The Cantonese slang "gweilo", which translates to "white devil" or "white ghost", has been widely used in Hong Kong to describe (generally) a foreigner. In the recent case of Francis William Haden v Leighton Contractors (Asia) Limited, the Hong Kong District Court considered (among other things) whether the use of the expression "gweilo" and "foreigner" at work was race discrimination, and if the employee's race was the reason for the termination of his employment with the respondent company.
Background
The employee commenced employment with the employer in June 2010. In August 2016, the employee was assigned to work as the Blasting Team Leader on a project where the contractor was a joint venture (the JV) between his employer and a joint venture partner.
On 28 February 2017, the employer terminated the employee's employment because he had difficulties communicating and working with others as a team. The employee claimed he was terminated, not for poor performance, but for being culturally and racially different that the rest of the surface blasting team members refused to communicate with him. He claimed this happened against the backdrop of racial hostility where racially and culturally inappropriate words, such as "gweilo" and "foreigner", were used at the workplace.
The Legal Principles
The test for direct race discrimination involves considering two questions, namely:
- Comparator Question: Whether the respondent had treated the claimant less favourably than it treated/or would treat others in the same/or not materially different circumstances, and
- Causation Question: Whether the less favourable treatment was on the ground of the claimant's race.
On the Comparator Question, the Court said that in some cases, it may be appropriate to focus on why the claimant was treated the way he/she was treated, which will avoid having to identify a particular comparator. If the facts point to the claimant being treated on the ground of race, there will usually be no difficulty in deciding whether the treatment afforded to the claimant on the ground of race was less favourable than was or would have been afforded to others.
On the Causation Question, the Court said it will look for the real and effective cause of the act complained of. The race of the claimant must be a real cause of the act, which is more than just being a background event, although it need not be the only or predominant cause.
The Court recognised that it may be difficult for a claimant to prove race discrimination because discrimination is usually not overt, and so the claimant will have to rely predominantly on the drawing of inferences. Once the claimant establishes facts that point to the possibility of racial discrimination, the Court will look to the employer for an explanation. If no explanation is provided or if it is inadequate or unsatisfactory, then the Court may infer that the discrimination was on racial grounds.
The Court's Key Findings
The Court found on the evidence that although the employee was very competent and good at his job, he had demonstrated difficulty maintaining good working relationships with his colleagues and others, which led to strained relationships, especially with the members of the blasting team.
The employee asked the Court to infer race discrimination by relying on a number of incidents to illustrate that he had been bypassed and his function as the Blasting Team Leader was usurped. The employee complained that, among other things, there was a reluctance on the part of the JV to hire non-Chinese Blasting Engineers and that he had been excluded from certain meetings and emails. However, the Court was unconvinced that these incidents could be linked to the employer's decision to terminate his employment.
The employee claimed that the term "gweilo" was frequently used during discussions between the Chinese employees, which showed racial hostility in the work context. The Court held:
- One must consider the context in which the term "gweilo" is used. The Court was unable to find that this term, even if it was used in a workplace, would necessarily carry the derogatory meaning claimed by the employee.
- It was unclear from the employee's pleaded case as to the context in which the term "gweilo" was used. The employee had overheard other people using this term and they were (apparently) not talking to him. By merely saying that he was "one of the few non-Chinese present on the Project", without more, is not enough to prove that he was indeed the subject matter of those conversations.
- The employee had claimed that the use of the word "gweilo" in the manner it was made him feel like an outsider. However, the employee did not say what "manner" he was referring to, and the Court found he had either misunderstood the real meaning of the term or he had exaggerated his bad feelings.
- Of the statement made that "I see you got rid of the gweilo", the word gweilo in this context was just used to describe that particular foreigner who had left the project.
- Of the alleged statement made of "why so many gweilos are working on the project", the Court said this was hearsay and it was not prepared to make any findings that there was a hostile and discriminatory working environment against non-Chinese employees on this basis.
- Of the statement made to another employee that he did not have a future in the project because he did not speak Chinese, this is related to that other employee's linguistic ability rather than race and so there was nothing in such complaint.
- Of the reference to a third person as "foreigner" in an email, the Court was not prepared to find that there was racial hostility on the back of the use of the word "foreigner" in one email.
In conclusion, the Court found that the employee failed to prove that there was a background of racial hostility in the project he was involved in.
The Court's Decision
Based on the factual findings, the Court held that the real and effective cause of the employee's termination was due to his poor working relationship with others and his failure to work with others as a team, and not because of his race. In the circumstances, the Court took the view that a hypothetical comparator (i.e. a Chinese Blasting Team Leader who has the same problems as the employee) would equally be dismissed by the employer. The employee's race discrimination claim against the employer was dismissed.
Takeaways for Employers
This case provides important lessons and reminders for employers.
- The use of the Cantonese slang "gweilo" at a workplace may not necessarily be discriminatory, but it can be depending on the context. A court can infer race discrimination based on the facts. To reduce the possibility of an adverse inference being drawn, the expression should be avoided in the workplace. An employer can help achieve this by increasing awareness, having an appropriately worded anti-discrimination policy and training (and refresher training).
- When looking to terminate the employment of an employee, proactively consider whether there may be any facts or circumstances from which an inference of unlawful discrimination may be made on the ground of race or indeed any of the other protected attributes such as sex, pregnancy, marital status, breastfeeding, disability and family status. If on the facts it may be open to make such an inference, then proactively establish and document the legitimate grounds for termination (e.g., completing a performance improvement plan or disciplinary process, document performance issues and breaches of contract, etc.)
The judgment is available at the following link:
https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2018/DCEO000016A_2018.doc
