Promoting and Protecting the Human Rights of Women and Girls A Manual for National Human Rights Institutions HONG KONG: RESOLVING SEX DISCRIMINATION IN EMPLOYMENT COMPLAINT The Hong Kong Equal Opportunities Commission handled Hong Kong’s first legal challenge to sex discrimination related to dress codes in the workplace. Upon receiving the complaint, the Commission case officer investigated the matter and tried to facilitate a settlement by way of conciliation. However, this attempt was unsuccessful. The Commission subsequently granted legal assistance on the basis that the case raises the question of sex discrimination in the field of employment, where a restriction affects members of one sex less favourably than members of the other. Under the Sex Discrimination Ordinance, it is unlawful for an employer to treat a person less favourably than another person in comparable circumstances because of a person’s sex. In this case, female teachers were subjected to a stricter dress code than male teachers. It was determined that any dress code should be reasonable and necessary, according to the nature of the job, and that it should be applied in an even-handed manner between both sexes. After a writ was issued, the school agreed to settle the matter by giving an apology and monetary payment to the complainant. The school also undertook to review its dress code. Alternative dispute resolution may be particularly suited to some matters involving women and allegations of violations of the human rights of women. For example, disputes involving family matters and community-based discrimination may be more quickly and effectively resolved in an informal setting. Where a change in attitudes or behaviour is required, alternative dispute resolution can, as noted above, be an important way forward. However, it should not be assumed that violations of women’s and girls’ human rights are more amenable to being addressed in this way. A decision to engage in alternative dispute resolution should be made on the basis that it is the best way to resolve the matter. The complainant should, as far as possible, be involved in weighing up the different options available and deciding which one best suits her particular needs and circumstances. It is critically important to note that alternative dispute resolution will, in fact, be an unsuitable for dealing with complaints of human rights violations when the complaint involves very serious or gross violations, criminal offences or a significant power imbalance between the parties. In some instances, the respondent to the complaint may be unwilling to engage constructively in the process. Under such circumstances it will be important to make other alternatives known and available to the complainant. The alternative dispute resolution processes will generally be facilitated by an officer of the NHRI. He or she will provide information about the relevant laws and human rights standards; help ensure that each party is heard; help maintain an equal power balance between the parties; and support the discussions so that an agreed solution can be reached. Where a mutually acceptable solution can be reached, the NHRI will record the outcome in a settlement agreement. The terms of the agreement should “be consistent with international and national human rights law, should resolve the grievances of the parties, and should be sustainable ... Settlement agreements that result from conciliation should be in the public interest”.101 101 62 OHCHR, National Human Rights Institutions: History, Principles, Roles and Responsibilities, Professional Training Series No. 4 (Rev. 1), 2010, p. 95.