Thank you for inviting me to talk about equity compliance in Hong Kong.

EQUAL OPPORTUNITIES LAWS IN HONG KONG

The Hong Kong Equal Opportunities Commission (EOC) was established in 1996 to administer three anti-discrimination laws covering gender, pregnancy, marital status, sexual harassment, family status and disabilities of different kinds. The government is now considering a race law.

The EOC has a number of functions. These are to investigate, conciliate complaints, provide litigation assistance and to promote equal opportunities through education, research and training. About 60% of our complaints relate to employment, with pregnancy and sexual harassment topping the list.

EOC'S STRATEGIC LITIGATION ROLE

The success rate for our conciliation work is over 60% of those that attempted conciliation. Our litigation is conducted on a strictly strategic basis in areas where public interest is affected. We have no open class actions or treble damage suits. This strategic litigation role, apart from providing individual justice, has wide education value and supports the Commission's conciliation and settlement functions due to the deterrent effect litigation creates. It is also the litigation power that gives EOC teeth.

Judges play a key role in calling for legal accountability in government and business practices. In a pregnancy discrimination case regarding Ms. CHANG, the court ruled that Ms. CHANG was subject to pregnancy discrimination and was unlawfully victimized by her employer by reason of her complaint to the EOC. The ruling also held the employer vicariously liable for the unlawful acts of its employees and established that although Ms. CHANG technically resigned, the employer's treatment of her amounted to constructive dismissal.

Shortly, we will be putting on our website a settlement register of our successful cases which will provide information on the complaints and the solutions arrived at varying from damages, reinstatement, changes in policy to apologies. The importance of an apology should not be underestimated. There were male superiors in Asia who would rather pay through their nose than apologize to their female subordinates for sexual harassment.

HONG KONG'S PRESENT STATUS

Mid last year, we released survey findings on equity compliance in business. We found that many recognize that an equal opportunities culture leads to a better working relationship, higher work efficiency, employee stability and confidence in the company. The most harmful aspects of non-compliance – ruining of the company name, negative impact on employee spirit and tense relationship among colleagues – were also recognized.

Interestingly, a majority of employers and employees believed that discrimination on the grounds of race, age and sexual orientation were illegal, even though these were not covered by existing anti-discrimination laws in Hong Kong. The finding could be attributed to two factors. First, we already have three anti-discrimination laws and therefore it was thought, by extension, that we must also have the others. Second, we have a significant pool of multi-national companies that are bound by their head office requirements on good practice in areas not legislated for in Hong Kong.

The findings also reflected under-reporting of acts, under-estimation of liabilities and under-appreciation of vicarious liabilities. Employers are liable for unlawful acts committed by their employees in the course of employment, with or without their knowledge. About 10% of the employees who had personal experience of discrimination or sexual harassment reported their cases to employers or to an authority leaving 90% unreported.

To minimize employers'liabilities, we recommend a well articulated equal opportunities policy, an identified process for handling complaints, designation of a person to handle these matters and provision of training and information on equal opportunity principles to employees. We have designed an information kit for small and medium sized businesses.

FAMILY FRIENDLY PRACTICES

Recently, Hong Kong has been hard hit by the Severe Acute Respiratory Syndrome (SARS). Because of this, some employers have shown flexibility in dealing with sick leaves and absences from work. Some employers have also granted their pregnant employees paid leave or let their pregnant employees work from home. One pregnant merchandiser was permitted to work at home and liaise with overseas business contacts through phone, fax and email.

As all schools in Hong Kong were closed for most of April and classes only resumed a few days ago, one company gave its employees one day of paid family leave per week to spend time with their kids.

Some employers have also launched flexi hour option for their staff. Instead of working from 9 to 5, some employees have opted for 10 to 6. This has helped employees avoid the rush hour and lessen the chance of infection from public transportation. Many parents welcome the move as they can spend some time with their kids and make necessary arrangements for them before they go to work.

We will however be facing many complaints on dismissals, unpaid leaves, and exclusions under medical policies when the dust settles.

BENEFITS OF FAMILY FRIENDLY POLICIES

It is vitally important that employers provide an environment that helps parents and carers balance employment and family. Family friendly policies can include those we have discussed as well as paternity leave; part-time hours; nursery provision; sponsored childcare for women returning to work after maternity leave. These policies can lead to many benefits.

The improvement to working conditions helps to reduce the incidence of family status discrimination, which is unlawful under the Family Status Discrimination Ordinance. Family friendly policies will have particular positive effects on single parents in Hong Kong, a majority of whom (77%) are women.

Childcare leave and family care leave are mandatory for all enterprises in Japan. No salary is paid during childcare and family care leave, but employees are paid 25% of wages earned from employment insurance. In 1996, 50% of enterprises in Japan had family-friendly policies more generous than legally required.

DOING BUSINESS IN CHINA

Turning to China Mainland, many companies still face difficulties in doing business there. Information on China business is scarce. To tackle the problem, the Hong Kong General Chamber of Commerce conducted a large-scale survey called "Managing Business in China" between 1999 and 2000 on Hong Kong companies operating in China, and made a number of recommendations.

Three of these are:
· transferring practices from Hong Kong to the Mainland
· learning from the Mainland
· developing trustworthiness among Mainland staff, through relevant motivational policies

Specifically, the study recommends that companies should attach a high priority to transferring their practices to the Mainland. On the other hand, even though the findings of the survey do not show localization of management to have a consistent impact on performance, most managers believe that localization is a key success factor for maintaining their competitiveness in doing business in China. They believe it can help to achieve low cost, efficient management, and cultural integration among employees.

Focus on corporate culture, and fostering trust and communication between the expats and the locals and the company have produced a lower turnover rate for one particular hi-tech company.

The sense of superiority of some Hong Kong and overseas managers was stated as a cause preventing them from acquiring essential knowledge from their Mainland counterparts. In fact, doing business in Mainland China is a continuous learning process.

DISCRIMINATION AND HARASSMENT IN CHINA

In August 1999, the EOC issued a report on the Secondary School Places Allocation System (SSPA). It made the finding that there was systematic scaling down of our best girls'scores and scaling up of our best boys' scores, gender queuing and gender quota allocation against girls. The combination of these resulted in unfair restriction of access rights to the best schools for girls. What was less well known was the fact that the system also adversely impacted on the lower 70% boys.

This allocation system has been used by the Education Department for over 20 years. The EOC took court action against the Education Department in 2000 and secured a judgment against the Department in 2001. The system has been declared in violation of our SDO.

What the SSPA case illustrated was the inequitable distribution of public resources and education opportunities among different groups of students. Clearly it impacted adversely on the top 30% girls and the lower 70% boys and created structural discrimination against them.

Basic education as we all know is a basic right and is the first port of call in the development of an individual. The law protects that right.

THE ROLE OF LAW

Despite formal laws banning discrimination based on gender & disability in China, many still face enormous barriers in the workplace, including harassment. For example, according to a controlled sample survey conducted by the Chinese Academy of Social Sciences, 84 percent of the participating women confirmed that they had experienced sexual harassment, largely from their male superiors and colleagues. This took the form of sexually suggestive jokes and comments, abusive language, demanding sexual favors and physical advances. There was also a perception that the problem of sexual harassment in the workplace is now more prevalent, especially within foreign-funded enterprises, private enterprises, and individual businesses.

Although there is no specific law on sexual harassment, the first sexual harassment lawsuit in China took place in 2001. This action was based on personal rights. In her lawsuit, the plaintiff, Mrs. Tong, said that since 1994 the company manager had deliberately touched her body on many occasions at the office while promising her a good job. When Mrs. Tong rejected her boss, he made things difficult for her and withheld her bonus and allowances. Angry and upset, Tong had to stay at home. When she tried to return to work, her company refused to give her a job and urged her to withdraw her petition. In a closed trial, the court ruled in favor of the defendant because it felt Mrs. Tong could not provide sufficient evidence to support her case.

This case has aroused widespread attention nationwide, and public opinions indicate that views on sexual harassment have changed. In the past, it was widely believed that sexual harassment should not be mentioned in public, but it is now more widely perceived as an infringement on citizens' rights.

CARING COMPANIES IN HONG KONG

In Hong Kong, a scheme was launched in 2002 to provide recognition to companies that provide family friendly environments, employ members of vulnerable groups, encourage employee volunteering & share business expertise. At least 60 Caring Companies have provided counseling services and some organized parenting programmes for their employees and family members. Some companies have established mutual support networks among employees. For those employees who are beset with family crisis or have to attend to special family needs, these companies are willing to make special job arrangements such as flexible work hours to help the affected employees.

More and more companies in Hong Kong are knitting diversity and equity practices into the fabric of their business in Hong Kong and across the border. Globalization of trade has forged a common agenda for good practices to be established. Pursuit of gender equality is universal, but ways of implementation are not. But if you take the high road, you will do well.

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