A discrimination claim was recently lodged with the District Court in Hong Kong by a British construction worker, against his former employer, after his employment was terminated, alleging he was racially harassed and treated less favourably by his employer and his colleagues because of his race. The allegation was based on various matters, one of which was that he was called “gweilo” (the “Claim”).

At first glance, it may appear that this case arises from the use of a seemingly harmless and common term and frequently used by many people. However this claim raises a long and unsettled debate as to the use of similar slang terms used to refer to different ethnic and racial groups in Hong Kong.

In fact, the legislative council discussed this issue in 1995 while debating a private member’s bill which was ultimately not passed into law. The term “gweilo” was used as an example in the debate at that time to demonstrate how an act could be interpreted as endearing by some, but discriminatory by others. The issue was discussed again at the legislative council during the second reading of the Race Discrimination Bill in 2008 and it was argued that calling someone “ah char” or “ah charn” should be considered as discriminatory behavior.

This may, depending upon context, apply to the use of the term “foreigner” in Hong Kong, to describe persons who are not ethnically Chinese, even though they might have been born here, in a family that has lived in Hong Kong for generations. For that reason, the use of the term and description “foreigner” based purely on a person’s skin colour, rather than being based on them actually being from outside Hong Kong, may have its own overtones of racial discrimination and harassment.

The Race Discrimination Ordinance (“RDO”) in Hong Kong prohibits racial harassment of another person in a situation to which the RDO is applicable and from engaging in unwelcome conduct against another person on the ground of his/ her race. This could constitute unlawful racial harassment under the RDO if a reasonable person could anticipate the other person would be offended, humiliated or intimidated by such conduct. The question relevant to the Claim is, in what scenario would the use of these slang terms about individuals from other ethnic groups, breach the RDO.

A UK case of Evans v Xactly concerned a harassment claim by an employee who was called a “fat ginger pikey” (and other similar names) by his colleagues. Although the Tribunal did consider that the remarks could constitute harassment, it emphasized the importance of having regard to the relevant context in a harassment case. In Evans, the Tribunal found the context to be that the employee was actually an active participant in a culture of name calling and thus he would not have been offended by the remarks used on him.

There can be no hard and fast rule in deciding what slang could be offensive to others and in what situation they could (if at all) be acceptable. Much will depend on the context of the particular situation, the relationship between the persons involved and particularly how the recipient of such remarks may reasonably view and react at the time. Nonetheless, it is safe to say that if these slang terms relating to a person’s race may be indicative of certain bias or prejudice, and their seemingly harmless nature no more than a façade to the real underlying problem of race discrimination.

Russell Bennett / Mark Chiu

The above is not intended to be relied on as legal advice and specific legal advice should be sought at all times in relation to the above.