[Salutations] It is indeed my privilege to be here today, to advocate for equal opportunities in the context of Hong Kong’s employment sector. After nine years, the concept of equal opportunities is still relatively new, but the work of the Equal Opportunities Commission is definitely on the agenda. And that agenda affects employers, and by extension, the businesses and industries which you represent.

My wish after today is to establish a dialogue with the business community, to have a closer working relationship with businesses, and hopefully in the fullness of time, we will reach a consensus that there is value for all of us in a society that embraces equal opportunities. I acknowledge that at times requirements administered by organizations such as the EOC are seen as added burden by business managers. That may be so from certain perspective. But, ultimately, we shall all come to realize that the fulfillment of our social responsibilities is the foundation for the establishment of a fair and equitable society which we all share (albeit that there may be a price for all of us to pay).

As many of you would know, one of our counterparts is the EOC in the UK. But here in Hong Kong, we have a somewhat wider remit. The EOC is the statutory body responsible for implementing and administering the provisions of the three anti-discrimination ordinances in Hong Kong: the Sex Discrimination Ordinance, the Disability Discrimination Ordinance and the Family Status Discrimination Ordinance.

The EOC’s primary functions under the three anti-discrimination ordinances are to eliminate sex discrimination, sexual harassment, family status discrimination, disability discrimination, disability harassment and vilification, and to promote equality of opportunity between men and women, between persons irrespective of family status, and between persons with and without a disability. In so doing, it must work within the parameters of the law and the framework of the legislation.

Discrimination can occur in all walks of life, but the existing legislation only protects individuals in certain fields, such as employment, government, education, provision of goods, facilities and services. The legislation is applicable to both the public and the private sectors, and it binds the government. It is for this reason that the EOC needs to be independent and be seen to be so. The legislation itself makes it clear - that the EOC is neither a servant nor an agent of government.

The Paris Principles^[1] are also relevant here. Although the EOC is not a ‘national’ human rights institution, its establishment and attributes are consistent with the Paris Principles. This was emphasized by the Government of the Hong Kong SAR in response to questions raised by treaty monitoring bodies of the United Nations. It would be contrary to the terms and spirit of the Paris Principles (indeed, it would offend logic and common sense) if the EOC were to be made accountable to the executive government for its activities in implementing and enforcing anti-discrimination laws in the public sector, which includes the government. By the same token, any requirement that the work of the EOC should be placed under the scrutiny of an executive authority would be inconsistent with the letter and spirit of the legislation which created the EOC. It is to the credit of the government of the SAR that it has always respected the independence of our organization.

Here, I must hasten to add, that the EOC is not permitted, and should not be a law unto itself. It is funded out of public revenue and should be fully accountable for its financial responsibilities. The EOC is subjected to the jurisdiction of the Director of Audit, and, in my view, properly so. The Ombudsman also has jurisdiction over the EOC to ensure that our processes are lawful, efficient and proper. The legislation also provides for the tabling of our annual reports before LegCo, and we are required to appear before the Home Affairs Panel of LegCo to answer questions. And, needless to say, the decisions of the EOC are judicially reviewable.

The EOC operates a complaints handling system but it also has power to undertake ‘formal investigation’ on its own initiative. The person who is claiming discrimination, harassment or vilification needs to prove it. It is not easy for complainants to find direct evidence of discrimination – for example, few employers will say straight out that someone did not get the job because she was a woman or because the job applicant was with a disability.

When a complaint is lodged with the EOC, the EOC investigates it and then endeavours to conciliate. Conciliation is a voluntary process and persons cannot be compelled to conciliate a dispute. The experience of the last few years indicates that close to 70% of cases are successfully conciliated. Both investigation and conciliation are statutory processes under the legislation. But this dual role has given rise to criticisms, and it is a continuing challenge for us to endeavour to remain impartial so as to encourage conciliation.

Under the three anti-discrimination Ordinances, where conciliation has not been successful, complainants can apply to the EOC for assistance to bring legal proceedings in court. The legislation sets out the criteria for the types of cases the EOC can support, but it is ultimately up to the EOC to decide whether or not to grant assistance, and what type of assistance it should grant.

Many people associate “equality” with our work. We have received letters complaining about the lack of English signs across town, lamenting the demise of the use of our “other” official tongue. But in fact, what we advocate is not equality in the general sense; but rather, equal opportunity to access.

As close to 80% of our complaints are employment related, the business sector is our major partner. Equal Opportunity is an essential aspect of business. It is about getting the right person for the right job and increasing productivity and competitiveness. In today’s global economy, it means increasing your market share and enhancing brand name value.

Businesses now recognize the importance of social responsibility. Consumers are increasingly demanding that the food they eat, the clothes they wear and the products they use are manufactured under ethical working conditions. Market share and brand name value depend on consumer acceptance of a company’s employment policy, servicing standards and manufacturing conditions. Failure in these areas can sometimes lead to consumer boycotts.

In fact, many international companies have found that equal opportunities policies have positive impact on sales as well. We know that more than 90% of the Fortune 500 companies have reported increased revenue and economic benefits after establishing diversity polices.

For example, GM Motors in Britain used its staff with disabilities to improve car design features, which led to increased sales. Northern Foods, a leading UK food producer with 23,000 employees, has seen a dramatic increase in the number of women returnees since introducing a new maternity policy for management and supervisors 9 years ago, keeping staff with valuable skills and experience. According to Northern Foods, one of the biggest issues facing the growth of the business is recruitment, so they have broadened their thinking about how they can get more people to apply and stay in the business. Flexibility is the key to their approach. Instead of saying these are the hours, they ask people what hours they are prepared to work, and do what they can to make it possible. In one of its Divisions, Fox’s Biscuits in Batley, West Yorkshire, 80 different shifts are offered to employees, allowing parents to combine work and childcare responsibilities. The 9am to 4pm shift is popular with parents who need to get children to school in the morning.

So, how does EO Law apply in the workplace?

EO law covers business owners and operators, managers and supervisors, and all employees, including those on commission, casual workers, and contractors. It applies to :

• Hiring
• Terms and conditions of employment
• Pay scales
• Benefits of employment
• Training
• Promotion
• Transfers
• Dismissal
• Redundancy
• Termination of employment

What are the employer’s responsibilities ?

It is the employer’s and manager’s responsibility to do all that they reasonably can to make sure everyone in the workplace is treated fairly and that discrimination, harassment, vilification and victimization don’t happen. They are also required to take all reasonable action to enable a person with a disability to do a job, unless that would cause unjustifiable hardship.

Many employers have EO policies to let everyone know what is and isn’t acceptable workplace behaviour and to ensure that EO law is followed at every stage of employment, from advertising, interviewing and hiring to termination. They also have procedures for dealing with EO related problems, to make sure they are handled fairly and consistently.

Employers are legally liable for all employees’ actions done in the course of their employment (in the workplace and outside it and whether or not you knew about it) unless you can show you took reasonably practicable steps to prevent the unlawful behaviour. Such vicarious liability will be familiar to lawyers and experienced managers. In practice, it means that if one of your employees sexually harassed another, the employee who was sexually harassed could make a complaint against you as the employer, as well as against the person who committed the act of harassment.

As the employer, you are legally liable for the actions of your employees unless you can successfully raise the defense that you took reasonably practicable steps to prevent unlawful behaviour from happening. What are some of these steps? They include having a procedure in place to handle such situations, ensuring that staffs are familiar with such procedure, and providing regular training and information on equal opportunity to employees. Better still, involve the EOC in your training program (the modest fees that we charge are well worth it!).

If someone makes a complaint against an employer, the EOC or court will look at the size and nature of the business when determining what constitutes reasonably practicable steps. For obvious reasons, requirements expected of an SME may not be the same as a large, multinational corporation.

The law also requires an employer to make any reasonable changes to work practices or facilities that would make it possible for a person with a disability to do a job. This is known as reasonable accommodation. Examples include :

• Adapting recruitment procedures, for example, allowing a person with a visual impairment to take an oral selection test rather than a written test 
• Modifying business premises to provide facilities such as a ramp allowing wheelchair access 
• Changing work schedules, for example, allowing an employee with diabetes non-standard breaks to eat or administer insulin as required to maintain healthy blood sugar levels

I know a lot of employers face HR queries regarding sick leave. This as an example, is a complaint case.

The Complainant, let’s say a Mr. Chan, is a Customer Relations Officer working in Property Management Company. He suffered from epilepsy and underwent a brain operation for epilepsy on April 2004. Mr. Chan resumed duty in July 2004 and submitted a medical certificate advising that he was unfit to perform night duty. The Company ignored the advice and continued to assign night duty to Mr. Chan. Moreover, when the Company’s annual bonus was issued to staff for the year, Mr. Chan was left out for the reason that he had taken prolonged sick leave. The supervisor also warned Mr. Chan that, if he continued to take frequent sick leave, he would be dismissed. Mr. Chan considered he was discriminated against due to his sickness. Mr. Chan lodged a complaint.

The matter was settled, when the Company provided the bonus to Mr. Chan and exempted him from night duty on the medical officer’s recommendation, until further notice.

Under the Disability Discrimination Ordinance, it is unlawful to discriminate against an employee on the ground of his disability. The law also provides that when an employee provides a medical certificate supporting special work arrangement be made, the employer should consider providing accommodation to help the employee in performing his duty, unless there is unjustifiable hardship to the employer in providing such accommodation. It could also be a form of indirect disability discrimination where attendance is set as a condition for payment of bonus, and it is difficult for an employee to fulfill the condition due to his disability.

EO law recognizes that businesses must operate competitively. In certain limited circumstances, it would not be considered discriminatory:

• when a person is unable to carry out the inherent requirements of the job,
• when gender or absence of a disability is a genuine occupational requirement,
• when reasonable accommodation would cause an employer unjustifiable hardship.

But I emphasize, enforcement should never be the only answer. The community is asking for in-depth public education programmes to find out more about the values of equal opportunity. One of our well sought after initiatives is our consultancy services on policy reviews and training, for the employment sector.

Sowing the seeds for change, the Commission is carrying out new efforts in schools, intertwining equal opportunities into the school curriculum and developing career mentorship projects for girls and boys.

I know the direction of the EOC is of interest to many in our community. The International Covenant on Economic, Social and Cultural Rights has applied to Hong Kong since 1976. The Basic Law of the HKSAR (Article 39) provides that the provisions of the ICESCR as applied to Hong Kong shall remain in force and shall be implemented through the laws of the HKSAR.

The EOC notes that Article 2(2) of the ICESCR 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, however, no domestic laws in Hong Kong dealing with discrimination on the ground of race, sexual orientation or age, which are considered the remaining grounds. But, the Government intends to introduce a Race Discrimination Bill into LegCo soon.

In today’s geo-politics, the whole concept of “race” is a difficult one. In the context of race discrimination, one only has to look at overseas jurisdictions to appreciate that, whilst legislation seems to be the favoured mode to secure social change, it does not eliminate racist occurrences.

Although it is not suggested that race legislation will itself change racist beliefs or attitudes, an inherent outcome of regulation and enforcement is that it does alter behaviour. The law, therefore, does have a vital role to play in “delegitmising” racial discrimination and in providing an avenue for redress for affected persons.

The Consultation Paper issued by the Government has received mixed reactions, and no doubt it will be impossible for the final Bill to meet the needs and concerns of all stakeholders. The complexities of discrimination on any ground are often difficult to grasp, more so to find the balance between individual human rights, collective minority rights and the legitimate commercial interests of business. The challenge for all of us is to find that balance.

In readiness of the proposed Bill, and in anticipation of accepting responsibility for its implementation, the EOC is currently looking at various measures by which it can assist stakeholders – including the business community – to comply with the legislation.

These will include seminars, training sessions, Codes of Practice with practical guidelines, and the introduction of other publications. We will want to meet with stakeholders to better understand their concerns and their needs after the Bill has been introduced into LegCo. We also have some pre-enactment work to do, to research and to understand the needs and expectations of our community, including stakeholders who would be directly affected (employers and employees alike).

We want to work with you, to better understand your concerns. We want a dialogue, a continuing one, as we proceed on a long journey together to establish a fairer society in which we can all prosper in peace and harmony.

Thank you.

Equal Opportunities Commission

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^[1] The Paris Principles are applicable to national institutions for the protection and promotion of human rights. The Principles were endorsed by the UN Commission on Human Rights on 3 March 1992 and by the UN General Assembly on 20 December 1993.