigation Team. The Panel Convenor shall consider the grounds for the objection, and, if it deems appropriate to replace the panelist who is the subject of the objection, shall appoint another panelist to the Investigation Team. Investigation should normally be completed within 80 working days from the date of the set-up of an Investigation Team.
5. In the course of the investigation:
   1. The Panel Convenor will notify the complainant and the respondent that investigation will commence. The respondent will also be given a copy of the complaint letter together with other relevant material the Investigation Team has, and will be provided with an opportunity to respond to the complaint in writing. If the respondent wishes to submit a written statement in response to the allegation(s) made by the complainant, the respondent should submit a written response at least 5 working days before the start of the investigation. A copy of the written response will be provided to the Investigation Team and the complainant.
   2. The Secretary will ascertain that both the complainant and the respondent understand the procedures concerned. The investigation shall be conducted sensitively, fairly and expeditiously, with due attention to natural justice.
   3. The Investigation Team will interview the complainant and the respondent separately. The complainant should normally be interviewed first. If necessary, witnesses and any other parties concerned will also be interviewed individually in conformance with the privacy and confidentiality laws. Documents and/or evidence may be produced and reviewed.
   4. Any individual attending an interview may be accompanied by one person other than a legal representative, subject to the approval of the Investigation Team. A witness in the case is not a suitable accompanying person. Such a request must be submitted in writing in advance and set out the reasons for requesting an accompanying person together with the name and occupation of the individual proposed for the Investigation Team's consideration. The Investigation Team's decision on such a request is final. If the request is granted, the accompanying person will not be entitled to address the Investigation Team and shall sign a declaration form agreeing to keep the interview confidential in compliance with the requirements of the Personal Data (Privacy) Ordinance.
   5. At the conclusion of the investigation, the Investigation Team will submit a written fact-finding report to the Panel Convenor. The fact-finding report will cover the finding of facts and evidence, and a determination as to whether the complaint is established.

2.3.2 Follow-up and Appeal Procedures

1. The Panel Convenor shall review the fact-finding report and notify the complainant and the respondent in writing of the fact-finding report within 15 working days after receipt of the fact-finding report.
2. If the finding of the Investigation Team is that the complaint is established, the respondent will have the right to submit an appeal to the Panel Convenor. If the finding of the Investigation Team is that the complaint is not established, the complainant will have the right to submit an appeal to the Panel Convenor.
3. An appeal will be allowed only where the complainant or the respondent has new evidence and other information and material relevant to the case, or the complainant or the respondent can demonstrate that there is procedural unfairness in handling the complaint.
4. The complainant or the respondent should submit their written appeal to the Panel Convenor via the Secretary of the Investigation Team within 15 working days after being notified of the findings of the fact- finding report.
5. If the appeal is allowed, the Panel Convenor will establish an Ad Hoc Panel consisting of three members of the Panel who have not had any prior involvement in the case. The Ad Hoc Panel shall normally be formed within 10 working days of receipt of the written appeal. The Ad Hoc Panel shall review the fact-finding report, taking into account the written appeal stated in the complainant or the respondent’s grounds of appeal.
6. The Ad Hoc Panel may remit the report to the Investigation Team for clarification or further explanation. The Ad Hoc Panel may meet the complainant, the respondent or the relevant witnesses.
7. The Ad Hoc Panel may uphold, vary or overturn the finding of the Investigation Team. The Ad Hoc Panel’s decision on the facts will be final, and will be reported to the Panel Convenor within 30 working days after receipt of the written appeal from the complainant or the respondent.
8. The Panel Convenor shall submit a final report to the VP(A) within 15 working days after receipt of the decision of the Ad Hoc Panel.
9. If there is a finding of the complaint not established by the Investigation Team (and no appeal is submitted) or by the Ad Hoc Panel, the Panel Convenor shall submit a final report to the VP(A) for consideration.
10. If there is a finding of the complaint established by the Investigation Team (and no appeal is submitted) or by the Ad Hoc Panel, the Panel Convenor shall submit a final report with recommendations on the disposal of the case, e.g. whether or not the University should pursue formal actions against the respondent, to the VP(A) for consideration. A copy of the final report shall be forwarded to the Vice-Chancellor and President (VC) for information.
11. Upon receipt of the final report, the VP(A) shall decide to accept, vary or reject the recommendations in the final report and shall decide what actions, if any, should be taken. The VP(A) shall make a specific decision on the disposal of the case and convey in writing the decision to the complainant and the respondent within one month upon receipt of the final report. The letters issued shall be copied to the VC and the Panel Convenor.
12. The respondent may submit an appeal to the VC on specific decision made by the VP(A) within 15 working days upon being notified of the disposal of the case. The decision of the VC will be made as soon as practicable upon receipt of the appeal from the respondent.
13. The decision of the VC is final and will be conveyed in writing to the complainant and the respondent.
14. Upon the prior approval of the Panel Convenor, the Investigation Team or the Ad Hoc Panel (as the case may be) may, at any stage of the investigation and appeal, vary the Procedures to suit specific circumstances where appropriate.

The internal University complaint handling procedures do not affect a complainant's right to lodge a complaint with the Equal Opportunities Commission (EOC) or file a lawsuit in the District Court of Hong Kong or to make a complaint to the police or other investigating agency. If a complainant would like to lodge a complaint with the EOC, the complainant normally needs to do so within 12 months of the alleged incident. If a complainant decides to take legal proceedings to the District Court of Hong Kong, the complainant needs to do so within 24 months of the alleged incident.

1. If it is determined that a discriminatory act has been committed and the conduct of a staff member or student of the University warrants possible disciplinary action, the University is entitled to invoke relevant disciplinary procedures and take appropriate disciplinary action against the staff member or student concerned.

2. For the avoidance of doubt, the Procedures for Handling Discrimination Complaints carry parallel procedural stages of initial assessment and formal investigation as the other University's formal procedures for handling staff misconduct of specific nature¹ with appropriate actions resulting therefrom including disciplinary action (but other than a proposed termination of appointment) to be effected accordingly. In respect of a proposed termination of appointment under these Procedures, the appointee's appeal, if any, will be handled under the Procedure for Handling Serious Misconduct.

   ¹Apart from the Procedures for Handling Discrimination Complaints, the University has the following formal procedures to handle misconduct of specific nature for which disciplinary proceedings may be warranted:

   • Research misconduct should be handled in accordance with the Policy on Research.
   • Complaints about sexual harassment should be handled in accordance with the Policy Against Sexual Harassment.
   • Serious misconducts that are not covered under other formal procedures should be handled in accordance with the Procedure for Handling Serious Misconduct.

The University will review the procedures periodically and make revisions as and when deemed appropriate and necessary.

The University reserves the right of final interpretation of the procedures.

Flow Chart on Handling Enquiries and Complaints on Discrimination, Harassment and Vilification