FACT: THE CONCILIATION AGREEMENT
- A complaint was submitted to the EOC against GSIS for racial discrimination
- The EOC mediated a conciliation agreement with the complainant, Mr. Lloyd Fischer
- The agreement bought GSIS time to resolve the matter amicably and without the public scrutiny and embarrassment of an EOC-supported lawsuit
- Threatened legal action by Mr. Horst Geicke forced us to seek a ruling from the Court on an expedited basis
- In early 2017, Mr. Lloyd Fischer volunteered to stand for election to the Board of the GSIS Association. When asked to confirm his fluency in German, he refused on grounds that the German Fluency Constraint was discriminatory and in breach of Hong Kong’s Race Discrimination Ordinance (“RDO”). Fischer was not allowed to stand for the election. He refused a “consolation” appointment to the Board of the GSIS Foundation and made clear his intention to bring a complaint for race discrimination to the Equal Opportunities Commission (“EOC”) against GSIS.
- On the morning of the AGM on 8 February 2017, the then Chairman Mr. Ulrich Buchholtz reached an agreement with Mr. Fischer that the German Fluency Constraint would be removed from our Articles “urgently”, understood to mean in a matter of months. In return, Mr. Fischer committed to refrain from bringing any claim to the EOC or in Court.
- Last December, after nearly 3 years of drafting and negotiating amendments to our Articles, a vote on a new draft of the Articles, agreed and supported by the ZfA, the German regulator who determines our status as a German School Abroad, was held. At that EGM, 68% of the votes were in favor of the new Articles, 7% short of the 75% required for passage. A small group of people actively opposed the draft, using an anonymous campaign of disinformation. Understandably, after waiting 3 years for something that should have taken 3 months, Mr. Fischer lodged his complaint with the EOC.
- The EOC promptly informed GSIS that it had received a complaint and that it suggested conciliation mediated by the EOC. In subsequent telephone conversations and meetings, the EOC made it clear to us that it was taking this complaint seriously. We made it clear that we agreed with Mr. Fischer that the German Fluency Constraint should be removed from our Articles and that the vast majority of our members thought the same. As such, reaching an agreement with Mr. Fischer should not be difficult.
- On February 10, after multiple meetings with the EOC and Mr. Fischer and with full Board authorization, the GSIS Association entered into a “Conciliation Agreement” with Mr. Fischer in which the following was agreed:
- The GSIS Association would not enforce German Fluency Constraint.
- Before May 31 2020, an EGM would be called at which the members could vote again to have the German Fluency Constraint removed from the Articles.
- The GSIS Association would start legal proceedings in Court to seek declaratory relief on the validity of the German Fluency Constraint before 17 March 2017.
- Fischer would withhold bringing any claim under the RDO against GSIS or its directors.
- The purpose of the agreement was to buy time for GSIS to remove the German Fluency Constraint before an EOC-supported Court case for racial discrimination against GSIS could result in very public and embarrassing dressing-down of GSIS. It was understood that, if GSIS did not fulfill its obligations under the Conciliation Agreement, Mr. Fischer’s only recourse was to renew his complaint against GSIS with the EOC or bring a claim in Court.
- The Board agreed on this path forward with the view that it could start a slow legal process for declaratory relief at little cost while another attempt was made to remove the German Fluency Constraint at an EGM. If GSIS fails to remove the German Fluency Constraint as contemplated in the Conciliation Agreement, Mr. Fischer will be released from his obligations under the contract and could renew his complaint to the EOC and/or sue GSIS in Court.
- Unfortunately, our plans were derailed when, in March, a member and parent at the school, Mr. Horst Geicke, started to send letters to the Board and individual directors through his lawyers, threatening to sue the GSIS Association, the Board and individual Directors. The Board viewed it to be in the interest of GSIS not to be defendants in a costly and lengthy law suit brought by Mr. Geicke, and acted to preempt such actions by filing an Originating Summons in the High Court of Hong Kong on the first day that the Court reopened (May 6).
- A first hearing took place on May 25 and the substantive hearing will take place on June 12. A ruling is expected within a month from the hearing.
- Lloyd believes that the constraint discriminates against all non-German speakers and that especially parents in the English stream and those of Asian origin are unfairly shut out from the governance of our school. In addition, it unnecessarily and unfairly deprives GSIS of the talents and experience represent in the non-German speaking community at GSIS, around 80% or our members.
- Many unfounded and malicious allegations have been made about Lloyd over the past few years and especially recently. In his roles on the Finance Committee and the Personnel Matters Committee, Lloyd did not have any involvement with any decisions relating to the EOC conciliation process. His wife, who is on the Board, recused herself from any decisions and discussions on the same matter.
- It is unfortunate to see that Lloyd and this family are being attacked personally for having the courage to take the initiative in an effort that everyone should support: removing discrimination from GSIS. Lloyd does not stand to gain anything personally from this; in fact, and sadly, much the contrary.