INTRODUCTION

In my current job, I am often asked how the Equal Opportunities Commission (EOC) resolves discrimination cases. Because the EOC administers three anti-discrimination laws, and because we have recently won a few landmark cases in courts, we are sometimes perceived to be some sort of prosecution agency. This is far from true and I am very pleased to have an opportunity tonight to talk about the main dispute resolution mechanism that is used by the EOC.

EQUAL OPPORTUNITIES COMMISSION

By way of background, legislation against discrimination in Hong Kong has been in effect since 1996. The three anti-discrimination laws currently enforced are the Sex Discrimination Ordinance, the Disability Discrimination Ordinance and the Family Status Discrimination Ordinance. Under these ordinances, discrimination on grounds of sex, pregnancy, marital status, disability and family status are unlawful in the fields of employment, education, provision of goods, services and facilities, clubs and activities of government.

Established in 1996, the EOC is a statutory body to administer the three ordinances and to eliminate discrimination. Our work is based on a belief that everyone should have the right and fair chance to participate in the social, political and cultural life of Hong Kong. In real terms, everyone should have equal access to education, employment, services and facilities.

THE CONCILIATION ROLE

One of the EOC's main functions is to investigate cases of discrimination brought under three anti-discrimination ordinances and to resolve disputes between parties through conciliation. Conciliation, as an alternative to formal legal procedures, is not a novel invention. It has been used widely in some parts of the world, such as the U.S. and Australia, and is beginning to gain popularity in Asia.

When a person lodges a complaint with the EOC, we are required by law to conduct an investigation into the complaint and endeavour to settle it by conciliation. If conciliation is not successful, the applicant may then apply to the EOC for legal assistance to file a civil suit in the District Court. Our litigation is conducted on a strictly strategic basis and applicants for legal assistance need to satisfy a range of criteria.

It should be made clear here that a person may file a civil suit in the District Court independently without needing to come to the EOC first or at all. And even if our assistance is sought, a person does not waive the right to file his/her own civil suit unless the dispute has been successfully settled by the EOC.

I will talk about the litigation process later but I would like to focus on the conciliation role of the EOC first.

ADVANTAGES OF CONCILIATION

Why conciliation, you may ask, and why is it built into the legislation? Some of the advantages of this process are obvious. For a start, it is less time consuming and expensive than going to court. On average, a claimant can expect to wait up to 18 months, or even longer, for a court hearing. In contrast, conciliation can be organised within weeks, or even days, with the consent of the parties.

The ultimate authority in conciliation belongs to the participants themselves. Unlike the legal process, the emphasis is not on who is right or wrong, or who wins and who loses, but rather on establishing a workable solution that meets the participants' unique needs. It tends to diffuse hostility and, since a consensual agreement reached through conciliation reflects the participants' own preferences, it will be more acceptable in the long run than one imposed by a court. In the process of conciliation, participants formulate their own agreement and make an emotional investment in its success.

Since the EOC began taking complaint cases in September 1996, we have so far endeavoured to conciliate a total of 860 cases of which 543 cases, or 63\\%, had been successfully conciliated. The terms of settlement for our cases depend on the circumstances of the dispute. Sometimes it is a reversal of the situation that led to the complaint, such as reinstatement. Sometimes financial compensation is involved. Other solutions have included implementation of equal opportunities policies, training or a letter of apology. Policy changes and training transcend the individual level and produce more lasting effect. While there is no direct economic value attached to an apology, it in fact has an important social value: it repairs a relationship and heals a rift. When people's feelings are injured, they may not necessarily look for financial penalty. What they want is a solution that can redress the wrongdoing and heal the wound. Conciliation as a form of alternative dispute resolution process is based on the notion of "restorative justice" and has a high restorative value.

RESTORATIVE JUSTICE

Dr. Dennis Wong of the City University of Hong Kong has been advocating the use of "restorative justice" as distinct from "retributive justice" in treating youth delinquency. He believes "restorative justice" is compatible with Chinese culture, which emphasizes collective values and the restoration of harmony. I believe "restorative justice" can also be used in dealing with discrimination cases. Respect for each other represents the collective value of a community and an equal opportunities law is equivalent to a social contract made between the individuals in the community for harmony and social order.

So what is restorative justice? In situations where there is a victim-offender relationship, it means that the justice process works toward restoring victims, empowering them and responding to their needs, as well as supporting offenders and encouraging them to understand, accept and carry out their obligations. It provides opportunities for dialogue between victim and offender.

The victim has the opportunity to confront the offender with the real human impact of the offence, and the opportunity to ask for and receive an apology. The offender gets the opportunity to truly understand the real human consequences of the offence and the opportunity to offer an explanation or an apology. The process perhaps could be likened to a child who has misbehaved and made a neighbour's child cry. It helps if the mother of the naughty child drags the child, by the ear if need be, to say sorry to the hurt child. That way the children and the parents can probably remain friends while the naughty child learns about shame and hurt, and the hurt child about forgiveness and giving someone another chance.

Sometimes, the process of conciliation requires creativity as well. I would like to share with you the "basket of fruit" story. It concerns an employment dispute handled by the EOC where the employer and the employee came to a deadlock during the conciliation process. This took place close to the Mid-autumn Festival. Inspired by the occasion, our conciliator suggested to the employer, "Why don't you send your employee a fruit basket? It will show that you value his contribution to the company and you really want to mend the relationship." The employer agreed and a fruit basket was duly sent to the employee. The fruit basket was perceived by the employee as a gesture of respect for him, a gift that employers usually reserve for valued customers. The employee was impressed and a deal was struck.

There are times when the fruit basket theory does not work and the victim goes through litigation and asks for punitive damages. The human and economic cost escalates in these circumstances and the social objective behind redress mechanisms, which is to restore social order and repair human relationships, diminishes.

Restorative justice is particularly suited to neighbourhood conflicts. In a Romeo and Juliet scenario or where there is structured race tension, there is no winner. Reparation using restorative justice is preferable.

I am conscious that I have so far not made any negative comment about conciliation. It is not my intention to leave you with the impression that we have a perfect mechanism for resolving discrimination disputes. The use of conciliation in discrimination cases is not without its controversies and current debates are far from settled. Some advocates argue that conciliation is too individualised and does not address systemic discrimination; or that settled cases have limited societal value because they are unable to effect social change that benefits the wider community. Others are concerned that the balance of power could sway against the complainant, making it difficult for him/her to assert their wishes.

These are all valid concerns and we share them. It is a matter of sensitivity and technique to build in devices in the conciliation process that are capable of addressing the flaws in the system.

For instance, the Disability Discrimination Ordinance and its Rules prescribe that representative complaints can be made. This covers situations where the aggrieved persons regard themselves as being in a position of relative weakness or where the aggrieved persons have disabilities which require the assistance of another.

THE LITIGATION ROLE

I now turn to EOC's litigation role. Deep seated prejudices and entrenched practices will not change overnight and sometimes the force of the law has to be called upon to start the process of change. For instance, people quickly learned to stop jay walking and spitting in public when they were fined. Similarly, a court order as a final resort must be relied upon to secure protection for the aggrieved person as well as to compel change. The threat of litigation also serves as a stick that makes the conciliation process more effective.

The EOC may provide litigation support where, for instance, the case raises a question of principle, where it relates to a matter of public interest, where a precedent or a clarification of the law through interpretation by court is required or where the case is complex.

This strategic litigation role has been used successfully in a number of cases.

The EOC has provided litigation support to three aggrieved persons in their court actions against the Fire Services and Customs for their refusal to employ them on the ground that they each had a relative with mental illness. Other than this association with relatives, the three aggrieved persons were fit for employment. The criterion for rejection was so entrenched in the system that the departments refused to change their position without the compulsion of law.

Similarly in the case of the Secondary School Places Allocation System, the EOC had to take the Education Department to court to declare the allocation system to be discriminatory. The system had been in use for over 20 years and 70-80,000 boys and girls are placed in high school each year using this system.

These two cases challenged government policies and practices and have wide impact. It would have been difficult to get government to change in these cases without calling in aid the process of the law.

A third case that attracted a great deal of attention concerns pregnancy discrimination in the private sector. The court ruled in that case that there was discrimination on the ground of pregnancy as well as victimisation of the aggrieved person after a complaint was lodged with the EOC. Further, the court concluded that the circumstances surrounding the resignation of the aggrieved person amounted to constructive dismissal and that the employer was vicariously liable for the acts of its employees. This is the first pregnancy discrimination case. The EOC receives many pregnancy related complaints.

Each of these cases sent out a strong and unambiguous message to the public and has strong education value.

THE FORMAL INVESTIGATION ROLE

Another significant aspect of the work of the EOC is to undertake formal investigation into systemic discrimination. We can make recommendations to rectify the situation and develop position papers to heighten public awareness. System and policy change has a wider impact and can benefit a greater number of people. In the context of the government it is also a system of accountability and good practice.

The EOC's formal investigation into the Education Department's Secondary School Places Allocation System found that the system discriminates on the ground of sex and potentially affects both sexes, but more girls are adversely affected than boys. This report laid the foundation for the subsequent court action discussed earlier.

CONCLUSION

Finally, I would like to say that all these mechanisms have been designed both to enhance awareness and to provide redress. The role of the law is to provide a level playing field for individuals, to redress wrongs and to act as an agent for change.

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