DISCRIMINATION has long been a topic of intense discussion in Bermuda. Race, sexuality, and nationality are the more common issues that come under question by those who feel wronged, however that could change as the island gains a better understanding of their civil liberties under the Human Rights Act. Promoting such knowledge is a role the Human Rights Commission (HRC) has been charged with since its establishment shortly after the Act was passed in 1981. The Mid-Ocean News recently met with HRC chair Venous Memari, during which time she detailed some of the challenges her organisation faces today.

Few people would argue against the importance of identifying human rights and establishing laws to ensure their protection. Even with such legislation in place however, many residents are afraid to assert themselves in instances where they believe they have been discriminated against. Some fear their complaint will be made public, others, that they will be labelled a complainer, while others worry about the potential effect on their careers.

As chairman of the HRC Venous Memari is tasked with putting such fears to rest - and education is her greatest tool. Her hope is by getting the information out there, attitudes will change and more residents will come to regard the HRC as a public service rather than an adjudicating body. Its aim is not to pass judgement but to help bring a resolution between parties with opposing viewpoints.

"The spirit of the Act is to ultimately eliminate discrimination," she explained. "In actual fact the HRC has six functions, five of which are to promote the ideals and principles of human rights and fundamental rights under the constitution, to educate the public. Only one of its functions is to investigate complaints."

Bermuda's Act was lifted from the Ontario Human Rights Code, which was established in 1962.

"For the most part we do follow Canadian jurisprudence and if you look at the Code you will see that the purpose of awarding damages and therefore the purpose of the Act, is not to be punitive. The primary mandate of the HRC is to effect conciliation and a settlement.

"It's important to note that while many people see the HRC as an advocate for the complainant, the HRC is required to conduct its investigatory and conciliatory duties impartially.

"It can sometimes lead to an outcome that may not be favourable to the complainant. The focus is ensuring a procedure that is fair and seen to be fair by both parties of a complaint."

The HRC receives between 500 and 600 "intakes" each year. However, in order for such grievances to be lodged as formal complaints with the HRC, they have to meet the criteria for discrimination as laid out by the Act. Only a fraction of "intakes" become formal complaints - approximately two dozen each year.

"We make a distinction between intakes and complaints. Someone can walk in and say their rights under the Act are being contravened, that their employer fired them because they said they couldn't make time. We record that, but it's treated as an intake because it's not protected under the Act. No intake becomes a complaint until it's determined that it actually comes under the Act."

If it is determined an incident has merit, a thorough process is followed. Mediation is the first step.

"The answer to your question why would someone have confidence in bringing a complaint to the HRC, I think lies in the process.

"A complainant walks in or calls with a complaint, the HRC takes a look at it and ensures that it a genuine complaint under the Act, i.e., you've got the definition of discrimination, you make sure that that particular area is protected under the Act and then you look at the context in which that has taken place - whether it's in housing or employment or in the provision of certain services and facilities.

"Once that threshold has been (determined) then the first thing that we do is offer mediation to the parties.

"We find that parties are usually more apt, more inclined to accept mediation if an investigation hasn't begun (as that's a point where) parties (can) become positional and very adversarial."

The chairman said members of the Commission highlight that advantage to both parties of every dispute that comes before them and ensures their awareness that there is a timeline attached.

"We've started putting a 30-day deadline on mediation because if they don't accept mediation, or if they accept it but mediation is not completed within 30 days, then our investigation process begins."

The reason for the deadline is a condition of the Act demanding that all HRC investigations are concluded within nine months.

"So from the moment that the complaint is lodged, we only have nine months," Ms Memari explained. "If we don't resolve it, if it's not settled within nine months, or if it's unlikely to be resolved within nine months, then we have to refer it to the Minister - that's mandatory, that's not discretionary."

It then falls to the Minister of Community & Cultural Affairs to determine whether the case should go before a board of inquiry.

"We don't render an opinion and we also don't make a decision," Ms Memari stressed. "We're not an adjudicating body. If it's not resolved through mediation, then an investigation has to be completed. Once we have a completed investigation, then we have to see whether the complaint has merit or not." Complaints without merit are dismissed and those with merit referred to the Minister.

"If it has merit then the Act says refer it to the Minister. And if (the HRC) is of the view that is has no merit and we might have to dismiss it, the Act requires us to give the complainant the right to be heard.

"They're advised and informed that the investigation has now been completed and the HRC is of the view that it lacks merit and it might dismiss it, 'What do you have to say'?"

Very few complainants have taken their case to court because they were not pleased with the process or its outcome. Ms Memari was able to recall only three off the top of her head - an employment dispute and more recently, two high-profile cases.

One was brought by businessman Harold Darrell against the Bank of Bermuda and the other by former fire fighters Stephen Hayward and Michael Roberts. In the latter incident, the pair won a landmark victory against their former employers - the Ministry of Labour and the Chief Fire Officer - after Chief Justice Richard Ground ruled they were discriminated against on grounds of disability and should be awarded damages and legal costs. The men, who had been forced to retire due to heart problems, decided to take their cases to the Supreme Court after their complaints were dismissed by the HRC eight years ago.

Asked whether such a verdict might reduce public confidence in the HRC, Ms Memari said she could only speak to the service on offer today.

"I'm not in a position to second guess what the previous Commission decided," she stated. "That decision was made years ago, long before we were on the scene. Having said all that, our investigations are confidential and I'd be loath to discuss the details or merits of any complaint."

However she admitted that gaining public confidence in the process remains a challenge for the HRC.

"I can tell you at least every other week I get a call from someone who wants to tell me about their situation and as soon as I say to them, 'Bring your complaint to the HRC. I can't assist you. It has to be lodged properly', (once I offer to) take them through the whole process, one of the things they say to me is, 'Yeah well, you say that your investigations are confidential but this is a small society and I'm going to be branded as a troublemaker, I'm going to have to be stigmatised for my life' - that kind of thing. So there are concerns but I'd like to think the concerns arise more out of us being a small jurisdiction and everybody knowing everybody and all that.

"The advantage of that is we have found that for the most part even complainants don't necessarily want publicity and to get involved in an adversarial sort of situation. In our mediation we've had complainants who are satisfied with an apology or if it's in the context of an employment situation they want their employer to institute certain policies so that the same thing that happened to them won't happen again."

The upshot of it all is that residents must learn to trust that the system in place works as it should - with complete discretion.

"The Act actually says that there must be confidentiality during the investigation but (HRC executive officer) Ayo (Johnson) and I both take the view that confidentiality is perpetual," the chairman stressed. "And that's the only way it will work."