Important points for making discrimination claims highlighted in a recent District Court case by a former student against a local university15Feb2022
The Claimant in the case of C v The Chinese University of Hong Kong  HKDC 77 is a former postgraduate student in the Chinese University (the “University”) who was suffering from depression and generalized anxiety disorder during her studies.
The Claimant’s studies were later compulsorily terminated by the University. Her main allegations were that the University had directly and/ or indirectly discriminated against her on the ground of her disabilities and had victimized her.
Simultaneous claim of direct and indirect discrimination
Having referred to the overseas and local authorities, the Court stated that:-
- a case cited by the Claimant is not supportive of the proposition that a single act can simultaneously amount to both direct and indirect discrimination and remarked that “they are still different kinds of discrimination”;
- at the same time, the Defendant’s authorities do not support “the proposition that one cannot make claims of both direct and indirect discrimination in an action”, but merely held that the material facts for the two types of discrimination should be “separately pleaded, proved and ruled upon”; and
- as the factual allegations in support of the direct and indirection discrimination are not identical, the Claimant could succeed in both claims in a single action, if she could prove the material facts necessary for both and “[there] is nothing conceptually wrong or objectionable for a claimant to make both claims in an action”.
The above views seem consistent with both local and UK caselaw, which tends to show that direct and indirect discrimination are mutually exclusive to each other. Still, a claimant can run both claims together or as alternatives in an action (as it is often the case).
In summary, direct discrimination is treating a protected person less favourably because of, and on the grounds of a protected characteristic (such as race, gender, pregnancy, disability etc.), whereas indirect discrimination has no element or requirement for an intention to discriminate on those grounds, but arises where conditions and qualifications are attached which have the indirect effect of discriminating against persons or groups of persons with protected characteristics, which are not commercially justifiable.
Approach to comparator question and causation question
The parties also disputed the proper approach to be adopted for the ‘comparator’ and ‘causation’ questions, which were identified by the Court of Appeal in the case of M v Secretary for Justice  2 HKLRD 298 as being that:-
“s. 6(a) and s.8 [the relevant sections of the Disability Discrimination Ordinance] require the court to compare the treatment of the complainant with the treatment of a suitable comparator (the comparator question) and in the event that less favourable treatment is established the court should decide whether the less favourable treatment was given “on the ground” of the complainant’s disability (the causation question)”
The Court adopted as correct the 4-step approach in the Court of Final Appeal case of Leung Kwok Hung (Long Hair) v Commissioner of Correctional Services (2020) 23 HKCFAR 45, which was:-
- “There must be a difference in treatment between one person, the complainant and another person, real or hypothetical, from a different group, the compared person.
- The relevant circumstances between the complainant and the compared person are the same or at least not materially different.
- It must then be shown that the treatment given to the complainant is less favourable than that given to the compared person.
- The difference in treatment is on the basis of disabilities.”
Having regard to the facts the Court agreed that the comparator question and the causation question are intertwined and serve a similar underlying purpose. Ultimately the more appropriate question to address is the issue of why the Claimant was treated in the way she was.
Court’s assessment of the claims
In short, the Court dismissed the Claimant’s direct discrimination claim for evidential reasons.
- The Court noted the University’s letter terminating her studies which contained the express and unequivocal reference to the Claimant’s medical history.
- However, on a fair and objective reading of the termination letter, the Court considered that the real and sole reason was the University assessment that the Claimant could not complete the outstanding assignments by the new proposed deadline.
- As such, the Count determined that the University was merely highlighting that the pressure to complete the assignments in that short time period would also be particularly hurtful to her given her mental health condition by stating what was obvious and a matter of common sense when referring to the Claimant’s medical history.
In respect of the Claimant’s indirect discrimination claim, the Claimant failed to convince the Court that, in the absence of statistical evidence, the proportion of students with a disability who could complete their studies within the specified maximum time, and meet that condition/requirement, is considerably smaller than the proportion of persons without disability.
It is interesting to also note that the Court simply proceeded to dismiss the Claimant’s victimization claim after concluding that her direct and indirect discrimination claims are unsustainable.
Although the Court ultimately dismissed the Claimant’s claims mostly due to factual reasons, the judgment highlighted some important points for making a discrimination claim.
- A claimant should be clear as to whether the claim is pleaded as direct or indirect discrimination or both in the alternative of each other, and if so plead the relevant and separate facts supporting each as a separate cause of action.
- The claimant should also endeavor to keep the legal arguments succinct to address the underlying reason(s) for his or her differential treatment by the defendant rather than being overly focused in proving that he/ she has overcome each of the 4-step approach established in Leung case.
Where appropriate, a complainant/ claimant to seek legal advice to help clearly formulate his/ her discrimination allegations at an early stage to minimize the risk of attracting legal or academic challenges by the other side.
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.
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Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.