1.                             The Equal Opportunities Commission (EOC) was established by statute in May 1996 and is responsible for administering three anti-discrimination laws in Hong Kong: the Sex Discrimination Ordinance (SDO); the Disability Discrimination Ordinance (DDO); and the Family Status Discrimination Ordinance (FSDO). The EOC is fully funded by the Government.

2.                             The EOC is charged with the responsibility of eliminating discrimination on the grounds of sex, marital status, pregnancy, family status and disability, eliminating sexual harassment and disability harassment and vilification, and promoting equality between men and women, between persons with disabilities and without disabilities, and persons with family status and without family status.

3.                             In the year 2000, increases of 37.9% in the complaints caseload and 75% in legal assistance applications were recorded.

4.                             Complaints received under the DDO which require investigation and conciliation increased significantly to 339 in 2000, representing a 76.6% increase over the previous year. Complaints received under the SDO increased to 323 in 2000 representing an increase of 51.6% over the previous year. [1]  

5.                             The overwhelming majority of the complaint cases occur in the area of employment. The increase in complaints relating to dismissal and mental illness [2] under the DDO and relating to pregnancy and sexual harassment under the SDO is significant.

Article 2:              State Parties to take steps to achieve progressively the full realization of the rights recognized in the Covenant

6.                             The EOC notes the concerns expressed by the United Nations Committee on Economic, Social and Cultural Rights [3] (the Committee) that the provisions of the Covenant continue to be excluded from domestic law.

7.                             Whilst persons may invoke the provisions of the SDO, DDO and FSDO where discrimination on the given grounds has occurred, in practice it is difficult for individuals without funds to seek redress. Of the total number of complaints received up to the end of 2000, about 50% have proceeded to conciliation. The success rate of conciliation is approximately 60% to 65%.

8.                             Approximately 33% of complainants whose complaints are not successfully conciliated apply to the EOC for legal assistance. Yet, although the EOC has a wide discretion as to which cases it should assist and the type of assistance it may provide, the EOC is not funded specifically for legal actions and so must use its own monies from its operating budget to strategically assist those cases which have impact on a large number of persons in Hong Kong or which involve questions of principle or questions of law that need to be clarified. Accordingly, a number of meritorious cases cannot be assisted by the EOC and complainants cannot pursue their rights by taking civil action in court.

9.                             Unlike cases taken under the Hong Kong Bill of Rights Ordinance (BORO), where the Legal Aid Department may waive the means test for applicants wishing to bring proceedings under the BORO, the present criteria by which the Legal Aid Department funds civil cases effectively prevent most complainants from obtaining legal aid to seek redress for discriminatory acts committed against them.

10.                        The EOC urges the Government to expand access to legal representation for persons seeking legal redress for unlawful acts of discrimination and to facilitate their access to the courts.

11.                         The EOC also notes that Article 2(2) of the Covenant refers specifically to discrimination on the ground of sex, race, colour, language, religion, political or other opinion, national or social origin, property, birth or other status. There are no domestic laws in Hong Kong dealing with discrimination on the ground of race, ethnicity, national or social origin, nor age or sexual orientation (“other status”).

12.                         The BORO only binds the Government and public authorities in respect of discriminatory acts attributed on the grounds of race, age, sexual orientation and the like. Discriminatory acts of such nature occurring in the private sector or between individuals cannot be redressed legally.

13.                         Although the Government has conducted some surveys on race, age and sexual orientation discrimination, it contends that any discrimination on these grounds is not serious and believes that public attitudes can best be changed through public education. The true nature and extent of the problem cannot be accurately assessed based on these surveys. Perception and experience surveys could provide more valuable assistance. Furthermore, EOC experience in the area of gender and disability discrimination shows that both public education and legislation are required in order to eliminate discrimination.

14.                         The number of complaints and enquiries received by the EOC in respect of discriminatory acts outside its specific remit (e.g. race, age and sexual orientation) has been increasing in the past four years. It is believed that the numbers are far from reflecting the true state of the problem, as people realize that such complaints are outside the EOC's jurisdiction and redress is generally not available. In the year 2000 the enquiries and complaints recorded by the EOC, as compared to the total of the preceding three years, represented a threefold increase in the area of age and a twofold increase in the area of race. [4]

15.                         The EOC believes that the Government should introduce anti-discrimination legislation to cover discrimination on the grounds of race, age and sexual orientation.

16.                         The EOC has received one complaint from the mentally ill regarding the right to see a District Judge or Magistrate under section 31 of the Mental Health Ordinance when a mandatory application for a patient's detention is made. The Ombudsman [5] has found that the general procedures laid down by the Hospital Authority have failed to discharge the legislative intention of the Mental Health Ordinance. The EOC is concerned that the mentally ill are not adequately represented by independent third parties in these situations.

17.                        The EOC recommends that the Government review the need for the mentally ill to be represented by independent third parties when a mandatory application for a person's detention is made.

Article 3:              Equal rights of men and women

18.                         The EOC was not specifically set up to implement the provisions of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). While the EOC, through its promotion of the three ordinances, has played a significant role in fulfilling some of the obligations under the CEDAW, it notes that there is a need to mainstream gender issues in the formulation and implementation of Government policies and programmes. This concept of mainstreaming is new in Hong Kong and sensitivity to it on the part of policy makers needs to be developed.

19.                         In January 2001 the Government set up a Women’s Commission, an advisory body, to further promote the interest and well being of women. The EOC looks forward to collaborating with the Women’s Commission in mainstreaming gender perspectives in policy formulation and service delivery to meet the needs of women.

20.                        However, the EOC also urges the Government to develop gender mainstreaming methodology to more effectively meet the needs of women.

Article 6:              Choice of occupation and labour rights

21.                         In September 2000 judgment was delivered in the District Court in the cases of K & Ors v Secretary for Justice[6], in which the Court found that the recruitment policies of the Fire Services Department and the Customs and Excise Department were unlawfully discriminatory under the DDO because they excluded from employment persons with family members with mental illness.

22.                         Although all three Plaintiffs were young men of excellent health and had passed all the recruitment tests, they were denied employment with these disciplinary services because each one had a parent with schizophrenia. Disability discrimination on the ground of genetic history poses an area of extreme concern for the EOC, and the EOC funded the litigation of these cases on behalf of the Plaintiffs.

23.                         Notwithstanding the decision of the Court in these three cases, the Government is arguing the same points in a fourth case involving a young man who was denied employment with the Police Force because he has a sister with schizophrenia. The EOC is funding this fourth case on behalf of the Plaintiff, and will again need to expend funds for litigation.

24.                        The EOC urges the Government to review all its recruitment policies and comply with all equal opportunities and anti-discrimination legislation to ensure there is no unlawful discrimination.

25.                         The EOC also notes that, in its Concluding Observations, the Committee expressed its concern that the SDO did not protect those individuals whose right to work was violated by inappropriate account being taken of their private sex lives. Similarly, the Committee expressed particular concern about the number of women forced out of the labour market, particularly older women and older workers.

26.                        The EOC reiterates the need of the Government to introduce anti-discrimination legislation to cover discrimination on the grounds of age and sexual orientation.

Article 7:              Right to enjoy just and favourable conditions of work

27.                         The Government in its reply of January 2001 to the Committee on a list of issues identified in the Concluding Observations refers to a feasibility study [7] on equal pay for work of equal value (EPEV) commissioned by the EOC in 1998/99. In the study's report, the authors did not recommend introduction of EPEV legislation in Hong Kong, because they were of the view that the potential benefits were less than the associated cost. Despite their views, they pointed out in the study that the gender earnings differential in monthly wages for 1996 was estimated to be 19% and at least 73.7% (namely 14%) of this differential could not be attributed to any market factor. They went on to provide recommendations on implementation of equal value. The EOC does not accept the authors' position that there should be no legislation, nor is it the EOC's recommendation that there should only be promotion but not coercion.

28.                         In addition to the ICESCR, the Government is also bound by the CEDAW to take action on its own to meet its obligations for the implementation of EPEV. The Government’s position in that matter is that EPEV is implicitly covered by the SDO. However, the EOC feels that this is a precarious route to take and is concerned that there is no specific statutory framework for EPEV.

29.                         In May 2000 the EOC convened a task force to look into the issue of EPEV in the HKSAR. The EOC is of the view that, whether or not statutory backing exists, promotion and implementation of the principle must commence, beginning with the public sector.

30.                        The EOC recommends that active consideration be given by the Government to legislating for equal pay for work of equal value.

31.                         The EOC is also concerned about the exclusion of domestic helpers from the Mandatory Provident Fund Scheme, which came into operation on 1 December 2000. One exemption in the legislation relates to domestic employees, but "domestic employees" is confined only to employees whose contract of employment is wholly or substantially for the provision of domestic services in the residential premises of the employer. [8]   This exemption predominantly applies to women. Chauffeurs, gardeners and the like (who are predominantly male) would therefore seem to be covered by this legislation, but maids, cooks, cleaners (who are predominantly female) would seem to be excluded.

32.                         The EOC continues to be concerned with the imposition of the two-week rule which requires migrant domestic helpers to leave the HKSAR within two weeks of termination of contract or the remainder of the permitted limit of stay, whichever is the shorter. Furthermore, they are not allowed to work if they leave their employment because of abuse and are awaiting legal redress. According to the International Social Service Hong Kong Branch, many are forced to drop their claims for economic reasons.

33.                        The EOC urges the Government to review the two-week rule binding on domestic helpers.

34.            The EOC is concerned that the employment rate of persons with disabilities continues to be low. In a survey commissioned by the EOC, it was found that in 1997 the overall unemployment rate of the respondents ranged between 25% - 50%, depending on the type of disability involved, with the mentally handicapped and mentally ill at the higher end of the spectrum.

35.                         In the year 2000, women’s labour force participation rate was 49% compared with 75% for men. But it is worth noting that women aged 30-39 represented the largest age group to leave the labour force followed by those aged 40-49. The largest age group for men to leave were those aged 60 or above followed by those aged 50-59. These statistics point to the nexus between age and employment. As a consequence of the restructuring of the economy in the HKSAR, many women, in particular older women, now find themselves working in temporary or casual employment due to the lack of education and training.

36.                        The EOC urges the Government to adopt more supportive measures to assist persons with disabilities and older women to enter the job market.

Article 9:              Right to social security

37.                         The EOC notes that, whilst the newly established Mandatory Provident Fund Scheme will provide at least, in part, for the retirement of employed persons, women who are homemakers, the elderly and persons with disabilities do not have similar protection.

38.                        The EOC urges the Government to provide for retirement protection for women who are homemakers, the elderly and persons with disabilities.

Article 10:              Protection of the family

39.                         There has been a dramatic increase in separation and divorce in the HKSAR. By 1999, the estimated divorce rate had grown to 2 in every thousand people (regardless of marital status or age) compared to 0.9 ten years ago. It is notable that single parent families had almost doubled from 13,303 in 1996 to 25,311 in 1999.

40.                         Although no gender breakdown of the heads of these families is available, given the traditional role of women as carers, it is probable that women head the majority of these families. The number of women recipients of Comprehensive Social Security Assistance has risen from 112,000 in 1996 to 188,000 in 1999. These factors have brought about a rise in the number of female heads of households who have less economic resources.

41.                         There is a need to review the definition of a family from the traditional nuclear family to include other types of family for the purpose of service delivery, and to strengthen child care and after school care services for these families.

42.                        The EOC recommends that the Government broaden its definition of a family for its policy planning and service delivery.

43.                         It is also noted that the incidence of domestic violence in the HKSAR has risen [9] . Sensitization of doctors, law enforcers and other professionals involved in responding to the needs of the women subject to domestic violence and co-ordination of the related services are badly needed.

44.                        The EOC recommends that the Government focus on the socio-economic backgrounds of the women who have experienced abuse to identify more effectively preventive and support services required for these women and their children.

Article 11:              Right to an adequate standard of living

45.                         The EOC also notes that the SDO contains an exemption which makes it possible to discriminate between persons of different marital status in respect of the public housing schemes known as the Home Ownership Scheme and the Private Sector Participation Scheme [10] . The EOC has recommended the removal of this exemption from the SDO, but the Government has maintained its stance that nuclear families must be given priority in the matter of public housing.

 

46.                         Another exemption in the SDO relates to the small house policy. This policy was introduced to improve the housing situation which existed in the New Territories more than 20 years ago. Under this policy, a male indigenous person in the New Territories is entitled to apply to the Government to build a three storey village style house as a residence. Both women and non-indigenous persons are excluded from this policy.

47.                         The Government advised the EOC that it had commenced a review of the policy in September 1997, which was expected to be completed at the end of 1998. In February 1999, the EOC recommended to the Government, as part of the proposals made following its review of the SDO and the DDO, that the small house policy exemption should be repealed. In November 1999, the Government informed the United Nations Committee on Civil and Political Rights (at the hearing of the fifth Periodic Report on the International Covenant on Civil and Political Rights in Geneva) that it was still reviewing the policy.

48.                        The EOC urges the Government to repeal the exemptions in the SDO on the Home Ownership Scheme, the Private Sector Participation Scheme and the small house policy.

Article 12:              Right to health

49.                         Medical care for the disadvantaged groups relies heavily on the public health system. [11]   The Government has recently proposed to set up health protection accounts requiring contribution of 1-2% of earnings from the working population age between 40 and 64. Women who are homemakers, the elderly and persons with disabilities will not have similar cover.

50.                        The EOC urges the Government to review the long term health care needs of women, the elderly and persons with disabilities and allocate resources for their needs.

51.                         Medication is a subject of serious concern for persons with mental illness. The Government has been criticized for its reluctance to prescribe, for cost reasons, new drugs that have been shown to produce less side effects for the mentally ill.

52.                        The EOC recommends that the Government review the medication and treatment needs of the mentally ill and provide them with more effective services and medication. [12]

Article 13:              Right to education

53.                         The Government has stated in its report that access to education in Hong Kong is not constrained on grounds of race, religion, sex, age or language. Yet, children of certain ethnic minorities, such as the Nepalese, are unable to commence their primary school education because of language difficulties. Although this is not an issue directly linked to the EOC's remit, the EOC is concerned with the adverse effect of the lack of schooling on young girls from ethnic minority groups. [13]

54.                         In particular, the EOC is concerned with the attitude of the Government in respect of girls’ education generally and points to the specific problem with the Secondary School Places Allocation System (SSPA). In its Formal Investigation Report published in August 1999, the EOC recommended the removal of the discriminatory elements of the SSPA. The Education Department, however, maintains that the policy is necessary to ensure equal opportunities for boys, who would otherwise be left behind by girls who do much better at school.

55.                         The Government’s refusal to remove the discriminatory elements of the SSPA has led to the EOC taking judicial review proceedings against the Government.

56.                         In information technology and science related subjects, girls are still under-represented in all levels of education due to subject streaming by gender and stereotyping. Curriculum materials used in schools still contain gender stereotype depictions and equal opportunity education is not widely taught in schools.

57.                        The EOC urges the Government to remove gender streaming in schools and gender stereotyping from curriculum materials and to incorporate equal opportunity education in schools' basic curriculum.

58.                         The Government has since 1997 adopted the Integrated Education Program for students with disabilities. Despite a two-year pilot programme, there are only 40 participating schools (31 secondary schools and 9 primary schools) comprising less than 4% of schools in the HKSAR. In the school year of 2000/2001, these schools took in about 200 students with various types of disabilities. The lack of resource allocation by Government and the lack of teacher training to meet these needs contributed to the low participation rate. The DDO requires schools to provide equal opportunity in education to students with disabilities. The EOC has proposed a set of guidelines to assist schools to comply with their obligation. The public consultation on the guidelines concluded in March 2001.

59.                         The EOC also notes that the opportunities for higher education and vocational training beyond the nine-year free education period are limited for persons with disabilities as compared to others.

60.                        The EOC urges the Government to adopt a more pro-active strategy for integrated education for children with disabilities at all levels (primary, secondary and tertiary) of education and to provide sufficient resources and support for its effective implementation.

Article 15:              Right to cultural life, scientific progress and its application

61.                         The EOC commenced its “IT for All” campaign at the end of 1999 to highlight the need to provide access to women and persons with disabilities in information technology. The EOC’s Information Technology Task Force was set up to review the needs of these groups.

62.                         The EOC has conducted a study on the web accessibility of 163 public service homepages in November 2000. It was found that most of them were not designed in a way that enabled equal access to public information for persons with disabilities. The EOC believes this barrier should be removed as quickly as possible to enable persons with disabilities to have fuller access to information technology.

63.                        The EOC urges the Government to develop clear guidelines and adopt a comprehensive strategy to address the digital divide that may occur for persons with disabilities and for women.

64.                         Sport plays a significant role in human development and, in Hong Kong, athletes with disabilities have more than proved the case at the recent Paralympic games [14] . It is therefore important that persons with disabilities enjoy equal opportunities to train and develop to the highest levels of excellence through coaching and training facilities, administrative support and opportunities for local and international competition.

65.                        The EOC welcomes the recent pledge made by the Government to support disabled athletes [15] and would like to add that longer-term commitments are necessary to ensure continuity in the overall development of sports for persons with disabilities.

Conclusion

66.                         In conclusion, the EOC wishes to highlight the following roles that it must play in combating discrimination in Hong Kong.

67.                         First, the EOC must provide institutional support and proactive intervention when victims are unable to seek protection under the law.

68.                         When dealing with discrimination associated with HIV/AIDS arising from the operation of a multi-purpose health clinic which provides treatment for HIV/AIDS, the EOC found that HIV/AIDS patients were reluctant to bring complaints to the EOC. HIV/AIDS patients, like the mentally ill, fear further isolation and reprisals when their identities are disclosed. The staff working in the multi-purpose clinic and a nursing home nearby were also subject to harassment. These individuals were also reluctant to come forward with complaints for fear of reprisals and a worsening of the community relationship.

69.                         Another problem that surfaced when dealing with the same case was that the alleged discriminators consisted of a loose group of people whose number and identities were very difficult to ascertain.

70.                         The EOC was ultimately able to resolve some of the operational difficulties through detective work of its own. Legal action against a few respondents is in train. The Government has now agreed to amend the law to give power to the EOC to commence action in its own name seeking declaratory, and in some cases injunctive, relief where either complainants or respondents (as the case may be) cannot be found. The EOC intends only to use this power where public interest requires it. The early intervention by the EOC in these situations would help to forestall a deterioration of the community relationship.

71.                         Secondly, the EOC must assume an independent monitoring and advisory role when systemic issues are involved.

72.                         The findings relating to the Secondary School Places Allocation System were made by the EOC after conducting a detailed investigation over the period of one year. The matter is now before the court by way of judicial review undertaken by the EOC in its own name. It is inappropriate in matters of this type to subject all individual complainants to the pressure of high profiled litigation.

73.                         As an alternative to litigation, the Government has also agreed to provide the EOC with power to secure from third parties voluntary binding undertakings which will be enforceable in court. Such undertakings may be entered into by entities whose policies and practices are discriminatory, but who may require some time to eliminate the discriminatory elements.

74.                         Arising from the loss of the autistic boy, Yu Man Hon (age 16), in August 2000 at an immigration check point between Mainland China and the HKSAR, the EOC has commenced a study on the handling procedure and training needs of the Immigration Department when dealing with persons with disabilities. This study is undertaken with the support of the Immigration Department.

75.                         Thirdly, the EOC should have the power to deal with all attributes giving rise to discrimination as this is a natural extension of its functions.

76.                         The EOC finally notes that many issues which arise out of its remit are also influenced by other attributes, such as age or race. Older women, particularly those from ethnic minorities, may suffer from multiple forms of discrimination arising from gender, age and race.

Equal Opportunities Commission

April 2001