Employment Equity in Canada: The Legacy of the Abella Report [1 ed.] 1442647566, 9781442647565

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EMPLOYMENT EQUITY IN CANADA The Legacy of the Abella Report

In the mid-1980s, the Abella Commission on Equality in Employment and the federal Employment Equity Act made Canada a policy leader in addressing systemic discrimination in the workplace. More than twentyfive years later, Employment Equity in Canada assembles a distinguished group of experts to explore the state of employment equity in Canada today. Examining the evidence of nearly thirty years, the contributors – both scholars and practitioners of employment policy – evaluate the history and influence of the Abella Report, the impact of Canada’s employment equity legislation on equality in the workplace, and the future of substantive equality in an environment where the Canadian government is increasingly hostile to intervention in the workplace. They compare Canada’s legal and policy choices to those of the United States and to the UN Convention on the Rights of Persons with Disabilities, and examine ways in which the concept of employment equity might be expanded to embrace other vulnerable communities. Their observations will be essential reading for those seeking to understand the past, present, and future of Canadian employment and equity policy. carol agócs is a professor emerita in the Department of Political Science at Western University.

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Employment Equity in Canada The Legacy of the Abella Report

EDITED BY CAROL AGÓCS

UNIVERSITY OF TORONTO PRESS Toronto Buffalo London

© University of Toronto Press 2014 Toronto Buffalo London www.utppublishing.com Printed in the U.S.A. ISBN 978-1-4426-4756-5 (cloth) ISBN 978-1-4426-1562-5 (paper)

Printed on acid-free, 100% post-consumer recycled paper with vegetable-based inks.

Library and Archives Canada Cataloguing in Publication Employment equity in Canada : the legacy of the Abella report / edited by Carol Agócs. Includes bibliographical references and index. ISBN 978-1-4426-4756-5 (bound). – ISBN 978-1-4426-1562-5 (pbk.) 1. Discrimination in employment – Canada. 2. Discrimination in employment – Law and legislation – Canada. 3. Canada. Royal Commission on Equality in Employment. 4. Canada. Employment Equity Act. I. Agócs, Carol, author, editor HD4903.5.C3E523 2014

331.13'30971

C2014-902112-7

This book has been published with the help of a grant from the Federation for the Humanities and Social Sciences, through the Awards to Scholarly Publications Program, using funds provided by the Social Sciences and Humanities Research Council of Canada. University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council, an agency of the Government of Ontario.

an Ontario government agency un organisme du gouvernement de l’Ontario

University of Toronto Press acknowledges the financial support of the Government of Canada through the Canada Book Fund for its publishing activities.

Contents

Foreword vii justice rosalie silberman abella Acknowledgments ix Introduction: Perspectives on Employment Equity in Canada 3 carol agócs 1 The Making of the Abella Report: Reflections on the Thirtieth Anniversary of the Report of the Royal Commission on Equality in Employment 13 carol agócs 2 Employment Equity in Canada: What Do the Data Show about Its Effectiveness? 29 nan weiner 3 Real Change? Reflections on Employment Equity’s Last Thirty Years 51 raj anand 4 Women, Intersectionality, and Employment Equity 71 kim england 5 Employment Equity and Canada’s Aboriginal Peoples 99 michael lynk

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6 Employment Equity and Disability: Moving Forward to Achieve Employment Integration and Fulfil Promises of Inclusion and Participation 133 marcia rioux and lora patton 7 The Equity Landscape for Sexual Minorities in Canada 156 gerald hunt, david rayside, and donn short 8 Remedying the Experiences of Vulnerable Workers: Links with Employment Equity 176 patricia hughes 9 Employment Equity in the Federal Public Service: A Union Perspective 195 allison pilon 10 Securing Employment Equity by Enforcing Human Rights Laws 217 mary cornish, fay faraday, and jan borowy 11 The Employment Equity Mandate of the United Nations Convention on the Rights of Persons with Disabilities: Some Preliminary Observations for Canada 242 michael ashley stein 12 New Narratives, Same Old Problems: The Risk of Diversity-Centred Workplace Decision-Making in a “Post-Racial” America 259 natasha martin 13 Employment Equity: The Next Thirty Years brian w. burkett

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Conclusion – Looking Forward: The Unfinished Business of Employment Equity 306 carol agócs Contributors 325 Index

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Foreword

It is thirty years since Lloyd Axworthy, then Minister of Employment and Immigration in the Liberal Government of Pierre Trudeau, set up the Royal Commission on Equality in Employment to inquire into – and propose solutions for – barriers to employment faced by women, persons with disabilities, visible minorities, and Aboriginal people. A little over a year later, the completed report was given to Flora MacDonald, the Minister of Employment and Immigration in the newly elected Progressive Conservative government of Brian Mulroney. She implemented the report’s recommendations not long afterward and the result of the one-year, $1-million undertaking was the federal Employment Equity Act, enacted on 27 June 1986, exactly three years to the day from when the royal commission was announced. It was an intense year. I met with thousands of Canadians, received hundreds of submissions, and read scores of books and articles from around the world. Then I buried myself in my office and wrote for several months. I spent a whole month trying to define what equality meant in the first chapter. To me, that was the conceptual core of what would follow. Canada had implemented an equality provision in its 1982 Charter of Rights and Freedoms, but it was not to come into effect until 1985. That meant there were no Canadian cases to rely on for guidance. In a way, that made the exercise easier. I was free to put the voices I’d heard across Canada together with all the words I’d read. The result was to reconceive equality not as the American and Aristotelian doctrine of sameness, but as a philosophy that embraced difference. I had learned from what I had seen and heard that people were being excluded from employment opportunities not because of what they could actually do, not because of what they were perceived to be able to do, but

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because of how different they were. That, it seemed to me, was the key to understanding why sameness could be an exclusionary concept. If we treat everyone the same, we ignore their differences. If we ignore their differences, we cannot accommodate them, and if we don’t acknowledge and accommodate them, individuals are left out. By reversing the paradigm and proposing that individuals be included on the basis of the very differences that had unfairly excluded them, equality becomes a tool for breaking down arbitrary barriers. Respect for differences allows people to be treated as equals; ignoring differences creates inequality. Once I’d figured out what I thought equality meant in those first eighteen pages, the rest of the report seemed to flow – until I got to the actual recommendations. I knew from the candid meetings I had with business and labour groups in every city that voluntary measures wouldn’t work. And I knew from the groups and from the uncontradicted statistical evidence that the problem was deeply entrenched. That meant that mandatory measures were needed. But I also had serious reservations about how affirmative action worked in the United States, the only other mandatory strategy I knew of to address workplace barriers. I saw no need for either its fault-based approach or its quotas. And there seemed to be no definitional consensus on what affirmative action actually meant. So I went back to my first chapter and drew on the theory of equality as fairness. The legal analogue for fairness is equity. Since what I was trying to promote was fairness – or equity – in employment, I called the new strategy “employment equity,” a made-in-Canada proposal designed to maximize the potential of all Canadians and minimize the barriers in their way. Time will be the judge of whether it worked. My hope is that at least it helped … Justice Rosalie Silberman Abella

Acknowledgments

This book grew out of the “Conference on Equity in the Workplace: 25 Years after the Abella Report,” held 30–1 October 2009 at the Faculty of Law, University of Western Ontario, in London, Ontario, Canada. The conference was organized by Michael Lynk of Western Law and John Craig of Heenan Blaikie LLP, and was co-sponsored by Western Law, Heenan Blaikie LLP, and Koskie Minsky LLP. Early drafts of many of the chapters were presented at the conference, while others were subsequently commissioned by Michael Lynk, John Craig, and me to round out the overview and analysis of the state of employment equity in Canada. The conference commemorated the twenty-fifth anniversary of the release in 1984 of Equality in Employment: A Royal Commission Report written by Judge Rosalie Silberman Abella, the sole Royal Commissioner. At this writing it is more than twenty-five years since the first Employment Equity Act, based upon Abella’s report, came into force. The report and the Employment Equity Act brought significant policy innovations that marked Canada as an international leader in equality policy at that time. I want to express my appreciation to Daniel Quinlan, acquisitions editor (Political Science and Law), University of Toronto Press, for his support and excellent suggestions, and also to the anonymous reviewers of the book manuscript for their helpful comments. Thanks also to Michael Lynk, who provided collegial assistance as the book evolved. We are honoured that Justice Rosalie Silberman Abella has contributed the foreword to this volume and thank her for her warm encouragement of our project, and vital participation in it, from its origin in the Conference on the Abella Report to this writing. Her personal example of dedicated pursuit of justice and fairness through commitment

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to listening, learning, reflection, and action has long been profoundly inspiring to me and so many others. My heartfelt appreciation goes to Catherine Burr, Bonnie MacLachlan, Peter Agócs, and Kati Agócs for their interest and encouragement. Appreciation and love also go to my granddaughter Olivia Sarai Beaser, for whose generation I hold onto the hope that, in the words of Martin Luther King, “The arc of the moral universe is long, but it bends toward justice.” Carol Agócs London, Ontario

EMPLOYMENT EQUITY IN CANADA The Legacy of the Abella Report

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Introduction

Perspectives on Employment Equity in Canada CAROL AGÓCS

The Abella Royal Commission was struck in June 1983 at a time when Canadian society and politics were embroiled in struggles surrounding social justice and inequality. The era of the 1970s through the mid1980s was marked by activism by advocates for women, racialized groups, persons with disabilities, and Aboriginal peoples who were organizing politically and raising demands that the inequality they experienced be addressed. In 1982 Canada’s Charter of Rights and Freedoms was adopted, influenced by a remarkable grass roots campaign by women across Canada to ensure that gender equality rights would be protected. The three major political parties adopted equity measures that resulted in an increase in the number of women elected to Parliament, and women’s voices began to matter in the politics of the time (Harder 2006, 68–70). By the mid-1980s there had been nearly two decades of experience with human rights processes marked by significant decisions of courts, tribunals, and arbitrators, which set out workers’ rights and clarified employers’ responsibilities for discriminatory acts in the workplace. Yet the human rights system placed the burden of change largely on individual survivors of discrimination, leaving in place the structures and systems that excluded and marginalized them. While human rights codes and the Charter of Rights permitted employers to undertake voluntary affirmative action, very few did. Demands for a proactive and mandatory approach to addressing workplace inequality found a response from the Liberal government of Pierre Trudeau with the announcement of the Royal Commission on Equality in Employment and the appointment of Judge Abella, then of the Ontario Provincial Court, as sole commissioner. Her terms of reference were “to inquire into the most efficient, effective and equitable means of

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promoting employment opportunities, eliminating systemic discrimination and assisting all individuals to compete for employment opportunities on an equal basis” (Abella 1984, ii). Only sixteen months after the commission was announced, Judge Abella tabled her landmark report. It was supported by extensive public consultations across Canada and by a separate volume of thirty-four research reports by experts whose names are still identified with path-breaking work on workplace equality. The report’s publication in 1984 was an occasion for excitement and hope among working people, equality-seekers, human rights advocates, and others across Canada concerned about fairness and equality in employment for women, racialized people (termed “visible minorities” in the Employment Equity Act),1 Aboriginal people and persons with disabilities – the four groups addressed in the Abella Report and designated by employment equity policy. When the federal Employment Equity Act and Federal Contractors Program were enacted in 1986, there was pride that Canada had taken the step of legislating a distinctly Canadian approach to affirmative action, different from that of the United States, that was mandatory, proactive, and designed to prevent discrimination in the workplace, not just to deal with it after it has occurred (see chapter 1). The Royal Commission Report and the Employment Equity Act positioned Canada as a policy leader in the 1980s and 1990s, because they recognized the structural and systemic roots of inequality in employment and the need for systemic remedies. The report noted that the concept of equality evolves over time and is best understood not as an absolute state but as a long-term process of removing discriminatory barriers and improving access to opportunities that are generally available to members of social groups who are not subject to discrimination. The principle that disadvantage and inequality arise in part from unfair and discriminatory barriers – “arbitrary obstructions” (Abella 1984, 3) that prevent people from fully using their abilities and that impede their access to employment opportunity – underlies the logic of employment equity policy. Many discriminatory barriers are built into the structure, culture, and everyday practices in the workplace as a consequence of historical patterns that persist, as well as newly evolving exclusionary practices that reinforce the privilege of dominant social groups. Systemic barriers are behaviours that create disadvantage for groups identified by gender, race, disability, Aboriginal status, or other ascriptive labels, whether or not there is a conscious intent to discriminate. These barriers may be unseen or unacknowledged by those who do not experience them but who benefit from their exclusionary impact.

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Abella proposed that equality in employment entails identifying and removing, “barrier by barrier, discriminatory disadvantages,” replacing them with inclusive and fair policies and practices, accommodating differences among individuals that arise from their group identities, and initiating supportive and positive measures as needed. Treating people equally means acknowledging and accommodating their differences, thus calling for differential rather than identical treatment in order to address the realities of their lives. Differential treatment may produce different results and solutions for different groups while respecting the worth and dignity of all and the right of all to equal opportunity. This vision of how to remedy systemic discrimination2 suggests that employment equity is a transformative process, since in theory it promotes substantive equality, not by forcing members of designated groups to assimilate to the workplace as it exists, but by changing the culture and structure of the workplace to create fairness for all and remove a bias in favour of white males (Abella 1984, 10).3 Based on recommendations and analysis of the Abella Report, the Employment Equity Act set out a series of diagnostic, problem-solving, and change actions that employers in the federal jurisdiction and federal contractors are required to implement in the workplace. The Canadian model4 of legislated and mandatory employment equity includes a number of steps that employers are to undertake.

CANADIAN MODEL OF EMPLOYMENT EQUITY • Demonstrate top management commitment to comply with employment equity requirements • Conduct a workforce census to identify representation of designated groups, using self-identification • Compare representation of designated groups in the employer’s workforce with labour market availability data • Report workforce data to the federal government, which reports publicly on aggregate data as well as individual employer data5 • Set goals and timetables for improving representation • Adopt “special measures” and positive policies and practices designed to remove barriers to equality • Review employment policies and practices to identify barriers to designated group representation (“employment systems review”) (continued)

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• Consult with unions • Cooperate with periodic government audits of workplace representation data, employment systems reviews, goals and timetables, special measures, and progress toward goals; authorities may issue directions in case of failure to comply with legislated requirements

Thirty Years of Employment Equity The chapters in this book look back at what the Royal Commission Report achieved and at the strengths and weaknesses of the Employment Equity Act, and also look ahead at the changing policy landscape and the unfinished business of employment equity. The authors, as a group, examine the development of employment equity through both scholarly and practitioner lenses, drawing on the fields of law and the social sciences as well as expertise on both Canadian and American experiences. Chapter 1 recounts Justice Abella’s reflections on the learning and theoretical work in which she engaged to generate the Royal Commission Report. It draws connections between this foundational work and her contributions, in her current role as Justice of the Supreme Court of Canada, to our evolving understanding of substantive equality. Chapter 2, by Nan Weiner, explains the provisions of the Employment Equity Act and how it is implemented. She then examines what previous academic research and her own analysis of the data reported by employers under the act have shown about the effectiveness of the act in improving the representation of women, members of visible minorities, persons of Aboriginal ancestry, and persons with disabilities. Weiner notes that “Aboriginal peoples and persons with disabilities have not done well” and that “women are regressing when one looks at overall representation” in workplaces covered by the act, and she draws implications for reforming the Employment Equity Act and its implementation to make it more effective in its purpose of improving employment opportunities and outcomes for the designated groups. In chapter 3, Raj Anand asks whether employment equity has brought real change in pursuing its purpose of challenging systemic barriers to equality in the Canadian workplace. Anand’s analysis probes how courts and human rights tribunals have dealt with (or failed to address) systemic discrimination and employment equity over the past quartercentury. He highlights the dilemma that racialized groups face, in that they continue to experience systemic barriers – some long-standing and

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some in new forms – despite an increase in awareness of diversity and equity policy in Canadian society. Chapter 4, by Kim England, analyses previously unexamined data to track the experience of women under employment equity, situating her analysis within the theoretical perspective of intersectionality – the interaction of gender with race, class, disability, Aboriginal ancestry, and other dimensions of difference that shape women’s experiences and locations in the hierarchy of oppression and privilege that characterizes the labour market. England’s work examines disaggregated employment equity data for men and women to show the specific dimensions of inequality faced by those who identify themselves as members of more than one equity group. Among the trends noted are the plateauing of gains for women and polarization between better-off and disadvantaged women, as well as limited benefits of employment equity for women with disabilities and Aboriginal women. England points to the need for a broader policy framework as well as reforms to employment equity policy in order to address inequality for women. In chapter 5, Michael Lynk examines the employment picture for Aboriginal people against the background of the social and economic inequality they suffer in Canadian society. While employment equity has brought improvements in their presence in the federal public service, in general their representation remains considerably below their availability in the labour market, particularly in the private sector. The importance of employment equity policy for Aboriginal people will grow in the future because of current trends toward urban residence and away from residence in reserve communities, and because of the youth of the Aboriginal population in comparison with the Canadian population as a whole, which will result in their increasing importance in the labour market. Lynk also explores the neglected question of whether Aboriginal communities have made employment gains in the forestry and mining sectors as a result of agreements they have negotiated with industry and government. He concludes that formalized requirements that commit employers to improving the representation of Aboriginal peoples, whether through mandatory employment equity or negotiated agreements, make a positive difference. The situation of persons with disabilities in the labour force from the 1980s to the present is examined in chapter 6 by Marcia Rioux and Lora Patton, who find that gains under employment equity have been “modest, at best.” More effective employment equity implementation and enforcement, together with broader pre-employment and accessibility

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policy supports, are needed to attain a higher level of employment integration for people with disabilities. Rioux and Patton’s critique of existing policy points toward ways that employment equity can be strengthened. In chapter 7, Gerald Hunt, David Rayside, and Donn Short provide an overview of human rights and employment for sexual minorities – gays, lesbians, bisexuals, and transgendered persons – since the passage of the Employment Equity Act, from which they were excluded. Basic human rights for sexual minorities in Canada are a recent achievement, and their progress in the workplace and community has been both rapid and substantial. Yet inequality and a lack of inclusiveness persist, and the authors argue for the inclusion of sexual minorities under the umbrella of a more expansive employment equity policy. Chapter 8, by Patricia Hughes, uses employment equity principles as a lens through which to illuminate the conditions faced by vulnerable workers whose precarious employment situation usually leaves them unprotected by the human rights and labour standards enjoyed by workers in standard jobs. These workers include those who hold part-time, temporary, and unstable jobs for which pay is low and there are few, if any, benefits or union protections. Such jobs are disproportionately held by women (particularly single mothers), members of racialized groups, immigrants (including those in Canada on temporary government work schemes), Aboriginal people, and persons with disabilities. Hughes discusses some of the many systemic barriers that may impede the entry of vulnerable workers into standard jobs that offer better security, pay, and legal protections, and argues for systemic remedies tailored to this group of workers. A trade union perspective on employment equity is developed in chapter 9 by Allison Pilon, focusing on the experience of the Public Service Alliance of Canada, the largest union in the federal public sector. In discussing the history of the union’s involvement in the implementation of employment equity, Pilon presents a view from the public service workplace, examining the union’s efforts to make employment equity effective for its members through the consultation requirement contained in the Employment Equity Act and collective bargaining. In chapter 10, Mary Cornish, Fay Faraday, and Jan Borowy examine human rights and labour jurisprudence since the Abella Report, identifying the legal obligations for employment equity to which employers and unions are now subject, whether or not they are covered by the requirements of the Employment Equity Act. They argue that employers and unions can best carry out their duty to be proactive in providing an equitable workplace by working together to implement the requirements of the

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Employment Equity Act. In Ontario, action can be taken now to address systemic discrimination within human rights and labour relations processes, even in the absence of provincial employment equity legislation or effective federal policy covering more than a small fraction of employers. Chapters 11 and 12 bring an international perspective to the discussion of equality policy. In chapter 11, Michael Ashley Stein examines the United Nations Convention on the Rights of Persons with Disabilities (2007), with a focus on its employment equity mandate. He reviews considerations and debates surrounding the adoption of the convention, with particular attention to Canada’s role, and reflects on the relationship between article 27 of the CRPD and the Employment Equity Act. Chapter 12, by Natasha Martin, examines the persisting problem of discrimination in employment in America, suggesting that equity “remains elusive,” in part because a conception of equality envisioning colourblindness as an ideal, which took root during the civil rights movement, has morphed into a narrative of “post-racialism” in the Obama era. Neither conception offers a realistic analysis of race-based discrimination in the contemporary workplace; hence jurisprudence is not informed by a grasp of the dynamics of discrimination and how to combat it. Martin suggests that judicial decision-making on racial inequality, and on affirmative action as a remedy, has reached a stalemate and does not provide appropriate guidance to employers on their responsibilities and opportunities to work toward an inclusive workplace. Brian W. Burkett reconsiders the past and future of employment equity in chapter 13, beginning with the ground-breaking nature of the Abella Report and its imperfect reflection in the Employment Equity Act. During the past three decades the idea of employment equity has become politically charged, and this may account for the failure of the provinces to enact and sustain legislation parallel to the federal act. Burkett also argues that corporate attitudes have changed, pointing to the rise of the Corporate Social Responsibility doctrine and the implementation of voluntary diversity programs. He surveys recent equality policy developments in other countries, noting that Canada’s Employment Equity Act has failed to change in ways that improve its effectiveness. Burkett concludes with a call for a new look at the future of employment equity. The concluding chapter by Carol Agócs discusses the unfinished business of employment equity and examines some of the reasons for the disappointing results of the Employment Equity Act. The chapter also contextualizes the current and future challenges of implementing the act in

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an economic and political environment characterized by globalization, the restructuring of the economy and labour market, and the ascendency of neoliberal ideology in Canadian politics and public policy. Research evidence cited by the authors has shown that employment equity policy can and does have a beneficial impact on representation, career development, and pay for the equity groups when it is legislated, mandatory, and formalized, and when employers’ compliance with its requirements is monitored, with meaningful consequences for failure to comply. All of the chapters in this book suggest that the Employment Equity Act has made a positive difference for groups who experience employment discrimination in Canada, and they argue (with one exception) that it should be retained and strengthened to make it more effective. The final chapters suggest the need for a broad enquiry involving government, employers, the designated groups, and labour into how best to address diversity and equity in the future, and propose multiple policy approaches to reducing inequality in employment. Several chapters argue that employment equity legislation should be made more inclusive and effective in removing systemic barriers on the basis of gender, race, disability, Aboriginal ancestry, and gender identity and sexual orientation in today’s workplace. After reviewing these in-depth analyses of the development of employment equity, what can we conclude about its effectiveness after thirty years? An architectural metaphor might be appropriate: the house of employment equity was well designed and was built upon a firm foundation, but its construction was shoddy. The Royal Commission Report set out a solid design and theoretical rationale for employment equity policy in its time, but there were shortcuts and omissions as the house of employment equity was being built. Some of the report’s key recommendations were never implemented. As Peter Graefe suggests, public policies are embedded within the structure of economic and political power relations in a society, and “can be seen as institutionalized compromises between social forces” (Graefe 2007, 26). In the years following the passage of the Employment Equity Act, successive Canadian governments embarked upon a long disengagement from an equality and social justice agenda for public policy, and reorientation toward a neoliberal market-oriented agenda.6 Employment equity remains a landmark in the field of international equality policy, but it has not realized its transformative possibilities in Canada.

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NOTES 1 Visible minorities are defined in the Employment Equity Act as “persons, other than Aboriginal peoples, who are non-Caucasian in race or non-white in colour,” and who self-identify as such. The specific categories that are considered visible minorities include Blacks, Chinese, South Asians (currently the largest group), Latin Americans, Filipinos, Southeast Asians, West Asians, Arabs, Koreans, Japanese, multiple visible minority, and other visible minority (Statistics Canada 2008). Aboriginal peoples are defined as individuals who identify themselves as members of First Nations, Metis, or Inuit peoples. The 2011 census found that 19.1 per cent of Canada’s population identified themselves as visible minorities and 4.3 per cent identified themselves as Aboriginal. The use of the term visible minorities in this book reflects its use in the specific context of discussion about the Employment Equity Act, but it is recognized that this is a contested concept. Employment equity is understood as a policy that is intended to raise critical awareness of practices, including racialization, that give rise to privilege and disadvantage within a context of power relations. 2 For further discussion of systemic discrimination, including examples and research relating to each of the designated groups, see Agócs (2002, chapter 1). 3 In the Meorin decision the Supreme Court of Canada underlined the responsibility of employers to change the workplace to accommodate diversity among employees, rather than requiring individuals to assimilate to the workplace as it is (British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees’ Union [1999] 3 SCR 3). 4 Agócs and Osborne (2009). The Canadian model was subsequently adopted in Northern Ireland and South Africa (Horwitz and Jain 2009) and has influenced policy in Australia and New Zealand. 5 Employers covered by the act are required to report annually to the federal Labour Program of the Ministry of Employment and Social Development Canada. These reports, as well as a summary of all reports submitted, are available to the public. However, employers covered by the Federal Contractors Program are not required to submit reports and there is no public reporting on their results, although they are subject to compliance reviews and must prepare reports as part of this process. 6 For discussion of the near-disappearance of gender from Canadian public policy and the reframing of structural issues as individual questions of personal responsibility since the mid-1980s, see Brodie and Bakker (2008).

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REFERENCES Abella, Rosalie Silberman. 1984. Equality in Employment: A Royal Commission Report. Ottawa: Minister of Supply and Services Canada. Agócs, Carol, ed. 2002. Workplace Equality: International Perspectives on Legislation, Policy and Practice. The Hague: Kluwer Law International. Agócs, Carol, and Bob Osborne. 2009. “Comparing Equity Policies in Canada and Northern Ireland: Policy Learning in Two Directions?” Canadian Public Policy 35 (2): 237–62. http://dx.doi.org/10.3138/cpp.35.2.237. British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees’ Union [1999] 3 SCR 3. Brodie, Janine, and Isabella Bakker. 2008. Where Are the Women? Gender Equity, Budgets and Canadian Public Policy. Ottawa: Canadian Centre for Policy Alternatives. Employment Equity Act, SC 1995, c 44, Minister of Justice. http://laws.justice. gc.ca/PDF/Statute/e/e-5.401.pdf. Graefe, Peter. 2007. “Political Economy and Canadian Public Policy.” In Critical Policy Studies, ed. Michael Orsini and Miriam Smith, 19–40. Vancouver: UBC Press. Harder, Lois. 2006. “Women and Politics in Canada.” In Women, Democracy, and Globalization in North America, ed. Jane Bayes, Patricia Begne, Laura Gonzalez, Lois Harder, Mary Hawkesworth, and Laura Macdonald, 51–76. New York: Palgrave Macmillan. Horwitz, Frank, and Harish Jain. 2009. “Employment Equity and Black Economic Empowerment in South Africa.” Paper presented to the British Academy in Partnership with the Nuffield Foundation, London, 3 November. Statistics Canada. 2008. “Visible Minorities and Victimization.” Ottawa: Minister of Industry.

Chapter 1

The Making of the Abella Report: Reflections on the Thirtieth Anniversary of the Report of the Royal Commission on Equality in Employment CAROL AGÓCS

Justice Rosalie Silberman Abella was the sole commissioner on the Royal Commission on Equality in Employment, whose report was released in 1984. Equality in Employment: A Royal Commission Report (Abella 1984, often called the Abella Report) was a landmark that fundamentally influenced the fields of employment and human rights law, jurisprudence, and public policy. It created the concept of employment equity, a distinctly Canadian policy to address inequality in employment on the basis of gender, visible minority status, disability, and Aboriginal identity. Its analysis and recommendations have shaped contemporary understandings of the roots and impacts of inequality and discrimination, and the meaning of equality, both in Canada and internationally. The discussion of equality, systemic discrimination, and employment equity presented by Justice Abella in her report is still cited today because it remains fresh, insightful, and visionary – and because the work initiated by Justice Abella remains unfinished. The Abella Report was the basis of Canada’s Employment Equity Act (1986, amended 1995),1 and it influenced constitutional provisions or legislation subsequently adopted in South Africa, Northern Ireland, New Zealand, Australia, Quebec, and Ontario. Employment equity in some form is now included in many collective agreements and workplace policies voluntarily adopted by employers in Canada. To this day, Justice Abella’s model of employment equity continues to inspire advocates who seek change in the workplace so that it reflects the diversity of Canadian society. On 30 October 2009, Justice Rosalie Silberman Abella of the Supreme Court of Canada delivered the sixth Koskie Minsky University Lecture on Labour Law, the highlight of a conference at the Faculty of Law, University

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of Western Ontario, entitled “Equity in the Workplace: 25 Years after the Abella Report.” In her address Justice Abella provided candid, reflective, insightful, and often humorous reflections on the making of the Royal Commission Report and recalled her experiences during that intensive year. In this chapter, Justice Abella’s informal address forms the core of a discussion of the report’s creation and legacy; the chapter quotes extensively from Justice Abella’s lecture. In her address Justice Abella developed themes that shed light on the making of the Royal Commission Report and that help explain why it continues to inform the thinking of equality-seekers, policymakers, and jurists around the world. One of these themes is the importance of learning through listening to the voices of people speaking about their lives and the challenges and realities they face. Justice Abella recounted how listening with empathy changed her and enhanced her understanding of discrimination. Another theme of her address was the importance of made-in-Canada solutions to our national problems – solutions firmly rooted in Canadian history, values, norms, and institutions. In developing her recommendations for employment equity Justice Abella studied and largely rejected the American approach to affirmative action, including quotas, the requirement that there be a prior finding of discrimination, and the individual rights model on which it is based. In setting out a Canadian alternative Justice Abella devised new theories of the meaning of equality that have informed theory, jurisprudence, and practice regarding fairness in the workplace and laid a foundation for the Supreme Court of Canada’s equality jurisprudence. These are the themes of this chapter. On 4 October 2004 Rosalie Silberman Abella and Louise Charron were sworn in as justices of the Supreme Court of Canada. In her speech on this occasion, Beverley McLachlin, Chief Justice of Canada, observed that the work of the Supreme Court calls for “the appointment of individuals who have demonstrated high competence in the law, unswerving commitment to the ideals of judicial independence, profound humility in the performance of their judicial duty, and the ability to listen, to empathize and, in the end, to decide” (McLachlin 2004). These are qualities that Justice Abella had brought years earlier to her work as the sole commissioner of the Royal Commission on Equality in Employment. The Royal Commission on Equality in Employment: Context and Creation The Abella Report presents an analysis of the problem of inequality in Canadian society, and, as such, it is part of a rich tradition of Canadian

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social science, legal, and policy-oriented scholarship – frequently contained in reports of federal royal commissions – that has shaped thought and policy on this complex issue.2 The historical context in which the Royal Commission Report on Equality in Employment was created and published must be understood in order for contemporary readers to appreciate fully the novelty and power of the ideas it developed. In her remarks at her swearing-in, Justice Abella summarized the remarkable revolution in Canadian law that had occurred in the 1970s and 1980s and formed the backdrop for her Royal Commission Report: From 1970, with the Report of the Royal Commission on the Status of Women, the document that provided the ramp from the dislocating agitation of the 60s to the reconfigurating policies of the 70s, we launched a new journey in this country which was, if not always about law, always about justice. We got official bilingualism and multiculturalism, gave persons with disabilities protected status in human rights codes, entered into serious dialogue with Aboriginal people, welcomed waves of non-white immigrants, abolished the matrimonial property regimes that for centuries had kept wives on an economic continuum that ranged from invisible to inconsolable, and watched women ponder competing visions of security as they made the transition to a world with options. And then, with the Charter of Rights and Freedoms over 20 years ago, our justice journey became a justice juggernaut. We constitutionalized the protection of rights, gave independent judges the authority to enforce them, and introduced the public to a new, uniquely Canadian legal vision that rendered the status quo vulnerable to heightened expectations. It was, as a result, a controversial vision. It still is. (Abella 2004)

It was in this context of legal and policy transformation and reform that Justice Abella, then an Ontario Family Court judge, was invited in 1983 by Lloyd Axworthy, Minister of Employment and Immigration in the Liberal government of Pierre Elliott Trudeau, to take on the assignment of being sole royal commissioner. The government took this initiative in response to demands from women, persons with disabilities, and members of visible minorities who were seeking affirmative action as a remedy for the long-standing discrimination they faced. They were inspired in large part not only by the American experience, but also by the progress of francophone Canadians whose representation in the public service of Canada had increased significantly following the introduction of affirmative action measures to remedy their under-representation (Abella 2009, 1).

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On 27 June 1983, Lloyd Axworthy publicly announced the royal commission, whose mandate was to study the employment practices of eleven Crown corporations including Petro Canada, Air Canada, Canadian Broadcasting Corporation, Export Development Corporation, Federal Business Development Bank, and Canadian National Railway “as examples of what happens in a workplace, and as a metaphor for what the government can think about doing for everybody else” (Abella 2009, 1–2). It was a complex mandate, on a shoestring budget, and in a tight time frame: “It was a one-person, one-year, one million dollar Royal Commission … At the same time, Donald Macdonald was travelling across Canada for his 3-year Economic Union Royal Commission with 13 commissioners … The other study that was going on at the same time was a 7-person, 2-year, four million dollar study on baby seals headed by a Quebec Court of Appeal judge. So there we were with one year and one million dollars to study why 60 per cent of the population wasn’t being allowed fair access to the employment world” (Abella 2009, 1–2).3 Nevertheless Justice Abella took up the challenge, a large one for someone in the early stages of a legal and judicial career, and with two young sons. Prior to serving as royal commissioner, she sat on the Ontario Family Court, having been appointed by Attorney General Roy McMurtry in 1976 at the age of twenty-nine, pregnant with her second son, and the youngest judge in Canada at that time, and only four years after she was called to the bar. She had served as a commissioner on the Ontario Human Rights Commission (1975–80), as a member of the Premier’s Advisory Committee on Confederation (1976–81), and as chair of the Study on Access to Legal Services by the Disabled (1982–3). These professional experiences were layered upon her personal history as a child of survivors of the Holocaust who came to Canada as refugees in 1950 from a displaced persons camp in Germany, where Justice Abella was born in 1946 (Abella 2009, 1–2).4 The Royal Commission as a Learning Process In summing up her experience as royal commissioner, Justice Abella recalled, “I learned an enormous amount. When I look back on the Royal Commission 25 years later, what I remember most about that whole experience was how much I didn’t know, and how much I learned just by listening. The faces that I saw 25 years ago all across Canada are still faces that I see when I judge. That experience completely changed me. It was a process of ‘educating Rosie’” (Abella 2009, 1).

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Justice Abella recalled, “I decided to be my own research director. I sat down at 4 am the day after I was appointed and mapped out what research I thought I needed. The next morning, I started calling people I knew across Canada for suggestions of researchers. That’s how the research program got started” (Abella 2009, 3). Justice Abella commissioned twenty-nine research studies that together provided scaffolding of current knowledge about economic and social costs of employment discrimination; policy options for addressing inequality in employment; the American approach to affirmative action; policy-related ideas from all over the world; employment issues faced by Canadian women, Aboriginal people, persons with disabilities and visible minorities; and constitutional issues and legal considerations (Abella 1985). Justice Abella travelled across Canada to conduct her meetings with only one person, Lori Brown, who was her secretary when she practised law in the early 1970s and later became a lawyer. Justice Abella had learned from her experience working with the Ontario Human Rights Commission that public hearings before television cameras tended to inhibit frank and open discussion. So she decided to conduct informal meetings and conversations recorded by a tape recorder, rather than hold formal public hearings. Justice Abella recalled, “We sent out letters of invitation for a 6-week, 17-city [tour] where we met with over a thousand people. The only break I think we took was when my younger son turned 7, when my husband and I took him and his brother to New York to see Cats as a birthday present” (Abella 2009, 3). Participants were told they would not be quoted in the report without their approval, but were free to discuss their issues with the media if they wished. “This approach proved effective, and the informal meetings turned into a series of mini think-tanks with candid and vigorous discussion by members of all the groups about their concerns” (Abella 1984, vi). In each city Justice Abella met separately with individuals and organizations representing women, members of visible minorities, Aboriginal persons and persons with disabilities, labour, business, and government. Before she started her cross-country meetings, Justice Abella first met with the CEOs of the designated Crown corporations and found them to be extremely helpful, cooperative, and generous with their time and expertise. They were also “very frank” about whether equality policies should be mandatory or voluntary: “The Crowns were open enough to say that no business was going to do this unless they were required to do it. The Crowns also felt that it would be unfair to single them out for policy

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initiatives because they accounted for only a small portion of the federally regulated workplace. Not to make employment equity requirements mandatory for the private sector at large would miss most of the workforce, and also put the Crowns at a competitive disadvantage” (Abella 2009, 4–5). This was confirmed by research from the Conference Board indicating that two things make affirmative measures work in a workplace: they had to be mandatory and they needed the commitment of the CEO. As for representatives from the business community, on the other hand, there was a preference to let time and the marketplace solve the problem of inequality. They advised, “wait until attitudes change and then behaviours will change.” Or they said, “It’s insulting to these groups to require people to hire them because it suggests that they don’t otherwise have merit.” But when I asked members of the groups how they felt about this, they said, “Attitudes are changed by behaviour. We don’t feel any worse about getting jobs through affirmative measures than others feel about getting jobs through the old boys’ network. If the merit system is what we’ve had until now, we’ll rest our case.” So I was utterly persuaded that it had to be mandatory. (Abella 2009, 4–5)

Justice Abella also decided to meet with representatives from labour, because “it was not going to work, in my mind, unless this was a collaborative process between business and labour.” Here the discussion was about seniority in the context of a mandatory equity policy: “I asked them what to do about seniority since business groups complained that seniority gets in the way of hiring. Their response was ‘Seniority is … our premier equity tool. It’s the way we ensure that people aren’t arbitrarily fired’” (Abella 2009, 6).5 From her discussions with women, members of visible minorities, Aboriginal people, and persons with disabilities, Justice Abella learned about the unique issues each group confronted as well as the broader social context of their workplace issues. This was reflected in the scope of her analysis about discrimination and her policy recommendations, which addressed pre-employment as well as workplace issues. In Justice Abella’s words, Women said, it’s not just about work, it’s about all of the things we need to have access to in order to be able to work, like childcare, and it’s about

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how we’re paid less. Aboriginal people said, it’s not just about how we’re not hired, it’s about how they require Grade 13 to drive a truck, or it’s how they hire people from the south and bring them up north rather than hiring us. People who were non-white said, it’s about racism – we train people and then they’re promoted over us. And it’s about how our culture isn’t accommodated … And persons with disabilities said, we’re not a homogeneous group. Every single one of us is different, every one of us requires different things. We will never be hired unless the law insists we be hired. Our pension system isn’t working. The sheltered workshop system isn’t working. It was remarkable how it didn’t matter whether it was in Newfoundland or Whitehorse, I heard the same thing from each group wherever I was in Canada. All women, all persons with disabilities, all non-whites, all Aboriginal people, had the same concerns. And so I quickly moved away from thinking that the mandate was about 11 Crown corporations, and decided that this was about the workplaces in Canada, period. (Abella 2009, 4–5)

The conversations Justice Abella had across Canada were the basis of the learning process that produced the Royal Commission Report and extended the horizon of its analysis, thus giving the report its profound influence and staying power. It was a learning process centred on listening with an open mind and being receptive to the possibility of being wrong, so that “the cerebral basket opens with the information that you hear.” This formative learning experience, according to Justice Abella, also changed her. “My opinions changed and I learned how to listen in a different way” (Abella 2009, 14). “Each of us is limited by what we don’t know. And each of us is limited by what others don’t know. With knowledge comes understanding, with understanding comes wisdom and with wisdom comes justice. And to have justice, we must never forget how the world looks to those who are vulnerable. It was an incredible honour for me to have had the opportunity to work on the Report. But I will never forget the people who taught me to see the world through their eyes” (15). In her conversations across Canada, Justice Abella asked the groups she spoke with what their views on affirmative action were. She found that people were either confused about what they thought affirmative action meant or unsure about whether it should be a remedy for inequality in Canada. It proved to be a polarizing term. To cool the rhetoric, lessen resistance, and enhance the prospect of open-minded discussion about a uniquely Canadian remedial approach to discrimination in the workplace, Justice Abella recommended a new term and concept:

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“employment equity,” “employment practices designed to eliminate discriminatory barriers and to provide in a meaningful way equitable opportunities in employment” (Abella 1984, 7). What Is Equality, and How Can We Attain It in Canada? After her country-wide consultations, Justice Abella spent three months reading legal, philosophical, and historical literature from around the world about affirmative action, equality, discrimination, and employment practices. Except for the section on statistics, she wrote every word of the report herself. The first chapter of the report was called “Defining Equality in Employment,” which began with Anatole France’s aphorism “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread” (Abella 1984, 1). It took her one month to write those eighteen pages, and she considered it her biggest intellectual challenge in the report. The Supreme Court of Canada had not yet defined what equality meant when she wrote her report, but American courts had. Based on the 14th Amendment, the American view was that equality meant the same or identical treatment of individuals, an approach that Justice Abella found too restrictive (Abella 2009, 7).6 As a result, Justice Abella considered and rejected the American “sameness” model as well as the individualistic and assimilationist assumptions that underlie American visions of equality: “If you treat everybody the same, you won’t have ramps, and if you treat women the same as men, you don’t take into account pregnancy, and if you treat whites the same as non-whites, you don’t take into account racism, and if you treat Aboriginal people the same as me, then you don’t take into account the disadvantage of what it’s been like living in their disadvantaged circumstances” (Abella 2009, 7–8). Another shortcoming of the American legal approach as a framework for eliminating barriers, in Justice Abella’s view, was that affirmative action was conceived as a fault-based remedy after a finding of discrimination has been made rather than something to be practised proactively by all employers as “a systemic remedy to a systemic problem.” Since the Canadian constitutional compact was about two culturally different groups – the French and the English – coming together as equals yet acknowledging and respecting each other’s differences, Justice Abella did not see the American Melting Pot as an appropriate metaphor

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for Canada. The Canadian Charter of Rights and Freedoms enshrines the rights to be free from discrimination and to protect cultural diversity (Abella 1984, 12–13). This human rights approach helped inform Justice Abella’s formulation in her report of equality as a concept that “acknowledged and accommodated differences so that the differences that kept people out, are now looked at in order to bring them in. … Equality is about acknowledging differences … What has to be done for different groups is different … There’s no rulebook … Because differences among groups are real, employers and service providers have a duty to provide reasonable accommodation of differences (7–8). She endorsed the approach articulated in the decision of the Supreme Court of the United States in Griggs v Duke Power Co (1971), which defined systemic discrimination as not being about intention or motives. Instead, discrimination is identified by its impact, whether or not there is an intention to discriminate: “You can have the best motives in the world and still have an unrepresentative workplace. It’s about the results” (Abella 2009, 8). All this found expression in the first chapter of the Royal Commission Report: Equality in employment means that no one is denied opportunity for reasons that have nothing to do with inherent ability. It means equal access free from arbitrary obstructions. Discrimination means that an arbitrary barrier stands between a person’s ability and his or her opportunity to demonstrate it. If the access is genuinely available in a way that permits everyone who so wishes the opportunity to fully develop his or her potential, we have achieved a kind of equality. It is equality defined as equal freedom from discrimination. Discrimination in this context means practices or attitudes that have, whether by design or impact, the effect of limiting an individual’s or group’s right to the opportunities generally available because of attributed rather than actual characteristics. What is impeding the full development of the potential is not the individual’s capacity but an external barrier that artificially inhibits growth. It is not a question of whether this discrimination is motivated by an intentional desire to obstruct someone’s potential, or whether it is the accidental by-product of innocently motivated practices or systems. If the barrier is affecting certain groups in a disproportionately negative way, it is a signal that the practices that lead to this adverse impact may be discriminatory. This is why it is important to look at the results of a system. (Abella 1984, 2)

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Justice Abella also looked at the American experience with quotas and decided to reject them, because she found that quotas generally were implemented in the lower-paying jobs of the workplace, not “all the way through the occupational layers.” In practice, a quota that started as a floor ended up becoming a ceiling. Justice Abella was also concerned about recommending a bureaucracy whose mandate would be impossible to implement: “You would be asking civil servants to say: ‘Let’s see, you have 12 occupational categories, so you’ll need two of these, four of these, five of these and one of these.’ And I thought, isn’t it better just to make sure that the rate of change over time is reasonable, based on who is in the workforce, how many openings you have, etc.” (Abella 2009, 9). The Tempest: Reception of the Royal Commission Report Justice Abella had been working under the radar and independently on the report, giving no interviews or speeches during the year of her mandate. Nor did she inform the government about what the report would say before it was released. The evening the report was tabled in the House of Commons – 20 November 1984 – Justice Abella was interviewed by Barbara Frum on the CBC. The interview was followed by comments from various stakeholders. Justice Abella recalled that the representative of the association representing small businesses said, “These recommendations are Gestapo-like tactics.” She had hope for a more favourable reaction from the spokesperson for the National Action Committee on the Status of Women, but NAC’s representative said, “No quotas? This Report isn’t worth the paper it’s written on.” The person representing persons with disabilities wasn’t as hostile, but said, “I don’t think it goes far enough” (Abella 2009, 9). In Justice Abella’s words, I became a unifying force in this country: every single editorial from Newfoundland to Vancouver said, “this is awful, outrageous, untenable.” But time is a wonderful thing … In March [1985] I got a call from Flora MacDonald, the Minister of Employment and Immigration [in the Progressive Conservative government of Brian Mulroney]. She had not seen the report until the day it was released and I’d had no contact with the government between the time it was released in November ’84 and March ’85. She said, “I’m going to announce that I’m implementing employment equity. I’ve talked it over with Prime Minister Mulroney, who wants to do this.” And so, to my amazement, the legislation was introduced on June 27, 1986.

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Three years from the date we were set up, there was an Employment Equity Act in this country. Incredible. (Abella 2009, 10–11)

In her lecture, Justice Abella referred to several “ripples” that became part of the legacy of legal and policy innovations emanating from the Royal Commission Report. There was the landmark Supreme Court of Canada decision in the case known as Action Travail des Femmes v CN Rail (1987), which grew out of a complaint of systemic discrimination alleging that CN’s hiring policies and practices had excluded women from access to blue-collar jobs in the Montreal region. The Court substantiated the systemic complaint and assigned an employment equity remedy requiring that one in four people hired should be women until CN Rail achieved a representative workforce in that region. In his decision, Justice Dickson referred to the Abella Report, quoting Justice Abella’s definition of discrimination and adopting the term “employment equity” to refer to a program whose purpose was to prevent further systemic discrimination by an employer against a disadvantaged group (Canadian National Railway v Canada 1987, 1118, 1138–9). Then there was the Andrews (1989) case, the very first equality decision of the Supreme Court of Canada under the Charter. The Court adopted the definition of equality from the Royal Commission Report, not from American jurisprudence. The case was about a foreigntrained lawyer who was refused admission to the Bar of British Columbia because he was not a citizen. Justice Abella recalled, “I cannot tell you how moving it was to me that the Supreme Court used my words to strike down the citizenship requirement for lawyers. My father had been a lawyer … [in Poland], and when he came to Canada in 1950, he wasn’t allowed to practise law because he wasn’t a citizen. My father died in 1970, a month before I finished law school, but Andrews closed the circle” (Abella 2009, 9). Justice Abella was also moved by another of the widening ripples created by the Royal Commission Report – its international impact: In 1989, I got a call from Northern Ireland. Two professors had been travelling around to see what to do about the fact that Catholics were excluded in Northern Ireland from employment opportunities. They went to the United States to look at affirmative action measures. Then when they came to Ottawa, somebody mentioned the Royal Commission Report. When they read the Report, they told me, they decided to recommend to the government of Northern Ireland that it base legislation on the concepts behind

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the Report rather than using the American approach. The result was Northern Ireland’s Fair Employment legislation. (Abella 2009, 9)

Other jurisdictions, including Ontario, New Zealand, and South Africa, also adopted employment equity policies based on the Royal Commission Report. Some of these initiatives were short-lived. As Justice Abella wryly observed, “Ontario implemented employment equity. New Zealand implemented employment equity. [Then] parties in each of those jurisdictions ran for office with the promise of repealing employment equity. They won. I was repealed in each. There aren’t a whole lot of people who can say they’ve been repealed once, let alone twice, before the age of 50” (Abella 2009, 13). Substantive Equality under the Charter: Justice Abella’s Voice on the Supreme Court of Canada In 2004 Justice Rosalie Silberman Abella became the first Jewish woman to be appointed to the Supreme Court of Canada, as well as one of four sitting women justices, one of whom is the Chief Justice. Chief Justice Beverley McLachlin noted that for the first time the Supreme Court accurately reflected the place of women in Canada’s judiciary and legal profession (McLachlin 2004).7 On the Supreme Court, Justice Abella continues to contribute substantially to the evolution of our understanding of substantive equality under section 15 of the Charter of Rights and Freedoms. R v Kapp (2008), a judgment written with Chief Justice McLachlin, breaks new ground by clarifying the application of section 15 (2) of the Charter, which enables governments to “proactively combat discrimination by developing programs aimed at helping disadvantaged groups improve their situation” (R v Kapp 2008, introduction). In this case a government affirmative action program giving Aboriginal fishers the exclusive right to fish for salmon at the mouth of the Fraser River for a twenty-four-hour period in 1998 was upheld as constitutional in the face of an appeal by commercial fishers, mostly white, who argued that the communal fishing licence discriminated against them on grounds of race, and that section 15 (1) of the Charter, which prohibits discrimination, had been violated. The decision in Kapp found that section 15 (2) protects special programs such as this against charges of reverse discrimination: a government program does not violate the equality guarantee of section 15 (1) if it has an “ameliorative or remedial purpose” and “targets a disadvantaged

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group identified by the enumerated or analogous grounds” (R v Kapp 2008, para. 41). The judgment observed that sections 15 (1) and 15 (2) “work together to promote the vision of substantive equality that underlies section 15 as a whole” (R v Kapp 2008, para. 16). Quoting the Abella Report (1984, 3–14), the decision noted that section 15 (2) permits “a group remedy for discrimination” and “encourages a comprehensive or systemic rather than a particularized approach to the elimination of discriminatory barriers.” In Withler v Canada (2011), a judgment also written with Chief Justice McLachlin, the nature of the Supreme Court’s section 15 (2) analysis was further clarified. The issue was whether a federal program providing death benefits to spouses discriminated against two widows on the basis of age. The judgment observed that comparison within a historical and sociological context is a critical part of an analysis of whether a law violates section 15 (1). It stated, “The theme underlying virtually all of this Court’s sec. 15 decisions is that the Court in the final analysis must ask whether, having regard to all relevant contextual factors, including the nature and purpose of the impugned legislation in relation to the claimant’s situation, the impugned distinction discriminates by perpetuating the group’s disadvantage or by stereotyping the group” (Withler v Canada 2011, paras 39–40, 54).8 The judgment written by Justice Abella in Council of Canadians with Disabilities v Via Rail Canada Inc. (2007) confirmed the right of persons with disabilities to reasonable accommodation and removal of discriminatory barriers such that they have “the same access as those without disabilities.” It also clarified that reasonable accommodation “imposes a duty on others to do whatever is reasonably possible to accommodate this right,” limited only by proof that the removal of a discriminatory barrier “imposes undue hardship” on the provider of services. Further, “the point of undue hardship is reached when reasonable means of accommodation are exhausted and only unreasonable or impracticable options for accommodation remain” (Council of Canadians with Disabilities v Via Rail 2007, paras 121 and 130).9 In the unanimous decision of the Supreme Court of Canada in Moore v British Columbia (Education) (2012 SCC 61), written by Justice Abella, discrimination was found to have occurred when a school board facing budget pressures cancelled a program that a student with a learning disability required in order to be able to learn, and did not provide any alternative accommodation. Like the decision in Council of Canadians with Disabilities v Via Rail, this judgment endorsed the principle of substantive equality – that equality of

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results necessitates the recognition and accommodation of differences among people – rather than the notion of formal equality, or treating everyone alike, regardless of their differences.10 The quest for justice and equality that was articulated in the Report of the Royal Commission on Equality in Employment more than a quarter century ago continues. Justice Abella’s report clearly and forcefully put the right to freedom from discrimination, and the justification for affirmative government efforts to end discrimination and ameliorate disadvantage, on the legislative and judicial agenda in Canada. Justice Abella’s life work of making the Charter’s promise of substantive equality a tangible reality for all Canadians continues, and continues to demand the engagement of all who share her vision.

NOTES 1 The 1995 act, which came into force 24 October 1996, replaced the Employment Equity Act, SC 1986, c 31, which came into force in 1987. 2 Other landmark works in this vein include John Porter, The Vertical Mosaic (1965); the Report of the Royal Commission on Bilingualism and Biculturalism (six reports published 1967–70); the Report of the Royal Commission on the Status of Women (1970); and the Report of the Royal Commission on Aboriginal Peoples (1996). 3 The thirteen-member Macdonald Royal Commission on the Economic Union and Development Prospects for Canada was appointed by Prime Minister Pierre Trudeau in 1982, and it reported in 1985 to Prime Minister Brian Mulroney. The report made the case for free trade with the United States, which Mulroney endorsed. The commission spent approximately $21 million (Bradfield 1986, 125). Also see Macdonald (1985) and Laidler and Robson (2005). 4 For more on Justice Rosalie Silberman Abella’s life story, see Bailey Nurse (2006). 5 The Royal Commission Report recommended that seniority not be considered a discriminatory barrier, and this recommendation was included in the 1986 Employment Equity Act, to which the report gave rise. 6 See Abella (1994) for further discussion of Justice Abella’s analysis of equality and discrimination in liberal democracies. 7 Following her work on the royal commission and preceding her appointment to the Supreme Court, Justice Abella served as chair of the Ontario Labour Relations Board, chair of the Ontario Law Reform Commission,

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justice of the Ontario Court of Appeal, Boulton Visiting Professor at McGill University’s Faculty of Law, and Senior Fellow of Massey College at the University of Toronto. 8 The Court found that the Charter had not been infringed and the appeal was dismissed. 9 The Court ruled in favour of the Council of Canadians with Disabilities. 10 For a rich discussion of conceptions of equality, see Sheppard (2010).

REFERENCES Abella, Rosalie Silberman. 1984. Equality in Employment: A Royal Commission Report. Ottawa: Minister of Supply and Services Canada. – 1985. Research Studies of the Commission on Equality in Employment. Ottawa: Minister of Supply and Services Canada. – 1994. “Equality, Human Rights and Women.” 1994 Edmonds Lecture: Women and Work, Winnipeg, MB, 7 March. – 2004. “Remarks at the Swearing-in Ceremony of the Honourable Rosalie Silberman Abella and The Honourable Louise Charron,” 4 October. – 2009. “Reflections on the Abella Report: 25 Years Later.” Koskie Minsky University Lecture in Labour Law, University of Western Ontario, London, ON, 30 October. Andrews v Law Society of British Columbia [1989], 1 SCR 143. Bailey Nurse, Donna. 2006. “Just ‘Rosie.’” University of Toronto Magazine (winter). http://www.magazine.utoronto.ca/winter-2006/rosalie-abella-supreme-courtof-canada-women-judges/. Bradfield, Michael. 1986. “Review Essay: Macdonald Royal Commission Report.” Canadian Journal of Regional Science 9 (1): 125–37. Canadian National Railway Company v Canada (Canadian Human Rights Commission) [1987] SCR 1114 (Action Travail des Femmes). Council of Canadians with Disabilities v Via Rail Canada Inc. [2007] SCC (preliminary version). Employment Equity Act, SC 1995, c 44. Griggs v Duke Power Co, 1971, 401 US 424, 91 S Ct 849. Laidler, David E.W., and William B.P. Robson, eds. 2005. Prospects for Canada: Progress and Challenges 20 Years after the Macdonald Commission, Policy Study 41. Toronto: C.D. Howe Institute. Macdonald, D., Royal Commission on the Economic Union and Development Prospects for Canada. 1985. Report, 3 vols. Ottawa: Minister of Supply and Services Canada.

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McLachlin, Beverley. 2004. “Remarks at the Swearing-in Ceremony of the Honourable Rosalie Silberman Abella and The Honourable Louise Charron,” 4 October. Moore v British Columbia (Education) 2012 SCC 61. Porter, John. 1965. The Vertical Mosaic. Toronto: University of Toronto Press. R v Kapp [2008] 2 SCR 483, 2008 SCC 41. Royal Commission on Aboriginal Peoples. 1996. Royal Commission Report on Aboriginal Peoples. Ottawa: Aboriginal Affairs and Northern Development Canada. http://www.aadnc-aandc.gc.ca/eng/1307458586498/1307458751962. Royal Commission on Bilingualism and Biculturalism. 1967. Royal Commission Report on Bilingualism and Biculturalism. Ottawa: Queen’s Printer. Royal Commission on the Status of Women. 1970. Report of the Royal Commission on the Status of Women in Canada. Ottawa: Queen’s Printer. Sheppard, Colleen. 2010. Inclusive Equality: The Relational Dimensions of Systemic Discrimination in Canada. Montreal and Kingston: McGill-Queen’s University Press. Withler v Canada (Attorney General) [2011] SCJ no. 12 (preliminary version).

Chapter 2

Employment Equity in Canada: What Do the Data Show about Its Effectiveness? NAN WEINER

The Abella Royal Commission (1984) provided the research and analysis for understanding systemic discrimination and the need to redress it proactively. The commission’s mission was to “increase the opportunities of employment of women, native people, disabled persons and visible minorities … [and] to inquire into the most efficient, effective and equitable means of promoting equal employment opportunities, eliminating systemic discrimination and assisting all individuals to compete for employment opportunities on an equal basis” (Abella 1984, ii). Two programs emerged from the Abella Report: the Legislated Employment Equity Program (LEEP) and the Federal Contractors Program (FCP). Over time LEEP has come to cover federally regulated industries (e.g., banking, communication, and transportation), the federal public service, and some other federal organizations and agencies (e.g., Canadian Forces). The FCP covers federal contractors (those who do business with the federal government). Employers under LEEP are all covered by the federal Employment Equity Act, the legislative framework for LEEP. FCP employers are covered by provincial legislation; however, in choosing to bid on contracts with the federal government they agree to implement employment equity if awarded the contract. Only employers with at least 100 employees are covered in both programs. Until 2013, federal contractors with a single contract of at least $200,000 were covered. However, in 2013 the Harper government raised the contract threshold to $1 million “to support the Government’s commitment to reduce regulatory red tape burden for small-to-medium-sized employers,” thus also substantially reducing the FCP’s coverage (Labour Program 2013). The distinction between LEEP and FCP comes in the enforcement mechanisms of the programs, discussed later. Table 2.1 shows the number of

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Table 2.1. Employers and Employees Covered by Federal Employment Equity Efforts, 2007

Number covered

Regulated organizations (LEEP)

Public service and separate employers (LEEP)

Contractors program (FCP)*

TOTAL

Employers Employees

546 733,517

90 388,253

940 1,150,000

1,576 2,371,770

*Scope: $13 billion in contracts were covered by the FCP from 1986 to 1997 (Erridge and Fee 2001, 62). Source: Table 1, “Overview,” Canadian Human Rights Commission Annual Report (2008).

employees and employers covered by the two programs in 2007. Less than 1 per cent of employers are covered by these two programs, while about 13 per cent of the labour force is covered. Key to both programs is the understanding that systemic discrimination requires employers to take proactive steps to redress the problem. Employers must look for and identify the effects of systemic discrimination and, if found, correct them. This is different from a complaintbased approach such as is used in human rights legislation. Employment equity has been in place since 1987 for at least some employers. Over time the understanding of how employment equity should work has increased; further, the two programs have been brought into line with each other and the enforcement mechanisms have become stricter. Still the question remains, how effective is employment equity at achieving the mission set out in the Abella Report? This chapter reviews the data from the annual reports provided by LEEP employers, program evaluation of LEEP, and academic research. First, however, the next section provides a review of the employment equity (EE) process as set out in LEEP and FCP. Employment Equity Process Both the LEEP and FCP programs require four steps (HRSDC 2010): 1 2 3 4

commitment, communication, and consultation problem identification development of a three-year EE plan implementing, sustaining, reviewing, and revising the plan

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Human Resources and Skills Development Canada (HRSDC) collects data and publishes annual reports for employers covered by LEEP, but not FCP. Further, enforcement differs for the two programs. LEEP employers are audited by the Canadian Human Rights Commission (CHRC) because they are federally regulated organizations and thus under the jurisdiction of the Canadian Human Rights Act. However, FCP employers are monitored by HRSDC Labour Programs because they are not subject to federal legislation. The CHRC audit process was a significant addition to the revised Employment Equity Act of 1995. Between 1997 and 2006, CHRC did 300 audits of federally regulated employers and government departments and agencies (CHRC 2009, 1). The audit process is in two parts: preliminary assessment (to ensure organizations are in compliance with the steps in the EE process); and progress assessment (to ensure organizations are fulfilling their goals, e.g., achieving representation), which is to take place three to five years after the employer is found to be in compliance with the preliminary assessment. Although the audit process emphasizes negotiations and persuasion rather than stronger deterrents, the reality is that employers typically have only completed their workforce survey, needed to file annual reports, and may have developed an EE plan, but have not done much else until the audit begins. The same holds for FCP employers whose EE plans are reviewed by HRSDC. How Effective Is the Employment Equity Act ? The ultimate goal of employment equity is to achieve representation for members of each of the four designated groups throughout the organizational hierarchy and to have employment systems that meet the needs of all employees (designated and non-designated). Representation is considered to have been achieved when the proportion of each designated group (DG) within various occupational groupings within an organization is equal to the availability of the DG in the labour force. Thus, one of the key ways to assess the effectiveness of the Employment Equity Act (EEA) is to look at changes in representation for each of the DGs. There are twenty-one years of data from LEEP employers on representation. In addition, there has been some, though not extensive, academic research on employment equity. Both of these are examined.

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Data from LEEP Employers Four charts from the HRSDC 2008 Employment Equity Annual Report1 are provided below. Each shows the data for one of the four designated groups for employers in federally regulated industries, but does not include Federal Public Service or FCP employers. These charts show the level of representation compared to the level of availability. To provide a clearer picture of current events, the availability level for 2006 has been added so that for the last two years (2006 and 2007) representation can better be compared to relevant availability. These charts provide information about overall representation only, which masks different representation at different occupational levels. For example, a DG’s overall representation could be consistent with its representation in the population, but members of the DG could be concentrated in lower-level occupations. Before discussing the representation for each DG, it is necessary to comment on the data. The availability data are captured in the long form of the census, which asks people which of the fourteen occupational groups they worked in over the last seventeen months and about their ethnicity and race. Since the census is conducted every five years, the availability data are always out of date, except for the data on women, which are measured annually. This is particularly an issue for visible minorities, a group that is rapidly increasing in the labour force every year. Because the availability data include only those who have had actual work experience in the previous seventeen months, they do not capture all those who are qualified (for many occupations) and available for work (e.g., those graduating from school). The availability data thus provide an underestimation of actual available labour. Employers are using availability data to set EE goals, which are more relevant to the past. On the other hand, the fourteen occupational categories used in EE are very broad, comprising somewhat more specific occupational groupings, which may still be rather broad. For example, under Professionals there are three sub-occupations2 related to human resources: Specialist in HR, Personnel and Recruitment Officer, and Training Officer. On the other hand, there is a very broad sub-occupation of Professional Occupation in Business Services to Management, which is a kind of catch-all for many non-financial, non-HR jobs. Depending on the kind of work within a particular organization, these sub-occupations may or may not provide a good reflection of the work done within the organization, and

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Figure 2.1. Representation and Availability of Women in the Federally Regulated Private Sector

Source: HRSDC, Employment Equity Act: Annual Report 2011.

this affects the accuracy of the availability data. In addition, the availability data for the smaller populations of DGs (persons with disabilities and Aboriginal peoples) are less stable than for women and visible minorities. As can be seen in figures 2.1 to 2.4 the availability data move up or down every five years as the new census data come in. This, in part, reflects some of the difficulties in reliably collecting data from these two groups. Overall, while the availability data are imperfect, they do provide a decent guide, and employers are allowed to use other data if relevant to helping them identify availability for their organization. Figure 2.5 shows a comparison of the four DGs for the fourteen occupational groupings. In addition, because having DG members in decision-making positions within organizations is of key importance, the representation of each designated group in managerial jobs is discussed below. Looking at representation over time, the graph for women (figure 2.1) shows that representation has always been below availability, though it was very close in 1990 and 1993. Surprisingly, the gap between representation and availability has been increasingly widening since 2001, because availability has increased somewhat while representation has fallen even more. On the other hand, the gap for women in senior management jobs has been decreasing slightly. Their availability was 25 per cent (2001

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census) while representation in 2007 (the last year examined for this chapter) was 22 per cent (up from 20 per cent in 2001). For middle managers, women’s representation of 42 per cent (2007) is greater than availability (38 per cent for 2001) (HRSDC 2008, 5). The second graph (figure 2.2) shows the data for visible minorities. Here there is a steep, upward slope in representation. In fact, representation has been above availability since 2007. Like the other designated groups, representation (5.4 per cent) for senior managers is below availability (8.2 per cent) based on 2001 availability. However, for middle managers, representation (13 per cent) is slightly above 2001 availability (12 per cent), having increased from 9 per cent in 2001 (HRSDC 2008, 8). Figure 2.3 for Aboriginal peoples shows a steady but not very steep upward slope indicating slight continuous improvement since 1987. Representation has increased from 1.6 per cent in 2001 to 1.9 per cent in 2010, well below 2006 availability of 3.1 per cent. Representation has never been particularly close to availability. Managerial data show that Aboriginal peoples are far below availability for senior managers. In 2007, just less than 1 per cent (0.9 per cent) of Aboriginal people were in senior management, compared to availability of 2.5 per cent in 2001. For middle managers, representation is closer to availability, 1.1 per cent Figure 2.2. Representation and Availability of Members of Visible Minorities in the Federally Regulated Private Sector

Source: HRSDC, Employment Equity Act: Annual Report 2011.

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Figure 2.3. Representation and Availability of Aboriginal Peoples in the Federally Regulated Private Sector

Source: HRSDC, Employment Equity Act: Annual Report 2011.

compared to 1.4 per cent for 2001 availability. Interestingly, for supervisors in craft/trades, Aboriginal peoples have higher representation (3.4 per cent in 2007) compared to availability of 1.7 per cent (2001 availability) (HRSDC 2008, 6). The group that lags behind most is persons with disabilities. Its graph shows little sustained upward movement since 1987 (figure 2.4). Representation has always been significantly below availability. (Interestingly, availability has declined for this group, which may be a function of different people feeling comfortable identifying themselves as “disabled.”) Still, among senior managers, representation (2.6 per cent) is above 2001 availability (2.1 per cent), and representation for middle managers (2.6 per cent) is almost the same as 2001 availability (2.7 per cent). Because of the likely higher age level of those in managerial jobs overall and because people become more disabled as they age, it is likely that these demographics reflect individuals who have become disabled after attaining their managerial positions rather than the status of people with existing disabilities being hired and promoted. Figure 2.5 compares the achievement of employment equity among the four designated groups in the fourteen occupational groupings tracked for federally regulated employers. The index of representativeness (IR)

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Figure 2.4. Representation and Availability of Persons with Disabilities in the Federally Regulated Private Sector

Source: HRSDC, Employment Equity Act: Annual Report 2011.

is derived by dividing representation by availability. An index of 1.0 means that representation = availability and EE is achieved. An index of less than 1.0 indicates under-representation, while an index greater than 1.0 refers to concentration of the DG in an occupation. The index allows a comparison across the four designated groups. That is, because each DG’s representation is divided by their availability, the index provides a common metric. Figure 2.5 shows the index by occupational groupings for the four designated groups for federally regulated employers. It shows: • Aboriginal peoples have achieved representation in only two occupations (supervisor in crafts and trades, and other manual workers). • Persons with disabilities are under-represented in all but three occupations – senior managers, middle managers, and supervisors, perhaps because older individuals have become disabled. • Visible minority groups have an index above 1.0 in nine out of the fourteen occupations. They are under-represented in senior management, semi-professionals, skilled sales and service, semi-skilled manual, and other manual workers.

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Figure 2.5. Federally Regulated Employers Index of Representativeness, 2007, with 2001 Availability Data

Source: HRSDC, Employment Equity Act: Annual Report 2008; index calculated from data provided on pages 13, 19, 25, and 33.

• Women show a pattern similar to that for persons with disabilities – they are below availability in all occupations except middle managers and supervisors. They are almost at availability for intermediate sales and service. It is often assumed that women have made significant progress as a result of employment equity, but as shown in figures 2.1 and 2.5, their level of representation does not equal availability either overall (figure 2.1) nor in most occupational groupings (figure 2.5). • For senior managerial jobs, persons with disabilities show overrepresentation (IR of about 1.25), while for the other three groups representation is below availability. For women, the index is 0.88, for visible minorities 0.66, and Aboriginal persons are particularly low, with an index of only 0.36. The data for middle managers are encouraging, since three of the designated groups have either over-representation (women 1.13; visible minorities 1.08) or nearrepresentation (persons with disabilities 0.96), while Aboriginal

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peoples have an index of 0.79. Middle managers are an obvious feeder group for senior managerial jobs. While these findings are disheartening, it appears that employers in the LEEP are doing better than non-LEEP employers. A program evaluation of LEEP employers for the period 1987 to 1999 found that while representation for the four designated groups was consistently below their availability, the growth rate for women and visible minorities was greater among LEEP employers than for the general labour force (HRSDC 2005). Further, for each of the four designated groups, there was a positive correlation between growth in representation and the number of years an employer was covered under LEEP. Other findings from this research (HRSDC 2005) showed that employer size is related to representation. Larger organizations (more than 500 employees) employed a larger proportion of women, persons with disabilities, and visible minorities, while smaller organizations (fewer than 500 employees) employed proportionately more Aboriginal people. Data for the federal public service are presented in figure 2.6 for the index of representativeness for 1998 and 2008. Figure 2.6 shows that in 1998 the indices for women and Aboriginal peoples were both above availability (1.0 and 1.6 respectively), and persons with disabilities had an index of 0.8, while visible minorities were lowest (0.6). By 2008 the women’s index remained unchanged (1.0), while the other three other groups all improved. Aboriginal peoples moved from 1.6 to 1.8, persons with disabilities doubled from 0.8 to 1.6, and visible minorities increased from 0.6 to 0.9. It is interesting to note that visible minorities lag behind in the federal public service, though they are the only group that is above availability among employers in federally regulated industries. The federal public service has a different way of grouping jobs into occupations. Table 2.2 provides these data as of 31 March 2008 (TBS 2009). Availability figures are not given. In managerial (executive) jobs, women have a 42 per cent representation rate, compared to 7 per cent for visible minorities, 6 per cent for persons with disabilities, and only 3 per cent for Aboriginal peoples. Among the designated groups employed in the various occupations, virtually everyone employed in administrative support jobs is a member of one or more of the designated groups (81 per cent of administrative jobs are held by women, 10 per cent by visible minorities, 8 per cent by persons with disabilities, and 5 per cent by Aboriginal peoples). Within

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Figure 2.6. Index of Representativeness for Designated Groups in Federal Public Service, 1998 and 2008

Source: Treasury Board Secretariat of Canada, “Employment Equity in the Public Service of Canada 2006–2007 and 2007–2008” (appendix 2, table 1) (2009).

executive positions 41.7 per cent are held by women, 6.7 per cent by visible minorities, 5.7 per cent by persons with disabilities, and 3.4 per cent by Aboriginal peoples.

Academic Research All but one piece of research referenced here is Canadian. Table 2.3 highlights the variables studied for the designated groups and the topics covered. The table shows very little research on Aboriginal peoples and persons with disabilities, perhaps because they are the two smallest groups. However, since these two designated groups have made the least progress, a case could be made that they require the most research. In the only research to focus on persons with disabilities (England 2003), men and women with and without disabilities were compared within six large banks. England found occupational segregation was based on gender rather than disability status. Most men, regardless of disability status, were employed in middle-management jobs; however, for men

Table 2.2. Distribution of Public Service of Canada Employees by Designated Group According to Occupational Category and Group*

Occupational category and group Executive Scientific and professional Administrative & Foreign Service Technical Administrative support Operational TOTAL FEDERAL PUBLIC SERVICE

All employees #

Aboriginal peoples

Women #

%

#

%

Persons with disabilities #

%

Persons in a visible minority group #

%

4,898 27,350 90,284

2,042 12,385 55,832

41.7 45.3 61.8

165 697 4,121

3.4 2.5 4.6

278 1,094 5,554

5.7 4.0 6.2

326 3,662 8,533

6.7 13.4 9.5

17,422 26,849 19,951 186,754

5,663 21,719 3,948 101,589

32.5 80.9 19.8 54.4

612 1,395 1,200 8,190

3.5 5.2 6.0 4.4

896 2,093 1,086 11,001

5.1 7.8 5.4 5.9

1,106 2,730 850 17,207

6.3 10.2 4.3 9.2

*FAA, schedules I and IV Indeterminates, Terms of Three Months or More, and Seasonal Employees – as at 31 March 2008. Note: Internal representation is based on those who have voluntarily chosen to self-identify to date as an Aboriginal person, a person with a disability, and/or a person in a visible minority group. Source: Treasury Board Secretariat of Canada, “Employment Equity in the Public Service of Canada 2006–2007 and 2007–2008” (appendix 2, table 3) (2009).

Table 2.3. Summary of Canadian Research on Employment Equity by Variables Studied and Designated Groups Designated groups

Variables studied

Aboriginal peoples

Characteristics of organizations Organizational size Industrial sectors Employment effects Occupational effects Part-time vs full-time employment Occupational segregation Characteristics of employment equity Covered by EEA vs those not Leck & Saunders covered (1992) (women) Presence of EE directives, or statistical evidence vs no mention of EE Formalized EE program Outcomes Good outcomes of EE Leck, St Onge, & Erridge and Fee (2001)* Lalancette (1995)

Persons with disabilities

Visible minorities

Women

Jain & Lawler (2004) Jain & Lawler (2004)

Stewart & Drakich (1995)

Jain & Lawler (2004) Jain & Lawler (2004) England (2003) Leck & Saunders (1992) (women)

Leck, St Onge, & Lalancette (1995)

Re-employment after layoff Backlash is problematic *Looked at FCP program overall rather than specific designated groups.

England (2003) Leck & Saunders (1992) (women) Glastra, Schedler, & Kats (1998) Jain & Hackett (1989) Leck and Saunders (1996)

Jain & Hackett (1992) Leck & Saunders (1992) Jain & Hackett (1989) Ng & Wiesner (2007)

Leck, St Onge, & Lalancette (1995)

Leck & Saunders (1992) Leck (2002) Leck, St Onge, & Lalancette (1995) Antecol & Kuhn (1999) Falkenberg & Boland (1997)

Stewart & Drakich (1995)

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with disabilities the second-most-populated occupation was clerical, compared to professional for men without disabilities. Women, regardless of disability status, were most likely to be found in clerical jobs. Occupational segregation had declined, with more women, including women with disabilities, in managerial positions. The studies that included Aboriginal peoples looked at all the designated groups (Leck and Saunders 1992; Leck, St Onge, and Lalancette 1995) and did not study characteristics of Aboriginal peoples specifically. The basic findings from the other research are summarized below. The most interesting study (Ng and Wiesner 2007) addresses the common concern that EE will mean hiring fewer qualified people. Using business students, Ng and Wiesner examined hiring into non-traditional jobs, i.e., women into policing and men into nursing. They manipulated the relative qualifications between traditional and non-traditional candidates for the two jobs, and also manipulated whether there were EE directives, statistical data on EE results, or no information on EE. The authors found that the qualification of candidates is taken into consideration when employment equity is being emphasized, though not in the way opponents of EE assume. Business students showed a bias towards less-qualified men but not women. Obviously, qualifications are important because they are assumed to be related to performance, a factor not examined in the present study. However, some studies, including some done in the United States (Neumark, quoted in Ng and Wiesner 2007; Holzer and Neumark 2000; and Koretz, quoted in Leck 2002) indicate that while EE efforts may lead to individuals with lower qualifications being hired, this does not mean lower performance. This could be due to more rigorous selection or to unnecessary job requirements (formal qualifications), which may create barriers to the hiring of designated group members, and the EE process seeks to remove such barriers. The characteristics of organizations affect the success of EE. Large organizations did better for visible minorities (Jain and Lawler 2004), while smaller universities did better for women (Stewart and Drakich 1995). Characteristics of the employment/job situation can affect representation levels: occupational segregation in banks is more linked to gender than to disability status (England 2003). The characteristics of EE also have an effect. Organizations that highlight EE, by providing an EE mission statement and under-representation data, increase hiring into non-traditional jobs (Ng and Wiesner 2007), and formalized EE programs produce better results (Leck and Saunders 1992, 1996). Stewart and Drakich (1995) found that universities with more active EE programs did better, while Jain and Hackett (1989) found that enforcement

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is critical to getting results. A number of studies focus on outcomes. White women have benefited more than women of colour from EE efforts (Leck and Saunders 1992). The gender wage gap has closed more rapidly in organizations with formalized EE programs (Leck and Saunders 1992). EE results in improved HR practices, increased representation and improved status of women, and narrowing of the wage gaps between men and women (Leck 2002). Erridge and Fee (2001) found that EE changes attitudes, and Antecol and Kuhn (1999) found that EE helps women get re-employed after layoffs. These authors also found that men feel more discriminated against in organizations with EE programs, while Falkenberg and Boland (1977) found that backlash is problematic. Jain and Lawler (2004) looked at the progress of visible minorities between 1987 and 1999 across the country. In addition to finding that large employers did better in increasing representation than smaller ones, they found that the Atlantic provinces did better than expected relative to local labour market conditions. Visible minorities did best in supervisor, clerical, and craft and trade positions but were substantially under-represented in manual, sales, professional, and managerial jobs. In the industry sector, equity was higher in banking than in communication and transportation. Visible minorities were found disproportionately in the secondary labour force (temporary and part-time work) compared to permanent, full-time work. Much of the research has focused on being required to do EE (versus not) and having a formalized EE program (Glastra, Schedler, and Kats 1998; Jain and Hackett 1989, 1992; Leck 2002; Leck and Saunders 1992, 1996; Leck, St Onge, and Lalancette 1995; and Stewart and Drakich 1995). In all situations institutionalizing EE had positive effects. In terms of outcomes, a few studies have looked at the effect of EE on closing the wage gap (Leck 2002; Leck, St Onge, and Lalancette 1995). They find that organizations subject to the Employment Equity Act are slowly closing the wage gap and that organizations with more formalized, comprehensive, and supported EE Programs are closing the wage gap more rapidly. A study by Antecol and Kuhn (1999) found some evidence that employment equity coverage in a pre-separation job reduced the relative amount of time it takes women, compared to men, to become re-employed. This effect operates largely through highly significant differences in the rate at which women and men are recalled to the preseparation employer. Erridge and Fee’s (2001) research was atypical because it focused specifically on the Federal Contractors Program. They found the program

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stronger in policy than in implementation, in part as the result of underfunding, so assessments of employers’ progress cannot be done more often. Workplace Equity officers of HRSDC are responsible for assessing FCP employers. FCP has consistently been the “weak sibling” of EE and so does not get as much attention as LEEP. However, Erridge and Fee do find that the numbers do not tell the whole story. They note that there have been “qualitative changes in the attitudes of employees and employers toward equity, in addition to increasing awareness” (68). Leck (2002) argues against the premise that the benefits from EE would have been gained without employment equity programs as a result of economic, societal, or demographic pressures. She highlights three major benefits resulting directly from EE: improved human resource practices due to policy changes that support EE; increased presence and improved status of women due to their representation in the workplace and in more positions of power; and a narrowing of the wage gap between men and women, in part due to the increase in the number of women in higher positions within organizations. Taggar, Jain, and Gunderson (1997) have pointed out that much of the research on EE does not allow a clear determination of the impact of LEEP, since organizations not covered by LEEP are not included in the studies, and therefore it cannot be determined if other factors are affecting the changes. It is difficult to get non-LEEP employers to take part in such research, since they typically see nothing in it for them but have to spend time on surveys. Do We Have the Act We Should Have? Over the years various parties have made recommendations for changes to the 1995 EEA. Both the CHRC (2002) and the Parliamentary Committee on Human Resources Development and the Status of Persons with Disabilities (Longfield 2002) felt that the act is basically sound and that fine tuning is needed, rather than an overhaul. In addition, recommendations have been made from other sources including Bakan and Kobayashi (2000) and the LEEP Program Evaluation (HRSDC 2005). These are highlighted below. DGs face issues in the public sector different from those in the private sector. Persons with disabilities and Aboriginal peoples have not done as well among federally regulated employers, while visible minorities have done poorly in the federal public service. At present there is no differentiation between what is required of employers in federally regulated industries and the federal public service, nor is there any difference in

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what is required to achieve EE for the four designated groups. Further, employment equity as currently constructed cannot deal with individuals who are members of more than one designated group. It has long been hypothesized that women who are also disabled or also a member of a visible minority face double or triple jeopardy. Without the ability to track such individuals, there is no way to test this hypothesis. For example, England’s (2003) research showed that being a woman had more impact than being disabled, but more needs to be done in order to assess the implication of being a member of more than one designated group. A number of aspects of EE are encouraged by HRSDC and CHRC but are not enshrined in the act or the FCP. This can confuse employers. Clarity is needed on exactly what employers are required to implement under the requirements for “special measures” and reasonable accommodation. The latter differs from the human rights requirement of “duty to accommodate short of undue hardship”; such inconsistencies are difficult for employers. Further, certain practices have become standard requirements by CHRC but they are not included in the EE Act (e.g., cluster analysis,3 setting goals in percentage terms, setting goals up to twice availability where there is a large gap between availability and representation). This can create unnecessary conflict between employers and the regulatory agency. In the Federal Contractors Program, the criteria for inclusion are high: 100 employees and formerly a contract of at least $200,000, recently raised to $1million. In the United States, for example, contractors with a single contract of $25,000 are included. Thus, a country with a population ten times larger than Canada’s has a cut-off for inclusion in its contractors’ program that was one-eighth the size of the FCP before the change in threshold. Lowering either of the two Canadian criteria would mean many more employers would be included, and these are likely to be medium-sized and smaller employers. It might make sense for such employers to have different requirements to achieve EE. For example, the employment systems review might be simplified. Currently an extensive process requires employers to examine their own organization to identify barriers that actually exist. It is hard to argue with such an organizationspecific approach. However, it is likely that employment equity could be done more efficiently: employers and employee representatives could consider barriers that have been identified in other organizations as likely causes for the under-representation that exists within their organization. Means to redress these barriers would be implemented. Only if these measures did not result in representation matching availability

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would an ESR unique to an organization be necessary. Since much of new employment is generated within medium and small employers, findings ways to extend EE coverage to these employers could have a substantial impact on elimination of discrimination in the Canadian workplace. Two agencies, HRSDC and CHRC, have different roles to play with LEEP employers. HRSDC provides consultative services, while CHRC audits compliance with EE requirements. However, there are concerns that the two agencies provide different advice4 and that once an audit begins, employers want only to work with CHRC (given that CHRC will have the ultimate say on whether the employer is in compliance). Neither agency has sufficient resources to provide the consultative role that employers need. Coordination between HRSDC and CHRC has improved, though it could be better. Employers like the negotiations and persuasion approach of CHRC (2003), but perhaps more frequent use of a tribunal would lead to more EE efforts among employers. Such social programs as EE require getting and keeping management’s attention, and a tribunal hearing can achieve that. Finally, some recommend that more effort to increase public awareness about the benefits of EE would lead to less backlash. HRSDC and CHRC have been working on the recommendation for better educational and/or training material for employers, and there is now considerable material accessible on the web. Conclusion We Canadians like to think of ourselves as very tolerant and socially progressive, but on EE we need to be wary of arrogance. Gains have been made, but it is essential to always consider how much remains to be done. Consider the study by McGuire, Garavan, Saha, and O’Donnell (2006), which compared Canadian and Irish managers and found that nationality was linked to having positive values towards EE: Irish managers scored higher. Further, one cannot presume that progress, once made, cannot be lost. Consider women (as can be seen in figure 2.1, the HRSDC’s graph comparing representation and availability). The gap between 2010 representation compared to 2006 availability data is greater than it has ever been in the twenty-one years that data have been collected. Problems are more related to a lack of will and effort than lack of understanding of the solutions. For example, in its 2007 annual report, CHRC identified proactive steps that employers can undertake to increase representation of designated groups. These include meaningful consultation with employee representatives, which creates better

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decision-making and buy-in in addition to reducing backlash; ensuring ongoing resources are applied to employment equity, not just while an audit is being conducted; integrating EE into corporate culture and business planning, in part by rewarding managers at all levels for making positive contributions; and engaging in positive practices such as ensuring temporary and search agencies are sensitive to an employer’s commitment to hiring designated group members. The evidence shows that EE makes a difference and has done so over time. Still, some of the concerns have been around for a long time. Initially, the EEA required only that employers collect and report data on representation. The 1995 amendments required that employers investigate why they have under-representation for certain DGs in particular occupations (employment systems review) and then develop an EE plan. Still what happens in practice is that employers collect the data (and in the case of LEEP, employers report them) but then often do nothing more until they are contacted by CHRC (for LEEP employers) or HRSDC (for FCP employers). This has been true since the act was initially amended (Agócs 2002, 266) and continues today, more than fifteen years later. This holds true for FCP employers too. Requiring employment equity of employers leads to results. We now have enough experience and understanding that it might be time to consider differentiating EE for different kinds of organizations (e.g., federal public service compared to federally regulated employers) and for different DGs. Aboriginal peoples and persons with disabilities have not done well among employers in federally regulated industries, and women are regressing in overall representation. There could be ways to simplify EE practices and expand EE to medium and smaller employers, by having organizations review EE best practices and identify those likely to be of use in their organizations, rather than spending resources on their own employment systems review. NOTES 1 This report was issued in mid-2009 and shows data up to 2007. As of late August 2010 the 2009 Annual Report was not available online. Furthermore, after 2006, information needed to develop availability data is not being collected, since the mandatory long form census was discontinued. 2 Referred to as four-digit National Occupational Classification code. 3 Cluster analysis examines the relationship between designated group members and non-DGs in each occupational grouping in terms of their salaries.

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4 CHRC (2003, issue 1) notes that 48 per cent of public sector employers and 37 per cent of private sector employers reported getting contradictory information from the two agencies. REFERENCES Abella, Rosalie Silberman. 1984. Equality in Employment: A Royal Commission Report. Ottawa: Minister of Supply and Services Canada. Agócs, Carol. 2002. “Canada’s Employment Equity Legislation and Policy, 1987– 2000: The Gap between Policy and Practice.” International Journal of Manpower 23 (3): 256–76. http://dx.doi.org/10.1108/01437720210432220. Antecol, Heather, and Peter Kuhn. 1999. “Employment Equity Programs and the Job Search Outcomes of Unemployed Men and Women: Actual and Perceived Effects.” Canadian Public Policy 25:S27–S45. http://dx.doi.org/10.2307/ 3552315. Bakan, Abigail, and Audrey Kobayashi. 2000. “Employment Equity Policy in Canada: An Interprovincial Comparison.” Ottawa: Status of Women Canada. http://dsp-psd.pwgsc.gc.ca/Collection/SW21-46-1999E.pdf. Canadian Human Rights Commission (CHRC). 2002. “Employment Equity: A Year-End Review.” Ottawa: CHRC. Accessed 22 March 2010. http://www.chrcccdp.ca/publications/ee2002-en.asp. – 2003. “CHRC Management Response and Action Plan to ‘Evaluation of the Employment Equity Compliance Program by Consulting and Audit Canada.’” Ottawa: CHRC. Accessed 8 October 2009. http://www.chrc-ccdp.ca/publica tions/mrap_2003_rdpa/TOC_TDM-en.asp. – 2007a. “Canadian Human Rights Commission Annual Report, 2007.” Ottawa. – 2007b. “Framework for Compliance Audits under the Employment Equity Act: Audit Process and Statutory Requirements.” Ottawa: CHRC. – 2008. Canadian Human Rights Commission Annual Report, 2008. Ottawa. – 2009. “Resources.” Ottawa: CHRC. England, Kim. 2003. “Disabilities, Gender and Employment: Social Exclusion, Employment Equity and Canadian Banking.” Canadian Geographer 47 (4): 429–49. http://dx.doi.org/10.1111/j.0008-3658.2003.00034.x. Erridge, Andrew, and Ruth Fee. 2001. “The Impact of Contract Compliance Policies in Canada: Perspectives from Ontario.” Journal of Public Procurement 1 (1): 51–70. Falkenberg, L.E., and L. Boland. 1997. “Eliminating the Barriers to Employment Equity in the Canadian Workplace.” Journal of Business Ethics 16 (9): 963–75. http://dx.doi.org/10.1023/A:1017995522325.

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Glastra, Folke, Petra Schedler, and Erik Kats. 1998. “Employment Equity Policies in Canada and the Netherlands: Enhancing Minority Employment between Public Controversy and Market Initiative.” Policy and Politics 26 (2): 163–76. http://dx.doi.org/10.1332/030557398782025691. Holzer, Harry, and David Neumark. 2000. “Assessing Affirmative Action.” Journal of Economic Literature 38 (3): 438–568. Human Resources and Skills Development Canada (HRSDC). 2005. “Summative Evaluation of the Legislated Employment Equity Program: January 2005.” Ottawa: HRSDC. http://publications.gc.ca/collections/Collection/ HS28-35-2005E.pdf. – 2008. Employment Equity Act: Annual Report, 2008. Ottawa: HRSDC. http://pub lications.gc.ca/collections/collection_2009/rhdcc-hrsdc/HS21-1-2008E.pdf. – 2010. “Employment Equity in Your Workplace: Federal Contractors Program; A Four Step Guide to Implement Employment Equity in Your Workplace.” Ottawa: HRSDC. http://publications.gc.ca/collections/collection_2010/ rhdcc-hrsdc/HS24-86-0-2009-eng.pdf. – 2011. Employment Equity Act: Annual Report, 2011. Ottawa: HRSDC. Last modified 2013. http://www.labour.gc.ca/eng/standards_equity/eq/pubs_eq/ annual_reports/2011/index.shtml. Jain, Harish C., and Richard D. Hackett. 1989. “Measuring Effectiveness of Employment Equity Programs in Canada Public Policy and a Survey.” Canadian Public Policy 15 (2): 189–204. – 1992. “A Comparison of Employment Equity and Non-Employment Equity Organizations on Designated Group Representation and Views towards Staffing.” Canadian Public Administration 35 (1): 103–8. http://dx.doi. org/10.1111/j.1754-7121.1992.tb00682.x. Jain, Harish C., and John J. Lawler. 2004. “Visible Minorities under the Canadian Employment Equity Act, 1987–1999.” Relations Industrielles 59 (3): 585–609. http://dx.doi.org/10.7202/010926ar. Labour Program, Government of Canada. 2013. “Federal Contractors Program.” Ottawa. http://www.labour.gc.ca/eng/standards_equity/eq/emp/fcp/index.shtml. Leck, Joanne D. 2002. “Making Employment Equity Programs Work for Women.” Canadian Public Policy 28:S85–S100. Leck, Joanne, Sylvie St Onge, and Isabelle Lalancette. 1995. “Wage Gap Changes among Organizations Subject to the Employment Equity Act.” Canadian Public Policy 21 (4): 387–400. http://dx.doi.org/10.2307/3551337. Leck, Joanne D., and D.M. Saunders. 1992. “Canada’s Employment Equity Act: Effects on Employee Selection.” Population Research and Policy Review 11:21–49. http://dx.doi.org/10.1007/BF00136393.

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– 1996. “Achieving Diversity in the Workplace: Canada’s Employment Equity Act and Members of Visible Minorities.” International Journal of Public Administration 19 (3): 229–321. http://dx.doi.org/10.1080/01900699608525097. Longfield, Judi. 2002. “Promoting Equality in the Federal Jurisdiction: Review of the Employment Equity Act.” Report of the Standing Committee on Human Resources Development and the Status of Persons with Disabilities. http://www.parl.gc.ca/content/hoc/Committee/371/HUMA/Reports/ RP1032138/humarp09/humarp09-e.pdf. McGuire, David, Thomas N. Garavan, Sudhir K. Saha, and David O’Donnell. 2006. “The Impact of Individual Values on Human Resource Decisionmaking by Line Managers.” International Journal of Manpower 27 (3): 251–73. http://dx.doi.org/10.1108/01437720610672167. Ng, Eddy S., and Willi H. Wiesner. 2007. “Are Men Always Picked over Women? The Effects of Employment Equity Directives on Selection Decisions.” Journal of Business Ethics 76 (2): 177–87. http://dx.doi.org/10.1007/s10551-0069266-3. Stewart, Penni, and Janice Drakich. 1995. “Factors Related to Organizational Change and Equity for Women Faculty in Ontario Universities.” Canadian Public Policy 21 (4): 429–48. http://dx.doi.org/10.2307/3551341. Taggar, Simon, Harish C. Jain, and Morley Gunderson. 1997. “The Status of Employment Equity in Canada: An Assessment.” In Proceedings of Industrial Relations Research Association Series: Proceedings of the Forty-Ninth Annual Meeting, 331–9. New Orleans: University of Illinois Press. Treasury Board Secretariat of Canada (TBS). 2009. “Employment Equity in the Public Service of Canada 2006–2007 and 2007–2008.” Ottawa: TBS. Accessed 15 October 2009. http://www.tbs-sct.gc.ca/rp/0608ee-eng.asp.

Chapter 3

Real Change? Reflections on Employment Equity’s Last Thirty Years RAJ ANAND1

Justice Rosalie Silberman Abella’s Equality in Employment: A Royal Commission Report was published in 1984 during a heady time for equality rights. The Charter of Rights and Freedoms2 had been enacted two years before, and constitutional equality rights were to come into effect the next year. The federal government was reviewing its laws for compliance with the new provisions, informed by Equality for All, the report of the Parliamentary Committee on Equality Rights chaired by Patrick Boyer (Canada 1985). These milestones followed the enactment of the Canadian Human Rights Act (CHRA)3 in the late 1970s, which completed the ring of statutory equality promotion and protection agencies across the country. Protection for affirmative action had been incorporated into section 15 of the Charter, and a variety of other minority linguistic and Aboriginal rights had been given constitutional status. At about the same time, affirmative action issues were percolating in the United States. The Bakke4 case (1978) was a clarion call to me as a third-year law student in 1978 when I tried to use a Faculty Council position to institute affirmative action in the University of Toronto law school’s admission policy. Over the succeeding decades there has been a massive evolution in understanding in the employment, human rights, and constitutional landscape about the advancement of minorities and women. This evolution has spanned terminology, law, policy, public perception and consciousness, private ordering, and advocacy. But has there been real, substantive change? Has there been advancement for the minorities and women whose personal characteristics and needs fell outside the norms of “neutral” business practices? Has progress been achieved evenly across the target groups? How is this measured? Are numbers enough? And to the extent there has been progress, how did the seminal work of Justice

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Abella complement and contribute to the cauldron of equality imperatives that have been at play in our rights-conscious Charter era? My goal in this chapter is to broadly survey the landscape of employment equity since 1984 and to provide a tentative evaluation of its impact on Canadian society. The Abella Report Commissioner Rosalie Abella’s report Equality in Employment (Abella 1984) represents, for most people in this field, the definitive statement of the principles and practice of employment equity. The principles for achieving employment equity outlined in the report have had a profound impact on employment equity legislation, policy, and practice in most Canadian jurisdictions, and in other parts of the world. In the report, these principles are summarized in seven points. • Inequity is a systemic condition that may or may not be based on intended discrimination. • Equality involves sometimes treating people the same despite their differences, and sometimes accommodating their differences in order to overcome barriers. To ignore differences or to refuse to accommodate them is to deny equity. Equity cannot be based on the same treatment for all. • Four designated groups – Native people, visible minorities, persons with disabilities, and women – assume disproportionate disadvantage in Canadian society. • For visible minorities in particular, equity begins by attacking racism. • Achieving equity requires a doubled-edged approach of addressing pre-employment conditions that affect access to employment, and overcoming barriers in the workplace that prevent equal participation. • Equity will not be achieved without enforcement, which must be based on government intervention. Political will is fundamental. • Education and training are key aspects of employment equity. On the basis of these principles, the Abella Report addresses the implementation of employment equity policy and practice, including hiring and promotion (representation). The impact of the Abella Report, to the extent that it can be isolated from the broader evolution of the times, must be understood in the

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terms adopted by Justice Abella herself: her report was never restricted, nor even focused, on numbers, but rather on a complex blend of equality enhancing tools. This blend coincided with and enhanced the human rights evolution of the ensuing thirty years. The report gave attention to numbers to be sure, but also gave importance to policy development, anti-discrimination measures across the range of areas covered by statutory human rights codes, increased public understanding of the advantages of diversity, community involvement and inclusion in the fashioning of business, public, educational, and enforcement initiatives, and legislative implementation. We have understood, and ensuing human rights and equality jurisprudence has confirmed, that numbers alone may not be necessary and are rarely sufficient to create substantive equality. The promotion of equality is a multifaceted, nuanced, and complex undertaking. I tried to exemplify the intersecting tasks when I became head of the Ontario Human Rights Commission four years later, supplementing the investigative and prosecutorial role of the commission by creating specific divisions to deal with policy development and research, communication and education, systemic initiatives, and a legal unit independent of government. The common theme of these divisions – and simultaneously the hallmark of positive measures as an adjunct and supplement to anti-discrimination protection – was proactive rather than reactive measures: the identification of policies, practices, and legislation created for rational and bona fide purposes, but without knowledge or consideration of their impact on the advancement and participation of individuals defined by certain personal characteristics. In this country, affirmative measures in the workplace caught the cusp of the third phase of Alfred W. Blumrosen’s (1972) description of the evolution of human rights protection. The first phase was virulent spite and hatred, so eloquently documented in the Holocaust and the advent of the Universal Declaration of Human Rights, and then found on public beaches in Ontario in signs saying “No Jews or dogs allowed.” The second phase was patronizing, benevolent discrimination, which prevented persons with disabilities from meeting their employment potential or enjoyment of housing or amenities, and precluded women of childbearing years from working in mines or other dangerous occupations out of a genuine but misplaced concern that others knew better. The third phase – a challenge to systemic discrimination – was epitomized by the United States Supreme Court’s decision in Griggs v Duke Power Company (1971)5 and approved by Canada’s Supreme Court in O’Malley v

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Simpson-Sears (1985).6 Thirty years later, the dismantling of systemic barriers in the workplace remains a formidable challenge, but it is one that is largely recognized as a task worth undertaking, and there is a whole industry of human resource experts telling us how to do it. Employment Equity Protections in Section 15 (2) of the Charter and Equivalent Provisions of Human Rights Statutes Affirmative action was recognized more readily in Canada than in the United States as an equality-enhancing measure and was given constitutional and statutory protection. The purpose of these provisions was to allow governments and private entities leeway to take proactive measures without fear of reverse discrimination claims. These permissive provisions have been much more widespread than mandatory employmentequity statutes or policies themselves and have largely operated under the radar. Their impact cannot be measured by court cases or even human rights tribunal decisions, both of which have been few. I am not aware of empirical research in Canada on the extent to which employers have undertaken affirmative action in the absence of any legal obligation. Legislatures have also enacted provisions such as section 18 of the Ontario code (1990),7 allowing certain public benefit organizations to restrict their services or membership to persons of a particular disadvantaged group. An example is retirement or nursing care facilities, often subsidized, targeted to a particular ethnic or racial group or persons with certain disabilities. With a lawyer’s opinion that the restriction on occupancy meets the requirements of the code, the home can provide a range of cultural, food, health, educational, and living facilities in the language, culture, and/or religion of the targeted group. Legislative Challenges to Systemic Discrimination: The Employment Equity Act, Canadian Human Rights Act , and Public Service Employment Act Responding to the Abella Report, federal government initiatives were developed for three separate jurisdictions: the federal public service, federally regulated employers, and federal contractors. The Employment Equity Act (1986)8 applied to approximately 350 federally regulated employers, including Crown corporations, with 100 or more employees. The Federal Contractors Program was initiated at the same time to cover companies of 100 or more employees that bid for federal goods and

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services contracts of $200,000 or higher. Companies certified under the program are required to remove discriminatory barriers; increase participation through hiring, training, and promotion; develop an employment equity plan; and keep records of employment-equity implementation. The federal public service was not originally covered under the Employment Equity Act. But in 1986, the federal public service adopted an employment equity program mandated under the Financial Administration Act (1985)9 and specified in the Public Service Employment Act (2003).10 This policy required departments and agencies to establish an environment that supports the principles of employment equity; prepare and analyse statistical data on their workforce to identify under-representation of designated groups; analyse their employment systems to identify systemic barriers facing designated groups; consult with employees and encourage designated-group participation in implementing employment equity initiatives; develop three-year employment equity plans that include special measures; and endeavour to meet numerical objectives for designated-group representation and distribution. As the Canadian Human Rights Commission said in its 1995 annual report, “Looking at the raw numbers over the [previous] eight years, one could be forgiven for wondering how much was really achieved.” By the early 1990s, the commission had turned to initiating complaints based on poor utilization numbers: All told, the Commission has now successfully resolved twenty-five cases where representatives of the designated groups used the results of employers’ representation data to lodge formal complaints of discrimination. Most of these have been sealed with settlements that include an employment equity plan. In 1995, complaints by the Assembly of Manitoba Chiefs against the Museum of Science and Technology, the National Library and Veterans Affairs, as well as the case of Action Travail des Femmes against Canadian Pacific Rail, were brought to a conclusion. In another five cases, the parties were in active negotiations at the end of the year. We wish we could say that all employers were coming to see that cooperation is the best approach. Unfortunately, a small number of them (Canadian Airlines, CP Rail, Canadian Pacific Express and Transport, Air Canada, and Greyhound) have preferred to expend scarce resources in challenging the Commission’s jurisdiction to investigate complaints in court, a course of action which seems particularly puzzling given the terms of the new Act. (Canadian Human Rights Commission 1996, 63–4)

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The revised Employment Equity Act (1995)11 was proclaimed on 15 December 1995 and came into effect on 24 October 1996. The new act added the federal public service and aimed to increase the obligations of employers, strengthen enforcement mechanisms, and improve the employers’ monitoring, consultation, and reporting. The act also inserted the following provision into the Canadian Human Rights Act: “(3.1) No complaint may be initiated under subsection (3) as a result of information obtained by the Commission in the course of the administration of the Employment Equity Act.” The intended result of this change appeared to be that complaints against employers covered by the Employment Equity Act that deal with alleged discrimination based solely on statistical under-representation under that act would be addressed only under the reporting requirements of that statute. Numbers were not enough to start the complaints process under the Canadian Human Rights Act; systemic discrimination complaints could no longer be initiated purely on the basis of “bad statistics” contained in an employer’s annual filing under the Employment Equity Act. The complaint would have to allege that one or more specific employment policies or systems was discriminatory. The 1995 Employment Equity Act contained provisions empowering the Human Rights Commission to audit employers to ensure they are complying with their obligations under the act. The commission was empowered to negotiate undertakings with the employer, and if necessary, to issue a direction. If the employer failed to comply with the direction, the commission could refer the employer to an Employment Equity Review Tribunal, but this rarely occurred. What Have the Courts Done with the Enforcement Conundrum? The 1995 amendments raised significant questions about the relationship between under-representation under the Employment Equity Act and discrimination under the Canadian Human Rights Act (CHRA). The revisions appeared to remove the argument that under-representation alone signified prima facie proof of discrimination, so as to spearhead commission investigations of systemic discrimination. What effect would such statistics have on enforcement proceedings brought on the basis of specific allegedly discriminatory barriers in a workplace that had also reported “bad numbers”? Would the two statutes work together as tools to eradicate systemic discrimination? The jurisprudence has only partially answered these questions.

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In Berteau c Canada (Procureur général) (2004),12 the applicant attempted to utilize the audit power to assert that the commission was obliged to intervene. The court rejected the proposition that there was such an obligation: [30] The applicants submit that the Commission has a social role, as described in section 2, the Act’s purpose clause, and that they were thereby entitled to expect that it would protect their rights. However, they have not indicated what principle of law or what provision would enable the Court to find that the Commission itself had a duty to see to the identification of the 129 victims referred to in the letter of November 24, 1995, and to ensure that a consent to the filing of a complaint was obtained from each of them. [31] The Act does not impose any such obligation. Under subsection 40(3), the Commission may, in some cases, initiate a complaint itself, but it never has any obligation to do so.

In Lincoln v Bay Ferries Ltd (2004),13 the duty to audit was again considered in the context of an allegation of employment discrimination. The court ruled that the commission’s compliance audit power was independent of a claim under the CHRA: The final issue concerns the relevance of the Employment Equity Act in the context of a complaint under section 7 of the Canadian Human Rights Act … It appears that the Employment Equity Act was intended to operate independently and to impose on the employers to which it applies duties and obligations that are specific to that legislation, that are to be enforced pursuant to that legislation, and that are unrelated to a complaint under section 7 of the Canadian Human Rights Act.

However, statistics still have a role to play in proving discrimination in the human rights tribunal context. Chopra v Canada (Department of National Health and Welfare) (2001)14 is one of the first cases decided after the 1995 amendments, and one often cited for the proposition that workplace diversity data can be used by tribunals as circumstantial evidence of discrimination. Justice Richard of the Federal Court ruled that the Soberman Tribunal erred when it prevented the commission and Dr Chopra from adducing general evidence of a systemic problem of discrimination at Health Canada. These parties put forward this evidence as circumstantial proof Dr Chopra was a victim of individual

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discrimination. Chopra was cited in Singh v Canada (Statistics Canada) (1998),15 at paragraph 164, for the proposition that “statistical evidence regarding systemic issues in a workplace may constitute circumstantial evidence from which it may be inferred that discrimination probably occurred in an individual case.” In Tahmourpour v Canada (Solicitor General) (2005),16 the complainant challenged the commission’s dismissal of his race complaint as unfounded. One procedural fairness issue raised by the complainant was whether the investigation was sufficiently thorough, since the investigator did not take statistical evidence into account. The Federal Court of Appeal looked at the issue of statistical evidence with respect to complaints under section 7 (direct discrimination) versus section 10 (adverse effect discrimination) of the CHRA. Justice Evans stated, [22] Whether the scope of the complaint includes section 10, or is confined to sections 7 and 14, the statistics provided by Mr Tahmourpour to show different rates of attrition for the cadet population as a whole and for visible minority cadets related to an allegation [are] within the scope of the complaint. [23] If the complaint included systemic discrimination in the section 10 sense, evidence of differential rates of attrition may suggest the existence of an RCMP policy or practice concerning the training and hiring of cadets that tends to deprive members of visible minorities of employment opportunities. [24] If, on the other hand, the complaint is limited to Mr Tahmourpour’s allegations that he was the victim of harassment, and improper evaluation and termination, the statistics on rates of attrition may provide circumstantial evidence of these allegations.

Thus, Justice Evans found that by failing to analyse statistical evidence, the investigator “failed to investigate ‘obviously crucial evidence.’” In Khiamal v Canada (Canadian Human Rights Commission) (2009),17 an application for judicial review of the human rights tribunal’s decision dismissing a complaint against Greyhound Canada Transportation Corporation, the Federal Court again considered the relationship between compliance with the Employment Equity Act and the CHRA. In paragraph 94 Justice Mandamin stated, “The fact that the Respondent is in compliance with the Employment Equity Act is not equivalent to stating that the Respondent has a representative workforce. Rather, it means that the Respondent is in the process of implementing an equity plan that will

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allow it to achieve equitable representation.” He continued to elaborate on statistical data submitted by the applicant, stating that it is up to the tribunal to decide whether statistical data are relevant to the issue, and that, “in my view, use of statistical data contained in the Employment Equity Report can be distinguished from the attempted use of the legislation in Lincoln Bay, above. In this case, the Applicant is not speaking to the operation or enforcement of the Employment Equity Act. Rather, the Applicant is attempting to advance its discrimination case using data collected pursuant to the Employment Equity Act. It is the inference that may be drawn from the statistical data which is of significance. The weight to be attributed to it is to be determined by the Tribunal” (emphasis added). Thus, while EEA numbers alone will not permit the initiation of a CHRC complaint by the commission, the under-representation evidenced by those numbers can constitute some evidence to support a tribunal finding that the employer’s policies or practices are indeed discriminatory. The federal legislative framework incorporates both reporting of numbers and enforcement of human rights principles, thereby allowing some interaction between the two regimes, one of which includes the possibility of concrete remedies for proven systemic discrimination. However, the federal structure does not respond squarely to the challenge of addressing systemic discrimination in workplaces through enforceable measures to improve representation of designated groups. Employment Equity Jurisprudence The Supreme Court of Canada has upheld tribunal orders calling for proactive steps to be taken by employers in ensuring employment equity in the workplace. The Supreme Court has recognized that systemic discrimination calls for systemic remedies. Some examples of systemic remedies that Canadian tribunals have ordered include: 1 Developing and implementing workplace harassment and discrimination policies, including definitions of relevant terms and an internal complaints process. 2 Reviewing internal workplace standards that have adversely affected certain groups, and bringing them into human rights compliance. 3 Changing hiring or recruiting practices. 4 Requiring managers to attend a training program to mentor a crossculturally diverse workforce, and requiring the attendance of all employees at human rights education programs.

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5 Appointing a person responsible with full powers to ensure that implementation orders are actually carried out. In the 1987 decision of Action Travail des Femmes v Canadian National Railway Co. (1987),18 the Supreme Court of Canada upheld the decision of a human rights tribunal holding that an employment equity program is intended to ensure that future applications and workers from the affected group, women in this case, will not face the same barriers that blocked those before them. The court commented that the purpose of an employment equity program was not to be remedial but rather prospective. The court stated that to combat systemic discrimination, it was necessary to create a climate in which negative practices could be challenged. Indeed, the court acknowledged the need for employment equity programs in order to create a “critical mass” in the workplace. The presence of a large number of people from a targeted group would overcome the problem of “tokenism” and would encourage a self-correcting system in which the benefits of diversity were given an opportunity to show themselves. Following Action Travail, in 1997 the Canadian Human Rights Tribunal imposed a remedial employment equity program on Health Canada, in the case of National Capital Alliance on Race Relations v Canada (1997),19 which addressed systemic discrimination against visible minorities in employment. In the 1999 Meoirin case,20 which dealt with discrimination against women, the court held that employers must be proactive in eradicating discrimination and must address discrimination at the systemic level. It was recognized that conceptions of equality needed to be built into workplace standards, rather than just accommodated on a case-bycase basis. Court and Tribunal Decisions Allowing Governments to Undertake Employment Equity Measures The June 2008 decision of the Supreme Court of Canada in R v Kapp (2008)21 promises governments wide leeway in adopting affirmative action programs. The Kapp case was brought by non-Aboriginal fishers, who were contesting a government strategy that allowed twenty-four hours to be reserved for three Aboriginal bands as an exclusive salmon fishery in the Fraser River. Previous decisions of appellate courts (Roberts v Ontario 199422 and Lovelace v Ontario 2000,23 in the Supreme Court) had set out limitations on the scope of affirmative action measures: basically

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a program designed to reduce disadvantage could not itself discriminate on prohibited grounds. Kapp appears to give governments broad scope in this area. The legal test under section 15 (2) of the Charter is that a program does not violate section 15 if the government can demonstrate that the program has an ameliorative or remedial purpose, and the program targets a disadvantaged group identified by the enumerated or analogous grounds subsumed in section 15 (1). The aim of the court in Kapp seems to be to lower the burden for governments that are seeking to protect programs aimed at protecting disadvantaged groups. The decision in Kapp encourages governments to pursue such programs without being hindered by concerns about their constitutional validity. The question is where this scope ends. I have seen government argue that the relief of disadvantage is enough to immunize it from any constitutional challenge under section 15. But what does the vast panoply of government do, especially in the area of funding or subsidies, that cannot be characterized as relief of disadvantage? Is the government then free to discriminate on unrelated grounds? I have seen this argument succeed in Ontario in a case called Cooper v Ontario (2009),24 in which leave to appeal was denied by the Court of Appeal. A government program that funded educational assistance for children with some disabilities but not others was upheld in part, referencing U.S. jurisprudence. Although this decision was applied by the Human Rights Tribunal of Ontario (HRTO) to prevent a similar challenge there,25 Cooper remains outside the mainstream, where the courts have been diligent in applying Kapp. The court in T.(A.) (Litigation Guardian of) v OHIP (2010)26 noted that “not every program providing a benefit to a disadvantaged group is completely protected from Charter scrutiny.” The HRTO reaffirmed in Ball v Ontario (Community and Social Services) that Roberts remains the appropriate approach in affirmative action cases, and applied it in Carter v Elementary Teachers Federation of Ontario.27 In that case, policies designed to promote the role of women in a teachers union were upheld under section 14 of the Ontario code, in a challenge by a male teacher who pointed out that women made up more than 80 per cent of the organization’s members. The Current Canadian Employment Equity Context In Canada, employment equity is clearly more than a numbers game. Setting goals may be easy, while achieving meaningful and effective

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change is not. Employment equity and affirmative action more generally are integrally tied to the panoply of proactive measures – “soft” affirmative action measures – that through tribunal jurisprudence have become obligations under statutory human rights laws. These include: • internal human rights policies; • internal complaints mechanisms, and the prompt and fair investigation of complaints made to the institution; • workplace and building modifications, usually in cases of disability; • scheduling or work-hour modifications, often in cases of parenting obligations or religious observance; and • inclusion and outreach in hiring, promotion, and advancement. We have therefore seen a change in public consciousness, at least among sophisticated employers, service providers, regulators, and housing providers. They are now aware that they are required to be proactive and not to wait for complaints before taking action to remove discriminatory barriers. Persons with authority must be alert to barriers that may have been unintended, and are expected to be wary of doing business as usual, even in the face of important competing imperatives. These principles, for example, are well known to health profession regulators entrusted with the protection of the public. Many professional registration and competence requirements can be and are being challenged as blunt instruments that may deny or restrict a professional’s livelihood. These may include requirements for educational certificates, standardized tests, language proficiency requirements, and retesting for foreign-trained and competently practising professionals. All of these issues raise the same red flags that originated with employment equity thinking: are the requirements fair and absolutely necessary, or can they be removed or replaced by fairer requirements without inflicting an inappropriate risk of harm on the public? The Persistence of Systemic Discrimination in Canada: Attitudes and Public Consciousness Creating procedures and new tribunals may be easy, but changing attitudes and predispositions is not so straightforward. I have spoken at length about the experts – lawyers, judges, adjudicators, human resource professionals – and how they have become acclimatized to the concepts and principles of equity. The public, in my view, still has what

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I call the Globe and Mail understanding of discrimination, which is the first or perhaps the second stage of the evolution I referred to earlier: direct, intentional discrimination. We have not succeeded in instilling an understanding of equality as a goal and a concept of barrier-free living, of examination from the perspective of the individual affected, rather than the majority, tautological perspective. Understanding of the concept of systemic discrimination is still rudimentary, at best. Not surprisingly, public understanding of our rights and obligations depends on our experience, which in turn reflects the views and prejudices of the majority, or if there is no majority, then the advantaged. In my constitutional advocacy work, I am often called upon to choose under which of the available grounds a challenge will be mounted. Invariably, I will be reluctant to take it forward on grounds of race, ethnic origin, or poverty or social assistance receipt, because these are the grounds on which I am most likely to encounter an adjudicator who has no experience of the circumstances or group in question. Studies have shown that racialized minorities are the least likely to benefit from statutory or constitutional equality provisions, and I was appalled to witness the “reasonable accommodation” debate in my home province of Quebec, where I grew up in the second South Asian family in Montreal, a minority within a minority. Even there, it was necessary to submerge rather than celebrate difference, to compete by “beating them at their own game” rather than requesting accommodation, by refusing to wear a sari at university, as my mother, one of the first female mathematicians in Canada, did for thirty-five years. We are still largely an economically hierarchical and racially segregated society in our personal lives. We are all familiar with family members or others of the opposite gender, a different marital status, and different ages. Different emotions and preconceptions influence our thinking about sexual orientation or disability. Academic commentators have noted many reasons why the courts and tribunals have provided little assistance in the battle for greater diversity (Jai and Cheng 1997, 1): • the sparse and uneven jurisprudence of the Supreme Court in recognizing positive obligations on government to redress inequality under section 15, resulting in the decision in Ferrel v Ontario (1998),28 rejecting a challenge to the Job Quotas Repeal Act, which the Conservative government of Ontario passed in order to eliminate the Ontario Employment Equity Act;

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• the different abilities of equity-seeking groups to fit their challenges to direct distinctions and under-inclusive benefit programs under prevailing section 15 analysis in order to effect positive change (simply put, laws of this kind rarely exist for racialized minorities, while it is easier for religious and disability groups to show that apparently neutral regulatory and business requirements such as production quotas and schedules have obvious adverse impacts on them that require accommodation); and • the documented difficulties in proving racism at human rights tribunals. Racial Inequality in Employment and Income in Canada Evidence of racial inequality in employment has been consistent and long-standing during the history of employment equity policy and legislation in Canada. Back in 1985, the Urban Alliance on Race Relations published Who Gets the Work? A Test of Racial Discrimination in Employment (Henry and Ginzberg 1985). Through field testing by teams posing as job applicants, with controls for age, sex, educational and employment histories, the study reached some alarming conclusions. With 201 jobs tested by direct, in-person contact, white applicants were hired three times more often than similarly qualified Black applicants. In extreme cases, Black applicants were told the job had been filled and then a white person was interviewed and hired. In telephone applications, over half of the employers contacted practised differential treatment based on the callers’ “non-Canadian” accents or “ethnic” sounding names. Since the 1980s, the racialized population has grown enormously in Canada, particularly in Ontario and even more so in the Toronto area. The 2006 census estimated five million individuals belonging to racialized minorities. They accounted for 16.2 per cent of Canada’s population, up from 13.4 per cent in 2001 and 11.2 per cent in 1996. Even between 2001 and 2006, Canada’s racialized minority population increased by 27.2 per cent, five times faster than the 5.4 per cent growth rate for the total population. The increase is especially true of the South Asian population, which is now the largest racialized minority at 1.2 million across Canada, 800,000 in Ontario, and almost 700,000 in the Toronto CMA. The number of South Asians grew by 37.7 per cent from 2001, and by 2006 represented 25 per cent of all racialized minorities, and 4 per cent of the total population of Canada. As of 2011, more than 6.5 million Canadians have a

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mother tongue other than English or French, up more than 500,000 from 2006. Punjabi is the fourth language of Canada today. Between 1981 and 2006, the number of South Asians in the Toronto CMA increased by almost ten times, from 71,490 to almost 700,000. At the same time, after a decade of economic boom up to 2008, there is growing inequality in the population as a whole, and the poor themselves are disproportionately racialized. As the Colour of Poverty Campaign recounted in its fact sheets, racialized persons make up over 13 per cent of Canada’s population; by 2017, this number will rise to 20 per cent; and by 2017, more than half of Toronto’s population will be people of colour. Nearly one in five immigrants experiences a state of chronic low income, which is more than twice the rate for Canadian-born individuals. Racialized minority families make up 37 per cent of all families in Toronto, but account for 59 per cent of poor families. Between 1980 and 2000, while the poverty rate for the non-racialized population fell by 28 per cent, poverty among racialized families rose by 361 per cent, and 32 per cent of children in racialized families, and 47 per cent of children in recent immigrant families in Ontario, live in poverty. The racialization of poverty is due partially to a lack of equitable access to professions and trades and other jobs that are commensurate with their skills. Even though racialized minorities have higher levels of education and skill than non-racialized Canadians, they are not able to translate those attributes into economic prosperity. Over the decades, empirical studies have displayed some inconsistency in assessing the magnitude of the earnings gap that is attributable to discrimination. This inconsistency arises from differences such as the treatment and identification of variables such as immigrant status and racialized groups. In two recent studies, the authors have attempted to control for such variables and thereby isolate the impact of discrimination in order to evaluate social policy alternatives such as employment equity policies and legislation. A study by the Canadian Centre for Policy Alternatives (Block 2010, 3, 4, 6, 7) concludes from the 2006 census findings that “racialized Ontarians are far more likely to live in poverty, to face barriers to Ontario’s workplaces, and even when they get a job, they are more likely to earn less than the rest of Ontarians.” Even before the “Great Recession,” unemployment was 8.7 per cent for racialized workers and 5.8 per cent for the rest of Ontario, and all racialized communities except those who self-identified as Filipino or Japanese had higher unemployment rates than non-racialized Ontarians. Unemployment rates for the Arab / West

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Asian and Black groups were respectively 84 per cent and 76 per cent higher than the non-racialized group. Racialized women and men in Ontario were respectively paid 53 per cent and 74 per cent of the wages of non-racialized men. Controlling for age, immigration status, and education, the authors found that first-generation racialized immigrants with a university education earned less than non-racialized immigrants of the same age and educational qualifications. First-generation racialized women made 53 per cent less, and men 46 per cent less than male, non-racialized immigrants. More recent studies based on the 2006 census data paint an equally bleak picture. In 2011, the Canadian Centre for Policy Alternatives (Block and Galabuzi 2010, 13) reported that on average, racialized workers identifying as Chinese earn only 88.6 cents for every dollar a non-racialized worker earns. For workers identifying as Black, earnings drop to 75.6 cents; the lowest figure was that of workers identifying as Korean, who earn on average just 69.5 cents for every dollar white workers earn. Racialized workers also experience slower advancement in the workplace. The average real earnings of Black workers rose 2.1 per cent between 2000 and 2005, which is less than half the average rate for all workers during the same period (Fearon and Wald 2011, 324). Hou and Coulombe (2010) focused on Canadian-born racialized and non-racialized men and women in the Canadian public and private sectors. They calculated an adjusted gap that controls for various factors captured by the census, principally level of education, years of work experience, official language ability, detailed occupation, and employment status. While racialized employees had a 50 per cent higher rate of university education than whites in the public sector, and 100 per cent higher in the private sector, there was an “earnings gap” for racialized men of 8.5 per cent in the private sector and 1.9 per cent in the public sector. For racialized women the gap was 3.8 per cent in the private sector and 2.9 per cent in the public sector. (The difference between the private and public sectors seems to be attributable to employment equity policies and perhaps greater unionization in the latter.) Within the racialized group, there were stark differences: the overall adjusted racial pay gap compared with whites was 14.2 per cent for Blacks, 5.3 per cent for South Asians, and 4.4 per cent for Chinese Canadians. Interestingly, a broadly similar pattern emerges in the instance of one occupational group, lawyers, in Professor Ornstein’s reports for the Law Society of Upper Canada, the latest of which was also released in the spring of 2010 (Ornstein 2004, 2010). Between 1981 and 2006 the

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percentage of racialized lawyers in Ontario increased from about 3 to 11.5 per cent, but this increase was much less dramatic than the demographic changes that resulted from immigration patterns. The result is that in 2006, there were 753 racialized Ontarians for each racialized lawyer, as opposed to 323 white residents for each white Ontario lawyer. Moreover, racialized lawyers had mean earnings of 58 per cent and median earnings of 67 per cent of those of white lawyers. Compared to whites, racialized lawyers were more likely to be law firm associates and employees, to work for government or outside of law offices, and to be self-employed without paid assistance. They were less likely to be partners in a law firm or sole practitioners with paid assistance. Professor Ornstein (2010, 36) concludes on this point, “These findings suggest the systemic exclusion of racialized lawyers from higher paying positions. Such exclusion need not involve explicit barriers. Instead inequity is the result of a complex filtering system beginning in law school and working through the many incremental steps in a lawyer’s career. Each step involves both voluntary choices and inequitable, though often seemingly neutral, practices that steer Aboriginal and visible minority lawyers and women into less remunerative roles.” Conclusion: The Way Forward We should not be surprised to find that to the extent that employment equity is a numbers game, the designated groups have experienced differential success. Legislated employment equity has fallen short for racialized employees and persons with disabilities. It has succeeded in access to employment but not advancement for women, and it appears to be neutral for First Nations people. Racialized minority women – the invisible visible minorities, according to one study – are considerably under-represented in most public service workplaces in Canada. Surveys have shown a relatively low level of understanding of their actual circumstances, and their cultural background was seen as an impediment because they had “different” values or were less “liberated” than white women, particularly in their relationships with spouses. Measuring the effectiveness of employment equity is in some respects a numbers game, and the numbers game is interrelated with perceptions and historical understandings or misunderstandings. These phenomena require a double-barrelled attack, first, on persistent resistance to collection and use of reliable self-identification data, and second, to employment equity principles themselves.

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These are two areas in which progress has been slow but recent. The business case for diversity, and for the removal of barriers to create a more inclusive workplace, is now being made. Pressures for change are coming from customers or clients, who increasingly apply criteria of representativeness in RFPs and formal or informal contract compliance in choosing their suppliers; from prospective employees, for whom equity considerations and a diverse workplace will affect their choice of employment; and from current staff, for whom it is a question of morale, reputation, and pride in the place where they spend most of their waking hours. But progress in human rights must be measurable. Since the debacle of the Employment Equity Act in Ontario, the words targets and timetables have seldom crossed the lips of employers and unions in this province. At the Law Society of Upper Canada, we readily received agreement from large firms to provide figures on the gender makeup of the legal staff, although that was information that could be gleaned fairly readily from the firms’ websites. Yet objections were encountered in response to proposed self-identification on any other grounds – prominently race, national origin, disability, First Nations status, and sexual orientation. Nevertheless, Fraser Milner Casgrain LLP and Miller Thomson voluntarily conducted surveys through self-identification of all of these equityseeking groups “to establish a benchmark to help orient the committee’s focus going forward in certain areas … education, business development, recruitment and community involvement” (Cohen 2009). These were only two firms in Ontario. In the United States, practically every firm has its diversity statistics available through the National Association for Law Placement, and public websites. In Canada, concern appears to centre on unseemly or rancorous discussions within firms, or public representations about hiring practices, or the dreaded words employment equity. Taking the incremental approach, Law Society Convocation passed without opposition an amendment to the members’ annual report and paralegal annual report in 2009, which will see voluntary self-identification questions for the first time since they last appeared briefly in 1996. In short, does employment equity policy and legislation matter? As part of the development of human rights practice and jurisprudence, it has had a profound, transformative effect on principles and practices in employment and beyond. In its impact on popular understanding and its benefits for disadvantaged groups, its effect has been uneven, gradual, and indeed difficult to isolate from demographic changes such as immigration. The true and successful legacy of the Abella Report, it

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seems to me, has been the increased acceptability of “soft” employment equity – in other words, the foundations of human rights law and practice that continue to develop – rather than “hard” employment equity – in terms of numbers – which is still a work in progress.

NOTES 1 The author acknowledges the assistance of Benjamin Tinholt in updating the chapter prior to publication. 2 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. 3 Canadian Human Rights Act, RS 1985, c H-6. 4 Regents of the University of California v Bakke (1978), 438 US 265. 5 Griggs v Duke Power Company (1971), 401 US 424. 6 Ontario Human Rights Commission and O’Malley v Simpsons-Sears Ltd, [1985] 2 SCR 536. 7 Human Rights Code, RSO 1990, c H-19. 8 Employment Equity Act, SC 1986, c 31. 9 Financial Administration Act, RSC 1985, c F-11. 10 Public Service Employment Act, SC 2003, c 22, ss 12, 13. 11 Employment Equity Act, SC 1995, c 44. 12 Berteau c Canada, 2004 CarswellNat 5726, 2004 FC 1053. 13 Lincoln v Bay Ferries Ltd, [2004] FCJ No 941, 2004 FCA 204. 14 Chopra v Canada (Department of National Health and Welfare), [2001] CHRD No 20. 15 Singh v Canada (Statistics Canada), [1998] CHRD No. 7. 16 Tahmourpour v Canada (Solicitor General), [2005] FCJ No. 543, 2005 FCA 113. 17 Khiamal v Canada (Canadian Human Rights Commission), [2009] FCJ No 612, 2009 FC 495. 18 Action Travail des Femmes v Canadian National Railway Company (1987), 40 DLR (4th) 193. 19 National Capital Alliance on Race Relations v Canada (1997), 28 CHRR D/179 (CHRT). 20 British Columbia (Public Service Employee Relations Commission) v BCGSEU, [1999] 3 SCR 3 [Meoirin]. 21 R v Kapp, [2008] 2 SCR 483 [Kapp]. 22 Roberts v Ontario (1994), 19 OR (3d) 387. 23 Lovelace v Ontario, [2000] 1 SCR 950. 24 Cooper v Ontario (Attorney General) (2009), 99 OR (3d) 25; leave to appeal denied by CA, 26 February 2010.

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25 S.H. (Next Friend of) v Ontario (Ministry of Health and Long-Term Care), [2012] OHRTD No 859. 26 [2010] 102 OR (3d) 767 (Div Ct) at para 78. 27 Carter v Elementary Teachers Federation of Ontario, 2011 HRTO 1604 (CanLII). 28 Ferrel v Ontario (1998), 42 OR (3d).

REFERENCES Abella, Rosalie Silberman. 1984. Equality in Employment: A Royal Commission Report. Ottawa: Minister of Supply and Services Canada. Block, Sheila. 2010. Ontario’s Growing Gap: The Role of Race and Gender. Ottawa: Canadian Centre for Policy Alternatives. Block, Sheila, and Grace-Edward Galabuzi. 2010. Canada’s Colour-Coded Labour Market. Ottawa: Canadian Centre for Policy Alternatives. Blumrosen, Alfred W. 1972. “Strangers in Paradise: Griggs v. Duke Power Co. and the Concept of Employment Discrimination.” Michigan Law Review 71 (1): 59–110. http://dx.doi.org/10.2307/1287601. Canada, Parliament. 1985. Equality for All: Report of the Parliamentary Committee on Equality Rights. Ottawa: Queen’s Printer. Canadian Human Rights Commission. 1996. Annual Report 1995. Ottawa: Supply and Services Canada. Cohen, Gail J. 2009. “Diverse Perspectives.” Canadian Lawyer Magazine, special report, 30 September. http://www.canadianlawyermag.com/706/Diverseperspectives.html. Fearon, Gervan, and Steven Wald. 2011. “The Earnings Gap between Black and White Workers in Canada.” Relations industrielles / Industrial Relations 66 (3): 324–48. Henry, Frances, and Effie Ginzberg. 1985. Who Gets the Work? A Test of Racial Discrimination in Employment. Toronto: Urban Alliance on Race Relations and the Social Planning Council of Metropolitan Toronto. Hou, Feng, and Simon Coulombe. 2010. “Earnings Gaps for Canadian-Born Visible Minorities in the Public and Private Sectors.” Canadian Public Policy 36 (1): 29–43. Jai, Julie, and Joseph Cheng. 1997. “Politics and the Law: Changing Relationships in Light of the Charter.” National Journal of Constitutional Law 9 (1): 1. Ornstein, Michael. 2004. The Changing Face of the Ontario Legal Professions, 1971–2001. Toronto: Law Society of Upper Canada. – 2010. Racialization and Gender of Lawyers in Ontario. Toronto: Law Society of Upper Canada.

Chapter 4

Women, Intersectionality, and Employment Equity KIM ENGLAND1

Extensive evidence shows that social practices in the labour market disadvantage women relative to men. Thus, despite the increase in their participation in the labour force, women are still paid less than men and are still more segregated into particular industries and occupations. It is because of such evidence that the Employment Equity Act (EEA) was passed to cover women, Aboriginal peoples, persons with disabilities, and visible minorities, groups who historically faced exclusion from, and discrimination in, the labour market and the workplace. The intention of the act is to eliminate barriers to access to jobs for the designated groups, to reduce occupational “ghettos” of designated groups, and, once employed, to increase their retention and promotion rates. In this chapter, I look at the federal Employment Equity Act in light of major trends in women’s paid employment. I draw on feminist scholarship on intersectionality to take account of women (and men) who also identify themselves as persons with disabilities, members of visible minorities, or Aboriginal. In the following sections I describe the shifts in women’s employment patterns in Canada and also provide a glimpse of the political landscape in which the EEA was brought into being. I then focus on the data provided by federally regulated organizations covered by the EEA to explore numerical trends associated with the overall number and occupational profiles of different groups of employees in those companies. Finally, I offer an assessment of the success of the EEA and close with reflections on employment equity legislation. Women, Paid Work, and Politics Since the 1950s, Canadian women have entered the labour market in increasing numbers. In the 1940s about 25 per cent of women aged

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fifteen or older were in the labour force. Now, after six turbulent decades, especially the 1960s and 1970s, about 65 per cent of women are in paid employment. The labour force also feminized dramatically. In the 1950s women accounted for one in four workers, but currently, women and men are almost equally represented (with women holding about 48 per cent of all jobs). Women’s and men’s employment rates are converging because of the increase in women in paid work, but also because the proportion of men in the labour force has dropped (from 73 per cent in 1976 to 68 per cent in 2006). Compared with the past, Canadian women are now more likely to be in full-time employment and to be in paid work when they are mothers of young children. In fact, women with young children, especially well-educated women, are more likely to work fulltime than part-time, although the vast majority of part-time workers in Canada are women (68 per cent in 2006). The social organization of employment is a long-standing theme of scholarship. Increasingly, analyses of work focus on how economic processes are embedded in cultural contexts. For instance, feminist research identifies the myriad ways “work” is socially constructed as “men’s work” or “women’s work” and how hierarchical gender relations are produced and reproduced in the workplace. One way these processes are apparent is in the crowding of women into a relatively narrow range of lower-paid, lower-status occupations, whereas men are more evenly spread across the occupational profile. Numerous studies demonstrate that while less extreme than previously, occupational segregation by gender (and the gender wage gap) persists in Canada (e.g., Baker and Fortin 2001; Brooks, Jarman, and Blackburn 2003; Fortin and Huberman 2002). Despite the recent large increase of women in managerial and professional occupations, the “typical” jobs for women remain in the pink-collar ghetto – clerical work, sales, and service jobs. For instance in 1981, 36 per cent of employed women were clerical workers (and 78 per cent of clerical workers were women), and by 2006, 23 per cent of women held clerical jobs (and 75 per cent of clerical workers were women) (England and Boyer 2009). The 1970s and 1980s were not only watershed decades for women’s rapid increase in paid employment, but were also a time when various jurisdictions enacted legislation to address constraints that hampered women’s entry and success in the labour market. Women were insisting that all levels of government take their political demands and struggles seriously, and gradually public policy about working women shifted. Certainly there was influential employment legislation enacted before

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this second wave of feminism, but the intent of earlier legislation was paternalistic and protective rather than proactive. More broadly, integrating feminist agendas became a key element of Canadian politics in the late 1970s and early 1980s. For example, increasing numbers of feminist women began working within the government machinery, and these “femocrats” (feminist bureaucrats) were significant in promoting “state feminism” (Chappell 2002; McBride and Mazur 2010). As a result, most levels of government introduced a women’s bureau, and the federal government has provided some funding (although now greatly diminished under neoliberal cutbacks) to NGOs focused on women’s issues, such as the National Action Committee on the Status of Women (NAC), an influential advocacy organization from 1971 to 1998. From the perspective of women, a key precursor to the Employment Equity Act was the Royal Commission on the Status of Women (headed by Florence Bird), which was appointed in 1967 in response to growing international sensibilities about acting on the International Labour Organization and other UN conventions around gender equality. The Bird Commission’s landmark 1970 report led to many changes that were put in place in the 1970s and the 1980s. In this climate of legislating equality and with growing pressure from various advocacy groups, in 1983 the Pierre Trudeau government appointed Judge Rosalie Abella to lead a Royal Commission on Equality in Employment to inquire into “the opportunities for employment of women, native people, disabled persons and visible minorities.” The royal commission report helped to shift workplace politics away from a primary focus on class towards the politics of difference and group rights. The final report was submitted in 1984 to Prime Minister Brian Mulroney of the Conservative Party, and led to the 1986 Employment Equity Act. The initial focus of the EEA was on women as a monolithic group. That some women are also members of one or more of the other three groups (women who have disabilities, are Aboriginal or belong to a visible minority, and Aboriginal or visible minority women with disabilities) received only a small amount of attention early on. For instance, in her contribution to the research studies for the Abella commission, Marcia Rioux (1985, 616) mentioned that a person “who is both disabled and female or native or a member of a visible minority is even less likely to be employed” than other groups. Thus such double and even triple “jeopardy” or marginalization was not absent from the discussion, but it was not central and did not translate into an action item in policy formation.

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Since those early studies and the 1986 EEA, a body of literature has emerged that theorizes gender in relation to other discourses, practices, and processes of inequality such as class, “race,” ethnicity, (dis)ability, and other social identities. Much of the initial scholarship focused on women of colour in the United States. In what has come to be termed “intersectionality,” a growing interdisciplinary literature suggests that a complete understanding of gender involves paying attention to how race, class, and other systems of difference and inequality intersect with gender differently in different situations (Crenshaw 1989; Stasiulis 1999; Hill-Collins 2000; McCall 2005). Labour markets are profoundly gendered and classed, but they are also raced and shaped by (dis)ability, not in an additive way but relationally. Intersectionality is about understanding social location relationally in terms of a web of systems of privilege and oppression. Sociologist Patricia Hill-Collins defines intersectionality as “particular forms of intersecting oppressions, for example, intersections of race and gender, or of sexuality and nation. Intersectional paradigms remind us that oppression cannot be reduced to one fundamental type, and that oppressions work together in producing injustice” (HillCollins 2000, 18). The core of intersectionality is that various systems of privilege and oppression work together to produce injustices. Dominant groups control resources and major social institutions, and shape legitimizing ideologies that maintain and reproduce inequalities. Socially and culturally constructed categories of power, prestige, and oppression interact on multiple and often simultaneous levels, contributing to systematic inequality. Hill-Collins uses the concept of a “matrix of domination” to get at how intersecting oppressions are organized. At an interpersonal level, for instance, each person is located within a matrix of domination such that each “individual derives varying amounts of penalty and privilege from the multiple systems of oppression which frame everyone’s lives” (2000, 287). Oppression and privilege are played out at the individual, symbolic, and institutional levels. Not only do some individuals have more privilege, but symbolic or cultural images help define (and stereotype) different groups, and oppression and privilege are also perpetuated in and through social institutions such as schools, workplaces, and government agencies. In their overview of the intersections of race and gender in U.S. labour markets, Browne and Misra (2003, 596) note, “An intersectional approach expects that race and gender combine to create distinctive opportunities for all groups. Focusing on the intersection of gender and race provides a fruitful avenue for understanding inequality

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in the labor market. This scholarship is already revising and enriching our thinking about gender and race. For example, we cannot claim that men earn more than women when White women out-earn Black men.” Thus employment numbers on women and men as monolithic groups mask the inequalities faced by people of colour and people with disabilities – in other words, women (and men) who are members of one (or more) of the three other designated groups. Most studies show that people at the bottom of the social hierarchy in terms of Hill-Collins’s matrix of domination are not only more likely to be in lower-status jobs and receive lower wages, but to experience discrimination and stereotyping. That the extent and pattern of gender occupational segregation is complicated by race and ethnicity in Canada is addressed by an increasing number of studies (see, for example, Creese 2007; Block 2010); however, relatively speaking, there is less scholarship about the gendered work experience of Aboriginal peoples and persons with disabilities (but see England 2003; Doyle-Bedwell 2008). The fact that Canada’s employment equity legislation covers not only women but also persons with disabilities, visible minorities, and Aboriginal peoples obviously offers the potential to track the progress, or lack thereof, of women (and men) who have disabilities, are Aboriginal, or belong to a visible minority. The act requires organizations in federally regulated private industries to perform an annual audit, which involves conducting a statistical “workforce survey” of their employees, as well as an “employment systems review” of their human resources policies and practices, and to produce a comprehensive plan outlining their proposals to remove employment barriers and introduce positive policies and practices. However, the primary policy lever and ultimately the principal way employers’ progress towards employment equity is gauged is through the workforce survey of the numerical representation, distribution across occupational groups, salary distribution and shares of hires, promotions, and terminations of designated group members. Although these data are collected from individual employers in such a way that would make an intersectional analysis possible (i.e., for each employer all the designated groups are broken down by gender), these disaggregated data are seldom readily accessible. Thus as Busby (2006, 53) argues, “A lack of cross-referencing information makes it difficult to identify the effects on women who are members of one or more of the other designated groups.” Indeed numerous scholars have made calls for such data to be publicly released, and one recommendation in the 2002 review of the act was that such data be made more widely available (Longfield

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2002). However, such fine-grained data, while collected from employers, are not easily available to the public via the Human Resources and Skills Development Canada (HRSDC) website. They do not appear in the online annual reports released to the public, and while one could comb though the online individual reports from the approximately 550 employers required to submit reports, that requires a high degree of computer literacy and a vast amount of time. However, it is possible to request some of the fine-grained data in an aggregate format from the Labour Program of Human Resources and Skills Development Canada. In this chapter I use such unpublished data for 1997 and 2007 requested from HRSDC. Measuring Progress At various points in the years since the 1986 act, research studies based on the EEA data collected and submitted to HRSDC have examined the progress in designated groups’ employment outcomes. Among the first addressing the situation of women was Poole’s (1989) study of banking. She found that although women made up the vast majority of the banking workforce, they received fewer promotions than men. Poole also pointed out that the 1980s saw an increase in women in part-time work in banks, but a decline in full-time jobs held by women. Other studies for different time periods conclude that there has been a numerical increase in the presence of women, members of visible minorities, Aboriginal persons, and persons with disabilities in workplaces covered by the act. For example, using the EEA data for 1989 to 1993, Joanne Leck and her colleagues found an increase in the counts of women as a whole, but noted that employment equity legislation had been less effective in the recruitment, promotion, and retention of dual-status women than they had been for white, able-bodied women (Leck, Onge, and Lalancette 1995; Leck, Saunders, and Marcil 1996; Leck and Saunders 1992). And focusing on wage data for those same years, Leck, St Onge, and Lalancette (1995) found that employers were slowly closing the gender wage gap, but that those with more formalized and comprehensive employment equity programs are closing the gap faster. Jain et al. (2003) found that between 1987 and 1999, women as a whole increased their presence in the federally regulated organizations, but their appearance was uneven across sectors, with over-representation in banking, for instance, but limited presence in the transportation sector. England and Gad (2003) used EEA data for 1987 and 2001

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and found that women had increased their share of all workers, and that those women who were also members of another designated group had seen gains that were greater than for white women without disabilities. However, that still translated only into dual-status women holding slightly more than 7 per cent of all jobs in 2001, whereas men in the designated groups held 8 per cent of jobs, while white women and men without disabilities made up the other 85 per cent. Agócs (2002, 2007) looked at data for 1987, 1996, 1998, and 2001 and also found an increase in the numbers of all women employed in firms covered by the act, close to their availability in the labour market according to census data. However, she also found considerable variation once she took account of women and men in the other designated groups: visible minority women increased the most, followed by visible minority men, while Aboriginal women and men increased only slightly. Worryingly, Agócs also noted that during the mid- to late 1990s not only had the hiring of Aboriginal people declined, but their share of terminations was disproportionately high. The record for women and men with disabilities was less encouraging; their number increased until 1996 and fell thereafter, especially for women with disabilities. In her study of banking, England (2003) also concluded that the numerical representation of women and men with disabilities fell well below the external (i.e., census) workforce benchmarks for both 1996 and 2001. Moreover, studies using employment equity data for 2004 and 2006 suggest a decrease in the numerical representation of women in the private sector (although this is not the case in the public sector) (Agócs and Osborne 2009; Jain et al. 2010). Employers are required to collect information to “determine the degree of the under-representation of persons in designated groups in each occupational group in that workforce” (section 9, 1a); in other words, to address occupational segregation. Studies at various points since the introduction of the 1986 act have demonstrated that women continue to be heavily concentrated in clerical occupations, but that there has been progress in the management and professional occupations since the act’s introduction (Leck and Saunders 1995; Leck 2002; Agócs 2002; England and Gad 2003). However, there is evidence that not all the trends are positive. Leck and Saunders’s (1995) detailed analysis of the early data indicated that more women were moving into management positions, but while the wage gap closed between white men and the designated groups at the lower and middle salary ranges, it actually increased at the higher salary ranges. Moreover, while more white women were becoming senior managers, there was a significant

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wage gap between them and their white male counterparts, and the gender wage gap also widened in higher salary categories between visible minority women and visible minority men. In her 2002 assessment of the EEA, Leck (2002) noted improvement in human resources practices, the increased presence and improved status of women, and a narrowing of the gender wage gap. More recently Jain et al. (2010) point out that while there was a decline in the “pink-collar ghetto” between 1987 and 2004, it amounted to only four percentage points, and most of that decline occurred in the first ten years. Similarly, they also found that while by 2004 their occupational sex segregation index had dropped by 20 per cent of its 1997 value, there was very little change after 2002. In what follows I look at the relative numerical representation of the designated groups compared to their “external workforce availability,” as determined by census data (used as the benchmark for each designated group).2 The EEA data used in table 4.13 are based on the “workers covered by the act” data from three Employment Equity annual reports (1988, 1998, 2008) reporting the workforce for all employers covered by the act (data are for 1987, 1997, and 2007). The numbers in bold indicate data that are published in the reports available online; the other data are the unpublished data requested from HRSDC. Table 4.1 shows that between 1987 and 1997 the proportion of women in the employment equity workforce increased from 41.2 to 44.6, but then dropped to 42.7 per cent in 2007. On the other hand, the benchmark census data indicate that women’s share of the external workforce rose steadily (from 44.0 per cent in 1986 to 47.9 per cent in 2006). A major contributor to the decrease in women’s representation has been pegged to the restructuring of the banking sector, which has more negatively affected women than men. In 1987, women accounted for 76 per cent of bank workers, by 1997 it was 74 per cent, but by 2007 that dropped to 67 per cent, a drop of 9 percentage points since the EEA came into being. Primarily this is the result of the relative decline of clerical jobs, which accounted for six out of ten bank jobs in the early 1990s, but only five out of ten by 2008 (Canadian Human Rights Commission 2010). Technological change contributed to the decline of clerical work; for instance, automated teller machines and online banking mean fewer bank tellers are needed, as more customers use electronic banking options. But this simultaneously benefited men, who often dominate newly created technical and professional jobs such as computer programming. The employment equity data show that between 1997 and 2007, men (especially visible minority men) saw much larger increases

Table 4.1. Designated Groups in the Canadian Labour Force and the Employment Equity Workforce, Canada (Required Reporting in Bold)

Workers covered by the EEA 1987

1997

Total workers % total 100 41.2 44.6 % women % men 58.8 55.4 Aboriginal peoples 0.7 1.3 % total % women 0.3 0.6 % men 0.4 0.7 Persons with disabilities 1.6 2.3 % total % women 0.6 0.9 % men 1.0 1.4 Visible minorities 6.0 9.7 % total % women 3.1 5.0 % men 2.9 4.7 One or more designated groups % total 45.5 51.4 % women 41.2 44.6 % men 4.3 6.8

External workforce availability (census)

Representativity index

2007

1986

1996

2006

1987

1997

2007

100 42.7 57.3

44.0 56.0

100 46.4 53.6

100 47.9 52.1

93.6 105.0

96.1 104.3

89.1 110.0

1.9 0.8 1.1

2.1 N/A N/A

2.1 1.0 1.1

3.1 1.5 1.6

33.3 N/A N/A

61.9 60.0 63.6

61.3 53.3 68.8

2.7 1.2 1.5

5.4 N/A N/A

6.5 3.0 3.5

4.9 2.5 2.4

29.6 N/A N/A

35.4 30.0 40.0

55.1 48.0 62.5

15.9 7.4 8.5

6.3 N/A N/A

10.3 4.8 5.4

15.3 7.4 7.9

95.2 N/A N/A

94.2 104.2 87.0

103.9 100.0 107.6

53.8 42.7 11.1

N/A N/A N/A

56.4 46.4 10.0

58.8 47.9 11.9

N/A N/A N/A

91.1 96.1 68.0

91.5 89.1 93.3

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in banking employment than women. That said, new kinds of jobs across a range of skill levels have emerged, like data-processing and call-centre work, as well as accounting and computer programming. Many of these new jobs place considerable value on feminine-coded “people skills” (Menzies 1996; England and Boyer 2009). Table 4.1 also shows that the representation of the other three designated groups (see totals) has increased over the twenty-year period; most notably, visible minorities increased from 6.0 per cent in 1987 to 15.9 in 2007. HRSDC calculates a “representativity index” that compares an employer’s proportions of each designated group with the census benchmarks. However, the data I received are not for individual employers; they are aggregated by occupation only. The representativity index columns in table 4.1 reveal that the indexes for all four designated groups show a general upward trend, but levels of representation were still below their external workforce availability. This is especially so for persons with disabilities and Aboriginal peoples. Women and visible minorities fared better, but by 2007 only visible minorities met or exceeded their external workforce availability, and the index for all women actually dropped from 96.1 in 1997 to 89.1 in 2007. Looking only at the data reported in the online summary reports available to the public (figures in bold) disguises important differences between women and men. As suggested by the intersectionality literature, women are further affected if they are also members of one of the other designated groups, and by extension men who are not white and ablebodied are less privileged than those who are. The addition of Aboriginal men, men with disabilities, and visible minority men to the count for all women means that the proportion of people in the designated groups has increased steadily from 45.5 per cent in 1987 to 53.8 per cent in 2007, an increase of 8.3 percentage points over twenty years, but this is still below their external workforce availability (58.8 per cent). If the overall picture indicates a relative decrease in women and an increase in men in the employment equity workforce, how has that played out among different groups of women and men? Table 4.1 breaks down the census data and the employment equity data by sex and shows that although the proportion of women overall has declined, the proportion of women who are also Aboriginal peoples, visible minorities, or have disabilities actually more than doubled from 4.0 per cent in 1987 to 9.4 per cent in 2007.4 And in absolute terms, the numbers of women and men who are Aboriginal people or visible minorities, and to a lesser extent women and men with disabilities, increased exponentially.

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At first glance there is reason for celebration. However, closer analysis reveals several points for consideration. First, while the proportion of women of colour and women with disabilities increased, men in the designated groups have done better in both relative and absolute terms. Women’s increase was less than men’s in the designated groups (women’s share went from 4.0 per cent to 9.4 per cent, whereas men’s went from 4.3 per cent to 11.1 per cent of all workers), and in absolute terms there has been a larger increase for men in the designated groups than for women in these groups. Second, the increase for Aboriginal and visible minority women and women with disabilities was uneven. In 2007, visible minority women were better represented (see the representativity index), whereas the increase among Aboriginal women (from 0.3 per cent of all women workers in 1987 to 0.8 per cent in 2007) and among women with disabilities (from 0.6 per cent in 1987 to 1.2 per cent in 2007) obviously still translated into tiny numbers. And critically, these percentages were well below their external workforce availability: the representativity index indicates they were at about half of the 2006 census benchmark. Certainly, men with disabilities and Aboriginal men fared slightly better, but they too were still below the external availability benchmark. Unsurprisingly then, Aboriginal peoples and persons with disabilities remain a significant policy and political concern in Canada. Future efforts at making the EEA more efficacious, at least in raw counts and their representativity indexes, should pay particular attention to Aboriginal women and men and women and men with disabilities. Another goal of the act is to address occupational under-representation of the designated groups. The research studies conducted to complement the Royal Commission on Equality in Employment (Abella 1985), and the first data emerging from the 1986 act, indicated that all four designated groups were over-represented in clerical occupations, compared to their external workforce availability. The EEA does not require that the publicly released occupational data (i.e., in the online annual reports) show occupations by gender for Aboriginal peoples, persons with disabilities, and visible minorities. Thus gender breakdowns are rarely included in the aggregate data released to the public. However, the rest of the tables in this chapter are based on unpublished data for 1997 and 2007 supplied by HRSDC on request. I use only the 1997 and 2007 data because the 1995 act reconfigured the broad occupational groupings for data collection. Previously there were twelve occupational groups; now there are fourteen (see table 4.2 for a listing of those occupations). Thus the 1987 data are not directly comparable.

Table 4.2. Occupations of Designated Groups in Employment Equity Workforce, by Sex, 1997 and 2007 Aboriginal peoples

Persons with disabilities 1997

2007

1997

White able-bodied

Occupational group

1997

Gender

M

F

M

F

M

F

M

F

M

F

M

F

M

F

M

F

21.8 0.3 5.5

19.4 0.1 5.7

21.8 0.5 4.8

24.0 0.2 6.3

31.8 0.8 10.8

23.1 0.2 8.1

31.0 1.1 9.7

29.0 0.3 9.3

36.3 0.4 8.6

24.0 0.1 6.7

37.2 0.3 8.3

32.4 0.2 7.3

35.0 1.2 11.5

26.7 0.3 9.2

34.8 1.2 10.2

32.3 0.4 10.2

5.9 7.8

5.5 2.2

7.0 7.7

9.6 3.2

10.1 7.5

8.4 1.2

11.0 6.9

12.6 2.1

19.5 4.6

11.3 0.8

20.5 5.5

18.9 2.1

10.7 9.3

9.7 1.9

11.7 9.6

14.1 3.1

2.3 25.6 2.7

6.0 75.7 11.7

1.9 22.2 1.1

4.7 67.8 9.5

2.6 31.8 2.1

5.3 75.0 10.7

2.4 33.1 3.1

4.7 67.7 10.0

3.2 34.6 4.1

5.2 73.4 14.3

2.6 38.3 4.3

3.9 64.8 11.4

2.2 23.9 1.7

5.6 70.9 11.6

2.2 26.2 1.9

4.6 62.3 9.0

16.1 1.4

57.5 0.5

13.3 1.1

46.9 0.6

24.6 1.1

60.4 0.4

25.5 0.7

53.3 0.2

25.4 00.5

53.8 0.3

22.8 0.5

44.3 0.3

15.6 1.6

50.2 0.8

15.3 1.2

42.5 0.6

2.6

4.8

3.0

8.1

1.9

3.1

2.0

3.7

2.6

4.4

3.0

6.4

3.2

7.7

3.1

7.8

2.9

1.3

3.6

2.7

2.1

0.5

1.8

0.6

1.9

0.7

7.7

2.4

1.8

0.5

4.8

2.5

52.6 3.5

4.8 0.2

55.9 4.4

8.2 0.3

36.4 2.8

1.8 0.1

35.9 2.7

3.3 0.3

29.2 1.3

2.5 0.1

24.5 1.0

2.8 0.1

41.1 3.2

2.5 0.1

39.0 2.7

5.4 0.3

White-collar jobs Senior managers Middle and other managers Professionals Semi-professionals & technicians Supervisors Pink-collar jobs Administrative & senior clerical personnel Clerical personnel Skilled sales & service personnel Intermediate sales & service personnel Other sales & service personnel Blue-collar jobs Supervisors: crafts & trades

2007

Visible minorities 2007

1997

2007

Skilled crafts & trades workers Semi-skilled manual workers Other manual workers TOTAL

20.7

1.0

19.9

1.6

18.0

0.4

14.1

0.6

11.0

0.4

7.6

0.4

19.7

0.7

14.6

0.7

23.8

2.8

27.6

5.6

13.5

1.1

17.3

2.2

15.9

1.7

14.9

2.2

16.2

1.4

20.2

4.1

4.6 100

0.9 100

4.0 100

0.7 100

2.1 100

0.2 100

1.8 100

0.2 100

1.0 100

0.4 100

1.0 100

0.2 100

2.0 100

0.3 100

1.5 100

0.2 100

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Table 4.2 shows the occupational profiles of four groups broken down by gender (Aboriginal peoples, persons with disabilities, visible minorities, and white, able-bodied persons). The table indicates that in all four groups, women saw the most significant changes. Most notably there were increases in white-collar jobs and smaller relative gains in blue-collar jobs, and declines in clerical work. Changes for men were of a smaller magnitude, with relative increases or declines in pink- and blue-collar jobs. Women’s gains in white-collar jobs were most notable in middle management, especially for women with disabilities and white, able-bodied women. It is in the professional occupations where important gains occurred, indicating some occupational mobility for women, especially for visible minority women whose concentration increased by almost 230 per cent (not shown on the table). In fact the highest gains across all the groups were made by visible minority women, who made impressive inroads into white-collar work in absolute and relative terms, especially in the professions and semi-professions. On the other hand, Aboriginal women remained the least likely to be in white-collar work, although their gains were better than the flat growth of Aboriginal men in white-collar work (reflecting their declining representation in middle management and supervisory occupations, and slight increase in the professions). In 2007, there was still a clear “pink-collar ghetto,” although the proportion of all women in the two clerical personnel categories dropped from 63 per cent to 52 per cent between 1997 and 2007. This reflects the suggestion above that the overall percentage decline for women may be linked to the absolute decline in clerical work, especially in banking. So while clerical jobs remained the largest occupational cluster for women, it became smaller over the decade. However, women with disabilities were still heavily concentrated here (63.3 per cent of them were in clerical work in 2007). In absolute numbers, during the decade there was an overall growth in people employed in the two clerical occupations, but white, able-bodied women actually lost numbers. An important gain in percentage terms is Aboriginal women employed in intermediate sales and services. The trends in blue-collar occupations offer an intriguing picture. Even though relatively few women were blue-collar workers, their presence in these jobs increased, especially among Aboriginal women and white, able-bodied women. These are still obviously male-dominated jobs (in 1997, 95 per cent of those employed in these jobs were men, but by 2007

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there were 91 per cent). Nevertheless all groups of women, although less so if they were visible minorities, increased their presence in semi-skilled manual jobs. On the other hand, men’s representation in skilled crafts and trades jobs declined, especially for white, able-bodied men. Indeed, in absolute terms these men experienced the biggest loss of any group in any occupation in the ten-year period, almost 5,400 fewer employed in 2007 compared with 1998 (the next largest occupational drop was for white, able-bodied women in clerical work). In fact across the occupational spectrum, the biggest relative decline was in skilled crafts and trades workers, but there were relative and absolute increases in the number of Aboriginal men and men with disabilities among semi-skilled manual workers. However, that there were also declines in supervisors in crafts and trades suggests not only a decline in blue-collar skill level, but also a loss of the associated better paid blue-collar jobs. In employment studies of inter-group differences, the index of dissimilarity5 has long been used as a summary measure of occupational segregation (Duncan and Duncan 1955). The index of dissimilarity measures the degree of difference (or inequality) in the distributions of two groups across a mix of occupations. Low values indicate little difference in the occupational distributions of the two groups (i.e., little segregation), while high values indicate highly segregated groups, because the two groups are distributed differently across the occupational categories. Other research indicates that although gendered occupational segregation persists in Canada, the index of dissimilarity between women and men has declined in recent decades (e.g., Fortin and Huberman 2002). Table 4.3 shows that the index of dissimilarity for all women versus men employed in firms covered by the EEA dropped from 51.6 in 1997 to 42.2 in 2007, indicating a marked decline in gendered occupational segregation. However, once intersections with race/ethnicity and disability are considered, trends in gendered occupational segregation become more complex. In 1997 and 2007 the highest index was for Aboriginal women and men, and over the ten-year period they showed by far the lowest drop in occupational segregation, indicating that Aboriginal women and men are still highly segregated from each other. The lowest index was between visible minority men and women, who also saw the greatest drop in their occupational segregation. Thus while there has been a general decline in gendered occupational segregation in the employment equity workforce, it is more variable once intersectionality is taken into account.

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Table 4.3. Index of Dissimilarity for Women and Men in the Employment Equity Workforce, 1997 and 2007

1997

All women

All men 51.6 Aboriginal men Men with disabilities Visible minority men White, able-bodied men

2007

All women

All men 42.2 Aboriginal men Men with disabilities Visible minority men White, able-bodied men

Aboriginal women

Women with disabilities

Visible minority women

White, able-bodied women

56.5 48.1 42.4 52.5

Aboriginal women

Women with disabilities

Visible minority women

White, able-bodied women

54.1 40.3 33.4 43.7

Source: Unpublished data, Labour Program, HRDC.

To explore this further, the index of dissimilarity was calculated for white, able-bodied women and men compared with all six of the other groups (see table 4.4). This reveals whether occupational segregation has decreased between groups at junctions in the matrix of intersectionality. As expected there is less occupational segregation in the withingender groups (i.e., among the groups of women or among the groups of men), although the relatively higher indexes for white, able-bodied men and visible minority men is noteworthy. Overall, the indexes show less occupational segregation among women than among men. Among women, the index of dissimilarity narrowed between white, able-bodied women and Aboriginal women, but actually rose slightly with women with disabilities and visible minority women. And when compared with men, the gap narrowed between white, able-bodied women and all three groups of men, especially men with disabilities and visible minority men. Turning to white, able-bodied men the index is, unsurprisingly, largest when compared with the three groups of women, but in all three cases it narrowed over the ten-year period, especially with Aboriginal women.

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Table 4.4. Index of Dissimilarity for Designated Groups in the Employment Equity Workforce, 1997 and 2007 White, able-bodied women compared with:

1997

2007

White, able-bodied men compared with:

1997

2007

Aboriginal women Women with disabilities Visible minority women Aboriginal men Men with disabilities Visible minority men White able-bodied men

11.6 10.2 8.5 58.9 43.9 40.7 52.7

8.6 11.9 9.2 56.9 35.2 33.2 43.7

Aboriginal women Women with disabilities Visible minority women Aboriginal men Men with disabilities Visible minority men White able-bodied women

57.3 56.8 55.6 14.2 10.3 22.2 52.5

46.8 50.1 50.8 17.0 11.9 22.1 43.7

Source: Unpublished data, Labour Program, HRDC.

However, with the other groups of men the change is more varied and not impressive. Basically, the biggest change is seen in the comparison between white, able-bodied men and Aboriginal women, and women with disabilities, and between white, able-bodied women and men with disabilities and visible minority men. Overall then, the gaps between white, able-bodied women and the other groups of women and men have narrowed, but with men there is a more complex picture. Generally, there has been some decline in occupational segregation, but it has been more significant for some groups than others.Overall, some women moved into white-collar jobs, gaining greater access to corporate policy and strategic planning and decision-making roles, although Aboriginal women lagged behind here. Women have also increased their presence in blue-collar jobs, although visible minority women and women with disabilities had the lowest representation in blue-collar work. While significant concentrations persist (i.e., women in pink-collar jobs), between 1997 and 2007 there was a slightly more even distribution of women and men across the occupational spectrum of firms covered by the EEA. However, these gains are not particularly impressive. Another growing trend suggested by the data is that in white-collar work, women, especially white, able-bodied women, gained higher-paid, higher-status managerial jobs. But in pink-collar and blue-collar jobs a different pattern is emerging with relative gains in intermediate and other sales and service personnel and semi-skilled manual workers, that is in the less-skilled jobs at the bottom of each of those broader

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occupational categories. Such patterns are a worry because more generally there is growing evidence that as some women move into wellpaid, high-status jobs, employment results among groups of women are becoming strongly bifurcated, leading to more economic differentiation among women than in the past. This, together with the weak unionization of women in small establishments and in the private sector, may be increasing economic polarization among women (Vosko 2006). Moreover as Jain et al. (2010) suggest, after important gains earlier, including declining occupational segregation, the impacts may have plateaued and perhaps even declined. This apparent slowdown in gains should be closely monitored and addressed. Reflections After many years of employment equity legislation, only limited success has been achieved in workplace equity for women, especially for Aboriginal women and women with disabilities. Nicola Busby (2006, 57–8) concludes her assessment of the legislation by noting, “In theory, the Canadian legislation provides a model, [but] its reliance on inputs and processes rather than results means that it is too weak and its progress too slow to amount to a success story.” Certainly, numerically at least, some women and men in designated groups have greatly benefited, but gaps still remain. Indeed, while the numbers of employed women in some occupational groups have increased, it is entirely possible that the direct and specific impacts of the legislation are limited. For instance, women’s access to additional work experience and new positions once employed depends on many factors not touched by the legislated process. These include access to training (including language training for non-native speakers) and professional development, the sorts of job assignments women get as well as their opportunities to gain new skills and get promoted. Moreover, the numerical increase in women workers and their increased distribution across the occupational spectrum may well be the result of the changing paid labour market characteristics of women (including qualifications and experience) and also because of men’s changing employment patterns, as well as the changing nature of the occupational structure itself. For instance, given the Employment Equity Act’s reliance on numerical representation, some of the “improvements” have been achieved because of the restructuring of middle management (“upgrading” supervisors to managers, for example) and restructuring leading to early retirements, resulting in the decrease in numbers of white men (Agócs 2002). As Bakan and Kobayashi (2000, 17) observe,

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“We do not view numerical representation as an indication of the success of employment equity policies; it is clearly an indication that much more work is needed. Equity is like an onion, consisting of many layers and no core; without numerical representation, the other layers – including redistribution, removal of systemic barriers and changing workplace culture – cannot be supported.” Of course it is common for social policies to focus on quantifiable and measurable performance targets. However, social justice is at least as much about the quality of social relationships as it is about statistical effects. As Bakan and Kobayashi (2000), among others, point out, a positive workplace culture is also important for employment equity to be successful. Early on Poole and Rebick (1993, 350) lamented that women “state that harassment, whether based on sex, class or disability, is one of the most difficult aspects of their work. Even if women are hired, the climate in a workplace can ensure that they will not stay, or if they stay, that they will not be promoted.” A 1995 Treasury Board of Canada report suggested that while the number of women had increased, there had been little change in the cultural and attitudinal barriers that women face. Their concerns included sexual harassment at work and limited recognition for on-the-job training (Consultation Group on Employment Equity for Women 1995). More recently, Al-Waqfi and Jain (2008) reviewed a nineteen-year span of legal cases about workplace racial discrimination. They highlighted the role of racial harassment as potentially more emotionally damaging than discrimination, because it is individualized and “attacks the dignity and self-esteem of individuals subjected to it” (446). This makes it different from, for instance, discrimination in hiring or promotion, because “cases of racial harassment do not usually involve making choices between members of minority and majority groups” (446). Such practices add to a chilly climate in the workplace, making equity more difficult to achieve. An accommodating workplace culture does not perpetuate patterns of systemic discrimination, but instead includes skills improvement training, opportunities for some decision-making power, and receiving encouraging performance appraisals from supervisors. The current legislation does not adequately address informal workplace practices, and workplace culture is not monitored through the compliance review process. There needs to be more investigation of the implications of informal workplace practices for employment equity policy (Agócs 2002, 2007). A recurrent critique of the Employment Equity Act regarding women is that it is narrow in scope. Women tend to work for small firms, so the fact that private sector employers with fewer than 100 workers are not

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covered by the act means many women are left out of the legislation altogether. The majority of all workers are not covered by federal legislation because they fall under provincial jurisdictions, most of which have limited or no employment equity policies (Bakan and Kobayashi 2000; England and Gad 2003; Agócs and Osborne 2009). The act also increasingly depends on a great deal of self-regulation by employers. Critics of the 1986 federal Employment Equity Act raised concerns about the lack of enforcement mechanisms, and there was no clear indication of which government agency was responsible for monitoring compliance and enforcement. The 1995 act introduced some enforcement mechanisms and enabled the Canadian Human Rights Commission to conduct compliance reviews.6 However, additional changes also removed the CHRC’s authorization to use employment equity data as a basis for complaints, as well as the option of imposing timetables for an employer to reach a numerical goal for hires and promotions. Indeed, Lum and Williams (2000, 198) even suggest, “In spite of the semblance of more ‘teeth,’ the [1995] Act contains significant omissions, restrictions and ambiguities which substantially limit its bite.” In other words the effectiveness of the act, including the requirements for employers to create more equitable workplaces, is limited in the channels through which it can be enforced and monitored (also see Agócs 2007; Agócs and Osborne 2009). Since its introduction, the ability to enforce the 1995 act has been thwarted by an inadequate administrative framework and under-funding. In fact, Carol Agócs (2002, 270) argues that the “gap between policy and practice … may be traced to the lack of political will to provide adequate legislative and administrative provisions for enforcement and compliance.” As with all social policies, the particularities, successes, and failures of the employment equity legislation were and continue to be produced in specific cultural, economic, and political circumstances that came together at particular moments in Canada’s history. The initial discussions in the 1980s about women’s limited employment opportunities unfolded at a time when a liberal progressive social rights discourse prevailed. The 1986 EEA had its roots in the Just Society and participatory democracy politics of Trudeau’s Liberals, an era deeply marked by the expansion of constitutional rights and civil rights under the Charter of Rights and Freedoms. And activism played a critical role in moving the legislation forward, as did femocrats within the federal government (Timpson 2001; Abu-Laban and Gabriel 2002; Chappell 2002). Under social liberalism, the state–market relation was configured around greater state

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intervention to regulate and alter market forces to meet the goal of social equality. Social ills, such as poverty and poor employment outcomes, were seen as structural. Social programs were built around a consensus on social rights, collectivized entitlements to social welfare services, and collective responsibility to provide for the basic social needs and economic security of Canadians. If the initial employment equity legislation emerged in a particular historical moment, then under today’s different political and economic circumstances the legislation is differently located. Since the mid-1980s there have been many changes, not only in which party governs and the timing of economic cycles that shape workplace equity, but also in the parameters of prevailing political ideological paradigms. Since the early 1990s, Canada’s reframing of citizenship, economic restructuring, and reforming the welfare state has led to dramatically curtailed government services in the name of fiscal austerity. These shifts are underpinned by a neoliberal rationale that privileges the rule of the market, privatization, and reduced government spending (especially on social welfare programs). The mantra of “less government” translates into stemming the growth of the state, especially the welfare system, and restoring the logic of the market to areas of everyday life that had been replaced or altered by social liberal state interventions (Larner 2000; Abu-Laban and Gabriel 2002; England and Ward 2007). Key facets of social liberalism, like state regulation, social citizenship rights, and commitments to formal equality have been eroded. Social policies echo lessons learned from market-based neoliberal economics. Discourses of citizenship, formerly configured around collective responsibility, ameliorating social risk and social entitlements, have shifted towards the neoliberal values of possessive individualism, self-reliance, consumerism, and individual responsibility. In a neoliberal frame, social problems are recast as deficiencies of the individual (in education, skills, and work experience), rather than linking them to structural inequalities (Larner 2000; England and Ward 2007). These discourses have fuelled the growing backlash against employment equity designated groups as “special interest groups” in need of remedial programs or as lacking the appropriate qualifications or experience to be hired on their own “merit” (Abu-Laban and Gabriel 2002; Bakan and Kobayashi 2007; Goldberg 2007). The uptick in such appeals to individuated meritocracy is also associated with the rise of “equality talk.” This shifts the focus to equal treatment, meaning equal starting points, rather than equity aimed at achieving equal results. Yet as Justice

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Abella (1984, 3) was careful to explain in her formulation of employment equity, “Sometimes equality means treating people the same, despite their differences, and sometimes it means treating them as equals by accommodating their differences.” The discursive formation of equality versus equity is significant because it establishes the boundaries for public debate in terms of what is, or is not, appropriate for inclusion in political agendas and ultimately social policy. Increasingly the Employment Equity Act is described as “a federal law that requires [federally regulated employers to] “provide equal employment opportunities … to the four designated groups (CHRC 2013; emphasis added). This is wording different from what actually appears in the 1995 act, which states that the purpose of the act “is to achieve equality in the workplace so that no person shall be denied employment opportunities or benefits for reasons unrelated to ability and, in the fulfilment of that goal, to correct the conditions of disadvantage in employment experienced by … [the four designated groups] by giving effect to the principle that employment equity means more than treating persons in the same way but also requires special measures and the accommodation of differences.” The broader, less precise language of “equal opportunities” makes it less clear whether policies focus on equality of inputs or equality of outcomes, especially since equality of outcomes usually requires unequal inputs (e.g., more expenditures on certain groups). “Equality talk” makes it less obvious whether a focus on inputs or outputs is intended in practice, but then perhaps this obfuscation is intended. Employment equity in Canada should be situated in terms of broader issues of women’s paid employment. Gender gaps are closing in education, hours and days worked, and so on. Of course, this does not mean that equity now exists for women and men at work (or at home!). The newspapers continue to carry stories about women professional workers, like lawyers or architects, describing the gender biases they face at work, the unrelenting work pressures, and the difficulty of maintaining a work-life balance, especially for mothers. Increasingly there is coverage of men who are also chasing the elusive path to work-life balance. This raises further questions about other social policies, such as family leave and the provision and public funding of child care, that are also a critical part of true equity in the workplace (England 1996; McDowell 2001). Given the current focus on narrowly targeted legislation on employment equity, I conclude by advocating a more integrated approach to workplace equity in Canada, one that better triangulates training, workplace, and family policies. In addition to recommendations about

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measuring the numerical progress of the designated groups, the 1984 Abella Report contained many recommendations about improving training opportunities, improving and increasing publicly funded child care, and creating an accommodating workplace. These recommendations did not find their way into the employment equity legislation in either 1986 or 1995. This has always bothered critics, who argue that these aspects of women’s employment are important for truly transforming workplaces dominated by white, able-bodied men (Agócs 2002, 2007; England and Gad 2003). Employment equity legislation could easily be reframed as part of a broader agenda of change for women and men, advanced through an expanding toolkit of legislated and non-legislated initiatives. In this way perhaps the future success of workplace equity may be more broadly based than focusing on just the women and other designated groups now covered by the EEA.

NOTES 1 Some of the early research for this chapter was supported by the Canadian Studies Grant Program of the Embassy of Canada in Washington DC. I am grateful for that support. Gunter Gad (University of Toronto) collaborated with me on earlier work on this topic. I thank him for his guidance and generosity over many years. And for providing me with unpublished data, I thank the staff at Workplace Equity Services in the Labour Program at Human Resources and Skills Development Canada. 2 The 1998 report (based on data collected in 1997) was the first one based on the 1996 Employment Equity regulations and the first to use the 1996 census data as benchmarks. At the time of writing, the 2008 report (reporting 2007 data) was the most recent available, but also allowed for a ten-year comparison since the 1996 EEA. The 2008 report uses the 2001 census for benchmarks because the 2006 data were not available for comparison at the time the data were compiled. 3 Table 4.1 data sources were Employment Equity Act annual reports, various years, and Employment Equity Data Report (based on census and post-census data collected by Statistics Canada). Data for persons with disabilities for 1996 are based on the 1991 Statistics Canada’s Participation and Activity Limitation Survey (PALS). The “external workforce availability” is based on census data for the designated group percentages relative to the total workforce population aged fifteen and older. The “representativity index” is a ratio of the percentage of workers covered by the EEA relative to the percentage of

94 Kim England total employment they account for in the external workforce (i.e., their availability according to census data). Census data on Aboriginal peoples, persons with disabilities, and visible minorities by sex were not collected. 4 The employment equity data currently do not identify women who face “triple jeopardy,” such as women of colour with disabilities (nor are men of colour with disabilities identified). One recommendation in the 2002 review of the act was that such data be collected (Longfield 2002). That recommendation was not taken up; the next review should address this again. 5 The index is calculated as follows: ½ Σi⏐Mi − Fi⏐ Where: Mi is the percentage of men in the labour force employed in occupation i, and Fi is the percentage of women in the labour force employed in occupation i. 6 The Canadian Human Rights Commission (CHRC) is responsible for the enforcement of this act. Wherever possible, cases of non-compliance are resolved through persuasion and the negotiation of written undertakings (section 22). CHRC may give directions in the course of the events. There may be reviews by an Employment Equity Review Tribunal (section 28), and the tribunal will make an order that is final (section 30), to ensure enforcement of such an order may be made an order of the Federal Court and is enforceable in the same manner as an order of that court (Section. 31). Employers may be fined if they fail to file an employment equity report, include required information in their report, or provide false or misleading information in their report (the penalty is $10,000 for a single violation, and $50,000 for repeated or continued violations).

REFERENCES Abella, Rosalie Silberman. 1984. Equality in Employment: A Royal Commission Report. Ottawa: Minister of Supply and Services Canada. – 1985. Research Studies of the Commission on Equality in Employment. Ottawa: Minister of Supplies and Services Canada. Abu-Laban, Yasmeen, and Christina Gabriel. 2002. Selling Diversity: Immigration, Multiculturalism, Employment Equity and Globalization. Peterborough, ON: Broadview. Agócs, Carol. 2002. “Canada’s Employment Equity Legislation and Policy, 1987– 2000: The Gap between Policy and Practice.” International Journal of Manpower 23 (3): 256–76. http://dx.doi.org/10.1108/01437720210432220.

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– 2007. “Canada’s Employment Equity Act: Perspectives on Policy and Implementation.” In Multicultural Education Policies in Canada and the United States, ed. Reva Joshee and Lauri Johnson, 167–87. Vancouver: UBC Press. Agócs, Carol, and Bob Osborne. 2009. “Comparing Equity Policies in Canada and Northern Ireland: Policy Learning in Two Directions?” Canadian Public Policy 35 (2): 237–62. http://dx.doi.org/10.3138/cpp.35.2.237. Al-Waqfi, Mohammed A., and Harish C. Jain. 2008. “Racial Inequality in Employment in Canada: Empirical Evidence and Emerging Trends.” Canadian Public Administration 51 (3): 429–53. http://dx.doi.org/10.1111/j.17547121.2008.00032.x. Bakan, Abigail B., and Audrey Kobayashi. 2000. Employment Equity Policy in Canada: An Interprovincial Comparison. Ottawa: Status of Women Canada. 2007. “Affirmative Action and Employment Equity: Policy, Ideology and Backlash in Canadian Context.” Studies in Political Economy 79:145–66. Baker, Michael, and Nicole M. Fortin. 2001. “Occupational Gender Composition and Wages in Canada, 1987–1988.” Canadian Journal of Economics / Revue canadienne d'économique 34 (2): 345–76. http://dx.doi.org/10.1111/0008-4085. 00078. Block, Sheila. 2010. Ontario’s Growing Gap: The Role of Race and Gender. Ottawa: Canadian Centre for Policy Alternatives. Brooks, B., J. Jarman, and Robert M. Blackburn. 2003. “Occupational Gender Segregation in Canada, 1981–1996: Overall, Vertical and Horizontal Segregation.” Canadian Review of Sociology and Anthropology / La revue canadienne de sociologie et d'anthropologie 40 (2): 197–213. http://dx.doi.org/10.1111/j.1755618X.2003.tb00243.x. Browne, Irene, and Joya Misra. 2003. “The Intersection of Gender and Race in Labor Markets.” Annual Review of Sociology 29 (1): 487–513. http://dx.doi. org/10.1146/annurev.soc.29.010202.100016. Busby, Nicole. 2006. “Affirmative Action in Women’s Employment: Lessons from Canada.” Journal of Law and Society 3 (1): 42–58. http://dx.doi.org/ 10.1111/j.1467-6478.2006.00346.x. Canadian Human Rights Commission. 2010. Impact of the Employment Equity Act and of the CHRC Employment Equity Program over the Years. Ottawa: Queen’s Printer. – 2013. “Equal Employment Opportunities.” http://ccdp-chrc.gc.ca/eng/ content/equal-employment-opportunities. Chappell, Louise. 2002. Gendering Government: Feminist Engagement with the State in Australia and Canada. Vancouver: University of British Columbia Press. Consultation Group on Employment Equity for Women. 1995. Looking to the Future: Challenging the Cultural and Attitudinal Barriers to Women in the Public Service. Ottawa: Treasury Board of Canada Secretariat.

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Creese, Gillian. 2007. “Racializing Work /Reproducing White Privilege.” In Work and Labour in Tumultuous Times: Critical Perspectives, ed. Vivian Shalla and Wallace Clement, 192–226. Montreal and Kingston: McGill-Queen’s University Press. Crenshaw, Kimberlé W. 1989. “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics.” University of Chicago Legal Forum 140:139–67. Doyle-Bedwell, Patti. 2008. “With the Appropriate Qualifications: Aboriginal People and Employment Equity.” Canadian Women's Studies 26 (3): 77–89. Duncan, O.D., and B. Duncan. 1955. “A Methodological Analysis of Segregation Indices.” American Sociological Review 20 (2): 210–17. http://dx.doi.org/ 10.2307/2088328. England, Kim. 1996. Who Will Mind the Baby? Geographies of Child Care and Working Mothers. London: Routledge. – 2003. “Disabilities, Gender and Employment: Social Exclusion, Employment Equity and Canadian Banking.” Canadian Geographer 47 (4): 429–50. http:// dx.doi.org/10.1111/j.0008-3658.2003.00034.x. England, Kim, and Kate Boyer. 2009. “Women’s Work: The Feminization and Shifting Meanings of Clerical Work.” Journal of Social History 43 (2): 307–40. http://dx.doi.org/10.1353/jsh.0.0284. England, Kim, and Gunter Gad. 2003. “Social Policy at Work? Equality and Equity in Women’s Paid Employment in Canada.” GeoJournal 56 (4): 281–94. http://dx.doi.org/10.1023/A:1025989105680. England, Kim, and Kevin Ward. 2007. Neo-Liberalization: States, Networks, Peoples. Oxford: Blackwell. Fortin, Nicole M., and Michael Huberman. 2002. “Occupational Gender Segregation and Women’s Wages in Canada: An Historical Account.” Canadian Public Policy 28:S11–S39. http://dx.doi.org/10.2307/3552342. Goldberg, Michelle. 2007. “Dialogue across Borders on Employment Equity / Affirmative Action.” In Multicultural Education and Policies in the United States and Canada: Symbol or Substance?, ed. Reva Joshee and Lauri Johnson, 204–13. Vancouver: UBC Press. Hill-Collins, Patricia. 2000. Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment. New York: Routledge. Jain, Harish C., John J. Lawler, Bing Bai, and Eun Kyung Lee. 2010. “Effectiveness of Canada’s Employment Equity Legislation for Women (1997–2004): Implications for Policy Makers.” Relations industrielles / Industrial Relations 65 (2): 304–29. http://dx.doi.org/10.7202/044304ar. Jain, Harish C., Peter J. Sloane, and Frank M. Horwitz. 2003. “Introduction.” In Equity and Affirmative Action: An International Comparison, ed. Harish C. Jain, Peter J. Sloane, and Frank M. Horwitz, 1–55. Armonk, NY: M.E. Sharpe.

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Larner, Wendy. 2000. “Neoliberalism: Policy, Ideology, Governmentality.” Studies in Political Economy 63:5–26. Leck, Joanne D. 2002. “Making Employment Equity Programs Work for Women.” Canadian Public Policy 28:S85–S100. http://dx.doi.org/10.2307/3552345. Leck, Joanne D., Sylvie Onge, and Isabelle Lalancette. 1995. “Wage Gap Changes amongst Organizations Subject to the Employment Equity Act.” Canadian Public Policy 21 (4): 387–400. http://dx.doi.org/10.2307/3551337. Leck, Joanne D., and David M. Saunders. 1992. “Canada’s EEA: Effects on Employee Selection.” Population Research and Policy Review 11:21–49. http:// dx.doi.org/10.1007/BF00136393. – 1995. “Achieving Diversity in the Workplace: Canada’s Employment Equity Act and Members of Visible Minorities.” International Journal of Public Administration 19 (3): 299–321. http://dx.doi.org/10.1080/01900699608525097. Leck, Joanne D., David M. Saunders, and Lyne Marcil. 1996. “Programmes d’équité en matière d’emploi au Canada: le cas des femmes.” Revue canadienne des sciences de l’administration / Canadian Journal of Administrative Sciences 13 (3): 207–15. http://dx.doi.org/10.1111/j.1936-4490.1996.tb00731.x. Longfield, Judi. 2002. Promoting Equality in the Federal Jurisdiction: A Review of the Employment Equity Act. http://www.parl.gc.ca/HousePublications/Publication. aspx?DocId=1032138&Language=E&Mode=1&Parl=37&Ses=1. Lum, Janet M., and A. Paul Williams. 2000. “Out of Sync with a ‘Shrinking State’? Making Sense of the Employment Equity Act (1995).” In Restructuring and Resistance: Canadian Public Policy in an Age of Global Capitalism, ed. Mike Burke, Colin Mooers, and John Shields, 194–211. Halifax: Fernwood Publishing. McBride, Dorothy, and Amy Mazur. 2010. The Politics of State Feminism: Innovation in Comparative Research. Philadelphia: Temple University Press. McCall, Leslie. 2005. “The Complexity of Intersectionality.” Signs 30 (3): 1771–800. http://dx.doi.org/10.1086/426800. McDowell, Linda. 2001. “Father and Ford Revisited: Gender, Class and Employment Change in the New Millennium.” Transactions of the Institute of British Geographers 26 (4): 448–64. http://dx.doi.org/10.1111/1475-5661.00034. Menzies, Heather. 1996. Whose Brave New World? The Information Highway and the New Economy. Toronto: Between the Lines. Poole, Phebe-Jane. 1989. Is Employment Equity Legislation Working? An Examination of Women in Banking. Ottawa: Canadian Centre for Policy Alternatives. Poole, Phebe-Jane, and Judy Rebick. 1993. “Not Another Hundred Years: The Failure of the Federal Employment Equity Act.” Canadian Labour Law Journal 1:341–67. Rioux, Marcia H. 1985. “Labelled Disabled and Wanting to Work,” In Research Studies of the Commission Equality in Employment, ed. Rosalie Silberman Abella, 611–40. Ottawa: Minister of Supply and Services Canada.

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Stasiulis, Daiva. 1999. “Feminist Intersectional Theorizing.” In Race and Ethnic Relations in Canada, 2nd ed., ed. Peter Li, 347–97. Oxford: Oxford University Press. Timpson, Annis May. 2001. Driven Apart: Women’s Employment Equality and Child Care in Canadian Public Policy. Vancouver: UBC Press. Vosko, Leah. 2006. Precarious Employment: Understanding Labour Market Insecurity in Canada. Montreal and Kingston: McGill-Queen’s University Press.

Chapter 5

Employment Equity and Canada’s Aboriginal Peoples M I C H A E L LY N K

In November 1984, the final report of the Commission on Equality in Employment – better known as the Abella Report – was delivered to the Canadian government and released to the public (Abella 1984). Among its central recommendations was the call for the designation of Aboriginal peoples (referred to throughout the report as “native people”) as one of the four groups of Canadians who would benefit through the enactment of employment equity legislation to remedy the significant and historically based barriers that these groups had faced in the national labour market. In unsparing terms, the report described the prevailing employment conditions of Aboriginal peoples. Their unemployment rate in 1980 was more than double that of other Canadians, and their labour market participation rate was significantly lower than non-Natives; the jobs that Aboriginal peoples did hold were predominately low-paid and low-skilled, and offered little chance of advancement; their average annual earnings were two-thirds the average of non-Natives; and the educational and training programs available to them were largely unaccountable, taught an alien and irrelevant curriculum, and channelled their youth to the bottom of the labour force or blocked their entry altogether (33–8). Virtually all of the labour market indicators relied upon by the commission found that Aboriginal peoples faced the greatest employment disparities and endured the worst job market outcomes of the many groups that it surveyed. From the commission’s perspective, these employment patterns were neither episodic nor ephemeral but, rather, deep-seated, persistent, and systemic, and spoke of a disturbing toleration of prejudice that Canadians and their institutions had been reluctant to confront (5–6, 33–8).

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The harm caused by these dire employment conditions, according to the Abella Report, went well beyond the workplace. In its view, the systemic patterns of labour market disparities were both cause and effect for the wider social disadvantages experienced by many Aboriginal people. In the words of a research report prepared for the commission, “Poverty, poor housing, lack of sanitation systems, high fire-related death rates, crowded homes, low life expectancy, high infant mortality, high alcoholism rates and alcohol-related illnesses and deaths, high representation in Canadian prisons, low educational levels, children in care of institutions and high suicide rates are all part of the debilitating cycle that is directly related to the lack of employment among native people” (Powless 1985, 589). An underlying factor that, according to the report, pervaded virtually every aspect of Aboriginal life, from employment disparities to broader social conditions, was the lack of control that Aboriginal peoples had over their lives – “their exclusion from relevant decision-making … and the constant sense that they are forever subject to the discretion of people who do not understand their culture” – which led inexorably to a human cost that was “enormously and inexcusably high” (Abella 1984, 38). The core recommendation of the commission’s report was its call for Parliament to enact employment equity legislation that would seek both to tackle the systemic job barriers and discriminatory practices faced by the four designated groups – women, visible minorities, persons with disabilities, and Native people – in the federal sector, and to encourage employers to boost the participation rates of these four groups in the Canadian workplace. Although the Abella Report was forthright in its depiction of the desolate labour market situation of Aboriginal peoples, its specific recommendations that addressed their employment circumstances were decidedly more modest: increasing the number of Native teachers, encouraging the adoption of more relevant curriculum, teaching Native children in their own languages, and devolving greater governance powers to Native people to run their own schools and social services (Abella 1984, 255–69). Twenty-five years after Parliament’s enactment of the Employment Equity Act in 1986, many of these troubling labour market disparities between Aboriginal peoples and other Canadians have remained stubbornly entrenched. The quantitative improvements in the work lives of Aboriginal peoples that have occurred over the past quarter-century – greater representation in the workforce, more access to better-paid jobs, and higher educational and training levels – are welcome accomplishments,

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as are the improvements in many aspects of their living conditions and broader well-being. Yet these gains are tempered by the persistently wide employment and social gaps that continue to demarcate their well-being from other Canadians. Indeed, in some cases these social and economic inequalities have actually widened since the Abella Report, particularly for those living on First Nations reserves. Max Yalden, a former chief commissioner of the Canadian Human Rights Commission, has recently written that the inequitable status of Aboriginal peoples remains “Canada’s most shameful human-rights-discrimination problem.” As for the specific impact of the act on the fortunes of Aboriginals, Yalden commented, “Employment equity as a program has been uneven in its successes and failures, but in the case of Native people, undoubtedly leaning more heavily towards the negative side of the ledger” (Yalden 2009, 186–7). Yalden’s judgment is harsh but not far off the mark. There have been some significant employment equity gains for Aboriginal peoples over the past twenty-five years, but these have been too modest and incremental to qualitatively transform their labour force standing, let alone close the troubling social gaps separating them from the rest of the Canadian population. This chapter examines the efficacy of employment equity over the past quarter-century for the working lives of Aboriginals in Canada, set against the landscape of their social well-being. Social and Economic Portrait

General Social Well-Being According to the 2006 Canadian census, Canada’s Aboriginal population has reached 1.17 million people, representing 3.8 per cent of the Canadian population. About 60 per cent of the Aboriginal population are First Nations peoples, which includes both status and nonstatus persons under the Indian Act.1 There are approximately 615 First Nations communities across Canada, consisting of more than fifty nations and speaking approximately sixty Aboriginal languages. A third of the Aboriginal population is Metis, who are of mixed First Nations and European ancestry and live predominantly in the West. Just under 5 per cent are Inuit, who are concentrated in fifty-three communities across Arctic Canada (Statistics Canada 2008). By virtue of their unique status as the Indigenous peoples of Canada, section 35 of the Constitutional Act, 1982 has recognized all three groups as constituting the

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“Aboriginal Peoples of Canada” and guarantees their “existing aboriginal and treaty rights.”2 This has led to significant constitutional victories at the Supreme Court of Canada since 1982 that have enhanced their legal status and their political voice.3 In comparative international terms, the size of Canada’s Aboriginal population, in proportion to the rest of the national population, is almost twice the size of the Indigenous populations in Australia and the United States (both are at approximately 2 per cent), but significantly smaller than the Maori population in New Zealand (at 15 per cent).4 The Aboriginal population is younger and expanding at a substantially faster rate than the non-Aboriginal Canadian population. In 2006, 48 per cent of Aboriginal peoples were under the age of twenty-four, compared with only 31 per cent of the non-Aboriginal population. And between 1996 and 2006, the Aboriginal population increased by 45 per cent, almost six times faster than the 8 per cent increase for the rest of the population, a trend that is projected to continue well into the future. As well, Canada’s Aboriginals are increasingly becoming urban dwellers. In 2006, 54 per cent lived in urban areas, up from 50 per cent in 1996, with significant concentrations in Winnipeg, Edmonton, Vancouver, Toronto, Calgary, Saskatoon, and Regina. Conversely, the percentage of Aboriginals living in reserve communities is steadily declining, while still remaining, at 26 per cent of the population, a substantial demographic feature; the remaining population lives in rural off-reserve communities (Sharpe et al. 2009, 9).5 One important implication of this urbanization trend is that the practical responsibility for managing Aboriginal issues is spreading from the federal government, which has formal constitutional jurisdiction for Aboriginals on reserves and the northern territories, to the provinces, which are constitutionally responsible for Canada’s urban areas (Noel and Larocque 2009). More than 80 per cent of the Aboriginal population lives in Ontario and the four western provinces, and they make up 15 per cent of the populations of both Manitoba and Saskatchewan. In the North, Aboriginals constitute 85 per cent of the population of Nunavut, a slight majority in the Northwest Territories, and a quarter of the population in the Yukon. The gaping social inequities identified by the Abella Report in 1984 were reconfirmed by the Royal Commission on Aboriginal Peoples in its final report in 1996,6 and remain an open sore on the relationship between Aboriginal and non-Aboriginal Canadians. A 2010 index developed by the federal government to measure the well-being and quality of life of Canadian communities reported that, of the bottom hundred

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Canadian communities on the index, ninety-six were First Nations and one was Inuit; only one First Nation community ranked among the top hundred Canadian communities.7 While some progress was made to reduce the “well-being” gap between First Nations and Inuit communities and other Canadian communities between 1981 and 1996, little or no progress has occurred since 2001.8 Indeed, between 2001 and 2006, approximately one-third of First Nations and Inuit communities experienced a decline in the community well-being index score, compared to only one in ten for other Canadian communities (Strategic Research and Analysis Directorate 2010). Similar critical findings were made by the auditor general of Canada. Her 2011 annual report noted that conditions in a variety of areas essential to community well-being – such as education, drinking water, housing, and child and family services – had worsened overall in recent years both on and off reserves. She observed, “First Nations members generally face far greater challenges than those confronting Canadian society as a whole, whether they live on or off reserves,” and warned that “there is a risk that living conditions on many First Nations reserves will remain significantly below national averages, with little prospect of a brighter future” until a variety of program and legislative issues are addressed (Auditor General of Canada 2011). Health determinants are a significant indicator of the degree of social inequality in a society (Wilkinson 2005; Frohlich, Ross, and Richmond 2006), and the measurable comparisons between the health status of Aboriginal and non-Aboriginal Canadians reveal a number of stark disparities (Public Health Agency of Canada 2010; Reading and Wien 2009, 28–9; First Nations Centre 2005). Accordingly to virtually every public health indicator, Aboriginal peoples are at or near the bottom of the scales when compared to the rest of the Canadian population. Recent studies have linked these dispiriting health outcomes to the high rates of deep poverty among Aboriginals in Canada (Reading and Wien 2009; Health Canada 2009; Adelson 2005). Almost 25 per cent of Aboriginals in 2005 had incomes below Statistics Canada’s low income cut-off after tax, compared to 8.4 per cent for the non-Aboriginal population (Expert Advisory Committee 2009, 39). This deep poverty has had many consequences, including housing that is overcrowded and in need of major repairs (Reading and Wien 2009; First Nations Centre 2005). While migration to urban areas generally results in improvements in living standards for Aboriginal peoples in comparison to reserve life, they are still much more likely to be living

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below Canada’s low-income categories than the general urban population (41.6 per cent compared to 17.7 per cent) (Environics Institute 2010, 26), and ten times more likely to be homeless (Hwang 2001). First Nations children are three times as likely to be living in poverty as the Canadian average, they come into the custody of child and family services at three times the rate of other Canadian children, and the fertility rate of First Nations teenagers is seven times that of other Canadian teenagers (United Nations Children’s Fund 2009; National Collaborating Centre 2010a). Related to the state of Aboriginal children are the higher levels of violence within their families: Aboriginal peoples are almost three times as likely to be victims of spousal assault, and Aboriginal women are eight times more likely to die as a result of violence than non-Aboriginal women (National Collaborating Centre 2010c). A particularly acute feature of Aboriginal life in Canada is their vast over-representation in the prison population, a condition that is steadily worsening. While Aboriginals comprise 3.1 per cent of the adult population, in 2008 they accounted for 18 per cent of the offenders in custody and community correctional programs across Canada, an increase from 13 per cent in 1998 (Perreault 2009, 9).9 As for Aboriginal women, their numbers in federal prisons have increased by 131 per cent between 1998 and 2008, and they now represent a third of all women in federal penitentiaries (Mann 2009). The correctional inspector of Canada reported in 2006 that, while the federally incarcerated population in Canada declined by 12.5 per cent between 1996 and 2004, the number of First Nations people in federal prisons increased by 21.7 per cent. The report drew a direct nexus between the high incarceration rates and Aboriginal poverty: “The higher rate of incarceration for aboriginal peoples has been linked to systemic discrimination and attitudes based on racial or cultural prejudice, as well as economic and social deprivation, substance abuse and a cycle of violence across generations” (Correctional Inspector 2005–6). A recurrent theme in recent social science research on contemporary Aboriginal life is that these social conditions are the inescapable legacy of an inherently colonial relationship between Aboriginal peoples and the non-Aboriginal majority (Environics Institute 2010; Haskell and Randall 2009; McCaslin and Boyer 2009; Reading and Wien 2009; Cairns 2002, 209). The arc of this relationship through Canadian history has featured domination, dispossession, and geographic confinement, numerous attempts at assimilation and acculturation, sustained legislative and bureaucratic control over most aspects of daily life, civic

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exclusion, stubborn patterns of racism and discrimination, and the denial of the unique identity and separate character of Aboriginal peoples. The Royal Commission on Aboriginal Peoples stated, “Successive governments have tried – sometimes intentionally, sometimes in ignorance – to absorb Aboriginal people into Canadian society, thus eliminating them as distinct peoples. Policies pursued over the decades have undermined – and almost erased – Aboriginal cultures and identities” (RCAP 1996, 2). This history and its destructive impact are quite similar to the social outcomes affecting Indigenous peoples elsewhere in the world, including in other settler-colonial societies (Tomei 2005, v, 1, 5).10 The legacy of internal colonialism has been exceedingly difficult to undo: among the contemporary examples are the steady decline in the use of Indigenous languages among all three Aboriginal groups (Statistics Canada 2008),11 and the persistent prevalence of discrimination in daily life experienced by Aboriginal persons (Ekos Research Associates 2006).12 The Canadian government in recent years has come to acknowledge some of the fundamentals of this inequitable relationship,13 and two of its primary social strategies to address these disparities have been to focus on raising educational levels and improving labour market outcomes.

Education The close relationships between social well-being, educational levels, and labour market earnings are well established in the social science research. The returns on higher school attainment include higher earnings, better labour force participation rates, and positive individual and collective effects.14 Recent studies have documented the significant gaps in educational levels between Aboriginals and the non-Aboriginal population in Canada. In 2006, Aboriginal Canadians aged fifteen and older were almost twice as likely as other Canadians (43.7 per cent versus 23.1 per cent) to not have completed high school or hold any other certificate, diploma, or degree; the percentage of non-attainment is particularly high for Inuit (60.0 per cent) and First Nations peoples (48.4 per cent). Living in urban areas significantly increases the likelihood of high school graduation: 60 per cent of urban Aboriginals aged fifteen and older have completed high school, compared to 36 per cent of on-reserve Aboriginals, but these urban figures still lag behind the 77 per cent high school completion rate of non-Aboriginals (Sharpe and Arsenault 2009; Mendelson 2006).

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While the number of First Nations peoples attending universities and colleges has been steadily increasing in recent years, there remains a palpable and growing gap in degree attainment compared to non-Aboriginals: 8 per cent of First Nations peoples have a university certificate, a bachelor’s degree, or higher, compared to 23 per cent of the nonAboriginal population. The adult First Nations population with a university degree who have graduated from the physical and life sciences, or mathematics, computer, and information sciences – fields of study that are increasingly at the heart of the modern economy – is markedly lower than their non-Aboriginal cohort (Sharpe and Arsenault 2009; National Collaborating Centre 2010b; Expert Advisory Committee 2009, 41; Clement 2008). While Aboriginal peoples are steadily raising their overall educational levels, their attainments are falling behind the more dynamic increases of the non-Aboriginal population; according to one recent study, this is “leading to an intergenerational widening of Aboriginal/non-Aboriginal education gaps at all levels” (Richards and Scott 2009, 20). Significant future increases in the labour market success of Aboriginal peoples will be improbable without sustained improvements in educational and training levels. Indeed, recent research has determined that educational attainment is even more important to the success and life opportunities of Aboriginal peoples than for non-Aboriginals (Statistics Canada 2010, 3). Aboriginal wages are presently estimated to be about 70 per cent of the non-Aboriginal population, and almost one-third of this difference is attributable to lower educational levels (13–14).15 Current demographic projections indicate that the Aboriginal population will maintain its high growth rate (double the national average) and remain relatively younger (by approximately ten years) than the non-Aboriginal population until at least 2026. If these projections hold true, the Aboriginal population can be expected to account for almost 13 per cent of labour force growth and more than 11 per cent of employment growth between 2006 and 2026. Yet this study indicates that the “best case scenario,” based on current evidence, is that Aboriginal educational attainment levels by 2026 will reach only the 2001 levels of nonAboriginals (Sharpe and Arsenault 2009, 20–6).16 Even for this to occur, there will have to be an enhanced educational focus on both Aboriginal identity and core competencies, a dedicated recognition of the central role of provincial governments in Aboriginal education (80 per cent of Aboriginal children now study in provincial schools), increased levels of Aboriginal student funding at the post-secondary level, and significant

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improvements in the quality of on-reserve schools, where educational attainments are the lowest (Statistics Canada 2010).

Employment and Income In the Canadian labour market in the decade after 1996, Aboriginals achieved steady improvements on virtually all fronts. These gains narrowed, but have not come close to ending, the persistent gaps between Aboriginal employment and the rest of Canadian society. However, this progress was halted abruptly with the wallop of the post-2008 recession that wiped out almost all of these recent gains and re-enforced the precarious status of Aboriginals in the workforce. In 2008, the employment rate for Aboriginal peoples peaked at 59.6 per cent, an extraordinary advance from 2001 (49.2 per cent) and 1996 (44.2 per cent), while still behind the comparable 2008 rate for non-Aboriginals, 63.6 per cent (Sharpe et al. 2009, 18, table 9; Statistics Canada 2011, 9). Labour market participation rates for Aboriginals improved markedly between 1996 (58.5 per cent) and 2008 (66.2 per cent), appreciably narrowing the gap with non-Aboriginals (in 2008: 67.8 per cent) (Sharpe et al. 2009). The Aboriginal unemployment rate stood at 10.2 per cent, an extraordinary drop from 24.4 per cent in 1996, although still considerably higher than the unemployment rate for non-Aboriginals in 2008 (6 per cent) (Sharpe et al. 2009). By 2008, more Aboriginals were in the Canadian labour force than ever before, more Aboriginals were working, more Aboriginals were using their rising educational attainments to secure good jobs, and their comparative employment standing with the rest of Canadians was better than previously recorded. A closer inspection of these figures, however, indicates that these employment gains were spread quite unevenly among Aboriginals. First, the highest employment and participation rates among Aboriginals in 2006 were experienced by the relatively small cohort who had university or college experience, whose rates were on par with non-Aboriginals. At the bottom end of the labour market, Aboriginals without a certificate, degree, or high school diploma experienced much weaker participation and employment rates, and endured an unemployment rate that was two to three times that of non-Aboriginals without an educational credential (Sharpe et al. 2009, 22). Second, among Aboriginals, the Metis have fared much better than First Nations peoples and the Inuit in labour market success, and on-reserve First Nations peoples have significantly

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higher unemployment rates and much lower labour force participation rates than any of their off-reserve counterparts (19, 37).17 Even with the impressive gains over this period, the most vulnerable among Aboriginals have witnessed their boats being lifted much more slowly and hesitantly in the rising tide. The post-2008 recession witnessed a substantial plunge in the employment status of Aboriginals in the Canadian workforce, losses that were much greater than the decline for non-Aboriginals. Employment rates among Aboriginals declined by 3.5 per cent in 2009 and a further 3.7 per cent in 2010, returning to 2006 levels at 53.7 per cent; among nonAboriginals, employment declined, but not nearly so precipitously, to 61.8 per cent by 2010. The rate of unemployment among Aboriginals shot up dramatically during the recession to 14.3 per cent by 2010, more than double the increase endured by non-Aboriginals, whose rate rose to 7.9 per cent. The Aboriginal labour force participation rate fell to 62.6 per cent in 2010, compared with 67.1 per cent for the non-Aboriginal population, a gap of 4.5 percentage points; in 2008, the gap was only 1.2 points (Statistics Canada 2011). These post-2008 employment reverses were felt across the Aboriginal demographic spectrum, with lower participation rates and higher unemployment rates experienced by the core-working-age (aged twenty-five to fifty-four) cohort, young Aboriginal workers (fifteen to twenty-four), and older workers (fifty-five and older), and employment rates across all educational levels for coreaged Aboriginal workers fell as well (Statistics Canada 2011). Earnings are the other significant measure of Aboriginal well-being in the Canadian labour market. Recent studies have established that, while the rise in educational attainment and employment growth between the mid-1990s and the mid-2000s contributed to a reduction in the earnings gap between Aboriginals and non-Aboriginals, Aboriginals still face substantial earnings disparities (Pendakur and Pendakur 2011; Wilson and Macdonald 2010; Sharpe et al. 2009). The annual median employment income for Aboriginals rose from $12,003 in 1996 to $18,962 in 2006, an impressive improvement of 58 per cent; this narrowed the employment income gap between Aboriginals and non-Aboriginals over the decade by 17 per cent. Yet the gap in 2006 was still a significant 30 per cent. At that rate of diminishment it would take an estimated sixty-three years to close this income gap entirely (Wilson and Macdonald 2010).18 Employment income disparities persist across the educational attainment spectrum. While income levels among Aboriginals rise with their level of education, Aboriginals earn significantly less than their non-Aboriginal

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counterparts with the same education at every level, with the greatest disparities at the bottom of the income pool (Pendakur and Pendakur 2011, 75–80). Even when the gap is the narrowest – between those who have completed a bachelor’s degree – there is still a 14 per cent difference in earnings (Berger, Motte, and Parkin 2009, 52). Aboriginals earned less even in the same occupations, with the wage gaps highest in managerial and professional jobs (Kapsalis 2006). Urban disparities also remain significant; indeed, the argument by social scientists that the concentration of ethnic populations in Canadian urban centres has produced “beneficial enclaves” for these populations appears not to apply to urban Aboriginals (Pendakur and Pendakur 2011, 81). Explanations for the wage gap commonly focus on the lower levels of education and the higher concentration of Aboriginals in smaller centres as providing part of the answer, but also suggest other factors less susceptible to measurement, such as discrimination, social marginalization and the lack of effective and targeted employment programs (Wilson and Macdonald 2010; Kapsalis 2006). Employment in the public sector is significant for Aboriginals. Approximately 35 per cent of the Aboriginal workforce in 2006 worked in public administration, education, health, and social service jobs, compared to 23 per cent of non-Aboriginals (Kapsalis 2006). This concentration in the public sector has benefited Aboriginals, as these jobs tend to be higher skilled, better paid, and unionized, and offer more stable work than private sector employment. Following the 2008 recession, the principal job losses experienced by Aboriginals were in the private sector, in manufacturing and resource extraction, and to a lesser degree in construction, retail, transportation and warehousing, and self-employment. In 2010, Aboriginal employees had a more precarious perch in the labour market: they had less job seniority than their non-Aboriginal counterparts, were more likely to have part-time rather than full-time work, to work at more than one job at the same time, and more often employed in temporary, seasonal, and contractual jobs (Statistics Canada 2011). Employment Equity Assessing the contribution of employment equity programs to the lowering of labour force barriers for Aboriginal peoples is hampered by their limited statutory enactment. Broadly based employment equity legislation exists only at the federal level, which covers approximately 12 per cent of the Canadian workforce.19 Among the provinces, as of 2011 only

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Quebec has employment equity legislation, and it covers a much narrower range of employers than the federal legislation and mandates a more modest reporting obligation.20 While several provinces have issued employment equity directives or launched equity programs over the years, none aside from Quebec have an employment equity statute in place (Ontario’s 1993 legislation was repealed in 1995), nor do any of them collect comprehensive workforce statistics on the employment status of Aboriginal peoples within an equity context. The disquieting consequences of this legislative abstinence by the provinces are twofold. First, the steadily growing presence of Aboriginals in Canada’s urban areas and in the resource extraction sector means that they are increasingly working in employment sectors regulated by the provinces. While the federal government will remain the primary level of government providing Aboriginal services and managing Aboriginal issues well into the future, the movement of Aboriginals to the cities points to the need for the provinces to have specific legislative initiatives to constructively address equity issues related to Aboriginal employment within their jurisdictions. Second, the lack of a critical mass of equity legislation at the provincial level inevitably dilutes the move towards greater employment opportunities and the reduction of workplace barriers for Aboriginals and the other equity groups that began in the 1980s. Without a broad public policy endorsement of equity through legislative requirements, voluntary employment equity programs are less likely to be launched, to be comprehensive in practice and impact, to inspire comparable programs through the power of example, or to provide meaningful measuring sticks to assess their effectiveness. Notwithstanding the lack of provincial employment equity legislation, the fact that the federal government has equity legislation that includes Aboriginals as one of its designated groups has an importance greater than its regulatory authority over only one-ninth of the country’s workforce might indicate. Given the special constitutional responsibility assigned to the government of Canada for Aboriginal affairs, the presence of the Employment Equity Act ensures that the promotion of employment equity for Canada’s Indigenous peoples remains a public goal for the federally regulated labour market. This labour market has a strategic significance in the Canadian economy, as it encompasses both the federal government (the country’s largest single employer) and the federal private sector, which includes a number of large national employers – among them Canada Post; the banks; the Canadian Broadcasting Corporation and the rest of the broadcasting industry; transportation

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companies such as Canadian National Railway, Canadian Pacific, and the inter-provincial trucking industry; Air Canada and the Canadian airline industry; and such telecommunication giants as Telus and Bell – that play an outsized role in shaping modern human resources and industrial relations practices in the country’s workplaces.

Aboriginal Employment Equity in the Federally Regulated Workplace The equity progress of Aboriginals in the federally regulated workplace since the first report under the Employment Equity Act in 1987 is a mixed picture. On the one hand, Aboriginals have increased their presence in percentage terms within this workforce, rising from a representation rate of 0.7 per cent in 1987 to 2.5 per cent in 2008 (HRSDC 2010, table 4.1; CHRC 2010).21 Yet the 2008 figure remains almost 20 per cent below the Aboriginal labour force availability rate of 3.1 per cent for that year.22 The achievement is also tempered by their under-representation in the federal private sector (which represents two-thirds of the federally regulated workforce), weak promotion rates into senior management, and significant over-representation in semi-skilled and more poorly remunerated occupations. In 2008, the broader federal public sector – which includes the core public service, and separate public employers such as the Canadian Forces, the Royal Canadian Mounted Police, the Canada Revenue Agency, the Canadian Food Inspection Agency, and Parks Canada – maintained its position as the single largest employer of Aboriginal peoples. In that year, the broader federal public sector employed more than half of the Aboriginal peoples reported under the act (51 per cent), despite the fact that the sector employs only one-third of the federally regulated workforce. In 2008 the representation of Aboriginals in the broader public sector reached 3.7 per cent, 16 per cent above their availability level. Within the broader federal public sector, Aboriginals achieved their greatest presence in the core public service, which includes the twenty-one principal departments and a number of federal agencies, commissions, offices, and boards employing approximately 200,000. The most recent figures, from 2010, show that the representation of Aboriginal peoples in the core public sector had reached 4.6 per cent (Treasury Board 2011). This marked a steady increase from 4.2 per cent in 2005 and 3.6 per cent in 2000; indeed, throughout this decade, the core public service consistently employed Aboriginal peoples at a rate greater than their labour

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market availability (which in 2008 was 3.0 for this sector), the only segment of the federally regulated economy that did so. There are three primary reasons for this progress. First, federal public services are particularly important to the socio-economic well-being of Aboriginal peoples, and, as their political voice has grown and their educational attainment has risen, they have assumed an expanding role in the delivery of those federal services that directly affect their communities. Almost 60 per cent of the Aboriginal peoples working in the core public service in 2010 were employed in just five departments (which employed 41 per cent of public employees in this sector): Aboriginal Affairs and Northern Development, Correctional Services Canada, Human Resources and Skills Development Canada, Health Canada, and the civilian employees at National Defence. The first four of these departments provide many of the federal services that Aboriginal peoples have the greatest engagement with, and civilian employment at National Defence provides work and training opportunities for minorities that mirror the role played by the national military in other industrially advanced countries (Scoppio 2010; Jung 2007). The second reason reflects the commitment of the government of Canada to employment equity as a priority objective of public policy. In 2007, Kevin Lynch, the clerk of the Privy Council, identified workplace diversity as central to the renewal of the Canadian public service (Lynch 2007). The Treasury Board Secretariat has directed the chief human resources officer of the Public Service to establish an Interdepartmental Forum on Employment Equity to advocate and implement equity objectives, including those for Aboriginal peoples. And third, the core federal public service is heavily unionized, and unions in the federal sector have pushed in recent years for a strong commitment by the government of Canada to employment equity goals through collective bargaining and advocacy (Mills and Clarke 2009). Yet if the success of employment equity for Aboriginal peoples in the core public service has been remarkable, the progress has also been uneven. The concentration of Aboriginal peoples in the five departments mentioned above has meant that Aboriginals are underrepresented in other sizeable and influential federal departments and offices that employ almost 60 per cent of the workforce in this sector – including Industry Canada, Statistics Canada, Foreign Affairs and International Trade, Citizenship and Immigration, the Passport Office, the Canadian International Development Agency, and Finance (Senate of Canada 2010). As well, the hiring of Aboriginal peoples into the core

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public service in recent years has declined: in 2010, Aboriginal hires represented 2.9 per cent of all new hires, down considerably from 3.4 per cent in 2008 and 4.5 per cent in 2003. Furthermore, Aboriginals have been leaving the core public service in increasing numbers: in 2010, the rate of separation for Aboriginal employees was 4.4 per cent, up from 3.9 per cent in 2009 and 4.2 in 2008. If both of these hiring and separation trends continue, then the equity achievements of the core public service may well have peaked for the time being. The rate of promotions for Aboriginal employees has also declined: in 2010, Aboriginals received 3.8 per cent of all promotions in the core public service, down from 4.3 per cent in 2008. A further area of concern was the overrepresentation of Aboriginal employees in lower-paid jobs: they were clustered below the $55,000 salary level to a greater degree than the average within the core public service. While the representation of Aboriginal employees in the executive category improved to 3.7 per cent by 2010, up from 3.4 per cent in 2007 and 1.9 per cent in 2000, this was still 14 per cent below the 2010 estimated Aboriginal executive workforce availability rate of 4.3 per cent (Treasury Board 2009, 2011). The progress of employment equity among separate public employers in the federal sector is less encouraging than the core public service. This broader public sector group consists of 72,000 employees in sixteen agencies, boards, and offices – such as the Canada Revenue Agency, the Canadian Food Inspection Agency, Parks Canada, and the National Research Council – that have some autonomy in operations and human resources administration. Aboriginal representation in this employer group stood at 2.9 per cent in 2008, an improvement from 2.6 per cent in 2005, but 6 per cent below the availability benchmark of 3.1 per cent. Only one employer in this group exceeded the availability benchmark (Parks Canada’s Aboriginal representation in 2008 was a remarkable 8.1 per cent) (HRSDC 2010, table 6). Two other employers in the broader public service that report separately for equity purposes are the Canadian Forces and the Royal Canadian Mounted Police. The Canadian Forces, by far the largest single employer within the core and broader federal public service, had an Aboriginal representation of 2.6 per cent in 2008, more than 21 per cent below the availability benchmark of 3.8. The RCMP’s Aboriginal representation in 2008 stood at 6.4 per cent, almost double the benchmark, and a reflection that an important part of its work involves policing Aboriginal reserves and rural communities in the four Western provinces (HRSDC 2010, table 7).23

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The federal public sector presents a generally positive, if uneven, record for Aboriginal employment equity, with successes amid some worrisome trends, and a number of public employers punching below their weight. In contrast, there is evidence of serious underperformance in the federal private sector, which includes Crown corporations. While the entire federal public sector achieved an Aboriginal representation of 3.7 per cent in 2008, the federally regulated private sector stood at 1.9 per cent – an improvement from 0.7 per cent in 1987 and 1.6 per cent in 2001 – but almost 39 per cent below the 3.1 per cent availability benchmark. The three largest groups of employers in the federal private sector in 2008 were communications, banking, and transportation, while the remaining group is a miscellaneous collection of employers including security services, warehousing, and electrical power generation. Transportation and the miscellaneous group reported the highest levels of Aboriginal representation within the federal private sector, both at 2.5 per cent in 2008, while banking and communications reported the lowest levels of Aboriginal representation, at 1.3 and 1.6 per cent respectively, of any employer group regulated by the act (HRSDC 2010, table 4.5). Aboriginal employees who worked in the federal private sector were much more likely than non-Aboriginals to be earning under $50,000 in 2008, and less likely to be earning more than $60,000. Aboriginals were less than half as likely to be in senior management positions as nonAboriginals, 42 per cent less likely to be in a middle-management position, and 47 per cent less likely to hold a professional position. They were clustered in unskilled and semi-skilled manual positions and in skilled crafts and trades. Of the fourteen occupational groups reported on by employers under the act, Aboriginal representation fell below their workforce availability levels in 13 (HRSDC 2010, tables 4.4, 4.6, 4.7). The progress of Aboriginals towards equity in promotion and retention in the federal private sector indicates little momentum. In 2008, promotions for Aboriginals were lowest in banking and at the top of the occupational scale in the sector as a whole, where only 1.3 per cent of hires of senior and middle managers and professionals were Aboriginals. Aboriginal semi-skilled and manual workers received 2.7 per cent of the promotions. Aboriginals left the federal private sector at a rate higher than their representation levels in 2008. Only in hiring was there a positive picture. In 2008, Aboriginal peoples were hired at a 2.3 per cent rate, which was higher than their overall representation rate of 1.9. The transportation sector led with a 3.5 per cent hiring rate, while banking brought up the rear with only a 1.1 per cent rate. Aboriginal hiring in

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the federal private sector was predominately in manual and semi-skilled categories (HRSDC 2010, tables 4.8, 4.9, 4.10). Overall, employment equity for Aboriginals has fared far better in the federal public sector than in the private sector, and best of all in the core public service. The presence of Aboriginals in senior and mid-ranking managerial positions in the core public sector is double and triple the equivalent rates in the private sector. Hire and promotion rates are significantly higher in the core public sector, and the progress of Aboriginals into higher-paid positions with greater responsibility appears far less sticky than in the private sector. The broader public sector falls somewhere between the core public service and the private sector on Aboriginal representation measures.

Aboriginal Employment Equity Elsewhere in the Canadian Labour Market Where it exists outside of the federally regulated workplace, employment equity (or other initiatives to promote a diverse workforce) is almost entirely a matter of voluntary policy, negotiated impact benefit agreement, or negotiated collective agreement. Canadian employers who have workplace diversity programs for Aboriginals have developed a basket of equity practices that include one or more of the following approaches: an equity policy on hiring, promotion, and retention; training its wider workforce on equity issues and respecting Aboriginal practices; skill training programs for Aboriginals; special equity officers and diversity committees; commitment to an equity program through collective bargaining; and/or creation of indexes to track the effectiveness of their equity policies. Undoubtedly these equity practices have been encouraged by the growing urban presence and political voice of Canadian Aboriginals; by the constitutional victories by Aboriginals in the courts; by Aboriginal ownership of, or claims to, lands with mineral or forestry resources; by the need to address labour shortages; and, indirectly, by the example of the federal legislation. It has been a select type of private sector employer – largely in the public and para-public provincial sector (such as universities, health centres, and provincial Crown corporations), and in the resource extraction industries – that has taken the lead in promoting such policies. However, in the absence of provincial statutes on employment equity, voluntary policies have been inconsistently developed and ineffectively applied, they lack the benefit of a strong government endorsement and the advantages of a mass cluster

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effect, and they are not subject to public reporting requirements that would measure their effectiveness and prod greater results. Hence, there are no reliable data to compare the effectiveness of Aboriginal equity practices in the broader economy to the experience in the federal sector. Useful assessments, however, can be drawn from two sectors in the broader Canadian economy where particular attention has been paid to increasing the Aboriginal presence in the workplace: forestry and mining. These two sectors have developed Aboriginal preference programs largely out of necessity: some of the forestry stock and minerals sought by resource extraction companies are located on or near Aboriginal lands, and the emerging legal duty to consult that the courts have imposed on governments in recent years when Aboriginal rights or interests might be affected has resulted in substantive environmental, land use, and employment agreements with First Nations, Inuit, and Metis communities across the country (Haida v British Columbia 2004; McNeil 2005). These preference programs can be seen as a step by Aboriginal peoples towards reversing the unrelenting history of bearing much of the cost of resource development while receiving few of the benefits (Martin and Hoffman 2008; Tough 1996), while seeking innovative ways to manage the pace of economic change so as to alleviate poverty while protecting, to the extent possible, their lands and ways of life (Mills 2011). FORESTRY

The Canadian forest industry, which accounts for approximately 3 per cent of GDP, is an obvious sector for significant Aboriginal employment and commercial initiatives (Natural Resources Canada 2010; Gysbers and Lee 2003). Approximately 80 per cent of Aboriginal reserves are located in Canada’s forest regions, and Aboriginal peoples have acquired a rich understanding of forestry through their traditional economies. The forested land base controlled by Aboriginal communities has been steadily expanding since the 1980s, and Aboriginal peoples have negotiated a number of land use and commercial agreements, as well as skills training and employment programs, with the forest industry in recent years. The federal and provincial governments have launched several significant programs over the past two decades to promote forest-based industries in First Nations communities (including the First Nations Forestry Project and the Aboriginal Forestry Initiative) (Parungao 2011; Wyatt et al. 2010; Bombay 2010; Wilson and Graham 2005). From the almost total exclusion of Aboriginal peoples from commercial forestry to their present

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involvement with forestry through a variety of relationships – ranging from wood supply contracts, joint ventures, and forest management partnerships to the emergence of Aboriginal Forestry (where forestry is based on First Nations values and management systems) – Aboriginal peoples have developed a significant economic and social stake in this sector (Wyatt 2008). Yet, notwithstanding these intimate ties and the stated objectives by government and industry to encourage Aboriginal economic self-sufficiency and employment in forestry, the statistics draw a stubbornly underperforming equity picture. Forestry is one of the largest private sector employers of Aboriginal people in the natural resources sector, comprising almost 16,000 Aboriginal jobs in 2006, which represents 5 per cent of the total forest sector labour force. However, while this represents a percentage growth in labour force representation from 4.7 per cent in 1996, it also represents a decline of 900 Aboriginal jobs over the previous decade, as the forest industry contracted substantially in the wake of economic turmoil and difficulties with access to the American market (Parungao 2011, 31). Although the Aboriginal employment presence in the forestry sector in recent years has exceeded their general labour force availability, they are significantly over-represented in lower-skilled, more insecure, and poorer paid manual jobs (predominantly in primary logging and forestry), and markedly under-represented in better-paying and more stable industrial jobs (sawmills and paper manufacturing) and in managerial and technical positions (Parungao 2011; Aboriginal Strategy Group 2007; Mills 2006). As an illustration, the median total annual income in 2006 for on-reserve Aboriginal men employed in forestry was $20,155, while off-reserve Aboriginal men (who represent about three-quarters of the Aboriginal jobs in forestry) earned $40,825 and non-Aboriginal males made $44,432. The earnings gaps for on-reserve and off-reserve Aboriginal women in forestry, compared to non-Aboriginal women, are similar (Parungao 2011). Despite the proximity of many Aboriginal communities to the forest industry, recent reports have concluded that the benefits of forestry have been weak, with one study stating that the “socioeconomic status of forest dependent Aboriginal communities hardly differs from Aboriginal communities where no forest sector employment is reported” (Parkins et al. 2006, 70; also Wilson and Graham 2005). Barriers cited as inhibiting greater Aboriginal employment in better-paid and more-responsible forestry positions include the lack of Aboriginal education and skills; the lack of a critical mass of Aboriginal employees in the better-paying mill jobs; and the lack of understanding by some of

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the major forest companies in managing the unique issues in Aboriginal employment and partnerships (Wilson and Graham 2005). An underappreciated barrier, given that provincial governments own much of the land used by the forest industry and possess the primary jurisdiction to regulate the industry, is the absence of publicly regulated requirements to ensure Aboriginal employment levels and social-economic entitlements. A 2007 study of fourteen Canadian forestry employers, both large and small, reported a mixed picture of the corporate promotion of Aboriginal employment and advancement initiatives (Aboriginal Strategy Group 2007). Most of these companies had developed commercial relationships with neighbouring Aboriginal communities and independent contractors, consisting primarily of yearly or seasonal contracts for logged wood, reforestation, and trucking operations, which invariably is lower-skilled and lower-paid contractual work. Only eight of the surveyed companies actually targeted Aboriginal employment, and only three of them formally tracked their Aboriginal employment arrangements. As a general observation respecting all of the surveyed companies, the study reported that “the higher the level of seniority [responsibility], the fewer the number of Aboriginal employees”; indeed, a significant majority of their Aboriginal employees worked in the lower-tiered positions of logging and reforestation (21). While the numbers of Aboriginals in managerial and technical positions had steadily improved since 1996, as had in-house corporate programs aimed at enhancing the skills attainment of Aboriginal employees, the number of Aboriginals in managerial positions in the surveyed forestry companies remained quite small. The survey’s findings suggest that the forestry sector, which holds a strategic place in the Canadian economy and is a significant employer of Aboriginal peoples, still has a considerable distance to travel to develop and apply equity bestpractices that would enhance the quality of Aboriginal employment in this industry. MINING

The Canadian mining industry is another major private sector employer of Aboriginal peoples. From a history of almost total exclusion from mining jobs through most of the past century, Aboriginals have acquired a significant employment and commercial presence in the sector over the past thirty years (Hipwell et al. 2002). In 2006 an estimated 4,500 Aboriginal people worked in the mining sector; they accounted for 7.5 per

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cent of the total Canadian mining labour force, up from 5.1 per cent in 2001 (Natural Resources Canada 2009). The average annual income of Aboriginals in mining is close to three times the average for Aboriginals in Canada overall, in an industry where the average earnings were significantly higher than in forestry (by 58 per cent), manufacturing (by 47 per cent) and construction (29 per cent) (Mining Association of Canada 2010). As in the forest industry, the Aboriginal employment presence has grown dramatically in recent years, both as employees and as contractors, in part because of the proximity of many Aboriginal communities to prospective mine sites and on lands where they have claims (Kornelsen 2011). Yet, in spite of the enhanced political and legal bargaining power acquired by Aboriginals to increase their employment levels in the mining sector, recent statistics illustrate enduring inequities. In 2006, their unemployment rate within the industry was more than twice the rate of non-Aboriginals (10.7 per cent versus 4.6 per cent), and the educational levels of Aboriginals in mining was significantly lower: 45.3 per cent of working-age Aboriginals had post-secondary qualifications and only 4.3 per cent had completed a post-secondary degree or diploma, as opposed to 59.1 per cent and 15.3 per cent respectively for non-Aboriginals. The gap in the average annual mining income between Aboriginals and non-Aboriginals was significant ($52,000 versus $70,000) and growing (the difference had been $12,200 in 2001), and they were concentrated in the lower occupational rungs of the industry, with the proportion of Aboriginal peoples in managerial positions at 2 per cent, unchanged from 2001 (Natural Resources Canada 2009). Increasingly, the arrival of a mining project in the vicinity of a First Nations community has resulted in the negotiation of a comprehensive impact benefit agreement (IBA) between the mining company and the community. These IBAs, which are viewed in law as private and enforceable contracts, address employment and socio-economic issues along with a range of other interests such as land use, environmental protection, the provision of contractual services by Aboriginal businesses to the mine, royalties and other economic payments, and the monitoring of the social and cultural impact of the mining projects (Fidler and Hitch 2007; Sosa and Keenan 2001). There are an estimated 170 IBAs and related agreements between Aboriginal communities or governments and mining operations across the country (Natural Resources Canada n.d.). Employment issues are invariably central to the IBAs and often include preferential hiring policies and targets, specialized training and apprenticeship programs for Aboriginal advancement, cultural training

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for non-Aboriginal managers, workplace flexibility provisions regarding time away from work for hunting and the availability of Aboriginal food at worksites, the use of Aboriginal languages at work, specialized Aboriginal employment officers, and the monitoring of Aboriginal advancement. While IBAs bring the potential for significant employment and economic opportunities to remote and often impoverished Aboriginal communities, they have also been criticized for inadequately dealing with the deleterious effects of the changes that mining brings to these communities such as new consumption patterns, the decline of traditional economies, loss of traditional land use, drug and alcohol use, and environmental degradation (Canadian Business Ethics Research Network n.d.). The most cogent criticism of the IBAs and related agreements is that, notwithstanding their many benefits, they are negotiated and implemented as individual and confidential contracts between parties with vastly different resource capabilities and degrees of power, with an almost complete absence of any public regulatory framework to monitor and ensure a fairer distribution of the fruits of the mining projects (Public Policy Forum 2006). Nor do they provide, as a rule, any comprehensive measures for comparing employment effectiveness, ensuring workplace best practices, or creating a transitional path to a sustainable Aboriginal economy after the inevitable closure of the mining projects (Public Policy Forum 2006; Harvard International Human Rights Clinic 2010). An innovative public approach to assuaging some of the power imbalances inherent in the IBAs has been the negotiation of socio-economic agreements (SEAs) by the government of the Northwest Territories with mining companies when they are about to initiate a project. Three large diamond mines have been opened in the territories between 1998 and 2008 by large multinational mining companies – Ekati (owned by BHP Billiton), Diavik (owned by Rio Tinto), and Snap Lake (owned by De Beers) – and SEAs were negotiated by the government with each of them. (Largely because of these mines, Canada is the third-largest producer of diamonds in the world, after Botswana and Russia.) These SEAs provided for the preferential hiring of northern residents, with Aboriginal northern residents receiving top priority. For example, the 1996 Ekati SEA required the company to maintain Aboriginal employment at 31 per cent of total employment during its operations, with the quota rising to 36 per cent if operations reached a certain production level (Aboriginal employment was to be measured by direct mine employment as well as employment by contractors supplying the mine). As well,

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the three mines are required by their SEAs to develop training, literacy, and apprenticeship programs, and to actively recruit women employees, as well as provide annual employment status reports to the Territorial Government.24 In addition to the SEAs, the three mines also negotiated either IBAs or memoranda of agreement with the First Nations in the territories. These agreements provided for preferential Aboriginal hiring at the mines, training and educational programs, counselling and support programs, and a company-funded independent monitoring body to evaluate agreement compliance (Aboriginal Mining Guide n.d.; Prno, Bradshaw, and Lapierre 2010). The resulting Aboriginal employment levels at the three mines have been high by national standards, although still below Aboriginal availability within the NWT population, while approximating the target employment levels in the SEAs. In 2010, the direct Aboriginal employment level at the Snap Lake mine stood at 26 per cent; at Ekati, the company reported that 31 per cent of its direct workforce was Aboriginal; and the most recent report by Diavik stated that Aboriginals made up 27 per cent of its direct labour force and 28 per cent of the contractors’ workforce.25 To be sure, the familiar workplace inequities still remain: at all three mines, Aboriginals fill a disproportionate share of unskilled and semi-skilled positions, they hold only a very small percentage of managerial and professional positions, and deficits in education, training, and workplace experience remain barriers to greater employment representation (Aboriginal Mining Guide n.d.). Conclusion The desolate socio-economic conditions that led to the designation of Aboriginal peoples as one of the social groups who would benefit from a legislated employment equity program in the 1980s have not qualitatively changed in the intervening years. While their living standards have improved on a number of fronts over the past thirty years, and their educational levels and presence in the labour force have risen appreciably, the social gaps separating the well-being of Aboriginals from that of other Canadians remain strikingly large. The conditions of disadvantage that Aboriginals faced in the Canadian labour force at the dawn of employment equity – higher rates of unemployment, lower labour participation rates, lower salary levels and promotion rates, greater employment vulnerability, and a concentration in the lower occupational rungs – have remained stubbornly persistent. The transformation of these whirlpool

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conditions requires a number of vital social issues to be addressed – not the least of which would be education, health, basic living conditions, and the exercise of greater political authority – but the deliberate public effort to establish meaningful access for Aboriginal peoples to more jobs and better jobs would rank near the top of any effective and sustainable policy choices. Employment equity has been sparingly used as a public policy tool to substantially enhance the workplace opportunities for Aboriginal peoples. The available evidence, however, suggests that, when applied with planning, purpose, and teeth, the results can be significant. The core public service of the government of Canada, with its legislated equity mandate and its commitment to the employment advancement of the designated groups, has consistently exceeded the workforce availability levels of Aboriginal peoples and represents a singular achievement among governments in Canada in holding itself to its own equity goals for Aboriginal employment. The early recognition by the government of the Northwest Territories that the commercial interest of the global resource-extraction industry in the large mineral potential of the North could be parlayed into legal commitments to provide well-paying jobs and skills training for Aboriginal peoples through bargained employment targets demonstrates the effective use of public negotiating power to create visible equity results in the private sector. In contrast, more modest policy approaches to promoting Aboriginal opportunities in the workplace – such as the public funding of Aboriginal industry councils, the voluntary posting of equity notices by employers when hiring, or the issuance of voluntary equity guidelines by some provincial governments – while commendable, have produced only modest results. Employment equity has not been a complete success story. Even within the federally regulated workplace, some measures of Aboriginal equity have shown disheartening results. The federal private sector has consistently underperformed. Across the core and broader federal public sector, the equity achievements have been unevenly spread among departments and agencies. Within the core public sector, occupational segregation and the slow advance into higher positions remain challenges. Entrenched social problems invariably require a sustained focus, flexibility, and innovative policy approaches by public authorities in order to make substantial advances, and the federal employment equity program has suffered from a fluctuating commitment in application and a political unwillingness to demand more progress from the private sector. Yet, for all this, it must be acknowledged that the federal employment equity

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legislation (along with the initiatives of the Northwest Territories government), stands virtually alone among governments in Canada, and, as the responsibility for managing Aboriginal issues increasingly spreads to the provinces, the ability for the federal government to make sustained progress by itself is circumscribed by the lack of a critical mass of legislated programs across the country. The Abella Report raised the urgency of addressing the disturbing employment plight of Aboriginal peoples with an imaginative public program. Federal equity legislation soon followed. Nearly thirty years later, the employment disparities and the broader social disadvantages have improved, but the labour force barriers identified by the report that have perpetuated these conditions – inferior education, unwelcoming workplaces, discriminatory attitudes – while eroding, have not gone away. The Aboriginal population is growing as a percentage of the Canadian population, becoming more urbanized and mobile, and acquiring more education and training, at the same time that labour shortages and population stagnation loom for the Canadian economy in the foreseeable future. Eradicating these barriers becomes a matter of elevated economic prudence as much as it is a moral and social commitment. As a vital tool among a larger set of policy approaches, employment equity has contributed, in its circumscribed application, to creating a more sustained presence and a more welcoming climate for Aboriginal peoples in the Canadian labour force.

NOTES 1 RSC 1985, c I-5. Under the act, only Indians with “status” – those registered under the legislation – are entitled to the statutorily defined rights and benefits, such as housing, entitlement payments, and access to other resources. Approximately 81 per cent of First Nations peoples (565,000 out of 700,000) were registered Indians with “status” in the 2006 census. 2 Being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 35. 3 Among the leading constitutional decisions on Aboriginal and treaty rights from the Supreme Court of Canada are: R v Sparrow, [1990] 1 SCR 1075 (Protection of Aboriginal fishing rights); Delgamuukw v British Columbia, [1997] 3 SCR 1010 (Aboriginal title to land conveys a substantive right that is not limited by prior usage, custom, or tradition); R v Marshall, [1999] 3 SCR 456 (Aboriginal treaties are to be interpreted broadly and liberally, consistent with the “Honour of the Crown”); R v Powley, [2003] 2 SCR 207

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(Affirmed Metis hunting rights); and Haida v British Columbia, [2004] 3 SCR 511 (government’s duty to consult and accommodate Aboriginal peoples is part of the “Honour of the Crown,” and must be interpreted generously). For a critical commentary on the comparative well-being of the Indigenous populations in these four countries, see Cooke et al. (2007): “The average conditions of Indigenous peoples are generally well below national levels and disparities between Indigenous and non-Indigenous populations in health, social, and economic outcomes exist worldwide” (10). The First Nations reserves are overwhelmingly small communities; fewer than 7 per cent have more than 2,000 residents, and over half have fewer than 500 people. In volume 3 of the Report, entitled Gathering Strength, the Royal Commission on Aboriginal Peoples stated, “Aboriginal People in Canada endure ill health, insufficient and unsafe housing, polluted water supplies, inadequate education, poverty and family breakdown at levels usually associated with impoverished developing countries. The persistence of such social conditions in this country – which is judged by many to be the best place in the world to live – constitutes an embarrassment to Canadians, an assault on the self-esteem of Aboriginal people and a challenge to policy makers” (1). The Community Well-Being (CWB) index was “developed to help measure the quality of life of First Nations and Inuit communities in Canada relative to other communities and over time.” Metis communities are not included in the CWB index. The four comparative indicators employed by the index are education, labour force, income, and housing; it does not cover other significant indicators such as health, general social conditions, or life expectancy. Cooke, Beavon, and McHardy (2004) were more cautious about the socioeconomic improvements between 1981 and 2001. More recently, Cooke and McWhirter (2011) suggested that, after a review of a number of social indicators, inequality between Aboriginal populations and other Canadians may be widening. The study also found that the higher rates of unemployment and the lack of a high school diploma among Aboriginals aged twenty to thirty-four, compared to their non-Aboriginal counterparts, has contributed to the overall higher incarceration rates among this population. “Indigenous and tribal peoples represent about 5 per cent of the world’s population, but over 15 per cent of the world’s poor … Inequalities and injustices in income, education, health, jobs and political representation have been a distinguishing feature of all multiethnic societies with indigenous and tribal populations … exclusion has arisen as a result of explicit or implicit discrimination against ITPs [Indigenous and tribal peoples], aimed at ‘erasing’ their

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cultural diversity, through an array of different legal instruments and policy approaches across countries and over time” (Tomei 2005, v, 1, 5). While more than two-thirds of Inuit still speak Inuktitut, its use as their main language is in steady decline, from 58 per cent of Inuit in 1996 to 50 per cent in 2006. Among Metis, 12 per cent of those aged seventy-five and older can speak an Aboriginal language, but fewer than 3 per cent under the age of forty-five can do so. As for First Nations peoples, 29 per cent can still speak an Aboriginal language, with the figures far higher among those living on reserve (51 per cent) than those living off reserve (12 per cent); given the ongoing migration from reserves to urban areas, this linguistic level will almost certainly continue its decline. In a 2006 survey, Ekos found that “just over four in ten Aboriginal people on and off reserve report having been a victim of racism or discrimination because of their Aboriginal origin over the past two years … this is … an astounding number” (Ekos 2006). See, for example, Prime Minister Harper’s Statement of Apology in June 2008 on the lasting legacy of Indian residential schools: “The government now recognizes that the consequences of the Indian Residential Schools policy were profoundly negative and that this policy has had a lasting and damaging impact on Aboriginal culture, heritage and language” (Harper 2008). “Educational attainment has a strong positive effect on the labour market outcomes of individuals … Persons with more education run a much lower risk of being unemployed … In addition … education provides the following social returns: dynamic externalities associated with economic growth … non-market external benefits such as reduced criminal activity; social benefits associated with taxation … improved individual health; and intergenerational effects, such as those on child development, health and education” (Sharpe and Arsenault 2009, 2). Other estimated factors include a weaker share by Aboriginals of full-time jobs, which draw higher salaries and benefits; a lower demographic concentration in urban areas, where jobs pay better; and racial discrimination. Sharpe and Arsenault (2009, 20–6) projected that, if these educational and labour market attainment levels were met, there would still be substantial economic and social gains by 2026: significant annual income increases for Aboriginals ($36 billion more), higher annual tax revenues ($3.5 billion more), and lower annual government expenditures ($14 billion less). This study speculates that part of the measureable labour force progress made by Aboriginal peoples in recent years may be attributed to an increase in Metis self-identification, a group that tends to have better labour market outcomes.

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18 The median employment income for Aboriginals in 2006 was $18,962, compared to $27,097 for non-Aboriginals. This estimate was based on 2006 figures; given the impact of the post-2008 recession on Aboriginal employment figures, it is likely that the income earnings gap has increased as well. 19 The federally regulated workforce encompasses about 10 per cent of the Canadian workforce. The coverage of the Employment Equity Act is estimated to be about 12 per cent. The difference lies in the extension of the act to cover contractors with the federal government. Many of these contractors are employers such as universities, colleges, hotels, laboratories, equipment and service suppliers, and professionals (lawyers, architects, and engineers) whose employment relations are otherwise regulated by provincial legislation. 20 An Act Respecting Equal Access to Employment in Public Bodies, RSQ, chapter A-2.01. The act covers provincial public organizations with 100 employees or more, including provincial Crown corporations, municipalities, public transit authorities, school boards, colleges, universities, health and social service organizations, and the provincial police. It does not cover the provincial government, nor does it extend to the private sector. Its designated equity groups are the same four as the federal legislation, including Aboriginal peoples. 21 This is not quite an apples-to-apples measurement, as the initial version of the act (until its amendment in 1996) applied only to the federal private sector and did not cover the federal government. Hence, the differences between the 1987 and the 2008 rates are not as remarkable as they first appear. 22 The workforce availability level is based on the 2006 census and is an availability estimate based on occupations in the Canadian workforce that correspond to the particular occupational subdivision. Thus, the workforce availability estimate will vary among occupational sectors within the same year. 23 More detailed statistics on the distribution of Aboriginals within these organizations, and their hire, promotion, separation, and salary rates are not easily available. Also see Rennie (2007). 24 See, for example, BHP Diamonds Inc. and Government of the Northwest Territories, Socio-Economic Agreement (22 October 1996), Schedule B: “Employment Objectives – Operation Phase.” The SEAs with Diavik and Snap Lake contained similar, but not identical, employment target provisions. Unlike the Ekati SEA, the Diavik (1999) and Snap Lake (2004) SEAs were signed with a number of First Nations councils and bands. 25 DeBeers Canada (2011, table 3a), Dominion Diamond Corporation 2010, table 1a), Rio Tinto (2012, table 1).

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REFERENCES Abella, Rosalie Silberman. 1984. Equality in Employment: A Royal Commission Report. Ottawa: Minister of Supply and Services Canada. Aboriginal Mining Guide. n.d. Case Study #1, Northwest Territories Diamond Mines. http://www.communityrenewal.ca/sites/all/files/resource/Aboriginal_Mining_ Guide.pdf. Aboriginal Strategy Group. 2007. A Quantitative Assessment of Aboriginal Involvement in the Canadian Forest Industry. Ottawa: First Nations Forest Program. Adelson, N. 2005. “The Embodiment of Inequity: Health Disparities in Aboriginal Canada.” Canadian Journal of Public Health 96:S45–S61. Auditor General of Canada. 2011. 2011 June Status Report of the Auditor General of Canada. Ottawa: Office of the Auditor General of Canada. http://www.oagbvg.gc.ca/internet/English/parl_ oag_201106_04_e_35372.html. Berger, J., A. Motte, and A. Parkin, eds. 2009. The Price of Knowledge: Access and Student Finance in Canada. 4th ed. Montreal: Canada Millennium Scholarship Foundation. Bombay, H. 2010. Framework for Aboriginal Capacity-Building in the Forest Sector. Ottawa: National Aboriginal Forestry Association. Cairns, A. 2002. “Citizenship and Indian Peoples: The Ambiguous Legacy of Internal Colonialism.” In Handbook of Citizenship Studies, ed. E.F. Isin and B.S. Turner, 209–30. London: Sage. http://dx.doi.org/10.4135/9781848608276.n13. Canadian Business Ethics Research Network. n.d. “Socially Responsible Development in the Rapidly Evolving Canadian North.” http://www.cbern.ca/ research/projects/workspaces/cura_project. Canadian Human Rights Commission (CHRC). 2010. “Impact of the Employment Equity Act and of the CHRC Employment Equity Program over the Years.” Ottawa. Clement, J. 2008. “University Attainment of the Registered Indian Population, 1981–2001: A Cohort Approach.” Horizons 10 (1): 34–9. Cooke, M., D. Beavon, and M. McHardy. 2004. “Measuring the Well-Being of Aboriginal People: An Application of the United Nations Human Development Index to Registered Indians in Canada, 1981–2001.” In Aboriginal Policy Research: Setting the Agenda for Change, vol. 1, ed. J. White, P. Maxim, and D. Beavon. Toronto: Thompson Educational Publishing. Cooke, M., and J. McWhirter. 2011. “Public Policy and Aboriginal Peoples in Canada: Taking a Life-Course Perspective.” Canadian Public Policy 37:S1–31. Cooke, M., F. Mitrou, D. Lawrence, E. Guimond, and D. Beavon. 2007. “Indigenous Well-Being in Four Countries: An Application of the UNDP’s Human Development Index to Indigenous Peoples in Australia, Canada, New

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Zealand and the United States.” International Health and Human Rights 7 (9): 1–11. http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2238768/. Correctional Inspector of Canada. 2005–6. “Backgrounder: Aboriginal Inmates.” Office of the Correctional Investigator. http://www.oci-bec.gc.ca/ cnt/rpt/annrpt/annrpt20052006info-eng.aspx. DeBeers Canada. 2011. “Snap Lake Mine Socio-Economic Report.” Yellowknife. https://www.canada.debeersgroup.com/pdf/Snap%20Lake%20Mine%20 Socio%20Economic%20Report%202011_PDF.pdf. Dominion Diamond Corporation. 2010. Ekati Diamond Mine 2010 Year in Review. Toronto: Dominion Diamond Corporation. Ekos Research Associates. 2006. Survey of First Nations People Living Off-Reserve. Ottawa: Metis and Inuit. Employment Equity Act, SC 1995, c 44. Environics Institute. 2010. Urban Aboriginal Peoples Study. Toronto: Environics Institute. Expert Advisory Committee. 2009. The State of the First Nation Economy and the Struggle to Make Poverty History. Toronto: Inter-Nation Trade and Economic Summit. Fidler, C., and M. Hitch. 2007. “Impact and Benefit Agreements: A Contentious Issue for Environmental and Aboriginal Justice.” Environments 35 (2): 51–69. First Nations Centre. 2005. First Nations Regional Longitudinal Health Survey, 2002/03. Ottawa: FNC. Frohlich, K., N. Ross, and C. Richmond. 2006. “Health Disparities in Canada Today: Some Evidence and a Theoretical Framework.” Health Policy 79 (2): 132–43. http://dx.doi.org/10.1016/j.healthpol.2005.12.010. Gysbers, J., and P. Lee. 2003. Aboriginal Communities in Forest Regions in Canada: Disparities in Socio-economic Conditions. Edmonton: Global Forest Watch. Haida v British Columbia, [2004] 3 SCR 511. Harper, Stephen. 2008. “Statement of Apology.” Aboriginal Affairs and Northern Development Canada. http://www.aadnc-aandc.gc.ca/eng/11001000156 44/1100100015649. Harvard International Human Rights Clinic. 2010. Bearing the Burden: The Effects of Mining on First Nations in British Columbia. Cambridge, MA: Harvard Law School. Haskell, L., and M. Randall. 2009. “Disrupted Attachments: A Social Context Complex Trauma Framework and the Lives of Aboriginal Peoples in Canada.” Journal of Aboriginal Health 5 (3): 48–99. Health Canada. 2009. A Statistical Profile of the Health of First Nations in Canada: Determinants of Health 1999–2003. Ottawa: Health Canada.

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Hipwell, W., K. Mamen, V. Weitzner, and G. Whiteman. 2002. Aboriginal Peoples and Mining in Canada: Consultation, Participation and Prospects for Change. Ottawa: North-South Institute. Human Resources and Skills Development Canada (HRSDC). 2010. Employment Equity Act: Annual Report 2009. Ottawa: HRSDC. Hwang, S. 2001.“Homelessness and Health.” Canadian Medical Association Journal 164:229–33. Jung, H. 2007. “Can the Canadian Forces Reflect Canadian Society?” Canadian Military Journal 7 (4): 27–36. Kapsalis, C. 2006. Occupational and Skill Parity of Aboriginal Canadians. Ottawa: HRSDC. Kornelsen, K. 2011. “Aboriginals and Mining Companies Unite.” Mining and Exploration, August. http://www.miningandexploration.ca/general/article/ aboriginals_and_mining_companies_unite/. Lynch, K. 2007. Fourteenth Annual Report to the Prime Minister on the Public Service of Canada. Ottawa: Clerk of the Privy Council. http://www.clerk.gc.ca/eng/ feature.asp?mode=preview&pageId=208. Mann, M. 2009. “Good Intentions, Disappointing Results: A Progress Report on Federal Aboriginal Corrections.” Ottawa: Correctional Investigator of Canada. http://www.oci-bec.gc.ca/cnt/comm/presentations/presentations PRAC-RESCFA-eng.aspx. Martin, T., and S.M. Hoffman, eds. 2008. Power Struggles: Hydro Development and First Nations in Manitoba and Quebec. Winnipeg: University of Manitoba Press. McCaslin, W., and Y. Boyer. 2009. “First Nations Communities at Risk and in Crisis: Justice and Security.” Journal of Aboriginal Health 5 (2): 61–87. McNeil, K. 2005. “Aboriginal Rights, Resource Development, and the Source of the Provincial Duty to Consult in Haida Nation and Taku River.” Supreme Court Law Review 29:447–60. Mendelson, M. 2006. Aboriginal Peoples and Postsecondary Education in Canada. Ottawa: Caledon Institute of Social Policy. Mills, S. 2006. “Segregation of Women and Aboriginal People within Canada’s Forest Sector by Industry and Occupation.” Canadian Journal of Native Studies 26 (2): 147–71. – 2011. “Beyond the Blue and Green: The Need to Consider Aboriginal Peoples’ Relationships to Resource Development in Labor-Environment Campaigns.” Labor Studies Journal 36 (1): 104–21. http://dx.doi.org/10.1177/ 0160449X10392527. Mills, S., and L. Clarke. 2009. “‘We will go side-by-side with you’: Labour Union Engagement with Aboriginal Peoples in Canada.” Geoforum 40 (6): 991–1001. http://dx.doi.org/10.1016/j.geoforum.2009.09.005.

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Mining Association of Canada. 2010. Facts + Figures 2010. Ottawa: Mining Association of Canada. http://www.mining.ca/sites/default/files/documents/ FactsandFigures2010.pdf. National Collaborating Centre for Aboriginal Health. 2010a. Aboriginal and Non-Aboriginal Children in Child Protection Services. Prince George, BC: NCCAH. – 2010b. “Education as a Social Determinant of First Nations, Inuit and Metis Health.” Prince George, BC: NCCAH. – 2010c. Family Violence as a Social Determinant of First Nations, Inuit and Metis Health. Prince George, BC: NCCAH. Natural Resources Canada. 2009. “Aboriginal Participation in Mining: Statistical Profile.” Ottawa: NRC. http://publications.gc.ca/collections/collection_ 2010/nrcan/M34-6-2-2009-eng.pdf. – 2010. Aboriginal Communities and Forestry. Ottawa: NRC. http://publications. gc.ca/collections/collection_2011/rncan-nrcan/Fo4-34-2010-eng.pdf. – n.d. “Agreements between Mining Companies and Aboriginal Communities or Governments.” http://publications.gc.ca/collections/collection_2013/ rncan-nrcan/M34-11-2013-eng.pdf. Noel, A., and F. Larocque. 2009. “Aboriginal Peoples and Poverty in Canada: Can Provincial Governments Make a Difference?” Paper prepared for the Annual Meeting of the International Sociological Association’s Research Committee 19 (RC 19), Montreal, 20 August. Parkins, J.R., R. Stedman, M. Patriquin, and M. Burns. 2006. “Strong Policies, Poor Outcomes: Longitudinal Analysis of Forest Sector Contributions to Aboriginal Communities in Canada.” Journal of Aboriginal Economic Development 5 (1): 61–74. Parungao, R. 2011. Benchmarking Trends in Aboriginal Forestry. Victoria, BC: University of Victoria Press. Pendakur, K., and R. Pendakur. 2011. “Aboriginal Income Disparity in Canada.” Canadian Public Policy 37 (1): 61–83. http://dx.doi.org/10.3138/cpp.37.1.61. Perreault, S. 2009. “The Incarceration of Aboriginal People in the Adult Correctional Services.” Juristat 29 (3). http://www.statcan.gc.ca/pub/85-002-x/ 2009003/article/10903-eng.pdf. Powless, R.C. 1985. “Native People and Employment: A National Tragedy.” In Research Studies of the Commission on Equality in Employment, 589–610. Ottawa: Minister of Supply and Services Canada. Prno, J., B. Bradshaw, and D. Lapierre. 2010. Impact and Benefit Agreements: Are They Working? Guelph, ON: University of Guelph, Department of Geography. Public Health Agency of Canada. 2010. “Tuberculosis in Canada 2009: Prerelease.” Ottawa: PHAC. http://www.phac-aspc.gc.ca/tbpc-latb/pubs/tbcan 10pre/index-eng.php.

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Public Policy Forum. 2006. Sharing in the Benefits of Resource Developments: A Study of First Nations-Industry Impact Benefits Agreement. Ottawa: Public Policy Forum. Reading, C., and F. Wien. 2009. Health Inequalities and Social Determinants of Aboriginal Peoples’ Health. Prince George, BC: National Collaborating Centre for Aboriginal Peoples’ Health. Rennie, S. 2007. “Military Coming Up Short in Efforts to Diversify.” Toronto Star, 24 July. Richards, J., and M. Scott. 2009. Aboriginal Education: Strengthening the Foundations. Ottawa: Canadian Policy Research Networks. Rio Tinto. 2012. “2011 Socio-economic Monitoring Agreement Report.” http:// www.diavik.ca/documents/2011_socio_economic_monitoring_report.pdf. Royal Commission on Aboriginal Peoples (RCAP). 1996. Report of the Royal Commission on Aboriginal Peoples. Ottawa: Royal Commission on Aboriginal Peoples. Scoppio, G. 2010. “Indigenous Peoples in the New Zealand Defence Force and the Canadian Forces.” Canadian Military Journal 10 (4): 36–45. Senate of Canada. 2010. Reflecting the Changing Face of Canada. Ottawa: Employment Equity in the Federal Public Service. Sharpe, A., and J.F. Arsenault. 2009. Investing in Aboriginal Education in Canada: An Economic Perspective. Ottawa: Canadian Policy Research Networks. Sharpe, A., J.-F. Arsenault, S. Lapointe, and F. Cowan. 2009. The Effect of Increasing Aboriginal Attainment on the Labour Force, Output and the Fiscal Balance. Ottawa: Centre for the Study of Living Standards. Sosa, I., and K. Keenan. 2001. Impact Benefit Agreements between Aboriginal Communities and Mining Companies: Their Use in Canada. Toronto: Canadian Environmental Law Association. Statistics Canada. 2008. Aboriginal Peoples in Canada in 2006: Inuit, Metis, and First Nation. 2006 Census. Ottawa: Ministry of Industry, Statistics Canada. – 2010. A Literature Review of Factors That Support Successful Transitions by Aboriginal People from K–12 to Postsecondary Education. Toronto: Council of Ministers of Education. – 2011. Aboriginal People and the Labour Market: Estimates from the Labour Force Survey, 2008–10. Ottawa: Statistics Canada. Strategic Research and Analysis Directorate. 2010. First Nation and Inuit Community Well-Being: Describing Historical Trends (1981–2006). Ottawa: Aboriginal Affairs and Northern Development Canada. http://www.aadnc-aandc.gc.ca/ eng/1100100016600/1100100016641. Tomei, M. 2005. Indigenous and Tribal Peoples: An Ethnic Audit of Selected Poverty Reduction Strategy Papers. Geneva: International Labour Organization.

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Tough, F.J. 1996. As Their Natural Resources Fail: Native Peoples and the Economic History of Northern Manitoba. Vancouver: UBC Press. Treasury Board of Canada Secretariat. 2009. Employment Equity in the Public Service of Canada, 2006–07 and 2007–08. Last modified 10 February. http://www. tbs-sct.gc.ca/rp/0608ee03-eng.asp. – 2011. Employment Equity in the Public Service of Canada, 2009–10. Last modified 7 June. http://www.tbs-sct.gc.ca/reports-rapports/ee/2009-2010/ee05-eng.asp. United Nations Children’s Fund. 2009. Aboriginal Children’s Health: Leaving No Child Behind. Canadian Supplement to The State of the World’s Children 2009. New York: UNICEF. Wilkinson, R. 2005. The Impact of Inequality: How to Make Sick Societies Healthier. New York: New Press. Wilson, D., and D. Macdonald. 2010. The Income Gap between Aboriginal Peoples and the Rest of Canada. Ottawa: Canadian Centre for Policy Alternatives. Wilson, J., and J. Graham. 2005. Relationships between First Nations and the Forest Industry: The Legal and Policy Context. Ottawa: Institute on Governance. Wyatt, S. 2008. “First Nations, Forest Lands, and ‘Aboriginal Forestry’ in Canada: From Exclusion to Co-management and Beyond.” Canadian Journal of Forest Research 38 (2): 171–80. http://dx.doi.org/10.1139/X07-214. Wyatt, Stephen, Jean-Francois Fortier, Garth Greskiw, Martin Hebert, Solange Nadeau, David Natcher, Peggy Smith, and Ron Trosper. 2010. Collaboration between Aboriginal Peoples and the Canadian Forestry Industry: A Dynamic Relationship. Edmonton: Sustainable Forest Management Network. Yalden, M. 2009. Transforming Rights: Reflections from the Front Lines. Toronto: University of Toronto Press.

Chapter 6

Employment Equity and Disability: Moving Forward to Achieve Employment Integration and Fulfil Promises of Inclusion and Participation M A R C I A R I O U X A N D L O R A PAT T O N 1

Disability policy and the rights of persons with disabilities in Canada have evolved over decades, in the context of changing conceptualizations of disability. During the latter half of the last century in particular, momentum to increase participation and integration initiated legal and policy changes aimed at universal accessibility to the community. The energy and commitment of disability rights groups drove government actions to include disability as a protected ground from discrimination in human rights codes (Etherington 2001),2 and the Charter of Rights and Freedoms and equality of result or “substantive equality” developed as a means of achieving equity (Rioux 1994).3 Judicial interpretation of those laws has led to a broadening of the scope of rights, new understandings of systemic discrimination, and clear obligations by services and employers to accommodate differences among people to the point of undue hardship and to dispose of work barriers that were not a bona fide requirement (Etherington 2001; Irving 2009; Meorin SCC 1999; Grismer SCC 1999). Greater accessibility to buildings, transportation, and education were considered by the courts and by legislatures (Peters 2004; Lepofsky 1998). Poverty and limited employment opportunities were seen as key issues to be addressed (Canada In Unison 2000). A theoretical shift took place, beginning in the 1970s, that identified disability as a social phenomenon and placed the government’s role within the realm of identifying and eliminating barriers to full participation by persons with disabilities in all aspects of community life: If the difference attached to disability is attributed to social conditions and the social relations in which biology exists, then there is an increased public responsibility to better the conditions through redistributive policies if

134 Marcia Rioux and Lora Patton social well-being and social justice are public goods. It then falls within the public domain to reduce civic inequalities, that is, to address social and economic disadvantage by providing supports to enable social and economic integration, self-determination and legal and social rights. Social justice and equity then are interpreted as political demands that social policy should focus on the disabling aspects of society, on supporting human diversity and on empowering disadvantaged individuals in order to provide well-being. (Rioux and Zubrow 2001, 165)

Building on the idea of substantive equality and the government’s role in increasing economic and social integration of persons with disabilities into the mainstream, Canada’s legal and social policies began to recognize the long-standing exclusion of persons with disabilities. In the more than twenty-five years since the creation of employment equity in Canada, advancements in employment integration for persons with disabilities have been modest, at best. While other designated groups have enjoyed greater success under the legislation, women and visible minorities in particular, persons with disabilities continue to be employed at levels below their availability and, when employed, tend to be clustered in entry level positions (Tompa et al. 2004; Canada, HRSDC 2001; Canada, HRSDC 1999–2008). The Employment Equity Act, combined with the Federal Contractors Program (requiring employment equity practices of employers with large government contracts), govern a small portion of Canadian employment relationships, estimated in 2001 to be approximately 10 per cent (Canada, HRSDC 2001, chap. 4.1), and Judge Rosalie Abella’s hope that the regime would act as a template for the broader public sector has not come to fruition (Abella 1984). While there have been small gains in employment and in broader public attitudes (Raskin 1997, 25–6; Cornish et al. 2010), multiple studies have considered the legislative scheme to be ineffective. Two fundamental principles underlined the Abella Report’s approach to employment integration for persons with disabilities. First, she argued that strong legislation would provide clear goals and obligations for employers, requiring a re-structuring of the work environment to accommodate the needs of employees with disabilities. However, she also argued that a legislative scheme targeting employers was insufficient; strong and broad-based social programs were also necessary to address pre-employment conditions and ensure that persons with disabilities

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had the education, skills and supports to successfully enter and retain employment (Abella 1984, 45). When the Employment Equity Act was passed in 1986, little was done to ensure social programming to enhance the employability of persons with disabilities, and the legislation itself failed to establish clear guidelines for employers and lacked any enforcement mechanisms (Agócs 2002b, 260). Criticisms of the legislation and a public consultation led to increased accountability in amendments to the Act in 1995; however, reluctance to enforce the legislation combined with reductions in federal social spending continued to impede the regime’s success (265). The policy goals of increased inclusion and participation by persons with disabilities have not been achieved in more than 20 years since employment equity’s inception in Canada (Agócs 2002a, 2002b; Longfield 2002; England 2003; Bakan and Kobayashi 2000; England and Gad 2002). Despite its weaknesses to date, employment equity remains central to addressing employment integration for persons with disabilities and eliminating the historical disadvantage they have experienced. By returning to Abella’s key recommendations, developing social programming to address pre-employment conditions and adjusting the legislative scheme to create clear obligations and enforcement, employment equity has the potential to substantially increase the employment integration of persons with disabilities. Notwithstanding the lagging progress towards this fundamental goal, Canada remains committed to improving employment opportunities for persons with disabilities. Recent policy documents have reconfirmed a federal commitment to the concepts of inclusion and participation (Canada, Federal/Provincial/ Territorial Ministers 2000; Canada, Federal Task Force on Disability 1996; Kirby 2006). Litigation under the Charter and human rights codes has supported employment equity principles and pushed further to implement short- and long-term obligations on employers to increase employment integration (CN v Canada 1987; National Capital Alliance on Race Relations v Canada 1997; Perera v Canada 1998). Canada’s recent ratification of the UN Convention on the Rights of Persons with Disabilities (CRPD) (2010) signals a further commitment to ensuring access to competitive employment opportunities for persons with disabilities. Given the commitment to the underlying principles of employment equity, envisioning a regime that can best accomplish the goals is paramount to moving forward.

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History and Context of Employment Equity for Persons with Disabilities in Canada In the latter half of the twentieth century, understanding of disability shifted, as did understanding of the appropriate state intervention in disability issues. As understanding has shifted away from a singular “bio-medical approach,” Canada has developed programs that are not focused on how to “cure” differences through medical technologies or rehabilitation, and instead has begun to embrace the idea that differences are a normal part of the human condition, and disability may be a socially constructed phenomenon. As such, government intervention has moved towards identifying and removing barriers that create disability and has begun to focus on ensuring that the rights of persons with disabilities are respected in a way that allows for their fullest participation and inclusion into the community (Rioux 2003). During the same period, Canada began to recognize that certain segments of the population were excluded from the workforce as the result of historical barriers and systemic exclusion.4 The United Nations’ proclamation of 1981 as the International Year of the Disabled Person created greater interest domestically within the theme of “full participation and equality” (United Nations 1976). In part responding to the special international focus, a Special Committee on the Disabled and the Handicapped published a 1981 report, Obstacles, which made several recommendations that impacted most spheres of Canadian life, including work integration (Canada, Committee on the Disabled and the Handicapped 1991). Obstacles was compiled following extensive public consultation throughout Canada. The report “was a trigger for Government of Canada action that led to significant progress in employment, income and taxation” and it “set the stage for including disability as a prohibited ground for discrimination in the Canadian Charter of Rights and Freedom … and provided an agenda that could be used to gauge progress” (Canada, Standing Committee on Human Resources 1985, n.p.). Obstacles was followed by Equality for All, which made recommendations on the application of section 15 of the Charter (the equality provisions) (Canada, Parliamentary Committee on Equality Rights 1985). In 1983 Judge Rosalie Abella was given the task to investigate equality in employment for four designated groups, including persons with disabilities. Abella’s report was released in 1984, setting the stage for a legislated program to advance “employment equity” (Abella 1984). Combined with

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pressures arising from reports received in Parliament on visible minorities and the coming into force of the equality provisions in section 15 of the Canadian Charter of Rights, the Abella Report led to the 1986 enactment of the Employment Equity Act (Canada, HRSDC 2001). However the Abella Report’s recommendations for a robust system with clear accountabilities for employers did not materialize. The legislation took a much more voluntary approach, electing to use enforcement as a last resort, and employer obligations and goals remain unclear (Abella 1984). The Abella Report was met with resistance from both sides of the political spectrum, those forces becoming more vocal with the passage of the act (Bakan and Kobayashi 2007, 154). To some, employment equity was “reverse discrimination,” eliminating job opportunities for non-identified groups (essentially white men); however, this argument ignored the historic disadvantage experienced by many within the designated groups, which was recognized by the Abella Report and in subsequent Charter and human rights litigation (CN v Canada 1987; Law v Canada 1999; R v Kapp 2008). While some felt that the act was overreaching, some disability activist groups felt primarily that the provisions were unlikely to effect change, as the legislation lacked political will, measurable goals, or enforcement mechanisms (Semenak 1985). Even the term employment equity was seen to be an inappropriate concession by some. While Abella coined the term, in part, to distinguish Canadian policy from the highly charged “affirmative action” and “quota system” debate occurring in the United States and Europe (Thornton and Lunt 1998; Atkins 2006; Agócs and Burr 1996; Degener 2003), some have argued that the terminology shift gave ground to those opposed to recognizing that the act sought to redress historical marginalization of certain groups within employment by proactively balancing the labour market (Bakan and Kobayashi 2007; Abella 1984, 6–7). Similarly, it has been argued that reframing the language has resulted in a focus on the employment environment only, rather than the twopronged approach identified by Abella, which included pre-employment conditions provided by social programming (Bakan and Kobayashi 2007, 153).5 The Abella Report considered the federal employment equity program to be one element in a needed multifaceted approach to increasing the inclusion of persons with disabilities in the community. In the absence of essential social programming that increases the accessibility of public institutions, including transportation and education programs, persons with disabilities may not be able to access the potential of employment equity programs – in essence, if individuals

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cannot access training for a position, employment equity will remain out of reach. Any increased “equity” within the employment environment would be unattainable for those without access to disability-related supports, education, and training programs, accessible transportation and environments, career mentoring, and other social programming. While there has been extensive debate on the effectiveness of the legislation, much less attention has been paid to the needed supports that occur prior to employment for persons with disabilities. In the context of disability, Abella argued that those who were “qualified or qualifiable” for positions should be able to access employment free of barriers. She acknowledged that “disability” is related only in part to an individual’s impairment and is also highly dependent on inaccessible social systems (Abella 1984, 39; Rioux 1984). The Abella Report made extensive recommendations about employment for persons with disabilities, only some of which were adopted in the original legislation. There was an urgency to the recommendations noted in the Abella Report, as she felt that new legislation “must proactively remove barriers” to employment equity, and to do otherwise suggested that Canada was prepared to tolerate ongoing discrimination (Abella 1984, 5). Abella’s report argued that equality required substantive equality measures, or equality of result. She noted that “sometimes equality means treating people the same, despite their differences, and sometimes it means treating them as equals by accommodating their differences” (Abella 1984, 3). This position was later supported by the courts in both employment equity cases and broader Charter cases that considered the notion of equality.6 In 2007, a Senate committee released an interim report, Employment Equity in the Federal Public Service: Not There Yet, which noted, in part, that persons with disabilities continued to be under-represented, particularly in management and executive positions. Although focused on issues affecting visible minorities, the report identified “hidden barriers” that operate to prevent equal representation (Canada, Senate 2007). In concluding that the government is not moving quickly enough to remedy historic exclusion, the report held that legislative change was not necessary but, rather, an overall attitudinal change in the current law’s implementation: It is clear to the Committee that the solution to the employment equity problem does not lie in more legislative change. The legislation and policies in place are supportive of promoting equitable representation. The

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Committee sees the problem as stemming from effective implementation of those laws and fostering true commitment to the issue, as well as a culture of respect – pushing supportive attitudes beyond that which currently exists at the Treasury Board Secretariat and Public Service Commission, and even beyond the managerial level, to filter throughout the bureaucracy to every level of the federal public service. (25)

The report argued that there remained a pressing need for employment equity in Canada and that a concerted effort was necessary to achieve diversity in employment by effective implementation of the Employment Equity Act (Canada, Senate 2007). Broader Measures to Enable Integration into the Labour Force In some respects, some of the broader measures have had more success than the employment equity recommendations of the Abella Commission. Since the enactment of the Employment Equity Act, a number of policy and legislative measures have been adopted that highlight the need for work integration in Canada. A broad-based policy document signed by the federal and provincial and territorial governments, In Unison, acknowledged the lack of access to full participation for persons with disabilities (Canada, Federal/Provincial/Territorial Ministers 2000). Along with income supports and disability supports, employment was noted a key building block to inclusion. The document did not specify particular strategies, but it continues to act as a base policy within which more direct programs and services could be situated. Some provinces have also enacted accessibility frameworks to mainstream disability issues into public policy and to increase the ability of persons with disabilities to participate fully. In Ontario, the Accessibility for Ontarians with Disabilities Act (AODA) legislatively addresses these issues and seeks to have a barrier-free Ontario by 2025 (2005). One aspect of that act is the development of accessibility standards, one of which is focused on work. The employment accessibility standard requires employers to develop and adopt proactive measures to include persons with disabilities in the workforce by eliminating barriers and developing “inclusive employment systems and procedures” (Ontario 2011, part III). AODA Standards are meant to work together with human rights legislation, but recognizing the limitations of human rights tribunals when addressing systemic discrimination and advancing systemic change, the ADOA is intended to be proactive.

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Beyond the obligations under the Charter and human rights codes, Canada recently ratified the United Nations Convention on the Rights of Persons with Disabilities. The CRPD obligates member states to consider laws, policies, and practices that affect persons with disabilities “to promote recognition of the skills, merits and abilities of persons with disabilities, and of their contributions to the workplace and the labour market” (2008). Article 27 of the CRPD requires Canada to “recognize the right of persons with disabilities to work, on an equal basis with others … and [a] work environment that is open, inclusive and accessible to persons with disabilities.” To monitor compliance with CRPD, Canada has reporting obligations that include a comprehensive review of measures taken to harmonize national law and policy with the CRPD, monitor progress on ensuring the rights of persons with disabilities, note shortcomings, and address a plan to move forward (United Nations, Committee on the Rights of Persons with Disabilities 2009). A post-ratification report by the Canadian Human Rights Commission contains statistical information about the circumstances of Canadians with disabilities in employment and across a range of other aspects of life (CHRC 2012). Implementation of Employment Equity for Persons with Disabilities

The Numbers Despite the urgency identified in Abella’s initial report and the subsequent supportive reports, including the Senate’s 2007 study, persons with disabilities recognized only minimal gains in employment before the 2001 review (Agócs 2002a), and only slightly better integration in the years following. While the designated groups of women and visible minorities saw noticeable improvements in representation, persons with disabilities continued to be represented in the federal workforce at levels far below availability (England 2003; Bakan and Kobayashi 2000; Agócs 2002b; England and Gad 2002). The 2001 Employment Equity Act Review noted that persons with disabilities had “experienced the least progress under the Act with very small advances in representation, recruitment, and promotion between 1995 and 2000” (Longfield 2002, chap. 7.8). The review found that persons with disabilities were employed at rates of 2.4 per cent of the workforce, below availability rates of 6.5 per cent, a gap of 4.1 per cent. The most recent numbers available are for 2011, for the federally regulated

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private sector, where persons with disabilities were employed at a rate of 2.6 per cent, compared with workforce availability (for 2006) of 4.9 per cent (Canada 2012, 39). Shier, Graham, and Jones (2009) note that at the time of their study in 2006, the Canadian economy was performing well but that those advantages had “not translated into real benefits for many of Canada’s vulnerable workers” and that the employment rate was 48 per cent, compared with 76 per cent for non-disabled people (Zubrow et al. 2009). Employment equity’s limited success at work integration for persons with disabilities may be significantly worse than the government reports demonstrate. Plagued by criticisms about the unreliability of information collected by government and employers, data published about employment equity fail to meet scientific rigour (Lum 1995, 54). First among the criticisms is the concern that “persons with disabilities” is poorly defined under the legislation and inconsistent with other definitions used by government in law and policy (50). As a result, defining the designated group is a difficult endeavour. Inclusion in the designated group requires individuals to self-identify as not only having “a long-term or recurring physical, mental, sensory, psychiatric or learning impairment” but who also consider themselves, or believe their employer will consider them, “disadvantaged in employment by reason of that impairment” (Employment Equity Act 1995, section 3). “Persons with disabilities” is a heterogeneous group, and many individuals who may be considered to have an “impairment” may not consider themselves “disadvantaged” as a result (Lum 1995, 54). Others may choose not to identify, even if they believe themselves to be among the designated group, for fear of discrimination within the workplace (54). While there have been concerns about under-reporting from employer groups (Mentzer 2002, 43; Canada, HRSDC 2001), there have been other reports of employers “padding” the numbers, asking persons with the most minimal “impairments” to self-identify in their own internal surveys to collect data (Lum 1995, 52–3; National Capital Alliance on Race Relations v Canada 1997). The 2008 Employment Equity Act Review found that increased representation of persons with disabilities in the federally regulated private sector was not a result of new hiring but, rather, increased numbers of self-reports, thus reducing any value that may be assigned to apparent improvements in that sector specifically (Canada, HRSDC 1999–2008, chap. 3). Apart from identifying individuals who are targeted for increased inclusion in employment, there are significant problems in the second

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aspect of the data collection: the numbers of those seen as “available” to the workforce. Statistics Canada, in defining its role in data collection, notes that by using availability data, “employers can compare the distribution of their own employees with these external statistics to gauge their performance in achieving employment equity and to develop realistic goals and timetables” (Cardillo 1993, 3). To calculate the number of persons with disabilities “available” in any given occupation, the government has drawn on data from the Participation and Activities Limitation Survey (PALS) (prior to 2001, the Health and Activity Limitation Survey or “HALS” was used, although the same definition of anyone having worked in last five years applies).7 As Lum demonstrates, the HALS survey does not define disability in the same way as the Employment Equity Act does. Workforce “availability” as used in employment equity guidelines is limited to individuals who have worked in the previous five years (Williams 2006, 5), not those who may be able to or wish to work. By calculating workforce availability differently, Lum noted that availability in 1991 could be more accurately described as 14.5 per cent instead of the reported 6.5 per cent (Lum 1995, 51–2). Lum argues that many among the population taken to be “unavailable” to the workforce due to a determination that they have not worked in the preceding five-year period, actually want to work: Of the total disabled population in Canada, 48.2 per cent are employed, 8.1 per cent are unemployed, but 43.7 per cent are not in the labour force as compared to 19 per cent of the 1991 population without disabilities … By dropping out, the people who make up this 43.7 per cent are no longer considered by the HALS as part of the available workforce. The implication is that they are not capable, qualified nor interested in employment. According to the survey, however, 91.9 per cent of those who have been excluded from the labour force – even those with severe disabilities (93.3 per cent) – would like to work but refuse to suffer the high emotional and psychological costs of recurring rejections. (65)

Work availability remains a controversial issue. When assessing success rates in integration, an employer considers the numbers of the designated group, such as persons with a disability, against the estimated numbers among that group that are otherwise qualified or “qualifiable” for positions (Longfield 2002, chap. 6.5.3, notes that the education gap is significant). Overall rates of workforce availability of persons with a disability have steadily decreased since 1992, from 6.5 per cent to 5.8 per

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cent in 2001 and 4.1 per cent in 2006.8 Future analysis will be more difficult as the result of a recent decision by the federal government to eliminate detailed information collection in the census by means of a mandatory long form, in favour of a voluntary survey, a decision that could lead to less complete data (Ditchburn 2010). While the numbers cannot tell the entire story of employment equity for persons with disabilities, the numerical information available does suggest that the regime has had minimal impact on improving employment integration. Even where there are indications of some improvement, the statistical data, when probed further, indicate the potential for a less optimistic position. Understanding why employment equity has not been successful must follow.

Employment Equity and Disability Persons with the most severe disabilities have been shown to be the most likely to remain excluded from the workforce (Williams 2006). While the Employment Equity Act specifically defines “persons with a disability” as those who either consider themselves, or believe that an employer would consider them to be “disadvantaged in employment by reason of [an] impairment” (Employment Equity Act 1995, section 3), many concerns have arisen suggesting that those who may have impairments that do not result in significant limitations in accessing work may be used to fulfil obligations under the act (Roeher Institute 1992; Raskin 1994). Abella identified this potential concern in her report and argued that “any mandatory system to increase the participation of the disabled should be designed in such a way that employers hire not only persons with permanent disabilities, but that there be additional effort made to find jobs for severely disabled persons” (Abella 1984, 43). Noting that “persons with a disability” is a broad and heterogeneous group, she acknowledged that properly assessing progress would be difficult: Disabled persons should be defined for purposes of an employer’s obligation to collect data under employment equity legislation as those persons whose general access to employment opportunities has been or has appeared to have been limited by the existence of a permanent or longterm disability. Because of the individualized approach employers must take in eliminating employment barriers for the different impairments a disabled employee may have, the emphasis in monitoring the success of employment equity systems for disabled persons should be less quantitative

144 Marcia Rioux and Lora Patton or data-oriented. Disabled persons are so heterogeneous a group that each disability requires accommodation in a different way. This makes any emphasis on numerical change potentially unfair both to the disabled employee and to the employer. (Abella 1984, 43)

A report from Statistics Canada in 2006 supports the concern that persons facing the most significant employment barriers remain unemployed at rates much higher than those with mild disabilities: those with mild disabilities were unemployed at a rate comparable to those in the “non-disabled population,” 7.2 per cent unemployment, compared with 16.8 per cent for those with a severe or very severe disability (Williams 2006, 16–17). Employers have complained that their attempts to recruit qualified persons in the designated groups are hampered by low numbers of available individuals, suggesting that pre-employment conditions have not been adequately addressed (Longfield 2002; Zubrow et al. 2009).9 Whereas women have seen notable increases in employment equity, this may be explained by the existence of a ready pool of applicants who face fewer pre-employment barriers.10 The Abella Report’s recommendation that Canada provide broad-based social programming to address preemployment conditions has operated apart from the employment equity regime with mixed results. Attitudinal changes are one such example. The work environment, including negative stereotypical beliefs about persons with disabilities, is a key barrier to employability.11 Ongoing identification and removal of pre-employment barriers, including disability-related supports, access to education and training, career planning and mentorship, and disincentives to work must also be addressed to ensure that participation and inclusion can succeed (Canada, Federal/Provincial/Territorial Ministers 2000). Moving Forward Despite the weaknesses in the employment equity regime, some maintain that there have been more generalized positive results from the policy intent. Raskin argues that while there has not been equitable representation for persons with disabilities, there have been positive changes in environment and policy (Raskin 1994). Leck notes that human resource policies have also taken into account aspects of employment equity and have shifted towards inclusion (Leck 2002, 89). Cornish and Faraday (2009) argue that while the act has fallen short of expectations, it has

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influenced international standards as well as human rights adjudication, collective agreements, human resources policies, and broad-based employment issues; in other words, the principles underlying employment equity may have led to positive changes in employment policies in a variety of sectors, particularly those with high union involvement. Agócs (2002a) argues that while the promise of employment equity has not been realized, a concerted effort to strengthen employer obligations and bolster enforcement could produce better results. While employment equity may be a factor in attitudinal changes that affect employment policies, the act has greater potential to create meaningful change for persons with disabilities and greatly increase employment integration. The suggestion that voluntary employment programs be substituted for the Employment Equity Act has been made by a number of authors (e.g., Falkenberg and Boland 1997).12 In a position that is mirrored by the language of the federal government in its 2008 Employment Equity Report, some suggest that employers will seek out increased equity because it is good for business (Falkenberg and Boland 1997). While there have been examples of successful voluntary programs (Falkenberg and Boland discuss the success of women professors in universities), most voluntary programs have shown limited improvement in employment integration, particularly for those most historically disadvantaged, including persons with disabilities. Indeed, the “changes in human resources policies and practices that support employment equity have so far largely resulted from legislation, not from societal, economic or demographic pressures” (Leck 2002, S89). The argument against mandatory employment equity is described by Bakan and Kobayashi as a form of “backlash” against the notion that substantive equality prescriptions were a valuable government role; the backlash was evidenced both by the direct opposition to employment equity and in the concessions made by those in favour: The Abella Report and the Rae government’s legislation are arguably the best case examples of political advocacy for employment equity in Canada, yet both have wielded a blunt sword in challenging systemic discrimination. Strategic accommodation has failed to advocate forcefully for accountable practices, or to achieve specific numeric targets. Members of the designated groups who are the victims of systemic discrimination have suffered the most from strategic accommodations. For them, it matters little whether that discrimination results from strategic accommodation or direct opposition. (Bakan and Kobayashi 2007, 162)

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While ongoing opposition to employment equity principles may be seen in the political decisions to eliminate mandatory legislation in Ontario and British Columbia, equally important to the weaknesses of the federal regime were the choices to soften the legislation. Bakan and Kobayashi (2000) noted a number of factors that influenced the effectiveness of regimes, including remaining systemic barriers and lack of accountability. Achieving integration and participation can be enhanced only through an effective and meaningful employment equity regime that attends to both pre-employment and employment conditions. Returning to these principles, which were originally recommended by the Abella Report, will move Canada in the direction of reaching the policy objectives outlined in disability reports and obligations under the CRPD. Conclusions Three essential components are necessary to strengthen employment equity for people with disabilities in Canada. First, there is an ongoing need to increase understanding of the underlying principles and goals of employment equity at the governmental, employer, and public levels. Clearly there is general support for increased integration of persons with disabilities in all aspects of the community, including work (Canada, Federal/Provincial/Territorial Ministers 2000; CRPD 2008). The Abella Report clearly set out the entrenched systemic exclusion and disadvantage of the identified groups, and her arguments regarding substantive equality have been entrenched through Charter and human rights litigation (e.g., CN v Canada 1987; R v Kapp 2008). She argued that moving towards substantive equality required proactive government action through an employment equity regime. Yet challenges to the system remain, including claims that employment equity acts as a means of “reverse discrimination” or that equity has been achieved (Bakan and Kobayashi 2007). Increasing educational initiatives to explain the value and importance of social and economic integration and support the rights of persons with disabilities to work will enhance the political and social will to implement the act in a meaningful way. Second, greater emphasis must be placed on implementing the Employment Equity Act. As Agócs has argued, the current legislation provides the necessary components to achieve greater success in employment integration (Agócs 2002a). What is now necessary is the political

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will to clarify employers’ goals and obligations and to enforce the legislation (Canada, Senate 2007). Simplifying the goals of employers by providing and requiring clear statistical information will help to ensure compliance. Monitoring of the CRPD provides a new tool to ensure that the legislation is meeting targets. Finally, addressing social programming to establish that persons with disabilities have access to disability-related supports, education, and training and to eliminate attitudinal and environmental barriers will increase the pool of potential employees. Despite a legislated mandate to review the legislation at five-year intervals, no review of the Employment Equity Act has occurred since 2002. Canada’s ratification of the Convention on the Rights of Persons with Disabilities in March 2010 has added urgency to a needed assessment of the effectiveness and potential of employment equity nationally. Ratification of the CRPD signalled a commitment to the principles of that international law, including obligations to ensure “the right of persons with disabilities to work, on an equal basis with others” and “in a labour market and work environment that is open, inclusive and accessible to persons with disabilities” (2008, article 27). Despite Canada’s obligations under the CRPD, there has been no commitment to determine how meaningful and effective employment-equity legislation may move Canada towards compliance with its international obligations and monitoring requirements.

NOTES 1 The authors would like to thank Cameron Crawford, Yvonne Peters, and Hanne Jenson for their thoughtful contributions to this chapter. 2 Federal human rights legislation prohibited discrimination on the basis of disability from its inception in 1985 (Canadian Human Rights Act RS, 1985, c H-6). See also the provincial human rights codes, all of which include disability as a protected ground: Human Rights Code (British Columbia) Human Rights Code, RSBC 1996, c 210; Alberta Human Rights Act RSA 2000, c A-25.5; Saskatchewan Human Rights Code SS 1979, c S-24.1; Human Rights Code (Manitoba) CCSM c H175; Human Rights Code (Ontario), RSO 1990, c H.19; Quebec Charter of Rights and Freedoms RSQ, c C-12; Human Rights Act (New Brunswick) RSNB 1973, c H-11; Human Rights Act (Nova Scotia) Human Rights Act, RSNS 1989, c 214; Human Rights Act, 2010 (Newfoundland) SNL 2010, c H-13.1; Human Rights Act (Prince Edward Island), RSPEI 1988, c H-12; Human Rights

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3

4

5

6

7

8

Act (Nunavut), S Nu 2003, c 12; Human Rights Act (Yukon), RSY 2002, c 116; Human Rights Act (North West Territories), SNWT 2002, c 18. Despite initial exclusion, the Canadian Charter of Rights and Freedoms (1982) included protection against discrimination on the basis of physical or mental disability; it was the first time that disability rights were protected in a constitution. Charter litigation defined equality as a “substantive” concept, requiring equality of result and a shift in thinking around social programs. The Charter, prohibiting discrimination on enumerated and analogous grounds, allows for “any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or group,” section 15. Also see R v Kapp (2008 SCC 41), the most recent Supreme Court case that speaks to the importance of “enabling governments to proactively combat existing discrimination through affirmative measures” (paragraph 25). In the Abella Report employment equity was seen as one of many needed government programs to address employment segregation. The report noted the equal importance of other social programs that would address education inequities and inaccessibility generally (page 45). In CN v Canada (1987), the court cited with approval Abella’s characterization of discrimination, which included systemic or unintentional acts, and went on to indicate that equality required proactive measures to redress historical discrimination. A later case, National Capital Alliance on Race Relations v Canada (1997), also incorporated Abella’s substantive equality concept when it ordered extensive equity measures. These cases were both decided under human rights legislation. The 2006 Employment Equity Data Report (Canada, Human Resources and Skills Development Canada 2009, 53, 56, 91) contains technical notes on the differences between availability data for persons with disabilities for 2001, derived from HALS, and the data for 2006, derived from PALS. The data for the two points in time are not comparable because of significant differences in sampling plans, the operational definition of the target population, and the content of the questionnaires. At this writing the most recent methodological information on future disability surveys to be used for employment equity is Statistics Canada 2014 (5–6, chap. 8, and Appendix C), where there is discussion of differences between HALS, PALS, and the new Canadian Survey on Disability, employment equity data, and changing definitions of disability. The EEA 2008 Annual Report notes “a number of factors,” one of which was the removal of persons with a disability who did not declare an occupation from the availability pool. Consequently, 23 per cent of persons with a disability were deemed “unavailable.” This change was made to resolve

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10

11

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concerns that earlier data inflated the group of “available” persons. Statistics Canada acknowledges that such adjustments make it difficult to compare data year to year, making the analysis of employment equity more difficult. Special thanks to Cameron Crawford, who provided insight into this issue. The HALS survey has been discontinued by the federal government, making the calculations even more difficult, as there will be few reliable statistics. In Zubrow et al. (2009), the authors found that barriers to literacy among persons with disability were greater, resulting in disproportionately higher rates of illiteracy. Further, literacy was a key determinant in attachment to the labour force, and “more than 50% of individuals who are not in the labour force have low literacy” (58). Multiple barriers were noted as the underlying causes of disproportionately low literacy levels. Consider Ontario’s Assistive Devices Program (ADP, 2008), for example, which excludes coverage for individuals where the device is “required exclusively for sports, work or school.” The limitations placed on access to assistive devices under the program prevent some from accessing devices to facilitate work. Although some employers cover the cost of such devices, including through extended health benefits, many potential employees (particularly those in low-paid jobs with minimal benefits) will not have such access. Employability may be directly affected. England (2003) argues that “ableism” must be tackled to advance employment equity; Shier, Graham, and Jones (2009) found that persons with disabilities identified discrimination as a key barrier; Stuart (2006) found that discrimination toward persons with mental disabilities was a key issue, one that is often internalized, causing individuals to cease seeking employment. Also see Leck (2002). Arguments used to challenge Ontario and British Columbia employment equity regimes suggested that proactive measures were no longer necessary because equity had largely been achieved (although this case was not made with respect to persons with disabilities). See Bakan and Kobayashi (2004).

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Longfield, Judi. 2002. “Promoting Equality in the Federal Jurisdiction: Review of the Employment Equity Act.” Ottawa: Parliament of Canada, Standing Committee on Human Resource Development and the Status of Persons with Disabilities. http://www.parl.gc.ca/HousePublications/Publication.aspx?Doc Id=1032138&Language=&Mode=1&Parl=37&Ses=1. Lum, J.M. 1995. “The Federal Employment Equity Act: Goals vs Implementation.” Canadian Public Administration 38 (1): 45–76. Mentzer, M.S. 2002. “The Canadian Experience with Employment Equity Legislation.” International Journal of Value-Based Management 15:35–50. National Capital Alliance on Race Relations v Canada (Health and Welfare), 1997 CanLII 1433 (CHRT). http://www.canlii.org/en/ca/chrt/doc/1997/1997ca nlii1433/1997canlii1433.html. Ontario. 2011. Ontario Regulation 191/11 made under the Accessibility for Ontarians with Disabilities Act, 2005. Integrated Accessibility Standards. Part III. Employment Standards. http://www.e-laws.gov.on.ca/html/source/regs/english/2011/ elaws_src_regs_r11191_e.htm. Ontario, Accessible Built Standards Development Committee. 2009. Accessible Built Environment Standard. Ontario, Ministry of Health and Long-term Care. 2008. “Assistive Devices Program.” http://www.health.gov.on.ca/en/public/programs/adp/. Perera v Canada, [1998] 3 FC 381. http://www.canlii.org/en/ca/fca/doc/1998/ 1998canlii9051/1998canlii9051.html. Peters, Y. 2004. “Twenty Years of Litigating for Disability Equality Rights: Has It Made a Difference?” Prepared for Council of Canadians with Disabilities. http://www.ccdonline.ca/en/humanrights/promoting/20years. R v Kapp, [2008] 2 SCR 483. http://canlii.ca/t/1z476. Raskin, C. 1994. “Employment Equity for the Disabled in Canada.” International Labour Review 133 (1): 75–88. – 1997. “Canada.” In Affirmative Action in the Employment of Visible Minorities and Persons with Disabilities, ed. Jane Hodges-Aeberhard and Carl Raskin, 7–28. Geneva: International Labour Organization. Rioux, M.H. 1984. “Labelled Disabled and Wanting to Work.” In Research Studies of the Commission on Equality in Employment, ed. Rosalie Silberman Abella, 611–40. Ottawa: Minister of Supply and Services Canada. – 1994. “Towards a Concept of Equality of Well-being: Overcoming the Social and Legal Constructions of Inequality.” Canadian Journal of Law and Jurisprudence 7:127–48. – 2003. “On Second Thought: Constructing Knowledge, Law Disability and Inequality.” In The Human Rights of Persons with Intellectual Disabilities: Different

154 Marcia Rioux and Lora Patton but Equal, ed. S. Herr, L. Gostin, and H. Koh, 287–317. Oxford: Oxford University Press. Rioux, M.H., and E. Zubrow. 2001. “Social Disability and the Public Good.” In Market or Public Domain? Global Governance and the Asymmetry of Power, ed. Daniel Drache, 148–70. New York: Routledge. Roeher Institute. 1992. On Target? Canada’s Employment-Related Programs for Persons with Disabilities. North York: Roeher Intitute. Semenak, M. 1985. “In Pursuit of Equality: Employment Equity Program New in Name Only, Critics Say.” Montreal Gazette, 22 March. http://news.google. com/newspapers?nid=1946&dat=19850322&id=VZ4xAAAAIBAJ&sjid=46UFA AAAIBAJ&pg=1808,737097. Shier, M., J.R. Graham, and M.E. Jones. 2009. “Barriers to Employment as Experienced by Disabled People: A Qualitative Analysis in Calgary and Regina, Canada.” Disability & Society 24 (1): 63–75. Statistics Canada. 2014. Canadian Survey on Disability, 2012: Concepts and Methods Guide. Ottawa: Ministry of Industry Canada. http://www.statcan.gc.ca/pub/ 89-654-x/89-654-x2014001-eng.pdf. Stock, A.J. 2006. “Affirmative Action: A German Perspective on the Promotion of Women’s Rights with Regard to Employment.” Journal of Law and Society 33 (1): 59–73. Stuart, H. 2006. “Mental Illness and Employment Discrimination.” Current Opinion in Psychiatry 19 (5): 522–6. Thornton, P., and N. Lunt. 1998. “Worlds Apart? Employment Policies for Disabled People in Eighteen Countries: A Review.” Asia & Pacific Journal on Disability 1 (2). http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?a rticle=1158&context=gladnetcollect. Tompa, E., H. Scott, S. Trevithick, and S. Bhattacharyya. 2004. “Precarious Employment and People with Disabilities.” In Precarious Employment: Understanding Labour Market Insecurity in Canada, ed. L. Voskos, 90–114. Montreal and Kingston: McGill-Queen’s University Press. United Nations, Committee on the Rights of Persons with Disabilities. 2009. “Guidelines on Treaty-Specific Document to Be Submitted by States Parties under Article 35, Paragraph 1, of the Convention on the Rights of Persons with Disabilities.” http://www.ohchr.org/Documents/HRBodies/CRPD/ CRPD-C-2-3.pdf. United Nations Convention on the Rights of Persons with Disabilities (CRDP). 30 March 2007, U.N. Doc. A/61/611 (entered into force 3 May 2008). http:// www.un.org/disabilities/convention/conventionfull.shtml. United Nations, General Assembly Resolution 31/123. 1976. “The International Year of Disabled Persons 1981.” http://www.un.org/esa/socdev/enable/ disiydp.htm.

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Williams, C. 2006. “Disability in the Workplace.” Perspectives 7 (2). http://www. statcan.gc.ca/pub/75-001-x/10206/9096-eng.htm. Zubrow, E., M.H. Rioux, M. Dinca-Panaitescu, C. Spielman, and A. Marsolais. 2009. Landscape of Literacy and Disability. Toronto: Canadian Abilities Foundation.

Chapter 7

The Equity Landscape for Sexual Minorities in Canada G E R A L D H U N T , D AV I D R AY S I D E , A N D D O N N S H O R T

It is only in the last couple of decades that sexual orientation and gender identity have surfaced on the employment equity agenda in Canada. As a result, it is not surprising that sexual minorities (gays, lesbians, bisexuals, and the transgendered) were excluded from the Employment Equity Act1 when it was passed in 1986. At the time, basic individual rights for gays and lesbians were still being hotly contested, and rights for transgendered people were not even on the radar screen. Ontario had only just included sexual orientation in its Human Rights Code2 in 1986 after a high-profile struggle; Quebec had done the same in 1977. It was only by the mid-1980s that there was a growing judicial consensus that sexual orientation (but not gender identity) should be read into the Charter of Rights and Freedoms3 as part of the open-ended wording of section 15 (even though a definitive ruling by the Supreme Court of Canada did not occur until the mid-1990s). In other words, at the time employment equity legislation was being discussed, debated, and enacted, sexual orientation was only beginning to be recognized as a category for nondiscrimination in employment and housing. As a result, there was no serious chance of this dimension being included in employment equity provisions. Once sexual orientation was definitively read into section 15, subsection 1, of the Charter, it could have by implication been read into subsection 2, which allows affirmative action, but again this was not part of the policy discussion at the time. Since the time of the EEA’s introduction and subsequent amendments, many lesbian, gay, bisexual, and transgendered people (LGBT) have felt their exclusion to be inappropriate. In this chapter, we explore the implications and consequences of this exclusion. Could the particular kind of employment discrimination experienced by LGBT be

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ameliorated by inclusion in the EEA? We begin with a discussion of the significant progress, especially in the legal realm, that LGBT people have made in the last several decades, without being part of the “official” employment equity mosaic. This is followed by an analysis of the equity issues that LGBT people continue to experience. We then assess the potential of the EEA to deal with these inequities. We find that the act itself would need a rethink, possibly a paradigm shift, in order to address fully the equality issues that persist for sexual minorities. We argue that a more expansive, less numerically focused form of employment equity legislation would be a better approach in the modern period, not only for sexual minorities but for others as well. The Equity Landscape So Far Over the past three decades, much has been achieved by lesbians and gay men in countering legal discrimination and public prejudice (but much less so for transgendered people). Canada is now thought to be one of the most progressive countries in the world in its treatment of gays and lesbians. Among other things, marriage is possible, there are no legal impediments to adoption, and some workplaces actively try to attract open gays and lesbians when developing recruitment strategies. Below we consider the progression of these developments.

Challenges to Official Discrimination: Sexual Orientation as an Enumerated Ground Over the last quarter century, official discrimination against sexual minorities has been successfully challenged (Smith 2008, 1998; Rayside 2008, 1998; Warner 2002; Herman 1994). Lesbian and gay activists had begun targeting prejudice aggressively by the late 1960s, and gains have been impressive. “Partial” decriminalization of homosexual activity in 19694 helped broaden the movement, which then secured formal prohibitions on discrimination at the local level starting in the 1970s. The Charter, enacted in 1982, provided additional protections when section 15 came into effect in 1985. In addition to the specifically “enumerated” protected grounds listed in section 15 (1) of the Charter, courts soon interpreted the section’s open-ended prohibition on discrimination to include sexual orientation – on the basis that it was “analogous” to those specifically enumerated – such as race, religion, and sex. Starting with Quebec (1977) and Ontario (1986), provincial human rights

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codes were amended to include sexual orientation. Still, it took another decade before protection from discrimination was made available in all provinces. The Supreme Court “read in” sexual orientation to Alberta’s human rights legislation in 1998,5 even though Alberta refused to amend its legislation to explicitly add the words sexual orientation until 2009. While the Charter offered constitutional protection from discrimination from government action, human rights legislation – considered by the courts to be “quasi-constitutional”– offered protection to lesbians, gays, and bisexuals from discriminatory treatment in schools and from employers and landlords.

Workplace Rights6 After homosexual acts were decriminalized in 1969, activists began to mobilize around one of the most pressing of issues facing sexual minorities: blatant employment discrimination (Warner 2002). A newly invigorated gay liberation movement took as its mantra the importance of “coming out,” but this had the potential for a very deleterious side effect. People who identified publically as gay or lesbian risked being fired or marginalized in their employment. Gary Kinsman’s (2000) research on the federal public service, for example, reveals that hundreds of workers were demoted or fired in the post–Second World War era when it became known or suspected that they were gay or lesbian. Even as recently as the 1970s, he found the Royal Canadian Mounted Police were continuing to use undercover surveillance, blackmail, sweeps of gathering places, and intimidation to collect the names of people suspected of being homosexual. In 1968, Kinsman estimates there were over nine thousand people on the RCMP’s list of “suspects.” The situation in other sectors and occupations is less documented, but coming out represented a serious economic risk for most workers, given the antipathy for this minority at the time. Not surprisingly, the majority of gays and lesbians in all work settings felt it was too dangerous to disclose their sexuality. Many people adapted by leading complex double lives, aiming to pass as “straight” in the workplace and out in safer settings (Woods 1993). As a measure of the importance of workplace discrimination to the early gay rights movement, at the first march on Parliament Hill in 1971, over two hundred demonstrators called for an end to discrimination in housing and employment, as well as the right to serve in the armed forces. Feeling empowered by gay rights activism, and taking signals from the civil rights movement, a few brave souls fought back publicly

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when they were fired or discriminated against for being openly gay or lesbian. One of the first was Doug Wilson, a teacher-in-training at the University of Saskatchewan. In 1975, he was barred from school placements because of his open gayness, a move that meant he would never be able to qualify as a teacher. His appeal to the Human Rights Commission, backed by a demonstration of over four hundred, was unsuccessful. Barbara Thornborrow went public when she was fired from the armed forces in 1977. John Argue, a Toronto teacher and swim coach, came out at work in the late 1970s and immediately had limits imposed on his interaction with male students and on the style of bathing suits he could wear. John Damien, an exemplary racing-horse jockey steward, was immediately fired in 1975 once his sexuality became known. Although Damien was prepared to fight his case on the basis of wrongful dismissal, he died before his case could be finally adjudicated by the courts. As workplace issues moved to the centre of activism, and the growing number of high-profile cases illustrated just how real the discrimination was, pressure grew on employers and labour unions to take a stand. Workplace activists began to mobilize within organizations and labour unions by forming support groups. At first these groups tended to be “underground,” offering a place to build confidence and political strength, as well as establish a collective strategy for change. Support groups of this kind were formed at many organizations, including Bell Canada, IBM, and several banks, as well as some of the larger unions (Hunt 1999). The first set of demands made by gay and lesbian employment equity activists was to be included in anti-discrimination policies. Once individual protections were achieved, demands focused on securing same-sex relationship recognition in benefit and pension programs. The end of the 1980s saw a few universities extending benefits, and in the early 1990s large cities and a few large private-sector corporations such as IBM followed suit. At the end of the decade, by which time the denial of such benefits became indefensible in law, many of Canada’s largest employers had already effected the change (Rayside 2008).

Relationship and Parenting Rights Although a few workplaces were voluntarily expanding policies and practices to include sexual minorities, many organizations and government departments continued to turn a blind eye to the issue. The AIDS epidemic helped to propel sexual orientation issues into the spotlight, and also raised questions about the rights of partners to shape health-related

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decisions. At the same time, same-sex couples demanded equal parenting rights, and this also helped to raise the profile of relationship rights. Gradually, legal victories on relationship rights began to be won in the courts, human rights commissions, and labour tribunals from the early 1990s on. In 1993, the Supreme Court of Canada ruled against veteran activist Brian Mossop,7 in a claim for bereavement leave following the death of his partner’s father. But the court indicated that if the claim had been based on sexual orientation rather than marital status, the ruling might have been different. As Petersen (1999) points out, this was interpreted by many judges and legal experts as confirming that discrimination against gays and lesbians contravened section 15 (1) of the Charter. The court’s 1995 ruling in Egan8 clarified that the Charter’s prohibition on discrimination extended to sexual orientation, even if it expressed ambivalence on same sex relationship rights. Four years later, in M v H,9 the court swept aside remaining ambivalence on relationship recognition by striking down the heterosexual exclusivity of Ontario’s family law. The several years following that 1999 decision witnessed a wave of statutory change at the provincial and federal level extending to same-sex couples the same extensive recognition that was being accorded oppositesex cohabiting couples. Parenting rights were slower to change, as they have been in almost all other countries. In the 1980s, there were a few pioneering successes in challenging prejudice in custody battles (Rayside 2008). The shift towards positive outcomes on adoption and custody issues were more evident in the early 1990s, and then at mid-decade major victories were won in British Columbia (through adoption legislation) and Ontario (through an adoption court ruling). By decade’s end, particularly with the Supreme Court’s M v H ruling, there seemed little room to discriminate formally in the parenting realm, making Canada the first country in the world to have moved significantly on this front. There was still room for prejudice to enter into parenting decision-making, through fostering and adoption placements, but even here we can see evidence of change in several of the large social service agencies across the country.

Marriage Rights Marriage now moved towards the front burner. The Ontario Court of Appeal was not the first to extend the right to civil marriage to samesex couples,10 but in 2003 it was the first to declare that its ruling would take effect immediately.11 In 2005, Parliament gave explicit form to what

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courts across the country had been saying, by opening up marriage to same-sex couples.12 The reconstituted Conservative Party, led by Stephen Harper, had campaigned against the move, but the defeat of a resolution to reopen the issue in 2006 closed the book on it. There were leaders and laggards in this story across regions, though the exclusive federal jurisdiction over criminal law and the definition of marriage, and the inclusion of sexual orientation in the Charter’s equality coverage, helped to “nationalize” the story. Even before the late 1990s, when the Supreme Court of Canada provided clarity on these issues, however, there was often more similarity than difference between provinces and major cities. Toronto, Montreal, and Vancouver took significant steps on rights at similar times. The British Columbia government took a lead on relationship rights in the early and middle 1990s, but courts in other provinces were soon forcing similar change.

Social and Cultural Shifts Concomitant with workplace and legislative change, public attitudes were also shifting seismically. Until 1990, at least 70 per cent of Canadians thought that homosexual relations were “always wrong” (Rayside 2008). But, as Amy Langstaff (2011) points out, approving responses rose to 48 per cent by 2004, with disapprovers down to 36 per cent, and by 2007, 70 per cent of Canadians thought that homosexuality should be accepted by society. These shifts in attitude became most evident in the ways Canadians began to lean more strongly towards equal rights for sexual minorities. By the mid-2000s, over 90 per cent favoured equal rights for lesbians and gays in regard to job opportunities, about twothirds supported civil unions for same-sex couples, and well over half favoured civil marriage. Adoption rights evoked more ambivalence, with the population about evenly split, but this too represented an enormous change over the previous twenty years. Overall, observers of survey data point out that attitudes have shifted more rapidly on questions related to the public recognition of sexual diversity than on any other major policy area (Langstaff 2011; Nevitte and Cochrane 2007; Matthews 2005; Rayside 2008). The public face of sexual diversity still tends to reflect the uneven spread of privilege and choice across social class, gender, and ethnic and racial lines, but even here we see important changes in the look of commercial establishments catering to sexual minority clientele, and media representations. Notable as well is the fact that all of the country’s

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major cities have visible LGBT communities and large annual “pride” celebrations. Toronto, Montreal, and Vancouver rank among the most gay-inclusive cities in the world, and even cities in otherwise more conservative regions of the country are not that far behind. Urban media outlets across the country have to a large extent routinized a positive representation of sexual minorities in news programming and drama (Rayside 2008). The Equity Landscape Still to Travel As noted above, gays, lesbians, bisexuals, and, to a much lesser degree, transsexuals have achieved many gains in the past quarter-century without being included in the EEA. The constitutional inclusion of sexual orientation, along with the level of legislative support now available to sexual minorities, are unquestionably significant developments and have had a profound impact on workplace policies. Most of these advances have been achieved by grit and persistence on the part of the activist community and we will never know if it would have been easier, quicker, or different if the LGBT community had been included under the umbrella of the EEA. The question that emerges is whether the LGBT minority would benefit from being included in the EEA if it were to be revised. In order to answer this question we consider what discriminatory and inequity issues remain for sexual minorities and then assess if the EEA is the right vehicle to assist in addressing these problems. First we consider what equality issues remain current for LGBT people.

Economic Disadvantage An accurate assessment of the economic disadvantage for LGBT people is difficult to obtain. Unlike more obvious characteristics such as race and gender, individuals who belong to a sexual minority may opt to remain invisible, and their sexuality information does not necessarily show up in databases looking at wages and other economic indicators. In fact, until recently, there was little effort to collect and systematically compare the economic outcomes for the sexual minorities versus heterosexuals. The first reliable study was undertaken by Badgett (1995), who found in the United States that gay men earned less than heterosexual men, and that lesbians earned about the same or slightly more than heterosexual females. Since then, other studies in the United States (Cain and Leppel 2001), and studies in the United Kingdom (Arabsheibani et al. 2005),

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the Netherlands (Plug and Berkhout 2004), and Sweden (Ahmed and Hammarstedt 2009) have confirmed this finding. Carpenter (2008) has published the only systematic study so far in Canada, using data from the Canadian Community Health Survey, and found that gay men had 12 per cent lower personal incomes and lesbians had 15 per cent higher personal incomes than their heterosexual counterparts. Carpenter concluded that differences in labour force patterns were able to explain some, but not all, of the income differences. In particular, he concluded that gay men tended to work fewer hours than their heterosexual counterparts, and lesbians tended to have much higher full-time employment and to work more hours than their counterparts. In a British study of academics, Frank (2006) found no evidence to suggest that gays and lesbians had a wage disadvantage, but he did find that gay men suffered from a glass ceiling similar to that experienced by heterosexual women in that they were under-represented in senior administrative appointments. There is no reason to expect anything different in managerial-level employment in Canada, and the scarcity of high-profile senior executives who are openly lesbian, gay, or bisexual is testament to that. Clearly, this is an issue that calls out for more extensive analysis. Even less attention has been given to the economic disadvantage for transgendered individuals. One exception is an American study by Schilt and Wiswall (2008), who looked at the workplace outcomes of people who underwent a change in gender through hormone treatments and surgery. They found that average earnings increased slightly for people who underwent female-to-male transitions, and that these people experienced an increase in respect and authority, dramatically sustaining evidence that gender matters at work. In contrast, earnings fell by close to a third for people who underwent male-to-female transitions, and this was often accompanied by loss of authority, harassment, and termination.

Halting and Uneven Legal Protection for Transgendered People Sustained activism on transgender issues arose in the mid-1990s in both Canada and the United States (Currah, Juang, and Price Minter 2006). However, the gains since then have been uneven. In 1998 a major milestone in the recognition of transsexual rights occurred when the Quebec Provincial Court upheld a complaint by a transsexual person that she had been unfairly refused service in a restaurant (Quebec v Anglsberger).13

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The Court ruled that transsexuals were protected under the category of “civil status.” In 2002, the Northwest Territories became the first jurisdiction to specifically include “gender identity” in its human rights legislation, followed by Ontario, Manitoba, and Nova Scotia in 2012, and Newfoundland in 2013. Since then, several provinces have adopted a policy of including gender identity under the grounds of sex or gender in their human rights codes, but have failed to be more specific, even though tribunals, advisory councils, and activists have recommended otherwise. Hunt and Eaton (2007) report that between 1998 and 2004 there were at least eight human rights tribunal decisions related to transsexual issues. The best-known of these is Vancouver Rape Relief Society v Nixon.14 In this case, Kimberly Nixon, a transgendered woman, complained of discrimination when she was denied the opportunity to participate in rape counselling services offered by the Vancouver Rape Relief Society. Nixon ultimately lost in a ruling by the Supreme Court of British Columbia,15 affirmed by the Court of Appeal,16 even though both courts reaffirmed that protection against discrimination on the basis of “sex” included a prohibition against discrimination based upon “transexualism” under the British Columbia Human Rights Code.17 Medical coverage related to transsexual health is available only unevenly across Canada. Assistance with sex reassignment surgery is incomplete in all jurisdictions, and Alberta went so far as to delist what services it did provide. Most provinces set up approval hurdles that make it extremely difficult to access the coverage that is available. In Ontario, for example, the regulatory controls over access to the surgery itself are so onerous as to prevent virtually all claimants from gaining state-funded access to surgery, even after the provincial government relisted it for coverage in 2008 (Stratigacos 2009). Most workplaces have been unreceptive to the needs of transsexuals. Many trans people are essentially excluded from the workforce because they do not conform to gender norms, and not surprisingly, there is evidence of extremely high unemployment and prostitution among transsexual people in the United States (Currah, Juang, and Price Minter 2006). Even in those areas where some progress has been made in protecting transgendered people from discrimination, we would expect no significant differences in Canadian outcomes. Activists have called for protection from harassment by co-workers, managers, and customers, and to be included in private insurance health benefit plans to cover procedures not listed by provincial health plans. They have also made demands on other issues such as dress codes,

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washroom policies, and sick leave accommodations when transitioning. However, most supplementary health insurance plans available as an employment benefit continue to be weak in coverage for the medical and psychological needs of transsexuals. Hunt and Eaton (2007) also found most unions had been slow to take up transgender issues. They found that the largest number of workers covered were in the automobile sector, where the Auto Workers had negotiated a letter of understanding with Ford, General Motors, and Daimler Chrysler in 2002 that recognized gender identity as a prohibited ground of discrimination. The most comprehensive collective agreement language has been negotiated by a Canadian Union of Public Employees local representing teaching assistants and part-time faculty at York University. This collective agreement prohibits discrimination against transgendered workers and provides partially paid transition leave related to sex reassignment surgery.

Uneven Workplace Commitment It is now unlawful to discriminate against gays and lesbians in all matters related to employment. Does this mean it does not happen? In fact, there is remarkably little concrete evidence of the extent of change in the workplace experience of sexual minorities. To what extent are formal non-discrimination and equal opportunity policies applied? To what degree are sexual minority employees and managers comfortable enough about their colleagues’ reactions to be as fully out about their sexuality as are straight colleagues? What are the differences in urban and rural settings and across various sectors? These kinds of questions still remain largely unanswered in the absence of research. We learn little about the workplace impact of the legal gains on sexual diversity from grievances and labour arbitration awards. Those formal routes were important historically in making earlier claims and helped push constitutional jurisprudence towards a rejection of explicit discrimination. Not all were successful, but some of them took advantage of non-discrimination language in collective agreements before the courts moved unequivocally to accept sexual orientation as an “analogous” ground under the Charter’s section 15 (e.g., in Lorenzen18 and Canada Post [Kelleher]),19 and provincial legislatures amended their human rights legislation to include it. Since the legal shift, there have been few significant cases. Their absence may speak not to the absence of potential cases, but to the reluctance of potential claimants to be public.

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The picture that does emerge is that there are varying levels of commitment and unevenness in response. One of the best ways of understanding this is to consult a U.S. source – the Human Rights Campaign’s (HRC) Corporate Equality Index.20 Each year, the HRC undertakes a survey of American corporations to determine the best employers for LGBT workers. The criteria they use include formal non-discrimination policies, but more importantly, measures such as: • Supervisory training that includes gender identity and sexual orientation; • Integration of gender identity and sexual orientation in leadership training; • Gender transition guidelines with supportive restroom and dress code policy; • Anonymous employee climate surveys with the option to identify as LGBT; • Data collection that includes optional questions on sexual orientation and gender identity, as well as race and gender; and • Senior management/executive performance indicators that include LGBT diversity metrics. In 2002 only thirteen companies received full marks (100 points) on the HRC metrics (of 319 surveyed), using a much less rigorous standard for attaining full marks. By 2010, of the 1662 companies asked to complete the survey, 615 organizations volunteered information, and of that group, 337 achieved full marks (20 per cent of the total surveyed). It is reasonable to guess that very few, if any, additional high-ranking results would have come from the 1047 firms that declined to respond. Some companies, like Exxon Mobile, received a score of zero. This result would have little parallel in Canada, since Mobile’s refusal to allow even the most basic of rights would be unlawful in this country. But the fact that companies like Walmart receive a rating of 40 out of 100 for doing little more than having a non-discrimination policy, albeit one that excludes gender identity, would have counterparts in Canada. Corporations in Canada who pioneered the adoption of inclusive policies toward sexual orientation and gender identity did so no earlier than their large American counterparts, and until the constitutional law on the question was clarified, they proceeded at no faster a pace than in the United States (Rayside 2008). As a result, there is no reason to believe that the proportion of Canadian businesses that go beyond legal requirements varies

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significantly from the patterns reported for American firms. A good example is Imperial Oil, which actively resisted extending benefits to same-sex couples, complying only when required by law to do so. There is also no evidence to suggest that firms such as Walmart Canada exceed legal requirements, and no evidence that it goes any further than its American headquarters operations in creating an inclusive, welcoming, and equitable environment for its LGBT workers. Also, if we look at public sector institutions that are most clearly infused with a masculine culture, such as police, firefighting, and corrections organizations, we have no reason to believe they have instituted equity initiatives for sexual minorities that move any distance beyond the legal requirements. That said, some police forces have made attempts to recruit within the LGBT community, but the results of these initiatives are not made public. As in the United States, however, some Canadian workplaces have gone out of their way to welcome gays and lesbians as part of a larger business strategy to acquire the best talent available.21 Many hi-tech organizations and most of the banks fall into this category. IBM, for example, has a full-time staff member whose job is to advise managers worldwide on LGBT issues. IBM also keeps track of the number of its openly LGBT workers and sets goals for reaching targets throughout its system, and in particular in its senior management ranks (in a similar process to that outlined in the EEA). IBM also undertakes extensive educational programming to make sure that LGBT employees are not shunned or handicapped by prejudice after being hired. Similarly, the TD Canada Trust Bank targets the LGBT community in some of its hiring strategies, keeps a numerical count of “out” workers at all levels, fosters extensive educational programming, and financially supports LGBT community events such as the Toronto Pride festival. Another good example is the University of Toronto, which has a sexual and gender identity diversity officer whose job is to generate LGBT-positive initiatives for staff and students, and to work in tandem with other equity officers at the university to ensure that sexual minorities’ concerns are on the table.

Other Issues While the majority of Canadians have mostly positive attitudes towards the LGBT community, surveys continue to highlight a persistent pattern of disapproval and prejudice. In her overview of public attitudes to homosexuals over the past twenty years, Langstaff (2011) underscores the fact that there remains a core of opposition to all forms of public

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recognition of homosexuality – in her words, the “adamant one-third.” In many cases, religious faith is an important contributor to this oppositional one-third (Wilcox and Iida 2011; Kinnaman 2007; Warner 2010). Organized opposition to rights claims in Canada is often spearheaded by groups associated with evangelical Protestantism or conservative Catholicism. Even at a stage when so many equity claims have been secured by LGBT claimants, evangelical and Catholic groups have supported litigation to preserve the right to discriminate on the basis of sexual diversity. They have, for example, fought for the right of state-licensed marriage commissioners to refuse to serve same-sex couples on grounds of religious conscience22 (MacDougall and Short 2010), and for the right of religion-based organizations to impose on all employees behaviour codes that prohibit homosexual activity.23 Indeed, it is hard to avoid the conclusion that conservative Christian advocacy groups are using the right to exclude sexual minorities and homosexual activity as the leading wedge of a campaign to take maximal advantage of religious rights under the Charter. LGBT people, then, are being framed as the preeminent threat to the rights of faith groups. The degree to which workplaces that are religion-based – schools, colleges, social service agencies, places of worship – have the right to impose employment limitations and exclusions on members of the LGBT community is still a grey area. Canadian jurisprudence on such questions is complex, but it is clear that there is room for some institutions to impose those kinds of restrictions on at least some employees (Esau 2000; Moon 2009; Rayside 2011). For example, human rights legislation in Ontario, British Columbia, and other jurisdictions – while prohibiting discrimination in employment on protected grounds – does provide some religionbased exemptions. A Christian university has the right to have its teacher education credentials recognized even though it prohibits homosexual activity among its students, as long as there is no evidence of its former students discriminating on the basis of sexual orientation when they teach (Moon 2011).24 A Catholic, Sikh, or Jewish school would be able to restrict some or all of its employment to “co-religionists” and may also have some rights to impose behaviour codes. This should not be taken to imply that all faith groups would wish to discriminate against sexual minorities. Some denominations, such as the United Church of Canada, explicitly support LGBT people, and in several other denominations the rights of openly LGBT people to serve as clerics or to have their relationships blessed is under active consideration. Even among evangelicals there are indications of important shifts

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in attitudes towards sexual diversity among younger people (Wilcox and Iida 2011). Another challenge in confronting anti-LGBT prejudice is that most schools still ignore sexual diversity. Some school boards include sexual orientation, and sometimes gender identity, in their non-discrimination policies, and some have policies to confront the anti-gay taunting and bullying that still so dominates school hallways, yards, and especially gyms (Rayside 2008; Short 2010; Egale 2009). A few go considerably beyond that in formal policies designed to incorporate sexual diversity and equity into the curriculum and the school climate. As recently as 2010, the Ontario government felt compelled to “rethink” a new sex education program that included reference to same-sex families as early as grade three, and homosexuality in grade six, in response to protests from parents and religious leaders (Benzie 2010). What this means is that many children and young adults continue to experience silence about sexual difference and diversity. This helps to perpetuate fears about coming out, especially in those communities in which publicly inclusive voices are scarce, and helps to create a sense that this group is not normal. These attitudes are easily carried over to working environments later in life. Solving LGBT Inequities Unquestionably, the LGBT community has seen many legal and equality advances, without inclusion in the EEA. Activists from the 1970s onward targeted the workplace as a critical site for change so that sexual minorities who came out would not experience discriminatory practices in hiring, promotions, wages, and benefits. By the second decade of the 2000s, a number of high-profile organizations had voluntarily gone much further than required in creating more inclusiveness among employees, including the full incorporation of sexual diversity within their own employment equity programs. Most, however, have not taken this important step. Even among universities, which have so often been at the forefront in developing LGBTinclusive workplace policies, the explicit inclusion of even a token measure such as an LGBT reference in the employment equity provisions of job postings is rare. Few institutions in Canada have taken steps to measure how many people in their employ are open or not open about their sexuality in the workplace. As a result, there is no reliable survey information about the distribution of LGBT people within sectors

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and occupational categories, and no reliable indication of how equitably LGBT people are treated. There is nothing to prevent organizations under EEA jurisdiction from extending the employee surveys they use to comply with that legislation in ways that include LGBT employees, but very few have done so. There is little enough indication of how many workplaces have moved even partially towards the inclusion of sexual diversity in employment equity policy. There is even less evidence for whether an institutional commitment to formally include it has been translated into practice at all levels and divisions. There is no single script, nor can there be, for how to incorporate sexual difference into employment equity frameworks at the institutional level, and no standard operating procedure. There is also, as yet, no critical systematic evaluation of strategies, and no consensus on what indicators of success are appropriate. An expansion of the numbers of institutions recognizing sexual diversity in their own employment equity frameworks, and the inclusion of this dimension in the EEA, will help expand the conversation about how to address these issues with the nuance they require. The stated purpose of the EEA is “to achieve equality in the workplace so that no person shall be denied employment opportunities or benefits for reasons unrelated to ability.” There is continuing deep prejudice against sexual minorities within a sizeable minority of Canadians, and there can be no doubt whatever that this translates into wellgrounded fears about full disclosure among many LGBT job-seekers and employees, particularly transgendered ones. In this sense, there seems no logical reason to exclude sexual minorities from the EEA. Even if an important core of the challenge still facing them is attitudinal, the same is true for all groups now covered by the legislation. No statute on its own can change opinions and attitudes, but the EEA provides an important instrument for normalizing acceptance. Few workplaces will have anyone who is openly different on grounds of sexual orientation or gender identity. And because homophobic language has been accepted for so long as normal in social circles, and treated as routine in most Canadian schools, few well-meaning allies feel comfortable with the language of sexual diversity. Legislative recognition under an employment equity framework would help in providing that language. The EEA states that in order to effect its goal of equity, it aims to “correct the conditions of disadvantage in employment experienced by women, aboriginal peoples, persons with disabilities and members of visible minorities by giving effect to the principle that employment equity

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means more than treating persons in the same way but also requires special measures and the accommodation of differences.” This objective has no less bearing on the experience of LGBT people: in fact their specific exclusion suggests that the equity problems experienced by this group are less important than those faced by the designated groups. The challenges faced by sexual minorities are often about visibility and seldom about numerical under-representation, since the option of “the closet” allows many LGBT people to work by concealing their difference. This kind of complexity is frequently used to argue that the EEA is an inappropriate mechanism for responding to inequities associated with sexual diversity. Instead, though, we argue that the distinctive features of this equity issue signal the need to reconceptualize the EEA. As it stands, the EEA emphasizes numerical representation to the exclusion of other factors that reflect and perpetuate inequity. From the beginning, conversations about equity have been limited by this emphasis. The inclusion of LGBT people in the EEA would force a reconsideration of the numerical target framework. The “counting” approach is in fact limited for the groups already designated by the EEA. First, invisibility is not restricted to LGBT employees. Many people with disabilities and some of those who could identify with a minority racial group do not have obvious visible markers, and it is easy to imagine that some would opt not to so identify to avoid being “categorized.” Second, the numerical approach can easily sidestep “intersectionality” – the particular locations and challenges facing those who fall into multiple categories (such as a person who is a racial minority, has a disability, and is female). And perhaps most serious of all is the risk that a “counting” framework will imply that if employee numbers match the surrounding population, the equity challenge has been satisfactorily addressed. Authentic equity initiatives require an examination not only of how some groups are marginalized, denigrated, and violated, but also how some groups are favoured by being “normalized.” The workplace does not stand outside social structures and prejudices that maintain privilege. The insidious processes of marginalizing some groups and advantaging others are maintained by social structures that include schools and the workplace. This needs an expansion of strategies for achieving equity, and a radical expansion of the framework deployed by the EEA. Should the LGBT community be inserted into the EEA? Our conclusion is that it should. At the same time, the equity issues facing this community speak to the need for an even more significant overhaul of the

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act. We argue for revisions to the act to make it less count-oriented, more educational in mandate, and less focused on designated groups. The complexity of issues related to equity in the workplace calls for a much more sophisticated approach than what was conceived nearly thirty years ago when the EEA was established.

NOTES 1 Employment Equity Act, SC 1995, c 4 [EEA]. 2 RSO, 1990, c H19. 3 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. 4 We use the term partial, since the decriminalization allowed for consensual same-sex activity in private, but at the same time set the age of consent to twenty-one, higher than that for heterosexual sex. 5 Vriend v Alberta, [1998] 1 SCR 493. 6 This section is adapted from Hunt and Eaton (2007). 7 Canada (Attorney General) v Mossop (1990), 71 DLR (4th) 661. 8 Egan v Canada, [1995] 2 SCR 513 [Egan]. 9 M v H, [1999] 2 SCR 3 [M v H]. 10 See Hendricks c Québec (Proc gén), [2002] RJQ 2506. 11 See Halpern v Canada (Attorney General) (2003), 65 OR (3d) 161. 12 Civil Marriage Act SC 2005, c 33. 13 Commission des droits de la personne du Québec v Anglsberger (1982), 3 CHRR D/892 (PC). 14 [2001] BCHRTD 1. 15 2003 BCSC 1936, 22 BCLR (4th) 254. 16 2005 BCCA 601, 262 DLR (4th) 360. 17 RSBC 1996, c 210. 18 Lorenzen and Treasury Board (Environment Canada) [1993] CPSSRB No 165 [Lorenzen]. 19 Canada Post Corp. v Public Service Alliance of Canada (Government Grievance) (Kelleher), [1994] CLAD No 220. 20 Information for this section comes from Human Rights Campaign Foundation’s Corporate Equality Index reports (e.g., 2014). 21 Material in this section was obtained through field work by one of the authors. 22 Nichols v MJ, 2009 SJ QB 299, 10 WWR 513. 23 In Heintz v Christian Horizons, 2008 HRTO 22, OHRTD No 21, the Ontario Human Rights Tribunal ruled against a code of conduct imposed on its

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employees by Christian Horizons, a group that supports group homes for the developmentally challenged, although an appeal resulted in a partial reversal of that ruling (see Ontario (Human Rights Commission) v Christian Horizons 2010 ONSC 2105, 319 DLR (4th) 477). 24 This was the core issue in Trinity Western University v College of Teachers, decided by the Supreme Court of Canada in 2001.

REFERENCES Ahmed, Ali, and Mats Hammarstedt. 2009. “Sexual Orientation and Earnings: A Register Data-Based Approach to Identify Homosexuals.” Journal of Population Economics 23 (3): 835–49. Arabsheibani, G. Reza, Alan Marin, and Jonathan Wadsworth. 2005. “Gay Pay in the UK.” Economica 72 (286): 333–47. Badgett, Lee. 1995. “The Wage Effects of Sexual Orientation Discrimination.” Industrial & Labor Relations Review 48 (4): 726–39. Benzie, Robert. 2010. “Ontario to Start Over with Sex-Ed Curriculum.” Toronto Star, 26 April. Cain, Suzanne Heller, and Karen Leppel. 2001. “An Investigation into Sexual Orientation as an Explanation for Wage Differences.” Applied Economics 33 (1): 37–47. Carpenter, Christopher. 2008. “Sexual Orientation, Work, and Income in Canada.” Canadian Journal of Economics / Revue canadienne d'économique 41 (4): 1239–61. Currah, Paisley, Richard M. Juang, and Shannon Price Minter, eds. 2006. Transgender Rights. Minneapolis: University of Minnesota. Egale. 2009. “Youth Speak Up about Homophobia and Transphobia: The First National Climate Survey on Homophobia in Canadian Schools, Phase One Report – March 2009.” http://www.egale.ca/all/phase1/. Bruce MacDougall, Bruce, and Donn Short. 2010. “Religion-Based Claims for Impinging on Queer Citizenship.” Dalhousie Law Journal 33 (2): 133–60. Esau, Alvin. 2000. “Islands of Exclusivity: Religious Organizations and Employment Discrimination.” University of British Columbia Law Review 33 (1999–2000): 719–827. Frank, Jeff. 2006. “Gay Glass Ceilings.” Economica 73 (291): 485–508. Herman, Didi. 1994. Rights of Passage: Struggles for Lesbian and Gay Legal Equality. Toronto: University of Toronto Press. Human Rights Campaign Foundation. 2014. Corporate Equality Index 2014: Rating America’s Workplaces on Lesbian, Gay, Bisexual and Transgender Equality.

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Washington DC. http://www.hrc.org/campaigns/corporate-equalityindex. Hunt, Gerald, ed. 1999. Laboring for Rights: Unions and Sexual Diversity across Nations. Philadelphia, PA: Temple University Press. Hunt, Gerald, and Jonathan Eaton. 2007. “We Are Family: Labour Responds to Gay, Lesbian, Bisexual and Transgender Workers.” In Equity Diversity and Canadian Labour, ed. Gerald Hunt and David Rayside, 130–55. Toronto: University of Toronto Press. Kinnaman, David. 2007. Unchristian: What a New Generation Really Thinks about Christianity – and Why It Matters. Grand Rapids, MI: Baker Books. Kinsman, Gary. 2000. “Constructing Gay Men and Lesbians as National Security Risk, 1950–1970.” In Whose National Security? Canadian State Surveillance and the Creation of Enemies, ed. Gary Kinsman, Dieter Buse, and Mercedes Steedman, 143–53. Toronto: Between the Lines. Langstaff, Amy. 2011. “A Twenty-Year Survey of Canadian Attitudes on Homosexuality and Gay Rights.” In Rayside and Wilcox, Faith, Love and Politics in Canada and the United States, 49–66. Matthews, J. Scott. 2005. “The Political Foundations of Support for Same-Sex Marriage in Canada.” Canadian Journal of Political Science 38 (4): 841–66. Moon, Richard, ed. 2009. Law and Religious Pluralism in Canada. Vancouver: University of British Columbia Press. – 2011. “The Supreme Court of Canada’s Attempt to Reconcile Freedom of Religion and Sexual Orientation Equality in the Public Schools.” In Rayside and Wilcox, Faith, Love and Politics in Canada and the United States, 321–38. Nevitte, Neil, and Christopher Cochrane. 2007. “Value Change and the Dynamics of the Canadian Partisan Landscape.” In Canadian Parties in Transition, 3rd ed., ed. Alain-G. Gagnon and A. Brian Tanguay, 255–76. Peterborough, ON: Broadview. Petersen, Cynthia. 1999. “Fighting It Out in the Canadian Courts.” In Laboring for Rights: Unions and Sexual Diversity across Nations, ed. Gerald Hunt, 37–57. Philadelphia, PA: Temple University Press. Plug, Eric, and Peter Berkhout. 2004. “Effects of Sexual Orientation on Earnings in the Netherlands.” Journal of Population Economics 17 (1): 117–31. Rayside, David. 1998. On the Fringe: Gays and Lesbians in Politics. Ithaca, NY: Cornell University Press. – 2008. Queer Inclusions, Continental Divisions: Public Recognition of Sexual Diversity in Canada and the United States. Toronto: University of Toronto Press. – 2011. “Cross-Border Parallels at the Political Intersection of Sexuality and Religion.” In Rayside and Wilcox, Faith, Love and Politics in Canada and the United States, 357–74.

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Rayside, David, and Clyde Wilcox, eds. 2001. Faith, Love and Politics in Canada and the United States. Vancouver: University of British Columbia Press. Schilt, Kristen, and Matthew Wiswall. 2008. “Before and After: Gender Transitions, Human Capital, and Workplace Experiences.” Journal of Economic Analysis and Policy 8 (1): 1–39. Short, Donn. 2010. “Conversations in Equity and Social Justice: Constructing Safe Schools for Queer Youth.” Journal for Critical Education Policy Studies 8 (2): 329–57. Smith, Miriam. 1998. Lesbian and Gay Rights in Canada: Social Movements and Equality-Seeking. Toronto: University of Toronto Press. – 2008. Political Institutions and Lesbian and Gay Rights in the United States and Canada. New York: Routledge. Stratigacos, Nikki. 2009. “Sex for Sale: Prostitution, Government and Regulation.” Paper presented to Sexual Diversity Studies Student Union Conference, University of Toronto, March. Warner, Tom. 2002. Never Going Back: A History of Queer Activism in Canada. Toronto: University of Toronto Press. – 2010. Losing Control: Canada’s Social Conservatives in the Age of Rights. Toronto: Between the Lines. Wilcox, Clyde, and Rentaro Iida. 2011. “Evangelicals, the Christian Right, and Gay and Lesbian Rights in the United States: Simple and Complex Stories.” In Rayside and Wilcox, Faith, Love and Politics in Canada and the United States, 101–20. Woods, James. 1993. The Corporate Closet: The Professional Lives of Gay Men in America. New York: Free Press.

Chapter 8

Remedying the Experiences of Vulnerable Workers: Links with Employment Equity PAT R I C I A H U G H E S

Since coined by Rosalie Abella thirty years ago,1 employment equity has entered the common parlance as a home-grown Canadian concept, one that reflects the underlying principles of Canadian equality-oriented culture. It is intended to convey recognition of the importance of proactive responses to the evolving redefinition of our pluralist society and allows for a flexibility of boundaries and growth. Employment equity has become part of equality rights discourse. The governing principle of human rights and fairness in the workplace and elsewhere is threaded throughout “how we do things,” not only in institutions and programs such as human rights legislation and commissions, pay equity, or more recent legislation such as the Accessibility for Ontarians with Disabilities Act, 2005, which is directed at remedying specific forms of discrimination, but more broadly. It is honoured more often in the breach than in the observance, perhaps, but it continues to be a defining principle. In the employment context, employment equity has played that role, affecting how we structure and staff the workplace, even without the requirements imposed by legislation. It is the conceptual framework underlying employment equity that informs my discussion here. I suggest that a more direct assessment of and response to difficulties arising from precarious work needs attention if we are to improve fairness in the workplace. Although different from employment equity, this kind of assessment and response does reflect the underlying principles that govern employment equity. However, employment equity is only one fork of the multipronged approach to remedying economic inequality, much of which comes from workplace inequality. Thus pay equity, for example, also addresses discrimination in the workplace but is limited to a particular (significant) condition

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of work (wages) and a single form of discrimination (sex discrimination). Pay equity and employment equity address different aspects of the workplace, yet both explicitly acknowledge a particular structural form of discrimination against members of specified groups, and both are “affirmative action” remedies with the potential to contribute to the achievement of substantive equality. What I will call the “precarious work” approach also reveals patterns of negative working conditions that disproportionately affect particular groups of workers, the same groups as identified for purposes of employment equity (in the context of the precarious work approach, these workers are “vulnerable workers”). The identification of these groups helps to illuminate the complex nature of precarious work, but changes to the conditions of the work would not affect only those groups. The Law Commission of Ontario (LCO) has released a final report in its project on vulnerable workers and precarious work (Law Commission of Ontario 2012).2 Addressing the conditions of precarious work and thus of vulnerable workers is an ongoing “equality project,” of which employment equity is a part, as is pay equity. This chapter uses employment equity principles to help illuminate the underlying principles of the “vulnerable workers” approach. The situation of these workers, whose precarious relationship with employment often leaves them – explicitly or by effect – outside the legal and human rights protections afforded Canadian workers who enjoy “standard employment,” remains part of the unfinished business of Canadian substantive equality policy. A fuller understanding of the sociological impact of precarious work requires identifying the nature of the work and knowing who tends to perform this kind of work, that is, the characteristics of “vulnerable workers,” and raises the consequences of doing precarious work for extended periods, if not for one’s whole working life in Canada. Employment equity is based on the premise that the disproportionately low numbers of people of certain communities to use the employment equity categories in certain types of jobs and in certain kinds of positions can be attributed to systemic discrimination, to factors unrelated to the capacity of these individuals to do the work required. For employment equity, these groups are women, visible minorities, persons with disabilities, and Aboriginal peoples. Not surprisingly perhaps, as the LCO’s final report observes, Although anyone may be precariously employed, precarity is more likely to affect workers in “already marginalized social locations” [Fudge, Tucker,

178 Patricia Hughes and Vosko 2005, 7]. This includes women, single parents (who are disproportionately women), racialized groups, new immigrants, temporary foreign workers, Aboriginal persons, persons with disabilities, older adults and youth. The link between marginalized workers and precarious employment is partly explained by their difficulty accessing higher education and skills training [Xue 2007, 13–16; Goldring and Landolt 2012]. It is also significant that they are more often employed in temporary and/or part-time jobs. However, even among those in full-time permanent positions, women, visible minorities and recent immigrants are more likely to hold precarious jobs than others [Noack & Vosko 2011, 32]. (LCO 2012, 19)

The LCO project itself focused on women and members of racialized groups,3 including recent immigrants, although concern about vulnerable workers is more general, unlike either employment equity or pay equity. But the LCO project shares with both employment and pay equity the view that “the inclusion and exclusion from regulatory protection of certain people is not coincidental but in fact the outcome of ongoing social processes … through which social significance is assigned to human characteristics of identity” (LCO 2010, 14). What Is Precarious Work? The LCO’s final report defines “precarious work” as “characterized by lack of continuity, low wages, lack of benefits and possibly greater risk of injury and ill health … Measures of precariousness are level of earnings, level of employer-provided benefits, degree of regulatory protection and degree of control or influence within the labour process … The major types of precarious work are self-employment, part-time (steady and intermittent) and temporary” (LCO 2012, 10, citing LCO 2010, vi). Precarious work has also been called “non-standard” work, the assumption being that standard or “good” work is steady, long-term, well-paid work with “non-cash” benefits as part of the compensation, while nonstandard or “bad” work is work that is short-lived, ill-paid, and without benefits (Economic Council of Canada 1990, 1). Other terms used are atypical and contingent. This distinction is somewhat artificial, however, since the structure of work and the expectations of workers about longterm commitment to particular work have changed over the last quartercentury. Accordingly, the use of these terms must always be placed in a flexible context. The LCO project addresses work that by its structure is precarious. The work may be dangerous, but not necessarily precarious.

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Workers engaged in this kind of work have little or no job security, earn low wages, and receive few benefits, if any. They are rarely unionized and therefore must rely on the Employment Standards Act and similar legislation to establish and enforce their rights. While precarious work is often temporary or casual or part-time, it may also be full-time. About 33 per cent of part-time workers are in positions with low wages, no union, and no pension, as are almost 9 per cent of full-time employees (Noack and Vosko 2011, 17). The LCO’s final report concluded that approximately 22 per cent of jobs in Ontario are “precarious” (LCO 2012, 15–16). However, it has been claimed that 33 per cent of paid work exists outside the standard employment relationship (Noack and Vosko 2011, 12; Kapsalis and Tourigny 2004, 5), rising to about 45 per cent for single mothers (Prince 2009, 10, citing Kapsalis and Tourigny 2008). The most common forms of precarious work are temporary employment, self-employment, and part-time employment. Temporary employment comprises over 12 per cent of employment in Canada (Fuller and Vosko 2008, 31–2), and self-employment about 15 per cent (Cranford et al. 2005, 9; this figure indicates the level in 2000 and may have increased since then). Certainly some people who are self-employed choose to be, because they prefer the entrepreneurial life; others, however, may be better described as “own-account” self-employed, since the conditions of their work make them seem more like employees. Self-employed workers are less likely to be eligible for employment insurance benefits or other social programs (Prince 2009, 10). Work is structured this way primarily to provide flexibility for both employers and employees. Employers do not always require the same number of employees, for example. Some people prefer to work parttime or on a casual basis in order to pursue other interests. There may be occasions, however, when an employer structures the work with the intention of avoiding the obligations imposed by regulatory regimes. Furthermore, even if employees choose to work part-time or sporadically because it is convenient for them, this does not mean that they also choose to waive rights to fairness in the workplace, nor does it always mean that the choice is one that is not dictated by societal norms and a failure of societal support. There is a difference between the individual who wants to be free to travel or to pursue other activities and simply wants to earn enough money to do so, and the person who is trying to balance family responsibilities and work.

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In many cases, workers move from this kind of work to more stable and well-paid work; precarious work permits them to gain a foothold in the workplace. In other cases, however, workers experience no such movement out of vulnerable work. A Statistics Canada study found that “more than half (54 per cent) of the 5.0 million people in non-standard jobs in 1999 maintained this form of employment throughout the following two years” (Kapsalis and Tourigny 2004, 6). The longer that one is in precarious employment, the harder it is to move out of it. On the basis of a study of 300 Latin American and Caribbean immigrant workers in the Greater Toronto Area, Goldring and Landolt (2012) found that the quality of employment and the nature of legal status is a significant predictor of the quality of work, not only when immigrants enter Canada, but also in the future, even if workers acquire permanent status. They also found that English language proficiency and race had an impact on the nature of work. (Changes to immigration requirements for skilled workers – who might become vulnerable workers in Canada – giving more points to French or English language proficiency are directed at this difficulty and the broader issue of integration into Canadian society [Citizenship and Immigration Canada 2012b].) They refer, too, to informal employment arrangements that place workers outside the range of protective regulatory regimes. They observe, “The permanence of temporariness cannot be ignored; precarious status migrants are part and parcel of local labour markets, families, schools, neighbourhoods and communities.” They further note, “Research on the links between immigration and labour market insecurity offers some explanations of how legal status becomes a source of stratification, inequality and worker vulnerability” (Goldring and Landolt 2012, 29; also see Faraday 2012). The examination of precarious work reveals a complex mix of factors. The reality is that employers and employees appreciate the advantages of part-time work, although for different reasons and not necessarily contemporaneously. There are insufficient workers in Canada available or willing to perform all the seasonal work that needs to be done, although different conditions of work might make it more attractive. This is an echo of the possibility that improving wages for women engaged in “women’s work” will result in a migration into that work by men. And there are many people who prefer to be their own boss, although many others bear the brunt of “working for themselves” (such as providing their own tools or equipment) without gaining the benefits. The difficulty lies less in the inherent structure of the work than in its extent,

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the motive for structuring the work this way, and the consequences that flow for the workers who perform it. These workers are disadvantaged not only in their working circumstances, but in many other areas of their lives as a result of the consequences flowing from precarious work. Who Are the Vulnerable Workers? In speaking of “vulnerable workers,” it is crucial to appreciate that this is not meant to suggest that these workers are somehow “weak” or that (to echo Equality in Employment) they are vulnerable because of their own inadequacies. Rather, the term relates to the conditions of their work. As the LCO’s final report explains, “Therefore, vulnerability in this context refers not to the workers themselves but to the situation facing them, both in their work environment and in other aspects of their lives such as their health, their families, their ability to participate in their community and their integration into Ontario life” (LCO 2012, 11). Vulnerable workers are those whose work leaves them with little discretionary income (if any), fear of prolonged illness, poor housing, reliance on food banks, and otherwise living on the margins of society, despite the fact that they may work full-time or work part-time at more than one job. Temporary workers, whether men or women, are disproportionately racialized. Women are disproportionately engaged in part-time work, sometimes from “choice,” although it is not clear what choice means in this context, since women may work part-time because of lack of supports, such as child care, in meeting their family responsibilities. Immigrants constitute a disproportionate number of vulnerable workers, not only on a short-term basis, as they enter the Canadian workforce, but for immigrants from certain countries, on a long-term basis. Those with the highest rates of poverty among the 2000 cohort were immigrants from Asia, and those with the lowest rates were from North America and Europe (Picot, Hou, and Coulombe 2007, 32, 35). While Picot, Hou, and Coulombe note that children of immigrants may not face the same challenges, Golding and Landolt suggest that the research is in disagreement on this point (Goldring and Landolt 2012). Much of the rise in population in Canada occurs only because of immigration. There has been a greater increase in entries to Canada of temporary workers than of permanent residents and a shift in source countries since 1999. For example, although persons from the United States still constituted the greatest number of foreign workers entering Canada in

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2008, their numbers decreased from 1999. The reverse was the case with temporary workers from Mexico, the Philippines, and India, for example (Citizenship and Immigration Canada 2008, 57). However, between 2009 and 2011, the number of temporary workers from the Philippines had decreased by about 50 per cent (Citizenship and Immigration Canada 2011). More specifically, a large category of vulnerable workers are those who come to Canada on federal work schemes, including the LiveIn Caregiver Program, the Seasonal Agricultural Worker Program, and the Temporary Foreign Worker Program (Faraday 2012). Significant changes in workplace structures and dominant types of work, with the loss of the manufacturing sector, for example, make it more difficult for new immigrants to integrate into the workforce. It may take longer than it did for previous cohorts of immigrants to move out of the precarious work that many immigrants have done when they first arrived in Canada, and the longer they are performing precarious work, the harder it is to acquire the training and enhance language skills and to have the time to find other work. As Goldring and Landolt (2009) explain, changes in federal immigration policies and in economic circumstances have affected the economic stability of more recent immigrants, compared to earlier cohorts. Earlier immigrants arrived “during the industrial boom of the post–World II era” and “in the seventies, a period of manufacturing sector growth and of welfare state expansion.” Today, however, there is “a mismatch between the education and skills of immigrants and available jobs; an increasing earnings gap between immigrants and native born workers with comparable human capital, and the racialization of income disparities and of poverty” (2009, 1). It is not only temporary or unskilled workers who struggle, however. A study for Statistics Canada found that “the groups with rising shares of immigrants (the skilled class, the highly educated, two-parent families with children, and the more highly skilled occupations) constituted an increasing share of the chronically poor” (Picot, Hou, and Coulombe 2007, 32). Furthermore, the wage gap between recent immigrants and Canadian-born workers does not appear to decrease to the same extent it did twenty years ago. Similarly, there remains a discrepancy in employment rates between immigrants and Canadian-born workers, even after the immigrants have lived in Canada for ten years, with higher unemployment rates for women (Statistics Canada 2007). Furthermore, even with the recent recessionary economic situation, when unemployment rates have increased for Canadian-born workers, it is likely that they have

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replaced immigrants in low-paying jobs, with the result that the latter are also more likely to be unemployed. There are significant social and personal consequences for workers performing precarious work. Often they work longer hours than considered healthy at the direction of their employer and/or undertake multiple jobs. As a result, they are more vulnerable to ill health, without the benefit of extended health benefits, as well as challenged in establishing good family and community relationships. They face higher risks of work-related injury in physically demanding jobs or in employment situations operating outside the legal framework, with the result that they do not have access to worker rehabilitation and compensation programs. They may be tempted to go in to work when sick rather than taking time to recover because of lack of paid sick days or sick benefits, or because of the employer’s practices about which they are afraid to complain. They may have limited opportunities to develop new skills or time to search for other employment. A lifetime of precarious work leaves older workers with no pension, no discretionary income, possibly minimal social networks, and modest living accommodation as they enter old age. Vulnerable workers are often members of the “working poor,” with all the disadvantages that poverty entails. (Vosko, MacDonald, and Campbell 2009; Goldring and Landolt 2012; Faraday 2012). What Is the Relationship between Employee Protection Regimes and Precarious Work? As a law reform commission with a provincial mandate, the LCO focused primarily on the provincial context. It reviewed the regulatory schemes related to work, such as the Employment Standards Act and the Occupational Health and Safety Act with respect to coverage of types of work and thus accessibility to workers engaged in that work. It is not sufficient that work be covered by protective legislation, however; it is at least equally important to know about the compliance mechanisms and enforcement processes. Complaint-based enforcement is not suitable for people in precarious work: not only might they lack the knowledge and skills to make a complaint, they may be particularly fearful of losing their job. They may be concerned about immigration authorities and repatriation. Although in many respects, forms of “precarious” work are treated in the same way as “standard” work under protective labour and employment legislation, in other respects workers engaged in precarious work are treated differently, or the legislative provisions operate to their

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disadvantage. For example, in Ontario, agricultural employees are subject to a labour relations scheme different from that for most other workers, and domestic workers are completely excluded from the Ontario Labour Relations Act.4 In some cases, the kind of work that these workers engage in makes it difficult to meet statutory requirements, not because they are explicitly excluded, but because they do not work long enough to meet conditions for the protections to apply.5 Vulnerable workers may hold multiple “part-time” – or ever-changing temporary – jobs in order to earn enough to live and as a result may not satisfy requirements of working a specific number of weeks for one employer to qualify for benefits such as employment insurance benefits. Mark Thomas suggests, Employment standards … provide an important indicator of change in contemporary labour markets. In the context of tendencies towards labour market “flexibility,” in particular tendencies created through forms of nonstandard and precarious employment, an analysis of employment standards indicates the character of labour flexibility; it directs attention to the legal framework that establishes the basic standards for “flexible” employment and the role of the state in its regulation. Further, as tendencies towards flexibility have marginalized women workers and workers of colour, in particular … the study of employment standards also provides an important indicator of the gendered and racialized dimensions of employment rights and economic restructuring. (Thomas 2009, 5)

The characteristics of many vulnerable workers make it particularly difficult to enforce the rights that they do have. Enforcement of regulatory rights is difficult for migrant workers who can be “repatriated” by employers, temporary agency workers who may simply not be assigned again by an agency should they complain, paid domestic workers because of the complex relationship with their employer, home workers who are isolated in individual homes, and agricultural workers whose rights to engage in collective action remains limited. In these cases, factors such as immigration status, language, and gender also have an effect on their capacity to use complaint mechanisms to enforce their rights. The conditions of vulnerable workers are not easily categorized; using the nature of work as the unit of analysis and seeking to remedy conditions on a broader level (“the vulnerable workers approach”) does not provide for the superficial clarity of employment equity (or pay equity). Yet the vulnerable workers approach is as much about the patterns of

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inequality that characterize the conjunction of worker and work as are the conditions for which employment equity and pay equity are presented as remedies. Vulnerable Workers: Still Seeking Equality in Employment In the Equality in Employment report, Abella asserted, “To create equality of opportunity, we have to do different things for different people. We have to systematically eradicate the impediments to these options according to the actual needs of the different groups … And we have to give individuals an opportunity to use their abilities according to their potential … The process is an exercise in redistributive justice. Its object is to prevent the denial of access to society’s benefits because of distinctions that are invalid” (Abella 1984, 4). Realistically, she also observed that while “absolute equality” is unattainable, society must “struggle for its achievement” and, at the least, reduce inequality (6). There is no question that Canadian society has changed since the release of the Abella Report. For example, the involvement of women in the labour force has increased over the past twenty-five years. In 1982, the female labour force participation rate was about 52 per cent (and about 77 per cent for men) (Abella 1984, 57), while in 2009, it was about 63 per cent for women (and about 72 per cent for men) (Statistics Canada 2011). Yet Abella’s references to social expectations about the role women should play in the family, and the lack of services for new immigrants, remain valid, even if the context may be somewhat different. For example, while there are settlement services for permanent residents, temporary workers are not entitled to use them for the obvious reason that they are not expected to stay in Canada after their work permit has expired, although they may return to Canada year after year. (It should be noted that temporary foreign workers must leave the country after four years; see Citizenship and Immigration Canada 2012a.) Recent changes to federal immigration policy, however, mean that other temporary workers may be more likely than previously to become permanent residents (Alboim 2009, 7 and 28), and in 2011, more than 29,000 temporary foreign workers acquired permanent resident status (Citizenship and Immigration Canada 2012a). Although efforts have been made to speed up recognition of credentials, difficulties in having credentials recognized and in accessing language training are still problems for immigrants that lead them into precarious work (Lowe 2012). While the parental responsibilities of women and men have changed over the past

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quarter-century, it is still far more difficult for a woman to work outside the home and to fulfil family responsibilities, especially for women who are the sole parent. Thus at least some of what Abella wrote about conditions in 1984 and reforms needed remains true today, and the principles underlying the Equality in Employment report have relevance for an analysis of the vulnerable workers / precarious work situation. The concept of employment equity has become part of equality discourse in Canada. However, no single policy remedy will fully address discrimination in the workplace, nor will one approach address the situation of vulnerable workers. Ensuring fairness in employment requires a multi-pronged approach, the elements of which must be viewed as contributing to a coherent whole that may be informed by common principles. I focus here on the principles that serve as a subtext for employment equity and pay equity and apply them to the situation of vulnerable workers. Possibly the most important point to make at the outset is found in Abella’s statement about the challenge she was addressing in developing means to remedy inequality in employment: “It is not that individuals in the designated groups are inherently unable to achieve equality on their own, it is that the obstacles in their way are so formidable and selfperpetuating that they cannot be overcome without intervention. It is both intolerable and insensitive if we simply wait and hope that the barriers will disappear with time. Equality in employment will not happen unless we make it happen” (Abella 1984, 254). In other words, she concludes that the reasons that people were excluded from certain kinds of work or from particular positions in a workplace lay primarily in social or systemic factors, rather than in the lack of ability or inclination of those who were excluded. It is in the way these factors play out that one begins to see the true nature of the exclusions: “This is why it is important to look at the results of a system. In these results one may find evidence that barriers which are inequitable impede individual opportunity. These results are by no means conclusive evidence of inequity, but they are an effective signal that further examination is warranted to determine whether the disproportionately negative impact is in fact the result of inequitable practices, and therefore calls for remedial attention, or whether it is a reflection of a nondiscriminatory reality” (Abella 1984, 2–3). If looking at the results reveals patterns of exclusion, further examination is warranted. In precarious work, the pattern initially revealed is that

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the workers come disproportionately from particular groups. A further examination is required to determine if this is the result of systemic practices that result in these groups taking these jobs, or whether the answer lies in individual behaviour and skills. The terms of reference for the Abella Commission focused on the four designated groups – women, visible minorities, persons with disabilities, and Aboriginal persons – because they had been the target of longterm discrimination, individual and systemic. They may not have been the only groups, but they remain, after thirty years, those most likely to find themselves in vulnerable work. The research on vulnerable workers also reveals that they are disproportionately women and members of racialized groups, including, but not only, recent immigrants. Employment equity is a response to systemic patterns of the disproportionate exclusion of members of particular groups or communities from certain positions or jobs, that further examination shows cannot be traced to individual conduct or skills. The inference is that the reasons are discriminatory. The structure of the work or workplace, the requirements or methods of evaluation, as well as untested assumptions about capacity, result in exclusion from certain kinds of work or positions for persons in particular groups. Pay equity is a response to finding that the kind of work women have done (in female-dominated occupations) reflects in many cases the assumptions made about women’s role in society (as supportive or nurturing, for example) and that the lower pay for these occupations reflects the lower value placed on these so-called female traits. A review of systemic factors, such as immigration policies and the scope of regulatory review, reveals the disproportionate representation of racialized persons (including women), particularly recent immigrants, among vulnerable workers, and also raises a signal that prompts further examination. Studies and the literature in this area indicate that the source of difficulties for vulnerable workers lies primarily in systemic factors rather than in the individuals. Possible initial discrimination, coupled with legislative provisions designed mainly for “standard” work, mean that both social location and the nature of the work align. As with employment equity, therefore, the remedies must also be systemic. Neither employment equity nor pay equity explicitly addresses the impact of systemic factors on people with intersecting characteristics. In part, this is a function of when the Equality in Employment report was written and the theoretical underpinning of pay equity. Intersectional analysis does complicate an already somewhat difficult implementation

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of these objectives. Understanding who does precarious work nevertheless requires the application of an intersectionality lens. For example, “racialized women, in addition to disproportionately bearing the burden of domestic work within their own household, are more likely to be slotted into precarious employment relationships of paid domestic work” (Cranford and Vosko 2006, 64–5). The Equality in Employment report argues that the government must be proactive in remedying the inequality by enacting a statutory requirement to implement employment equity. Abella (1984, 202) ascribes to law a considerable power: “Laws reflect commitment … They define the limits of acceptable behavior … [Law] is a signal of a community expectation.” Therefore, “[a] government genuinely committed to equality in the workplace will use law to accomplish it and thereby give the concept credibility and integrity” (Abella 1984, 203). Relying on the market or ad hoc solutions is not adequate. Since the Equality in Employment report was issued, the Supreme Court has acknowledged that the government’s failure to take proactive steps might make it complicit in the conduct of private employers, resulting in a denial of a constitutional right.6 In other words, private activity that otherwise would not be caught by the Constitution is caught because of government’s failure to act. This same need for positive action underlies employment equity and pay equity. The idea that government has an obligation to provide rights or benefits equitably is hardly novel at this point: what matters is the context in which the failure to avoid discrimination might lead to a challenge under the Canadian Charter of Rights and Freedoms or to the need to engage in proactive legislation or policy. Government now has constitutional support for developing programs to assist the disadvantaged. Commissioner Abella had little to say in Equality in Employment about section 15 (2) of the Charter; there was little one could say in 1984. She did suggest, “The judicial inquiry [under section 15 (2)], if any, would be into whether or not the group was disadvantaged. Such an inquiry, in the employment context, would probably look for evidence that members of a particular group had higher unemployment rates and lower income levels, and tended to be clustered in jobs with lower occupational status. These have been referred to as the ‘social indicators’ of job discrimination. They can also be characterized as systemic discrimination” (Abella 1984, 15). Twenty-five years later, in Kapp, Justice Abella, now of the Supreme Court of Canada, had the opportunity to say more about section 15 (2)

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of the Charter.7 Co-authoring the majority decision, the chief justice and Justice Abella gave section 15 (2) considerable strength as a tool that government might use to remedy disadvantage, making a program effectively immune from challenge once it meets the basic conditions of an affirmative action program under section 15 (2). This appears to be the case even if the program worsens the circumstances of other disadvantaged groups or, more to the point, perhaps, a more disadvantaged subgroup within the target group. Nevertheless, Kapp gives government far greater scope in fashioning programs specifically for disadvantaged groups, whether the employment equity target groups, the female employees who are beneficiaries of pay equity, or racialized and female vulnerable employees. Employment equity, pay equity, and the precarious work approach share the view that structural factors, norms, and other non-personal factors are the major reasons that workers do not have meaningful access to or are segregated in particular types of jobs, or whose jobs provide inadequate security and benefits. While it is important to focus on the workers (or aspiring workers) themselves, this must be done in a broader context that recognizes not only that these are not “individual problems,” but that they cannot be resolved by individual remedies. In the case of vulnerable work, while obviously it is important to provide opportunities to vulnerable workers to find other kinds of work, doing only that ignores the nature of precarious work. Precarious work itself, coupled with regulatory employment schemes that may exclude some workers or make enforcement difficult, is the real difficulty. Yet temporary, part-time, or casual work will continue to exist, as will foreign worker programs. It is thus the conditions that tend to characterize this work as “precarious” that need to be addressed. As Abella stated, sometimes equality requires treating people differently (Abella 1984, 3). While not entirely novel in the mid 1980s, it was not affirmed by the Supreme Court of Canada until after the release of the Equality in Employment report.8 This principle now constitutes a crucial element in equality theory. Employment equity requires identifying the specific barriers affecting particular groups and implementing policies and practices that apply to their specific needs. The Equality in Employment report is not limited to workplace remedies, but addresses other contexts such as education and childcare. Remedying the circumstances of vulnerable workers also necessitates exploring the approaches that work for each group, and it may also necessitate going beyond the workplace to

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explore other solutions, such as national childcare programs or something akin to a national benefits bank on which workers without access to employer-provided benefits could draw (Saunders 2006). Employment equity and potential remedies for the disadvantages of vulnerable employees differ in at least one important respect. At its core, the concept of employment equity is about fairness in employment, the expectation that non-relevant factors will not impair the ability of workers to obtain positions and to be promoted within those positions. In the context of employment equity, this means that hiring and promotion are not to be discriminatory and significantly that proactive measures, specifically employment equity measures, must be implemented in order to overcome years of systemic discrimination against “visible minorities,” Aboriginal peoples, persons with disabilities, and women. Employment equity is designed to redress segregated employment, with the objective of breaking down job ghettoes and making movement into and between jobs or positions more fluid. A focus on precarious work (with an understanding of who does the work) is less about focusing on changing who does the work (although it might do that) than it is about changing the conditions that apply to this kind of work. Employment equity, pay equity, and the remedies addressed to precarious work are all ways to change the consequences of work; however, pay equity and the precarious work remedies do not explicitly seek to break down employment ghettoes, as does employment equity, but rather to decrease the differences between or consequences that arise from sex-segregated work, in the case of pay equity, or from precarious and “non-standard” work, in the case of vulnerable employees and precarious work. Thus employment equity is concerned with changing the composition of job categories, with providing a mechanism through which members of the identified groups will not only enter jobs where their representation is disproportionately low, but also move forward in those jobs. Pay equity seeks to diminish the wage differentials between jobs that are segregated on the basis of sex by ensuring that the value of the jobs determines compensation; the work may remain segregated, but it will be recognized as being of equal value. Or indeed, as was said when pay equity was implemented, once jobs are recognized as of equal value, the boundaries between types of work may crumble. The enhancement of regulatory protections and other remedies available to vulnerable workers performing precarious work may not result in their doing different work, necessarily, but has the potential to remove much of the precarious

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nature of the work – and it may provide the means by which these workers can broaden their work opportunities. Each of employment equity, pay equity, and remedies for the harms precarious work imposes on vulnerable workers, in its own way, addresses deficiencies in the distribution and allocation of work and in the protection of workers. Each of them is intended to achieve substantive change and adds to the goal of achieving greater substantive equality in employment with a resulting improvement in social conditions. Not coincidently, the groups identified as benefiting from these policies and approaches overlap. The same can be said both of pay equity and of the goals of the vulnerable worker project as Abella said about employment equity: “The project is an exercise in redistributive justice” (Abella 1984, 4). All three are directed at remedying social and economic injustice.

NOTES 1 Abella introduced the “new term, ‘employment equity,’” to replace in the Canadian context, “affirmative action,” a term that the commission had been “told again and again … was ambiguous and confusing.” It also carried with it the connotation of quotas. No such inference will be attached to “employment equity” which “avoid[s] some of the intellectual resistance and confusion” of affirmative action. Abella’s proposal to use this new term was modest and subtle: “It is not imperative [that we use a different term], but it is worth considering” (Abella 1984, 6–7). 2 Established by an agreement to which the Law Foundation of Ontario, the Ministry of the Attorney General, Osgoode Hall Law School, and the Law Society of Upper Canada (all of whom provide funding) and the Ontario law deans, the LCO was launched in 2007 with a mandate to make recommendations to make the law more effective, relevant, and accessible; to simplify and clarify the law; to consider the effectiveness of technology in extending access to justice; and to stimulate critical debate about the law. 3 The use of “racialization” is contentious; however, the LCO background paper, interim report, and final report, and this chapter employ this term as commonly understood and in preference to “visible minorities.” 4 On agricultural workers, see Agricultural Employees Protection Act, 2002, SO 2002, c 16. The Supreme Court of Canada has found this legislation constitutional, with the majority “reading in” a requirement of bargaining in good faith: Ontario (Attorney General) v Fraser 2011 SCC 20, [2011] 2 SCR 3. On domestic workers, see Labour Relations Act, 1995, SO 1995, c 1 Schedule A, s 3.

192 Patricia Hughes 5 For example, section 22 of the Employment Standards Act, 2000, SO 2000, c 41, provides for overtime pay. An employee who works more than forty-four hours a week would not be eligible for overtime pay if the forty-four hours is the total of hours the employee works for different employers. 6 Dunmore v Ontario (Attorney General), 2001 SCC 94, [2001] 3 SCR 1016. 7 R v Kapp 2008 SCC 41, [2008] 2 SCR 483. 8 Ontario Human Rights Commission v Simpsons-Sears [1985] 2 SCR 536.

REFERENCES Abella, Rosalie Silberman. 1984. Equality in Employment: A Royal Commission Report. Ottawa: Minister of Supply and Services Canada. Accessibility for Ontarians with Disabilities Act, 2005, SO 2005, c 11. Alboim, Naomi. 2009. Adjusting the Balance: Fixing Canada’s Economic Immigration Policies. Toronto: Maytree Foundation. http://maytree.com/policy-papers/ adjusting-the-balance-fixing-canadas-economic-immigration-policies.html. Citizenship and Immigration Canada. 2008. “Total Entries of Foreign Workers by Source Country.” In Facts and Figures: Immigration Overview, Permanent and Temporary Residents, 57. http://www.cic.gc.ca/english/pdf/research-stats/ facts2008.pdf. – 2011. “Total Entries of Foreign Workers by Source Countries, 2009–2011.” In Facts and Figures: Immigration Overview, Permanent and Temporary Residents. http://www.cic.gc.ca/english/resources/statistics/facts2011/temporary/07. asp#figure14. – 2012a. “Fact Sheet: Temporary Foreign Worker Program.” http://www.cic.gc.ca/ english/resources/publications/employers/temp-foreign-worker-program.asp. – 2012b. “News Release: Revised Federal Skilled Worker Program Unveiled.” http://www.cic.gc.ca/english/department/media/releases/2012/201208-17.asp. Cranford, Cynthia, Judy Fudge, Eric Tucker, and Leah Vosko. 2005. Self-Employed Workers Organize: Law, Policy, and Unions. Montreal and Kingston: McGillQueen’s University Press. Cranford, Cynthia, and Leah Vosko. 2006. “Conceptualizing Precarious Employment: Mapping Wage Work across Social Location and Occupational Context.” In Precarious Employment: Understanding Labour Market Insecurity in Canada, ed. Leah F. Vosko, 43–66. Montreal and Kingston: McGill-Queen’s University Press. Economic Council of Canada. 1990. Good Jobs, Bad Jobs: Employment in the Service Economy. Ottawa: Economic Council of Canada.

Remedying the Experiences of Vulnerable Workers 193 Faraday, Fay. 2012. Made in Canada: How the Law Constructs Migrant Workers’ Insecurity. Toronto: Metcalf Foundation. Fudge, Judy, Eric Tucker, and Leah Vosko. 2003. “The Legal Concept of Employment: Marginalizing Workers.” Ottawa: Law Commission of Canada. Fuller, Sylvia, and Leah F. Vosko. 2008. “Temporary Employment and Social Inequality in Canada: Exploring Intersections of Gender, Race and Immigration Status.” Social Indicators Research 88 (1): 31–50. http://dx.doi.org/10.1007/ s11205-007-9201-8. Goldring, Luin, and Patricia Landolt. 2009. “Immigrants in the Global Economy: Precarious Employment and the Transnational Dimensions of Economic Incorporation.” http://www.arts.yorku.ca/research/ine/research/ index.html. – 2012. The Impact of Precarious Legal Status on Immigrants’ Economic Outcomes. IRPP study no. 35, October. http://www.irpp.org/assets/research/diversityimmigration-and-integration/the-impact-of-precarious-legal-status-on-immi grants-economic-outcomes/IRPP-Study-no35.pdf. Kapsalis, Costa, and P. Tourigny. 2004. “Duration of Non-standard Employment.” Perspectives. Ottawa: Statistics Canada. http://www.statcan.gc.ca/pub/ 75-001-x/11204/7746-eng.pdf. – 2008. On the Impact of Non-standard Employment on Wages and Benefits. Report prepared for Human Resources and Social Development Canada. Ottawa: Data Probe Economic Consulting. Law Commission of Ontario. 2010. “Vulnerable Workers and Precarious Work.” Background paper. Toronto: Law Commission of Ontario. http://www.lcocdo.org/VulnerableWorkersBackgroundPaper-December2010.pdf. – 2012. Vulnerable Workers and Precarious Work: Final Report. Toronto: Law Commission of Ontario. http://www.lco-cdo.org/vulnerable-workers-final-report.pdf. Lowe, Sophia J. 2012. Transitioning Temporary Foreign Workers to Permanent Residents: A Case for Better Foreign Credential Recognition. Toronto: CERIS – The Ontario Metropolis Centre. http://www.ceris.metropolis.net/wp-content/ uploads/pdf/research_publication/working_papers/wp91.pdf. Noack, Andrea M., and Leah F. Vosko. 2011. “Precarious Jobs in Ontario: Mapping Dimensions of Labour Market Insecurity by Workers’ Social Location and Context.” Toronto: Law Commission of Ontario. http://www.lco-cdo.org/ vulnerable-workers-commissioned-papers-vosko-noack.pdf. Picot, Garnett, Feng Hou, and Simon Coulombe. 2007. “Chronic Low Income and Low-Income Dynamics among Recent Immigrants.” Ottawa: Statistics Canada. http://www.statcan.gc.ca/pub/11f0019m/11f0019m2007294-eng.pdf.

194 Patricia Hughes Prince, Michael. 2009. “Supporting Working Canadian Families: The Role of Employment Insurance Special Benefits.” Ottawa: Caledon Institute of Social Policy. http://www.caledoninst.org/Publications/PDF/819ENG.pdf. Saunders, Ron. 2006. Risk and Opportunity: Creating Options for Vulnerable Workers. Ottawa: Canadian Policy Research Networks. http://cprn.org/documents/ 41162_en.pdf. Statistics Canada. 2007. “Study: Canada’s Immigrant Labour Market.” Daily, 10 September. – 2011. “Labour Force Participation Rates by Sex and Age Group.” http://www. statcan.gc.ca/tables-tableaux/sum-som/101.cstol/labor05-eng.htm. Thomas, Mark P. 2009. Regulating Flexibility: The Political Economy of Employment Standards. Montreal and Kingston: McGill-Queen’s University Press. Vosko, Leah F., Martha MacDonald, and Iain Campbell. 2009. Gender and the Contours of Precarious Employment. London: Routledge. Xue, Li. 2007. Portrait of an Integration Process. Ottawa: Citizen and Immigration Canada. http://www.cic.gc.ca/english/pdf/research-stats/portrait-integrprocess-e.pdf.

Chapter 9

Employment Equity in the Federal Public Service: A Union Perspective ALLISON PILON

Employment1 equity is about creating workplaces that are fair and accessible, where all workers have the opportunity to participate and contribute in a way that reflects their skills and abilities. These values of equality and equity in the workplace are consistent with the goals of labour unions, which have fought for workplaces where staffing processes are transparent, fair, and free from favouritism and nepotism, and where systems can be put in place to ensure equality of access. Unions are sometimes cited by employers as barriers to employment equity, and while the relationship between unions and employment equity has had its challenges, unions have been key to the success of employment equity in Canada. Indeed, unions play a critical and necessary role in implementing employment equity in a unionized workplace. The Public Service Alliance of Canada (PSAC), along with other major unions in Canada, supported the concept of employment equity before legislation was introduced and has been involved in employment equity in its members’ workplaces since the legislation’s inception.2 As the largest union in the federal public sector, with a membership that stretches across every province and territory in Canada, PSAC has been uniquely situated at the forefront of employment equity in the federal sector. PSAC has also carried that work into workplaces at the territorial and provincial levels where, for the most part, legislation on employment equity does not exist. This chapter will discuss PSAC’s and labour’s involvement in the evolution of employment equity in Canada, and PSAC’s experiences with the federal employment equity regime and in promoting equity through bargaining. The challenges faced by the union will be discussed, and strategies and recommendations will be shared.

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PSAC has been active in social justice and human rights struggles for many years. Before the implementation of employment equity, PSAC supported affirmative action and equity measures within our own union, within our members’ workplaces, and in public policy. Before elaborating on the role of PSAC and unions and their contributions to employment equity, it is important to remember that unions negotiate the terms and conditions of work through collective bargaining. Labour has played a long-standing role as a workplace “watchdog” through the grievance process or through joint union-management consultation. Unions are therefore in a unique position to identify systemic barriers in the workplace. Unions hear directly from their members, who in many cases would not feel comfortable reporting such issues to management and are able to see when a number of individual cases appear that represent a pattern in the workplace. While employment equity will not, in itself, eradicate discrimination or harassment in the workplace, PSAC has always seen a clear advantage to proceeding with a “collective” systemic way of dealing with discrimination, rather than proceeding with individual cases. PSAC has a long history of supporting and representing its members in human rights litigation, but these cases often take years to process through the human rights tribunal and court system and can be very painful and exhausting for the individual member who has faced discrimination. Given that employment equity work can sometimes be controversial, unions need to provide strong leadership to support equity initiatives. The strategies and positions of PSAC, a democratic organization, are determined by the membership. When PSAC takes a strong position in support of an equity or human rights issue, it has done so after membership debate at several levels. This does not mean that every member supports or understands employment equity issues, or that there have not been internal struggles and debates on equality and equity over the years. However, PSAC has provided strong leadership on human rights and equity issues, supporting and fostering human rights work through committees of equity group members and equity conferences, and through a strong union education program on human rights and employment equity. PSAC has also taken an important step by implementing employment equity within its own workforce. PSAC as an employer has an employment equity plan, in place since 1995, which has been jointly developed through the Joint Union Management Employment Equity Committee, which has representatives from each staff union and members of

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management. This is a voluntary plan, as PSAC is not covered under employment equity legislation. Overview of the PSAC’s Involvement in Employment Equity in the Public Service of Canada PSAC has been involved in employment equity in the federal jurisdiction from the beginning. In 1983, Treasury Board Secretariat (TBS), the employer for the federal public service, implemented a voluntary employment equity policy, and special measures programs and pilot projects were put in place. Although PSAC supported the principles of employment equity and special measures, the union was not directly involved in these measures, since the employer consulted very little with unions before implementing employment equity measures. In 1983–4, when Justice Rosalie Abella was meeting with groups as part of her one-person Royal Commission on Equality in Employment, the Canadian Labour Congress (CLC), PSAC, and other unions made submissions in support of employment equity (Abella 1984, 289). Labour also participated in the initial consultations on the proposed Employment Equity Act. Justice Abella’s report was tabled in November 1984. As a result of the recommendations in that report, the federal Employment Equity Act3 (EEA) was introduced in 1986. The initial act was very weak, with no accountability measures, and, most notably, it did not cover the federal public service. However, it is important to note that under the 1986 Employment Equity Act and the Canadian Human Rights Act that was in place at that time, one could file complaints alleging under-representation in the workplace, and the Canadian Human Rights Commission could investigate and order remedies for employment equity. Some groups, such as the Disabled People for Employment Equity Rights Group and the Assembly of Manitoba Chiefs, filed such complaints, and settlements resulted that implemented employment equity measures.4 In 1991, a committee of the House of Commons was given the mandate to review the Employment Equity Act, 1986, and make recommendations for improvement. The committee heard from all major stakeholders and those with a special interest in equity, including PSAC. The committee’s 1992 report, A Matter of Fairness, made a number of recommendations, including that the federal public service be covered by the act, that the act require that bargaining agents be consulted and have input into the preparation and implementation of employment equity plans,

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and that the Canadian Human Rights Commission (CHRC) become the enforcement agency under the act with auditing powers (Canada, House of Commons 1992, 39–44). (Although this report was tabled in 1992, the act was not revised until 1995.) In 1991, Treasury Board Secretariat adopted an employment equity policy which required departments and agencies to prepare and analyse statistical data, review their employment systems to identify barriers, consult with employees, develop employment equity plans, and endeavour to meet numerical goals (Canada, PSAC 1994). In 1993, the Public Service Reform Act made employment equity policies in the public service mandatory under the Financial Administration Act (section 7) and the Public Service Employment Act (Canada, HRSDC 2004). The first Annual Report on Employment Equity in the Public Service was prepared by TBS for the fiscal year 1992–3 (Canada, PSAC 1994, 1). In 1994, in preparation for the upcoming revision of the EEA, the CLC struck an ad hoc committee on employment equity. PSAC was an active member on that committee, which reviewed the federal legislation as well as the short-lived Ontario Employment Equity Act, and developed a more detailed labour position on employment equity. PSAC (1995), the CLC (1995), and other unions appeared before the standing committee regarding Bill C-64, the proposed amended employment equity legislation. PSAC’s submissions spoke to the urgent need for effective employment equity and made thirty-two recommendations. These proposals included a legislative requirement for employers to negotiate employment equity plans with unions; the inclusion of gay men, lesbians, and bisexuals as designated groups under the act; the inclusion of a complaint mechanism; a requirement for workplace educational sessions on employment equity; the Canadian Human Rights Commission be made independent from government, with increased funding; and the establishment of a permanent employment equity tribunal with representation from equity groups and labour (PSAC 1995). Labour also provided input and recommendations on the Employment Equity Regulations and guidelines. Part of PSAC’s work there was in providing our experience and recommendations on how to facilitate effective joint work in developing and implementing employment equity plans.5 The revised Employment Equity Act, 1995,6 received royal assent on 15 December 1995, while the act and its regulations came into force on 24 October 1996, creating a new legislative framework for employment equity that governs both private and public sector employers under federal jurisdiction. These employers were mandated to comply with

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all requirements of the new act by October 1997, one year after it had come into force. The Employment Equity Act, 1995, contained significant improvements to the former act: it covered the federal public service; provided the CHRC with the authority to conduct audits of employers; made the Federal Contractors Program requirements equivalent to those of the public service in implementation of employment equity; required employers to consult with bargaining agents on the preparation, implementation, and revision of their employment equity plans; and outlined more detailed requirements for employers in implementing employment equity. However, there were also a number of problems with the 1995 act, particularly the consequential amendments to the Canadian Human Rights Act,7 which took away the CHRC’s ability to file systemic discrimination complaints based on employment equity data, as well as the commission’s ability to order employment equity remedies. In PSAC’s view, the act was still not nearly strong enough to ensure that employment equity would become a reality in workplaces. As Justice Rosalie Abella stated, “Equality in employment will not happen unless we make it happen” (Abella 1984, 254). In the years following implementation of the 1995 act, a number of activities and initiatives implemented employment equity in the federal public service. As the largest union in the federal public service, PSAC was at the forefront and worked in partnership or consultation with the employer in developing many of the activities, educational sessions, and policies. For example, PSAC collaborated in the development of an Employment Systems Review Colloquium held in January 1999, which was directed towards representatives of the employer and unions to understand the work required by this stage in the employment equity process. The goal was also to engage representatives in the regions in the expectation that union-management activities would take place that would facilitate an exchange of strategies.8 The extension of the act also meant that PSAC staff and representatives needed to establish the capacity of PSAC representatives and activists to effectively consult with employers and promote employment equity in members’ workplaces. Internal changes within PSAC were made, including the creation of a full-time employment equity officer position on staff within the PSAC Human Rights Program. As a result of the slow pace of progress in the hiring of racialized people9 (“visible minorities”) in the public service, the Task Force on the Participation of Visible Minorities in the Public Service was created to study the problem. In April 2000, the task force delivered Embracing

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Change in the Federal Public Service (also known as the Perinbaum Report), a government-wide action plan to address under-representation within the federal public service (Perinbaum 2000). PSAC provided a submission to the task force during its consultations. The Embracing Change report set a goal that one in five new hires into the federal public service by 2003 be members of visible minorities, and that the same goal apply to executive hires by 2005, in order to address the large and growing gap in this group (6). Three years of funding was also attached to this initiative. PSAC welcomed this report and its recommendations. Another review of the Employment Equity Act took place in 2002. PSAC made twenty-one recommendations to the House of Commons Standing Committee on Human Resources Development and the Status of Persons with Disabilities. These recommendations reflected the union’s proposals to address weaknesses in the act such as the lack of effective mechanisms for recourse and the lack of enforceability. For example, PSAC recommended the creation of regional employment equity councils, and the right of bargaining agents and employees to trigger workplace audits by a compliance officer where there are concerns about the workplace. In addition, PSAC recommended that some of the consequential amendments to the CHRA be repealed, as well as the extension of the act to cover GLBT workers as a designated group, and to cover workplaces such as RCMP, Canadian Forces, Senate, House of Commons, and Library of Parliament that were exempt at that time (PSAC 2002). The standing committee released its report in June 2002. The report made a number of recommendations, but most dealt with implementation and government activities rather than amendments to the legislation itself (Canada House of Commons 2002). The 2002 review of the act did not result in significant changes to the act. As the act is subject to a five-year review cycle, the next review should have taken place beginning in 2006. As of the time of writing, the review has not yet taken place. In PSAC’s view, Parliament’s failure to strengthen the legislation is a significant reason why we are still far from achieving employment equity in federal workplaces. Consultation with Bargaining Agents: The Role of Unions under the Federal EEA In the federal public service, the employer is Treasury Board. Under section 4 (4) of the Employment Equity Act, 1995, the Treasury Board Secretariat and the Public Service Commission (PSC) are responsible for

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carrying out the responsibilities of the “employer” under the act for the federal public service. Section 4 (7) states that, for the purpose of carrying out their obligations for a portion of the public service, these powers can be delegated to deputy heads of departments. In the implementation of employment equity, departments are responsible for doing their own workforce analyses, employment systems reviews, and employment equity plans, although the TBS and the PSC have also played important roles as the central authorities for the public service. In workplaces that do not fall under the core federal public service, such as the Canada Revenue Agency, the responsibility is that of the particular agency as a “separate employer.” Under section 15 of the act, employers are required to consult and collaborate with unions on “the preparation, implementation and revision of the employer’s employment equity plan,” and to make use of “the assistance that the representatives could provide to the employer to facilitate the implementation of employment equity in its workplace and the communication to its employees of matters relating to employment equity.” Unfortunately section 15 does not elaborate on exactly what “consultation” or “collaboration” mean, nor does it provide guidance on how consultation and collaboration should be done. Nor do the Employment Equity Regulations provide any guidance to the parties on this matter. Some counsel has been provided by Human Resources and Skills Development Canada (HRSDC). Canada, HRSDC, Labour (2012) recommends that unions be involved in all stages of the employment equity process and that there should be dialogue and information sharing between the parties. For the federal public service falling under Treasury Board, a subcommittee of the National Joint Council Joint Employment Equity Committee developed its own guidelines under section 15 of the act to facilitate consultation between the parties under the EEA (Canada, NJCJEEC 2005). The current Treasury Board policy on employment equity states that departments must “[adopt] a formal process for consultation with bargaining agents, in accordance with guidelines established by the National Joint Council” (Canada, TBS 1999). In addition to consultation for the public service on the national level, each department must therefore have its own vehicle for consultation with unions. The National Joint Council (NJC) is the central union-management consultation body in the federal public service. The NJC consists of an executive committee and several subcommittees that deal with specific issues, such as occupational health and safety, travel, and official languages. The NJC Joint Employment Equity Committee (JEEC) was

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established as the vehicle for national-level union-management consultation on employment equity issues throughout the public service. The current mandate of the JEEC is to “provide a national forum where the Treasury Board Secretariat, the Public Service Commission and the Bargaining Agents can consult and collaborate on the preparation, implementation and revision of the public service wide policies and practices that may impact employment equity designated groups.” Included in this mandate is the stipulation that the JEEC plays a “major role in providing analysis and recommendations” on policies in the public service (on the impact of existing policies, and by providing input into and identifying gaps in emerging policies and practices) (NJCJEEC 2010). Members of the JEEC on the employer side currently include Treasury Board Secretariat (TBS), Public Service Commission (PSC), Health Canada, and Justice Canada. HRSDC has recently removed itself from the JEEC and attends as a guest only to provide updates to the committee on its activities. Members on the bargaining agent side are PSAC, Professional Institute of the Public Service of Canada, and Canadian Union of Professional Employees. In many federal public service departments, national departmental joint union-management employment equity committees have been set up as the vehicles for consultation under the act. In addition, many departments have regional or local committees. In some cases consultation is not done at an employment equity committee, but rather at union-management or labour-management consultation committees. PSAC Experiences with Consultation under the Federal Employment Equity Act

National-Level Consultation At the National Joint Council, PSAC’s experience with consultation as part of its Joint Employment Equity Committee has varied over the years. In the early 2000s regular consultation and collaboration was done at the national level on policies and on other areas that affected equity group members. For example, the committee collaborated on the consultation guidelines mentioned earlier, as well as the TBS Duty to Accommodate and Employment Equity policies, on analyses of the Public Service Employee Surveys, and on reviewing other policies and directives, including National Joint Council Directives. For example, in 2002 the JEEC was consulted on the NJC Travel Directive, which resulted in important gains

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such as the recognition of custom adoption for Aboriginal peoples.10 Another important area where PSAC was able to provide its input was the Public Service Commission’s testing measures for job competitions.11 However in the last four or five years, the role of the JEEC has been reduced to that of an information-sharing committee. Departments, including the Public Service Commission and the Treasury Board, do not regularly come to the table at the inception of a program or policy to consult with the JEEC. In many instances, decisions that have already been made are brought to the table as a fait accompli. Requests from the committee for data or other information are seldom addressed. For example, in the past the JEEC was provided with information on the Public Service Employee Survey of all members of the public service, done every three years, covering topics such as experience of discrimination or harassment and career development opportunities for the equity groups. For the 1999, 2002, and 2005 surveys, JEEC reviewed the data for employees in the four equity groups and prepared analyses based on those data and on information shared by the Treasury Board. However, for the most recent surveys, in 2008 and 2011, the Treasury Board indicated that it could not provide any information to the committee nor even send a representative to discuss the results of the survey; therefore, the committee was unable to do an analysis. This development must be understood in the context that the Treasury Board, although it is the “employer” in the public service, has been reducing its role in human resources management and policies, delegating most powers to departments. In 2006, the Harper government established the Prime Minister’s Advisory Committee on the Public Service, whose mandate included reviewing the human resource management structure in the public service. In 2008, the advisory committee released its second report, which recommended that human resources be decentralized and more powers be vested in department heads rather than in the central agencies such as Treasury Board and the Public Service Commission (Canada, Prime Minister’s Advisory Committee on the Public Service, 2008). As a result, the Canada Public Service Agency, which was at arm’s length from the Treasury Board Secretariat and had human resource and policy responsibilities, was eliminated, and the TBS Office of the Chief Human Resources Officer was created. This new office had significantly fewer responsibilities, hence the Treasury Board no longer has a large role to play in many areas they were formerly managing. As part of the process of devolving human resources from the centre to departments, the Treasury Board is currently reviewing its entire suite

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of “people management policy instruments” with a view to determining where it needs to maintain a “central role.” PSAC has some major concerns about this new approach to human resources, particularly in its impact on employment equity and human rights. First, policies such as the duty to accommodate and employment equity policies ought to be uniform across the federal public service. Employees ought to have the same rights, no matter which department they work for. Those policies that survive the review will have far fewer requirements. For example, the TBS has advised PSAC that the Duty to Accommodate policy will contain far fewer requirements than the current fifteen that deputy heads must abide by. In our view this will only worsen the situation for people with disabilities in the public service, who are already reporting discrimination and harassment at alarming rates. Second, the much-reduced role of the TBS and PSC means that they are now reduced to advisory bodies that cannot enforce rules on departments and can only make suggestions on “best practices.” This makes the work of the NJC JEEC even more difficult, as two players (departments) are now not at the table. It is uncertain whether the TBS will have any role at all in employment equity other than simply filing a report with Parliament every year (which is simply a summary of what departments report to them). TBS ought to be playing a role for the federal public service similar to that of HRSDC for the separate employers and Crown corporations: providing instruction and guidance to the departments on how to implement employment equity, and evaluating how departments are doing. PSAC is not alone in this view. The House of Commons Committee that reviewed the EEA in 2002 recommended in their report, discussed earlier, that TBS should take on a stronger role in order to ensure that employment equity is effectively implemented (Canada, House of Commons 2002, recommendation 28). In a recent report, the Senate Standing Committee on Human Rights made the same comment (Canada, Senate Standing Committee on Human Rights 2010, 48).

Departmental Level Consultation and Other Consultation under the EEA In the federal public service, employment equity is implemented primarily by the departments, therefore it is impossible to draw general conclusions about how consultation is working across the federal public service as a whole, because there is little consistency. Consultation in separate

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agencies and employers in the federal jurisdiction also varies from workplace to workplace. With such a large organization and structure, there are also challenges for PSAC as a union to communicate with its representatives on workplace employment equity committees and provide training to those members. Under Treasury Board there are seventythree different departments and agencies, each with different employment equity plans and different vehicles for consultation. Beyond the core federal public service, PSAC has bargaining units at many other national separate agencies, national museums, and other employers covered under the Canada Labour Code.12 PSAC has seventeen component unions as well as directly chartered locals, each of which represents members at specific departments, agencies, and other employers. Although it has a decentralized structure, PSAC has some national forums where union representatives come together to discuss equity and human rights issues affecting its members. The PSAC national Equal Opportunities Committee comprises representatives from each equity group and each component union, and is regionally representative. Other internal forums for discussing employment equity include equity conferences (women’s, access, racially visible, Pride, and Aboriginal conferences), which take place every three years, and PSAC’s National Triennial Convention. PSAC also has training courses and workshops as well as the negotiated Joint Learning Program, a union-management training program with Treasury Board, which has a one-day workshop on employment equity. A review of departmental employment equity plans reveals that plans vary widely, with some departments having very detailed plans with specific goals, and others with little more than a few pages of statements about the purpose of employment equity and the value of diversity, with few concrete measures. Some departments and organizations have established joint committees that function well and in which union representatives have meaningful input into the employment equity plans and other aspects of the implementation of employment equity. Other departments or agencies do not meet their obligations under section 15 of the Employment Equity Act and fail to conduct meaningful consultations with the union. On 3 December 2009, PSAC hosted a one-day educational and strategy session on employment equity in Ottawa. The goal was to bring together union equity activists and staff from across all of our components and regions to share information and strategies and engage in

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capacity-building to advance the goals of employment equity in their workplace. Forty-five participants attended. All participants shared their experiences in dealing with employment equity in their workplaces and discussed their challenges and strategies. Many stressed that management was not engaging in meaningful consultation on employment equity. One difficulty that PSAC faces in exercising a role in the implementation of employment equity is the fact that in the federal public service, a number of things are not negotiated at the bargaining table, as a result of the federal legislation governing labour relations. For example, PSAC cannot negotiate staffing and classification, which most other unions in other sectors routinely negotiate in collective agreements. Staffing in the public service is subject to the Public Service Employment Act,13 and since 2006 has been delegated to lower-level managers in the public service. Experiences with Employment Equity in Other Sectors: Bargaining Equity Although this chapter has focused on the federal public service where employment equity is legislated and entrenched, it is important to note that PSAC has been involved in employment equity in other jurisdictions where it represents workers. PSAC represents workers in all three territories and in all provincial jurisdictions except Alberta. In two of these jurisdictions, there is employment equity legislation (Quebec14 and Nunavut15), and in the others employment equity measures are permitted under human rights legislation and can be the subject of consultation or collective bargaining. In many of these other sectors, employment equity has not been around as long, and in some sectors PSAC has organized new members only recently. As such, its experience in these provincial and territorial sectors is not as extensive as in the federal sector. However, PSAC has promoted and negotiated employment equity in many of these workplaces, and is continuing to do so. For example, the collective agreement between PSAC (Union of Saskatchewan Gaming Employees Local 40005) and Saskatchewan Gaming Corporation (Casino Regina) contains detailed language on employment equity in that workplace.16 As it prepares for future rounds of bargaining in the federal public service and other public sector bargaining units, PSAC is looking at provisions that can be bargained to promote equity in the workplace, and ensuring that we do not participate in bargaining language that has an adverse impact on equity-seeking groups.

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Has the Employment Equity Act Made a Difference? Clearly there have been important gains made over the last twenty five years in the representation of women, racialized people, Aboriginal peoples, and people with disabilities in the workplace. In the federal sector, which is covered under the Employment Equity Act, one can look at reports published over the past fifteen to twenty years that indicate that some gaps have been reduced. The legislation has made a difference, even if progress has been slow. According to a recent CHRC report on the progress of employment equity representation between 1992 and 2008, the combined gap for all four groups has decreased between 1992 and 2008 (8.6 per cent versus a current gap of 4.2 per cent) (Canadian Human Rights Commission 2010). In addition, there have been improvements for all four groups. But there are still gaps in representation for all of the designated groups across industries and occupations.

Federal Public Service In the federal public service, gains have been made for all equity groups since employment equity began to be implemented in the early 1990s. The most notable improvement has been for women in the federal public service. Women are now well represented overall, and significant gains have been made in non-traditional jobs. In addition, overall representation in the public service for Aboriginal peoples and people with disabilities is now consistent with their workforce availability (Canada, TBS 2010). This clearly speaks to the fact that over the years employment equity measures have had some success. However, progress on employment equity in the federal public service has been painstakingly slow. Detailed findings show that representation across the federal public service for all four designated groups is uneven, and gaps and barriers still remain. Representation is not even across job categories and departments, and many of the problems that have persisted for years continue. For example, there are still gaps in the executive-level jobs, equity groups have lower salaries on average and are clustered in lower-paying jobs, and high separation rates remain for certain groups (the number of those that are leaving the public service). Further, data from the 2008 Public Service Employee Survey show high rates of harassment and discrimination for members of the designated groups, and frustration with a lack of career progress (Canada, TBS 2009); similar results were found in the 2011 survey (Canada, TBS 2012).

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The most significant failure of employment equity policy has been with respect to racialized people in the federal public service. The Embracing Change initiative, which arrived with big fanfare and funds attached, fizzled. Unfortunately, more than ten years after the Embracing Change report, the public service has still not achieved the goal of one-in-five new hires for racialized people, the funding for the initiative dried up, and the initiative and its intent have largely been forgotten by public service management. Despite having failed to achieve the Embracing Change goals and even though that gap will only widen as the proportion of racialized people in Canada grows, the government has dropped the one-in-five target, and departments are now free to set lower objectives in their employment equity plans. In March 2009, representation of racialized people in the federal public service was only one in ten (Canada, TBS 2009). The Senate Standing Committee on Human Rights has been examining hiring and promotion in the federal public service as it relates to employment equity and the extent to which employment equity goals are being met. Hearings have been held and witnesses have testified before the committee, including senior public service officials from the Treasury Board and Public Service Commission, groups such as the National Council of Visible Minorities, and unions (Canada, Senate Standing Committee on Human Rights 2007, 73–6). PSAC has testified twice on its position and recommendations regarding employment equity in Public Service. In 2007, the committee released a preliminary report of its findings (Canada, Senate Standing Committee on Human Rights 2007). A second, more detailed report was released three years later (Canada, Senate Standing Committee on Human Rights 2010). Both reports identified concerns about the federal government’s failure to achieve employment equity after so many years. The committee points to reasons for these problems, including overuse of casual and term jobs, lack of recognition of foreign credentials and experience, and government failure to hold managers to account when they fail to meet their employment equity obligations. The committee’s second report contained thirteen recommendations to address the problem, including staffing strategies, suggestions on promotion within the federal public service, and increased funding to “allow government departments and agencies to fulfill their [employment equity] objectives” (Canada, Senate Standing Committee on Human Rights 2010, 6–9). Few of the Senate committee’s initial recommendations in 2007 were implemented. The PSAC met in 2010 with senior officials from the Treasury Board and Public Service Commission to get their commitment to

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implement the Senate Committee’s recommendations from the 2010 report.

Continuing Barriers In 2001, PSAC conducted a survey to assess members’ experience with employment equity. The survey had 500 respondents, and a number of concerns were identified about implementation of employment equity in their workplaces (Public Service Alliance of Canada 2001). In December 2009, as mentioned earlier, forty-five PSAC equity representatives from various workplaces and regions met at a national employment equity session. Unfortunately many of the challenges that respondents to the 2001 survey had identified were also echoed by the participants in the 2009 session: • There is a lack of resources to implement employment equity measures. • There is a lack of consultation by management. • There is little or no follow-up or monitoring by management. • Many people from equity groups do not want to self-identify. • Employers are unaccountable for a lack of progress on employment equity (the act is not strong enough on enforcement). • Employment equity plans are not well communicated in the workplace. In general, the lack of commitment to employment equity by management, and the lack of accountability and enforcement, have been the two biggest stumbling blocks for employment equity in the workplace. There are still barriers to the hiring and participation of equity groups in the workplace that PSAC members from these groups have identified. For racialized people, barriers include unrepresentative hiring boards and culturally biased assessment processes, requirements for Canadian education or experience that present barriers to racialized immigrants, and lack of access to language training. For Aboriginal peoples, there are cultural biases in many workplaces and employment systems, isolation in the workplace, and lack of access to second-language training. For people with disabilities, there is lack of accommodation in assessment for hiring and promotion, language assessments, and language training, a failure to consistently and adequately apply the duty to accommodate, and delays in the accommodation process, as well as stigma for people with psychological disabilities. Barriers to women include inadequate and inconsistent approaches to the duty to accommodate on the basis

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of family status, and barriers to entry into non-traditional occupations. Of course this list is not exhaustive, and it is important to point out that there is still racism, sexism, and ableism throughout the public service and that discrimination, whether intended or unintended, still pervades many systems. PSAC’s recommendations to parliamentary committees for improving the effectiveness of employment equity include:17 • The government should implement a central agency-wide reintegration strategy / return to work protocol that addresses the accommodation of workers with disabilities in a timely fashion. • A joint committee of bargaining agents and the employer should be formed with a mandate to direct staffing procedures on employment equity. • Managers should be held accountable for meeting their employment equity targets. • Data should be provided on the numbers of equity group members being hired in each department and agency, at what occupational grouping, for what tenure of position, including information on workers who face discrimination on multiple grounds. • The government should revive the Embracing Change initiative and the one-in-five goal for hiring of racialized people, along with the funding for this initiative. The one-in-five goal should be applied in all departmental employment equity plans and policies. • There must be an examination of the reasons that so many people with disabilities are leaving the public service. There is reason to believe that this high separation rate is not just the result of the aging of the workforce, but that it is due in part to the failure to accommodate people with disabilities in the workplace. An audit should be done of the sick leave, return to work, and accommodation practices in all departments to determine the extent of the problem of delays and failures to abide by the duty to accommodate. • A similar examination must be conducted of the reason for the high rate of separation for Aboriginal peoples in the public service to determine the reasons and any barriers to the participation and inclusion of Aboriginal workers in all departments. • The government must provide adequate and stable funding to the CHRC so that it is able to achieve its mandate. • Programs to promote women’s access to non-traditional fields must be implemented.

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• A central program in Canada should be implemented to reduce barriers to the recognition of foreign credentials. Current and Future Challenges: Where Do We Go from Here? The union faces challenges, both external and internal, in its struggle for employment equity and human rights in the workplace. The federal government started to implement wide-ranging cuts to public service jobs, with an indication that 19,200 jobs would be cut as a result of the 2012–13 budget (Canada, Minister of Finance 2012, 221), in addition to the approximately 15,000 other job cuts made due to previous rounds of budget cuts and budget freezes (Canadian Centre for Policy Alternatives 2012). These cuts pose a significant threat to continuing progress for employment equity, as well as potentially eroding gains already made. PSAC is concerned that the way in which the cuts are made and where they are made may harm employment equity, since equity group members are often clustered in certain types of jobs or departments. In addition, since we know that discrimination is still a problem in the public service, as it is in any large workplace in Canada, the decisions as to which employees are laid off may be tainted by discrimination (intentional or unintentional). PSAC’s biggest challenge now is to try to work with departments and central agencies to proactively prevent a step backwards on employment equity, and to act where we see systemic problems. There are additional external challenges that PSAC faces in its employment equity work: • Devolution of managerial responsibilities in the federal public service. • The under-funding of the Canadian Human Rights Commission, and resulting changes to the way the commission approaches employment equity and human rights. • Attacks on human rights by the Harper government, including the cancelling of the mandatory census long form, which provided data for employment equity. • In the federal public service, there continue to be problems with the staffing regime, including the concept of “best fit,” the overuse of temporary and casual appointments, and the widespread use of nonadvertised appointments. • The ongoing failure of many federal public service managers to understand and apply the duty to accommodate has created major systemic barriers to people with disabilities.

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Internally, PSAC faces a number of challenges as well: • Internal communication. In a large and diffuse union like PSAC, it is always a challenge to communicate internally, whether with members, between representatives, or between staff and representatives. In particular, it has been difficult to facilitate communication among PSAC representatives who deal with employment equity in their workplaces, such as those who sit on workplace employment equity committees. There is need for a central place where ideas, information, and communication can be gathered. • Training, education, and awareness. Many misconceptions and myths persist about employment equity. PSAC, like other unions, engages its membership through union education and communications that foster better understanding and involvement in equity and human rights. More needs to be done to ensure that education and discussion on employment equity takes place and is available to members who wish to participate. • Bargaining equity. While some gains have been made at the bargaining table, PSAC has more work to do in addressing equity through bargaining. PSAC continues to place a high priority on equity and human rights and putting in place strategies to deal with all of these challenges. Conclusion The struggle for equality, fairness, and dignity in the workplace has been ever-present for workers and unions. Aboriginal peoples, racialized people, women, people with disabilities, and gay, lesbian, bisexual, and trans people continue to face barriers in the labour market and discrimination and harassment in their workplaces. Employment equity is an important part of the ongoing fight to achieve equal access to jobs and barrier-free workplaces. PSAC was actively involved in employment equity and affirmative action measures long before “diversity” became a popular concept, and has been on the forefront of this issue. This has not been without its many struggles, with employers and internally within the union and in the broader labour movement. Many victories have been achieved, though progress is very slow. Legislation on employment equity is key, because without it, employers are unaccountable to implement employment equity. In addition,

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legislation provides a framework and consistency for measuring and reporting data and reviewing progress. PSAC will continue to raise its voice to support employment equity legislation in every jurisdiction in Canada. Many community groups, such as Colour of Poverty / Colour of Change in Ontario, are on the forefront of the fight for employment equity legislation at the provincial level, and PSAC supports their cause. The labour movement provides many opportunities for members to have conversations about important issues such as social justice and human rights. These opportunities include forums where our allies are invited to join us, or where we are invited to join community organizations in discussing how to advance human rights. These have provided an invaluable opportunity for members, leaders, and staff to speak with representatives from community organizations who attempt to ensure the largest employer in this country – the FPS – improves its employment equity record. Some of our recommendations and positions were crafted not only on the basis of conversations with our members, but following our informal conversations with representatives of community organizations. These informal discussions with representatives from Native Women’s Association of Canada, Disabled Women’s Network, the National Action Committee on the Status of Women, the Assembly of First Nations, and staff from political parties, for example, were instrumental in helping us frame our approaches to employment equity. The Public Service Alliance of Canada, along with the Canadian Labour Congress and other unions in Canada, will continue to fight for the rights of all workers. An important part of this struggle is promoting and defending human rights and the right to be free from discrimination and to have access to meaningful work with a living wage and a healthy work environment, not only to support oneself and one’s family but also to contribute to society to the best of one’s ability. If discrimination and marginalization did not exist, we would not need employment equity measures to break down barriers. But they do exist. And while the representation of equality-seeking groups may be improving slowly, there is no denying that we are not there yet.

NOTES 1 A special thank you goes to Johanne Labine, whose assistance was invaluable on the history of employment equity generally and within our union.

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Johanne has been with PSAC for many years and is a pioneer in employment equity. She worked at the Canadian Human Rights Commission in the 1980s, came to PSAC as the women’s rights officer in 1991, and was the first employment equity officer at our union. She now works as the regional education officer for the PSAC National Capital Region. Interview with Johanne Labine, regional education officer, PSAC National Capital Region, 29 March 2010. Employment Equity Act, RSC 1985, c 23 (2nd Supp.). Interview with Johanne Labine. Ibid. Employment Equity Act, 1995 RSC 1995, c 44. Ibid., ss 48, 50. Interview with Johanne Labine. PSAC uses the term racialized rather than visible minority. The United Nations Convention on the Elimination of All Forms of Racial Discrimination has criticized Canada for the use of the term visible minority and has deemed it a racist term. The word racialized reflects the agency of a more dominant party foisting on someone its view of the person as “racially visible,” “a visible minority,” or simply “other.” It allows racialized people to express the fact that this label has been attached to them by someone else and is not of their choosing, nor is it the way they see themselves. Interview with Johanne Labine. Ibid. Canada Labour Code, RS, 1985, c L-2. Public Service Employment Act, 2003, c 22, ss 12, 13. An Act respecting equal access to employment in public bodies, RSQ, c A-2.01. Agreement between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada (Nunavut Land Claims Agreement), recognized in the Nunavut Land Claims Agreement Act, 1993, c 29. Collective Agreement between Public Service Alliance of Canada (Union of Saskatchewan Gaming Employees Local 40005) and Saskatchewan Gaming Corporation (Casino Regina), expiry May 31, 2009, article 22A, 25. See Public Service Alliance of Canada (2008, 2009); Ducharme (2009).

REFERENCES Abella, Rosalie Silberman. 1984. Equality in Employment: A Royal Commission Report. Ottawa: Minister of Supply and Services Canada.

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Agreement between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada (Nunavut Land Claims Agreement), recognized in the Nunavut Land Claims Agreement Act, 1993, c 29. An Act respecting equal access to employment in public bodies, RSQ, c A-2.01. Canada, Advisory Committee on the Public Service. 2008. Pursuing a High Performance Public Service: Second Report, February 2008. Ottawa: Treasury Board Secretariat. http://www.tbs-sct.gc.ca/ren/cpmc/cpmc2-eng.asp. Canada, House of Commons. 1992. A Matter of Fairness: Report of the Special Committee on the Review of the Employment Equity Act. Ottawa: Queen’s Printer for Canada. – 2002. Promoting Equality in the Federal Jurisdiction: Review of the Employment Equity Act. Report of the Standing Committee on Human Resources Development and the Status of Persons with Disabilities. Ottawa: Minister of Supply and Services. Canada, Human Resources and Skills Development Canada. 2004.Working Together: Workplace Equity for Aboriginal Peoples and Visible Minority Groups. Ottawa: HRSDC. – 2009. Employment Equity Act: Annual Report 2008. Ottawa: HRSDC. Canada, Human Resources and Skills Development Canada, Labour Program. 2012. Achieving and Sustaining Employment Equity: A Five-Step Process. Step 1. Initiating the Program and Collecting the Data. Ottawa: HRSDC, 18–25. Canada, Minister of Finance. 2012. Jobs, Growth, and Long-Term Prosperity: Economic Action Plan 2012. Ottawa: Department of Finance. Canada, National Joint Council Joint Employment Equity Committee. 2005. Consultation and Collaboration between Departments/Agencies and Bargaining Agents under Section 15 of the Employment Equity Act. Ottawa: Public Service Human Resource Management Agency of Canada. Canada, Senate Standing Senate Committee on Human Rights. 2007. Employment Equity in the Federal Public Service: Not There Yet. Preliminary Findings of the Standing Senate Committee on Human Rights. Ottawa: Senate Standing Committee. – 2010. Reflecting the Changing Face of Canada: Employment Equity in the Federal Public Service. Ottawa: Parliament of Canada. Canada, Treasury Board Secretariat. 1999. Employment Equity Policy, rev. 1 July. http://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=12543§ion=text. – 2009. Data from Public Servants on the Public Service of Canada: Summary of the Results of the 2008 Public Service Employee Survey, Demographic Reports. Ottawa: TBS. – 2010. “Employment Equity in the Public Service of Canada 2008–09.” Ottawa: TBS. http://www.tbs-sct.gc.ca/reports-rapports/ee/2008-2009/eetb-eng.asp.

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– 2012. 2011 Public Service Employee Survey Demographic Results for the Public Service of Canada. Ottawa: TBS. http://www.tbs-sct.gc.ca/pses-saff/2011/resultsresultats/bq-pq/00/dem-eng.aspx. Canadian Centre for Policy Alternatives. 2012. “Federal Job Cuts: The Real Numbers.” http://behindthenumbers.ca/2012/04/02/federal-job-cuts-thereal-numbers/. Canadian Human Rights Commission. 2010. Impact of the Employment Equity Act and the CHRC Employment Equity Program over the Years. Ottawa: CHRC. Canadian Labour Congress. 1995. Submission by the Canadian Labour Congress to the Standing Committee on Human Rights and the Status of Disabled Persons. Ottawa: CLC. Collective Agreement between Public Service Alliance of Canada (Union of Saskatchewan Gaming Employees Local 40005) and Saskatchewan Gaming Corporation (Casino Regina), expiry May 31, 2009, article 22A. Ducharme, Patty. 2009. “Notes for an Appearance before the Standing Committee on the Status of Women on October 22, 2009 regarding the Study on Increasing the Participation of Women in Non-Traditional Occupations.” Ottawa: Public Service Alliance of Canada. Employment Equity Act, RSC 1985, c 23 (2nd Supp.). Employment Equity Regulations SOR/96-470. National Joint Council Joint Employment Equity Committee. 2010. Mandate. Ottawa: NJCJEEC. Perinbaum, Lewis. 2000. Embracing Change in the Federal Public Service. Treasury Board Secretariat, Task Force on the Participation of Visible Minorities in the Federal Public Service. Ottawa: TBS. Public Service Alliance of Canada. 1994. PSAC Summary: Employment Equity in the Public Service, Treasury Board Annual Report 1992–3. Ottawa: PSAC. – 1995. Submission by the Public Service Alliance of Canada to the Standing Committee on Human Rights and the Status of Disabled Persons. Ottawa: PSAC. – 2001. PSAC Consultation: Is the Employment Equity Act Making a Difference? Ottawa: PSAC. – 2002. Submission by the Public Service Alliance of Canada to the Standing Committee on Human Resources Development and the Status of Persons with Disabilities. Ottawa: PSAC. – 2008. Presentation to the Senate Standing Committee on Human Rights. Ottawa: PSAC. – 2009. Brief to the Senate Standing Committee on Human Rights on the Hiring Practices and Employment Equity in the Federal Public Service. Ottawa: PSAC. Public Service Employment Act, 2003, c 22, ss 12, 13.

Chapter 10

Securing Employment Equity by Enforcing Human Rights Laws M A R Y C O R N I S H , FAY FA R A D AY , A N D J A N B O R O W Y

Resolving discrimination caused by malevolent intent on a case-by-case basis puts human rights commissions in the position of stamping out brush fires when the urgency is in the incendiary potential of the whole forest. (Abella 1984, 8)

Employment equity means having a workplace free of discrimination. Yet disadvantaged workers across Canada routinely face systemic barriers that exclude them from full and equal workforce participation. With a weakly enforced federal Employment Equity Act, and with the provinces lacking similar specialized employment equity laws, Justice Rosalie Abella’s urgent call in 1984 for effective employment equity enforcement remains largely unanswered (Abella 1984, 8). Equality-seeking groups such as Ontario’s Colour of Poverty Campaign have been urging provincial governments to pass specialized laws and have been calling on the federal government to strengthen – not weaken – federal employment equity obligations. This chapter seeks to contribute to this struggle for enforcement of employment equity. It analyses human rights jurisprudence since the Abella Report to reveal how the legal obligations to achieve and maintain employment equity are already the law in Canada. Canadian courts and adjudicators have identified wide-ranging employment equity obligations that bind employers and trade unions, whether or not they are covered by the federal Employment Equity Act. These employment equity obligations flow from the interconnecting and wide-ranging matrix of proactive equity obligations that arise from federal and provincial human rights laws and policies, the Canadian Charter of Rights and Freedoms, labour relations and pay equity laws, and collective agreements.

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While employees represented by unions have greater employment equity protections flowing from their collective agreements and labour relations law, non-unionized employees also have employment equity rights flowing from general and specialized human rights laws. Powerful jurisprudence, mostly from the Supreme Court of Canada, requires all employers to build a culture and reality of workplace equality by proactively designing workplace rules and practices to eliminate discrimination and promote the equality of disadvantaged groups. Courts and human rights tribunals have repeatedly affirmed that human rights legislation must be interpreted contextually to adapt to changing conditions and have issued strong, transformative remedies to secure the promise of human rights guarantees (Faraday, Denike, and Stephenson 2006). All of these legal obligations and precedents provide the tools that trade unions, employees, and equality-seeking organizations can use in their struggle for employment equity in Canadian workplaces. The only way to carry out the powerful directions contained in this matrix of obligations is for employers (with input from employees or in partnership with any union) to engage in proactive employment equity planning and remedial measures such as those identified in the Abella Report and required by the federal Employment Equity Act: (1) mapping the demographics of the workforce; (2) identifying and eliminating barriers to full and equal workplace participation by groups experiencing discrimination; (3) instituting positive policies and practices to accelerate progress towards an inclusive workforce; (4) developing an employment equity plan; and (5) monitoring plan compliance and revising the plan to meet changing circumstances. Despite the strongly worded legal precedents and laws analysed in this chapter, employers have essentially ignored these proactive planning and remedial measures and often exclude unions or their non-unionized employees from any human rights planning they do. Many still delay taking any action, hoping no complaint will be filed and that human rights and pay equity commissions are too weak or under-resourced to catch them. This chapter argues that such employers are violating provincial equity and human rights obligations when they fail to engage in proactive employment equity actions. We recognize that using the tools detailed in this chapter is no substitute for the passage of specialized employment equity laws. Such laws, with specific strong proactive planning obligations and requirements for full employee and union participation in planning, will lead to much greater and more consistent enforcement. Like the proactive obligations

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in the Pay Equity Act, requiring all employers to act without waiting for complaints, helps to create a level playing field for employers within the labour market. Such proactive obligations are particularly important for non-unionized workplaces where employees have no union to assist them in securing their rights. Complaint-based methods often encourage bad employers to do nothing and discourage good employers from taking action. Lobbying efforts for such laws also play a key role in building a culture of human rights awareness and compliance. This chapter, however, shows that there is no need to wait for such specialized laws before taking action to enforce employment equity by bringing claims based on existing legal obligations. Despite the many problems with a complaint-based system, human rights complaints over the last thirty years did lead to the important legal precedents cited in this chapter. Those precedents help to buttress the equality work of trade unions and other organizations seeking specialized laws and can be used to fight back against the political retrenchment on employment equity that is being led by the federal government. This chapter is organized into four parts. Part 1 briefly reviews the history of Canada’s specialized employment equity laws, including the weak enforcement of the federal Employment Equity Act, the repeal of Ontario’s Employment Equity Act, and the current political retrenchment. It places that retrenchment in the context of a Canadian labour market that continues to display systemic discrimination and inequality discussed in the 1984 Abella Report at the same time that increasingly precarious work structures are making enforcement even more difficult. Part 2 analyses the evolution of jurisprudence from the Supreme Court of Canada and from human rights tribunals that recognizes employment equity measures as human rights remedies for systemic discrimination. Part 3 then focuses on the Ontario context to outline the legal framework and tools that can support arguments for securing employment equity. Part 4 suggests ways to take action to achieve and maintain employment equity under the existing legal framework. Employment Equity Laws: Passage and Retrenchment The Abella Report’s call for equality-promoting measures to be entrenched into workplace governance directly influenced the development of new workplace equality laws and jurisprudence, including the federal Employment Equity Act in 1986 covering both unionized and non-unionized employees. This was supplemented by the Federal Contractors Program, which

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required that businesses contracting with the federal government, even if provincially regulated, must comply with federal employment equity regulations (Canada, Labour Program 2014). The Abella Report also inspired the passage of Ontario’s Employment Equity Act in 1993. Further, the Abella Report’s analysis profoundly influenced the Supreme Court of Canada’s equality jurisprudence under both the Charter and human rights statutes. The picture that Justice Abella drew of the systemic discrimination faced by disadvantaged groups continues to this day.1 Yet thirty years after the Abella Report, employment equity in Canada has lost its way and is in urgent need of revitalization. The federal Employment Equity Act has not lived up to its potential. It covers only a small percentage of Canadian workers, and many argue that the act is weakly enforced by the Canadian Human Rights Commission. The act is flawed by its focus on reporting statistics without effective sanctions for employers who fail to take action when statistics reveal an unrepresentative workforce (Lum 2008; Bakan and Kobayashi 2000). In the federal sphere, unions do not have a statutory role in negotiating employment equity plans. The 2010 report of the Standing Senate Committee on Human Rights calls for increased enforcement and notes that while visible minorities are one of the fastest growing segments of the Canadian workforce, their representation in the federal public service still lags far behind their numbers in the workforce. The report also notes the importance of updated census statistics and holding all levels of management accountable (Standing Senate Committee 2010). Moving in the opposite direction, in 2010, the federal government, to great public outcry, abolished the mandatory long-form census, which is the source of the statistics required for employment equity goal-setting and enforcement and replaced it with a voluntary National Household Survey. As well, in 2012, the federal government eliminated the mandatory requirement for businesses covered by the Federal Contractors Program to plan and work towards discrimination-free workplaces as required by the Employment Equity Act.2 While the government is promising to review the Federal Contractors Program that so far remains in effect in name, it is much weakened. The federal Employment Equity Act has survived and was improved in 1995. About ten years later the act was scheduled for legislative review by the federal Conservative government, which considers affirmative action as unnecessary (“Tories Take Aim…” 2010). However the review did not take place because the motion of referral to the Standing Committee on Human Resources, Social Development, and the Status of Persons with Disabilities lapsed when Prime Minister Harper prorogued Parliament in 2007 (Ng and Burke 2010, 233). It remains to be seen whether the

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federal government will follow Ontario’s path where, following a 1995 provincial election, the Conservative government immediately repealed the provincial law that it claimed entailed reverse discrimination. While a number of provincial governments have limited employment equity policies, including British Columbia’s Public Service Act Directive on Employment Equity, no other province took up the gauntlet to legislate a province-wide specialized employment equity law. Despite advances in human rights analysis, systemic discrimination continues to flourish in Canada, as reviewed in chapters 2, 3, 4, 5, 6, and 8 in this book. Disadvantaged groups continue to bear the burden of increasing inequalities and increased precariousness of work, with the result that effective employment equity mechanisms are needed now more than ever. As the Abella Report stated, it remains important to seek equity even in difficult economic times. As in the 1980s, the Canadian economy is again in turmoil, with calls by governments and employers for austerity and cutbacks. Disadvantaged groups are repeatedly faced with the argument that redressing equality is too expensive. Yet the right to equality is the law. Employers have no “discretion” to violate human rights statutes because they think human rights enforcement is too “costly” or “difficult” in hard economic times. The argument also fails to acknowledge that the cost of achieving equality reflects the extent of the discrimination experienced. Failing to act to secure equality effectively penalizes employment equity seeking groups twice. The groups already suffer long-term discrimination that resulted in the equity gaps. The magnitude of an enterprise’s delinquency – the size of the equity gaps – is then relied on to oppose redress as being too costly to remedy. However, the following discussion develops the argument that remedies are at hand through the application of human rights and labour jurisprudence, which has established that employment equity measures are required, even in the absence of specialized employment equity legislation. Employment Equity Measures Are Human Rights Remedies

Supreme Court of Canada Jurisprudence SYSTEMIC DISCRIMINATION REQUIRES SYSTEMIC REMEDIES

Following on the Abella Report, over the last thirty years the Supreme Court of Canada (SCC) has issued many decisions that call for increasingly wide-ranging and proactive steps to be taken by employers, working

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with unions and/or employees, to address persistent systemic discrimination.3 These decisions are all based on its finding that human rights laws, such as Ontario’s Human Rights Code, are quasi-constitutional laws that must be interpreted liberally to achieve their fundamental objectives.4 These decisions do not rely on the existence of any specialized employment equity law like the federal Employment Equity Act, nor do they rely on the existence of collective bargaining obligations. These cases recognize that discrimination is systemic and call for systemic remedies. Earlier formal notions of equality that regarded discrimination as an exceptional and individual circumstance grounded in intention to discriminate, have given way to understanding that discrimination is often structural and embedded in economic and work practices and systems that are in turn rooted in prevalent cultural and social practices and prejudices. As a result, the jurisprudence has recognized the concept of indirect discrimination: barriers that have a disproportionately negative effect on a group are recognized as being just as discriminatory as those that directly prefer or exclude because of a person’s group status (Abella 1984, 2). Remedying and preventing discrimination requires recognition that existing social and legal arrangements have benefited dominant groups and disadvantaged others. This leads to the need for proactive employment equity measures that seek to restore the balance and transform institutional practices to accommodate the needs of disadvantaged groups.5 Two SCC decisions specifically addressed the need for employment equity or affirmative action measures in order to redress systemic workplace discrimination. First, the 1987 decision Action Travail des Femmes v Canadian National Railway (1987), 40 DLR (4th) 193 (SCC), unanimously ruled that the Canadian Human Rights Tribunal (CHRT) could order an employment equity program under the Canadian Human Rights Act (CHRA) if it was necessary to remedy discriminatory workplace practices. The Tribunal’s Temporary Measures order required CN to hire one woman in every four new hires into certain jobs where the evidence showed that women had been improperly excluded for many years by discriminatory employment practices. The court reasoned that, in attempting to combat systemic discrimination, it is essential to look to past patterns of discrimination and to destroy those patterns in order to prevent the same type of discrimination in the future. An employment equity program is thus designed to work in three ways. First, by countering the cumulative effects of systemic discrimination such a program renders future discrimination pointless. A mandatory employment equity

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scheme places women in the unit despite the discriminatory intent of the foreman. Second, by placing members of the group that had previously been excluded into the heart of the workplace and by allowing them to prove their ability on the job, the employment equity scheme addresses the attitudinal problem of stereotyping. It becomes impossible to see women as capable of fulfilling only certain traditional occupational roles, and difficult to ascribe characteristics to an individual by referring to stereotypical characteristics ascribed to all women. Third, an employment equity program helps to create what has been termed a “critical mass” of the previously excluded group in the workplace. The presence of a critical mass of individuals from the targeted group eliminates the problems of “tokenism” and creates conditions for the continuing self-correction of the system. Ten years later, in National Capital Alliance on Race Relations v Canada (Health & Welfare) (1997), 28 CHRR D/179), the CHRT followed the precedent established in Action Travail by imposing an extensive employment equity program on Health Canada as a remedy for race-based discrimination. The tribunal’s order flowing from its remedial powers under the CHRA’s section 53 (2) (a) included permanent measures, such as management training in equity issues and bias-free interviewing techniques, as well as temporary or special measures, including five years of accelerated targets for promoting visible minorities into senior positions from which they had been blocked by discriminatory practices (Beck, Reitz, and Weiner 2002). In 1999, the SCC’s decision in British Columbia (Public Service Employee Relations Commission) v BC Government and Service Employees Union (BCGEU [1999] 3 SCR 3), known as Meiorin, provided a turning point. It elaborated on the proactive nature of obligations to eliminate workplace discrimination and explicitly provided the foundation for requiring employers, working with trade unions, to engage in equality planning. The court made it clear that employers must act to prevent and eradicate discrimination. They are not to wait for complaints, proven discrimination cases, or requests for accommodation before taking action. The court fundamentally reconceived what is meant by “accommodation” and directed that employers must ensure that workplace standards and rules are designed for equality from the outset: “Employers designing workplace standards owe an obligation to be aware of both the differences between individuals, and differences that characterize groups of individuals. They must build conceptions of equality into workplace standards. By enacting human rights statutes and providing that they are applicable

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to the workplace, the legislatures have determined that the standards governing the performance of work should be designed to reflect all members of society, in so far as this is reasonably possible … The standard itself is required to provide for individual accommodation, if reasonably possible”6 (emphasis added). In striking down an employee fitness test on the basis that it discriminated against women and was not a bona fide occupational requirement, the court cited with approval the writing of Gwen Brodsky and Shelagh Day that critiqued the older approach of providing individual accommodation after a complaint, while leaving the rule in place. This understanding of accommodation was criticized because it does not go to the heart of the equality question, to the goal of transformation, to an examination of the way institutions and relations must be changed in order to make them available, accessible, meaningful and rewarding for the many diverse groups of which our society is composed. Accommodation seems to mean that we do not change procedures or services; we simply “accommodate” those who do not quite fit. We make some concessions to those who are “different,” rather than abandoning the idea of “normal” and working for genuine inclusiveness. (British Columbia (Public Service Employee Relations Commission) v BCGSEU [1999] 3 SCR 3, para 42)

By clearly focusing on workplace standards and the need to ensure that these standards themselves are inclusive, the BCGEU decision emphasizes the importance of addressing systemic discrimination. The decision expands the concept of accommodation by finding that a workplace standard is itself “discriminatory,” or not “neutral,” if it reflects only the needs, abilities, and requirements of one group of workers – most often male, white, and able-bodied workers. Only by identifying the embedded bias and actively transforming it can barriers to full inclusion and participation be eliminated. The wide-ranging proactive employer measures called for by the SCC jurisprudence can be satisfied only by carrying out an employment equity planning process such as that described in the Abella Report. To eradicate and prevent discrimination and plan for equality, it is necessary to know which under-represented and disadvantaged groups work in or are excluded from the workplace and in what positions and under what conditions they work. Once this picture is drawn, action must be taken. Disadvantaged group members are entitled to a workplace where employment equity planning and measures are being undertaken.

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CHARTER DECISIONS

The Charter has also been interpreted by the courts to require government employers to establish employment equity measures to redress systemic discrimination. The 1998 case of Perera v Canada (1998), 158 DLR (4th) 341 (FCA), involved a civil claim by visible minority applicants against their former employer, the Canadian International Development Agency. They claimed a section 15 (1) Charter violation as a result of CIDA engaging in systemic discrimination against them, including biased promotion procedures and work assignments. The Federal Court of Appeal ruled that courts have jurisdiction pursuant to section 24 of the Charter to “provide effective remedies for breaches of a citizen’s constitutional rights to equality,” and where there is “systemic discrimination” and warranting circumstances, it is appropriate to order employment equity plan measures (paras 30 and 31). The 2008 SCC decision in R v Kapp (2008 SCC 41) found that the purpose of the equality provision in section 15 (1) of the Charter is to prevent governments from making distinctions that perpetuate or impose disadvantage (para. 25), and the purpose of section 15 (2), permitting affirmative action, is to ameliorate the conditions of disadvantaged groups, “enabling governments to proactively combat discrimination.” The court found that these two sections “work together to promote the vision of substantive equality that underlies s. 15 as a whole” (para. 37). Reiterating the position from Andrews v Law Society of British Columbia ([1989] 1 SCR 143), the court in Kapp found that substantive equality requires that “there must be accorded, as nearly as possible, an equality of benefit and protection and no more of the restrictions, penalties, or burdens imposed upon one than another” (para. 15). In order to have substantive equality, differential treatment may be needed to eradicate the effects of systemic discrimination: “Section 15(1) is aimed at preventing discriminatory distinctions that impact adversely on members of groups identified by the grounds enumerated in s. 15 and analogous grounds. This is one way of combating discrimination. However, governments may also wish to combat discrimination by developing programs aimed at helping disadvantaged groups improve their situation. Through s. 15(2), the Charter preserves the right of governments to implement such programs, without fear of challenge under s. 15(1) (para. 16).” The court confirmed, then, that affirmative measures that promote inclusion and equality are not “justified discrimination” or discrimination in any sense but are instead necessary in order to promote and secure equality.

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By contrast, the court noted that treating everyone identically will in fact produce inequality. This analysis is important, because it reinforces a core principle of substantive equality that dates back to Andrews – the reality of human diversity. The operation of systemic practices of power and exclusion means that differential treatment and proactive, transformative measures are needed to ensure that all members in society can have real and equal access to experiences of equality.

Human Rights Tribunal Orders Tribunals interpreting human rights laws have also made many orders requiring employers to undertake positive accommodation and equalitypromoting measures to make workplaces inclusive and to eradicate the discriminatory impacts which workers experience. In considering the type of systemic orders to make, tribunals have identified the following factors to assess the deficiencies in how an enterprise handles discrimination complaints and to target the necessary remedial measures: (1) the promptness of the institutional response to the complaint; (2) the seriousness with which the complaint was treated; (3) the procedures in place at the time to deal with discrimination and harassment; (4) the resources made available to deal with the complaint; (5) whether the institution took the complaint seriously, then provided a healthy work environment for the complainant; and (6) the degree to which action taken was communicated to the complainant (Wall v Embro (1995) 27 CHRR D/44 (Ont Bd Inq)). Canadian tribunals have ordered a wide range of systemic remedies including: 1 developing and implementing a comprehensive workplace harassment and discrimination policy, which includes a definition of harassing behaviours and an internal complaints process;7 2 reviewing internal workplace standards or restrictions that adversely affect certain groups and bringing them into human rights compliance;8 3 implementing “special programs” or plans to remedy past discrimination as well as prevent future discrimination;9 4 changing hiring and/or recruitment practices in order to achieve proportional representation in the organization;10 5 creating a workplace race relations committee (which may include external members) to set objectives and measures to improve workplace race relations;11

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6 establishing an internal review committee to monitor the implementation of human rights orders or plans, including periodic reports to senior management;12 7 appointing a person responsible with full powers to ensure implementation orders are carried out;13 8 requiring managers to attend a training program to learn to identify and address instances of harassment and inappropriate behaviour;14 9 training management to mentor a cross-culturally diverse workforce;15 10 requiring management to circulate to all employees information on available resources, complaint procedures, and remedies for those with harassment concerns;16 11 implementing annual performance assessments of managers, which include evaluation of their compliance with human rights measures;17 12 requiring attendance of all employees at human rights education programs;18 13 requiring the employer to state in all staffing notices and job postings and advertisements that the enterprise is an “Equal Opportunity Employer”;19 and 14 implementing individual career plans and training programs for visible minorities.20 Ontario’s reformed Human Rights Tribunal now often includes remedies to promote future compliance (“public interest remedies”) in its decisions, such as ordering the retainer of a qualified consultant to review practices and policies for Code compliance, the development of human rights policies, or human rights training for staff.21 The comprehensive legal orders outlined above are directed at changing the workplace culture and practices in both the short term and the long term. They recognize that change will take place over time and will require the proactive and ongoing participation of all workplace parties.

Expansion of Groups Covered by Employment Equity Obligations While the federal Employment Equity Act limits the designated protected groups to women, persons with disabilities, Aboriginal peoples, and members of visible minorities, human rights laws cover more groups, thus expanding the scope of employment equity protection. While any employment equity process will likely disclose significant concerns

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with respect to the four designated groups, other groups such as those who experience systemic discrimination because of their age, ethnicity, sexual orientation, or creed also need employment equity protection. As well, many groups are simultaneously members of various different groups, and the intersectional discrimination they experience can be addressed under the general human rights obligations. The key point is that human rights jurisprudence imposes on employers a proactive obligation to remove barriers for all groups protected by the human rights statutes. Ontario’s Employment Equity Framework of Obligations In the following discussion, the example of Ontario laws and jurisprudence is used to show the matrix of existing employment equity obligations, even in the absence of specific employment equity legislation. In Ontario these obligations flow from a number of different laws, which include the Human Rights Code (Code), the Labour Relations Act (LRA), the Pay Equity Act (PEA), anti-discrimination provisions in collective agreements, and, for government workers, the Charter. Each of these legal frameworks recognizes the centrality of proactive measures to eliminate discrimination, and each framework provides practical tools and opportunities for action to promote employment equity. Many of these laws and provisions are found in jurisdictions elsewhere in Canada, and therefore this analysis will have application to a varying degree across the country.

Human Rights Code Ontario’s Human Rights Code, similar to such laws in other provinces, guarantees to every Ontarian the right to equal treatment in employment without discrimination or harassment because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status, disability, gender identity, and gender expression (sections 5 (1) and (2)). Every Ontarian also has the right to equal treatment with respect to membership in any trade union, trade, or occupational association or self-governing profession without discrimination (section 6). The Code also exempts from claims of reverse discrimination special programs designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity, or that are

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likely to contribute to the elimination of the infringement of the abovenoted rights (section 14 (1)). The jurisprudence interpreting such statutory provisions to include employment equity obligations is set out in part 2 above.

Labour Relations Act Ontario’s Labour Relations Act includes important protections that can be used by trade unions and disadvantaged groups in the course of securing employment equity. As a result of section 56 of the LRA, disadvantaged group members are bound by the provisions of collective agreements negotiated by employers and trade unions. Critically, section 54 provides that collective agreements “must not discriminate against any person if the discrimination is contrary to the Human Rights Code or the Canadian Charter of Rights and Freedoms” (Labour Relations Act 1995 SO, c 1. Schedule A). The duty of the employer and bargaining agent to “bargain in good faith and make every reasonable effort to make a collective agreement,” in section 17, has been interpreted to mean that such bargaining must not include unlawful or discriminatory proposals. Just as a proposal by an employer to pay less than the minimum wage required by the Employment Standards Act would be an illegal demand, so is a proposal for a collective agreement provision that would violate the Code.22 Accordingly, employers, as well as unions, will violate the LRA if they enter into, renew, or apply collective agreements in a way that causes discrimination or has a disparate impact on a disadvantaged group. As exclusive bargaining agents, unions are required by section 74 not to discriminate in their representational or referral duties. Under section 96 (4), the Ontario Labour Relations Board has a wide-ranging power to redress any violation of these provisions, “despite the provisions of any collective agreement,” and can order the employer and the trade union to “cease doing” or “rectify” the acts complained of, which could include amending the collective agreement or directing the parties to apply the collective agreement in a non-discriminatory manner.

Pay Equity Act In Ontario, the Pay Equity Act specifically acknowledges that there is systemic discrimination in the compensation of female job classes – similar to the systemic discrimination recognition in the federal Employment Equity Act. The PEA sets out specific proactive employer obligations to

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establish and maintain pay equity for female job classes with comparable male job classes. As well, section 7 (2) forbids both the employer and the union to bargain for or agree to compensation practices that would fail to achieve or maintain pay equity.23 Unions are prohibited from agreeing to a collective agreement that has gender-based pay discrimination.24 Employers and unions, after agreeing to their original pay equity plan, must monitor the workplace for any changes that would affect the validity of the original pay equity plan. In addition, Code jurisprudence finds that the existence of the PEA does not remove the jurisdiction of the Code to address the issue of discriminatory pay.

Accessibility for Ontarians with Disabilities Act The purpose of the Accessibility for Ontarians with Disability Act (2005) is to develop, implement, and enforce province-wide accessibility standards to achieve accessibility for Ontarians with disabilities. This act applies to goods, services, facilities, accommodation, employment, buildings, structures, and premises. The act further requests the involvement of persons with disabilities, government, and employers to develop accessibility standards for each of these areas. The accessibility standards rely upon the proactive human rights principles outlined earlier to set out measures, policies, practices, or other requirements for the identification and removal of barriers as well as the proactive prevention of such barriers, and set a clear deadline of or on or before January 2025 for the implementation of such standards. The accessibility standard for employment was initially developed as a separate standard but has now been incorporated by the Ontario government into the Integrated Accessibility Regulation, which also covers the standard for Information and Communications and Transportation. The Integrated Accessibility Regulation prescribes requirements in three key areas: (1) accessibility requirements that cover all three standards as well as specific standards for each area; (2) compliance enforcement initiatives: administrative enforcement penalties, review of orders, and the designation of the Licence Appeal Tribunal to hear appeals; and (3) timelines for compliance with the standards between 2011 and 2025. The employment section of the standard sets out specific requirements for accessible employment policies, procedures, and requirements for prevention, identification, and removal of barriers across all stages of an employment cycle for persons with disabilities. For example, it requires that organizations shall provide accommodation to applicants

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with disabilities to enable their participation in the recruitment, assessment, selection, and hiring stages of the employment cycle. Employers are required to develop, adopt, document, and maintain new procedures, including formal individual accommodation plans, to ensure that accommodation shall be provided to applicants with disabilities in all aspects of the employment cycle. This is designed to ensure changes to organizational systems and culture. The standard sets out five classes of employer organizations, starting with the government of Ontario, and then ranging in size in the public and private sectors. Employers are obligated to comply with the standard on a phased-in timetable with different time frames for the different sectors.

Anti-Discrimination Collective Agreement Provisions The majority of Ontario collective agreements have a provision that states that there will be no discrimination on the basis of prohibited grounds under the Code. Some even have explicit employment equity provisions. As outlined above, in interpreting the collective agreement, arbitrators have the power under the LRA to interpret and apply relevant legislation such as the Code. Accordingly, arbitrators could order employment equity measures under these provisions.

Ontario Human Rights Commission Policies In addition to the matrix of human rights statutory obligations outlined above, the Ontario Human Rights Commission has issued twenty-two policies, most of which are related to employment and cover the various Code grounds, which help to guide human rights compliance. The employment-related policies explain the need for all employers working with trade unions, if any, to engage in proactive planning and to take proactive measures to secure a discrimination-free workplace. As a result of the 2006 reform to the Code, these policies now have a formal status under sections 30 and 45.5 as providing guidance to the Human Rights Tribunal of Ontario (HRTO) for the Code’s application (Cornish, Faraday, and Pickel 2009).25 Given that the Code’s provisions are relevant not only to Code applications but also to the interpretation of the LRA and collective agreement provisions, these policies are also a major source of support in arguing for proactive employment equity obligations.

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The commission’s Guidelines on Developing Human Rights Policies and Procedures, updated in January 2008, provide specific advice about what employers and trade unions must do in order to address their proactive human rights obligations and secure a discrimination-free environment. The commission calls for planning, remedial measures, and monitoring by employers and unions and the involvement of the union as a “key partner.” Employee input is noted as invaluable. Five examples from the General Guideline illustrate the proactive requirement. First, under the Code, employers have the ultimate responsibility for ensuring a healthy and inclusive environment, and preventing and addressing discrimination and harassment. They must ensure that their organizations are free from discriminatory or harassing behaviour. Second, an organization can be held responsible for discrimination where the discrimination is carried out indirectly. Third, organizations have an obligation to be aware of whether their policies, practices, and programs are having an adverse impact or are resulting in systemic discrimination based on a Code ground. Whether or not a formal complaint has been made, organizations must acknowledge and address potential human rights issues. Fourth, although an organization may respond to individual complaints about discrimination or harassment, it may still be found to have failed to respond appropriately if the underlying problem is not resolved. For example, there may be a poisoned environment, or an organizational culture that excludes or marginalizes persons based on a Code ground. Finally, under section 45 of the Code, a corporation, trade union, or occupational association, unincorporated association, or employers’ organization will be held responsible for discrimination, including acts or omissions, committed by employees or agents in the course of their employment. This is known as vicarious liability. Simply put, an organization is responsible for discrimination that occurs through the acts of its employees or agents, whether or not it had any knowledge of, participation in, or control over these actions. More specifically, the commission’s Policy and Guidelines on Disability and the Duty to Accommodate is a good example of the way that employment equity planning and measures are central to the commission’s guidelines for workplace parties meeting their Code responsibilities: “Organizations are responsible for dealing effectively, quickly and fairly with situations involving harassment or discrimination and … developing anti-discrimination policies and procedures to resolve complaints as part of a broad program to build a harassment free and discrimination-free environment” (para. 5.1).

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Such actions are considered to be part of “any complete strategy to resolve human rights issues that arise in the workplace – anti-harassment and discrimination policy; disability accommodation policy; a complaint resolution procedure and ongoing education programs … and … should be developed in co-operation with the union or other workplace or organizational partners” (para. 5.1). The policy calls for developing disability accommodation policies and procedures, accessibility review plans, identifying potential barriers and implementing the necessary procedures to make facilities, procedures and services accessible. “Conducting the accessibility review will show to what extent an organization is accessible to persons with disabilities and what needs to be done.” Such planning and steps are said to help an organization meet their legal human rights duty to accommodate those protected by the Code (para. 5, 5.2). Taking Action: Issues and Considerations Parts 1–3 above outlined the history and the general legal foundation requiring proactive employment equity. Using the Ontario context, this part addresses the issues that arise as efforts are made to secure employment equity by relying on these obligations. Given the various equity laws, there are a number of different ways to enforce employment planning obligations. The Abella Report outlines a clear distinction between voluntary and mandatory employment equity measures. Mandatory measures, through statutory requirements, mean that employers are required rather than requested to implement measures designed to eliminate discriminatory barriers. As Justice Abella stated, “Laws reflect commitment, a law communicates to its applicable community that it represents a minimum standard below which conduct will not be tolerated. It is a signal of community expectation” (Abella 1984, 202). Even without an employment equity law, the proactive legal obligations outlined above require employers to take action, and a failure to do so runs the risk of significant liabilities. In this context, there are at least four ways to enforce these obligations, which are outlined briefly below.

The Employment Equity Planning Process While the specifics of any employment equity planning process will vary, depending on the size and nature of the workplace and the scope of

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issues that need to be addressed, sections 1–17 of the federal Employment Equity Act26 set out the requirements for an employment equity process. These sections not only follow the planning approach identified in the Abella Report but also follow the systemic remedies identified above in human rights jurisprudence. In summary, a full employment equity planning process means the employer and the union are required to (1) identify and eliminate barriers that operate against protected groups arising from employers’ policies, procedures, and practices; (2) institute positive policies and practices to accelerate progress towards a representative workforce; and (3) make reasonable accommodations of differences to ensure that persons in the designated groups achieve a level of representation in each occupational group in the employer’s workforce that reflects their labour force availability. Through each step it is important for the employer to provide information to employees to explain the employment equity process, and for the employer to establish and maintain appropriate employment equity records that can be used to measure progress. This enables parties to determine, on the basis of a concrete analysis of workplace conditions, whether and in what manner systemic discrimination is operating in a workplace. This is similar to the process used under the Pay Equity Act. Where discriminatory barriers are identified, they must be removed immediately, according to the Code (or the LRA, if in the collective agreement).

Employer Responsibility to Work with Unions and Provide Disclosure In light of the above obligations and jurisprudence, unions, as the exclusive bargaining agents for disadvantaged group employees and as the negotiators for collective agreements governing their workplace conditions, have the right to participate in employment equity provisions and to negotiate them with the employer. This includes assessing whether collective agreement terms have a discriminatory impact; whether employer policies or practices are discriminatory; whether positive steps need to be taken to alter the agreement, its application, or employer standards, rules, or practices that fall outside the collective agreement. While there are sound legal arguments that the employer should engage in joint decision-making with the union on employment equity measures, the best way to ensure a clearly enforceable right is to include an express requirement in the collective agreement that the parties develop

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an employment equity plan, which is then incorporated into the collective agreement. Flowing from the obligation to work with the bargaining agent, unions can argue that they need access to all the information that is necessary for them to participate properly in ongoing consultation and collaboration. Jurisprudence supports the disclosure to unions of information necessary to allow them to participate responsibly during the collective bargaining process.

Union Responsibility to Work towards Employment Equity Given unions’ exclusive responsibility to deal with the employer on the terms and conditions of disadvantaged group employees and its own representational human rights obligations, unions have responsibility to engage in employment equity planning. As noted above, unions are required by the Code and the LRA to carry out their representational responsibilities in a manner that does not discriminate. The 1992 Renaud decision found that a union may become a party to discrimination and liable to pay damages in two ways: (1) where a union has signed a collective agreement that is discriminatory,27 or (2) where a union blocks reasonable accommodation by the employer. As well, the Court in BCGEU specifically stated that the union is “obliged to assist in the search for possible accommodation.”28 It is also clear that unions that act to protect their members from discrimination are less likely to be found jointly liable for discriminatory collective agreement provisions.29 It is important to identify what issues and measures are employment equity actions and therefore lawfully require human rights remedies and actions. The line is not always clear. Employers will likely argue that unions are trying to label as employment equity measures, ordinary collective bargaining proposals that are subject to the give and take of renewal bargaining. However, failure to agree to the measure could lead to the union taking action in mid–collective agreement term to obtain the measure as a remedial order. Given the various equity laws, there are numerous ways to enforce employment equity planning obligations. If a union is of the view that a collective agreement provision does discriminate on its face or in its indirect adverse impact on a disadvantaged group and the employer refuses to change it, then the union could file an unfair labour practice complaint against the employer and request as relief that the Board order the rectification of the collective agreement provision. Unions can also

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bring a bargaining in bad faith complaint if an employer proposes or fails to take off the table a discriminatory collective agreement provision. Unions should not have to compromise on other issues in order to obtain agreement to proposals that seek to bring the collective agreement into compliance with LRA and Code obligations.

Role of the Ontario Human Rights Commission While both employers and unions arguably have specific obligations, the Ontario Human Rights Commission has a key role to play in enforcing employment equity. It must protect vulnerable non-unionized employees from discrimination by effectively promoting and facilitating employment equity compliance by their employers without the need for such employees to file complaints. Flowing from the 2006 reforms to the Code, the commission has wide powers to promote a sustainable human rights culture in Ontario and to address systemic discrimination. In the employment context, that means employment equity. The Code allows the commission to deploy a variety of human rights tools including policy development, investigation, engagement with community groups and institutions, and litigation before the Human Rights Tribunal of Ontario. Given these diverse tools, the commission can play a vital role in proactively enforcing employment equity obligations and eradicating systemic discrimination in employment opportunities. The commission’s explicit power to make recommendations to prevent and eliminate discriminatory practices and to report directly to the public on the state of human rights provides key enforcement mechanisms to advance employment equity in Ontario workplaces (Cornish, Faraday, and Pickel 2009, 65; see for an in-depth discussion of the current powers of the Ontario Human Rights Commission). Pinto (2012) has found that the commission has not taken sufficient advantage all its new broad powers to address systemic discrimination. The report calls on the Ontario government to provide it with increased funding to do so. It has also made many other recommendations to make the human rights system more accessible for those who experience discrimination, including recommending that the commission assists employers to comply with the Code (Pinto 2012). Conclusion This chapter has shown that there is a legal matrix of wide-ranging human rights obligations that can be marshalled to support proactive

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employment equity planning and equality promoting obligations. Employers continue to have the duty to proactively implement employment equity. Achieving and maintaining employment equity can be secured through effective human rights enforcement. Unions and employees are increasingly focused on human rights laws to secure equality rights in difficult economic times. The legal tools described in this chapter will help to further that focus. Employers will be asked to partner with unions to build equality into workplace structures and conditions. Where unions are not present, human rights commissions will need to work with employers to help them implement employment equity. The Abella Report challenged the world in 1984 by stating that “law in a liberal democracy is the collective expression of the public will. Few matters deserve the attention of law more than the right of every individual to have access to the opportunity of demonstrating full potential” (Abella 1984, 254). Employment equity is the human rights remedy that society has developed to carry out this democratic obligation. Thirty years later, human rights legal frameworks across Canada set out the obligation and the requirement to proactively achieve and maintain employment equity. Enforcing that framework provides a critical stepping stone to effectively realize the Abella Report’s vision for a more equitable and just society.

NOTES 1 For example, see Block (2007); and Block and Galabuzi (2011). 2 See section 602 of the Federal Omnibus Budget Bill C-38 – now the Jobs, Growth and Long Term Prosperity Act, SC 2012, c 19, which amended s 42(2) of the federal Employment Equity Act. 3 Ontario Human Rights Commission and O’Malley v Simpsons-Sears Ltd, 1985 CanLII 18 (SCC), [1985] 2 SCR 536; Ontario (Human Rights Commission) v Borough of Etobicoke, 1982 CanLII 15 (SCC), [1982] 1 SCR 202; Brossard (Town) v Quebec (Commission des droits de la personne), 1988 CanLII 7 (SCC), [1988] 2 SCR 279; Central Alberta Dairy Pool v Alberta (Human Rights Commission), 1990 CanLII 76 (SCC), [1990] 2 SCR 489; Saskatchewan (Human Rights Commission) v Saskatoon (City), 1989 CanLII 18 (SCC), [1989] 2 SCR 1297; Canada (Human Rights Commission) v Toronto-Dominion Bank, 1998 CanLII 8112 (FCA), [1998] 4 FC 205; Canada (Human Rights Commission) v Taylor, 1990 CanLII 26 (SCC), [1990] 3 SCR 892; Commission scolaire régionale de Chambly v Bergevin, 1994 CanLII 102 (SCC), [1994] 2 SCR 525; Law v

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Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 SCR 497; Canada (Attorney General) v Levac, reflex, [1992] 3 FC 463; Grismer v British Columbia (Attorney General) (1994), 25 CHRR D/296; Thwaites v Canada (Armed Forces) (1993), 19 CHRR D/259; Canadian National Railway Co v Canada (Canadian Human Rights Commission), (“Action Travail des Femmes”) 1987 CanLII 109 (SCC), (“Action Travail”) [1987] 1 SCR 1114; Insurance Corp. of British Columbia v Heerspink, 1982 CanLII 27 (SCC), [1982] 2 SCR 145; Zurich Insurance Co v Ontario (Human Rights Commission), 1992 CanLII 67 (SCC), [1992] 2 SCR 321; Robichaud v Canada (Treasury Board), 1987 CanLII 73 (SCC), [1987] 2 SCR 84; Andrews v Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 SCR 143; Eldridge v British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 SCR 624; Bhinder v Canadian National Railway Co, 1985 CanLII 19 (SCC), [1985] 2 SCR 561; Central Okanagan School District No 23 v Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970; R v Cranston, [1997] CHRD No 1 (QL); Perera v Canada (1998), 158 DLR (4th) 341; R v Kapp, 2008 SCC 41; British Columbia (Public Service Employee Relations Commission) v BCGSEU [1999] 3 SCR 3. O’Malley, supra, at 547, per McIntyre J; Action Travail, supra, at 1134–6, per Dickson CJ; Robichaud v Canada (Treasury Board), 1987 CanLII 73 (SC), [1987] 2 SCR 84, at 89–90, per La Forest J. CNR v Canada (Human Rights Commission) (1987) 1 SCR 1114; British Columbia (Public Service Employee Relations Commission) v BCGSEU [1999] 3 SCR 3. British Columbia (Public Service Employee Relations Commission) v BCGSEU [1999] 3 SCR 3, para 68. Emphasis added. Curling v Torimiro (2000), 38 CHRR D/216, 4 CCEL (3d) 202 (Ont Bd Inq); Drummond v Tempo Paint (1999), 33 CHRR D/184 (Ont Bd Inq) at D/190; Moffatt v Kinark Child and Family Services (1999), 33 CHRR D/184 (Ont Bd Inq) at D/360; Miller v Sam’s Pizza House [1995] NSHRBID No 2; Tahmourpour v RCMP 2008 CHRT 10 at 253 (although overturned by the Federal Court on 6 Oct 2009). BCGEU, op. cit.; Morgoch v Ottawa (City) (No 2) (1990), 11 CHRR D/80 (Ont Bd Inq) at D/93; A v Quality Inn (1993), 20 CHRR D/230 (Ont. Bd. of Inquiry) – which included revisions to the harassment policy to clarify when discipline will result and what the discipline will be when the policy is not adhered to; Gauthier v Canada (Canadian Armed Forces) [1989] CHRD No 3 (CHRT); Gohm v Domtar (1992), 89 DLR (4th) 305 (Ont Div Ct); Canada (AG) v Green [2000] FCJ No 778 (FCTD). Canadian National Railway Co v Canada (Human Rights Comm.) and Action travail des femmes (1987), 8 CHRR D/4210 (SCC) [Eng/Fr 24 pp.] SCC Upholds Affirmative Action – Order of a Tribunal which requires that a

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11 12

13 14 15 16 17 18 19 20 21 22

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company hire one woman in every four new hires into unskilled blue-collar jobs; Canada (AG) v Green, op. cit., at 27; Pitawanakwat v Canada (Dept of Secretary of State) (1994), 21 CHRR D/355; Gauthier v Canada (Canadian Armed Forces), op. cit. Action Travail des Femmes, op. cit.; Pitawanakwat v Canada (Department of Secretary of State) op. cit.; National Capital Alliance on Race Relations v Canada (Health and Welfare), op. cit. Dhillon v FW Woolworth Ltd, op. cit.; Ahluwalia v Metropolitan Toronto (Municipality) Commissioners of Police (1983) 4 CHRR D/1757 (Ont Bd Inq). National Capital Alliance on Race Relations v Canada (Health and Welfare) [1997] CHRD No 3 (CHRT); and McKinnon and Ontario Human Rights Commission v Ontario (Ministry of Correctional Services) et al., op. cit. National Capital Alliance on Race Relations v Canada (Health and Welfare), op. cit. Curling v Torimiro (2000), 38 CHRR D/216, 4 CCEL (3d) 202 (Ont Bd Inq) at 17; and Chiswell v Valdi Foods 1987 Inc (1995), 95 CLLC 230-004 (Ont Bd Inq) National Capital Alliance on Race Relations v Canada (Health and Welfare), op. cit. Pitawanakwat v Canada (Dept of Secretary of State), op. cit. National Capital Alliance on Race Relations v Canada (Health and Welfare), op. cit. Canada (AG) v Green, op. cit. at 27; Pitawanakwat v Canada (Dept. of Secretary of State) op. cit. Canada (AG) v Green, op. cit. at 27; Pitawanakwat v Canada (Dept of Secretary of State), op. cit. National Capital Alliance on Race Relations v Canada (Health and Welfare), op. cit. See BM v Cambridge, 2010 HRTO 1104; and Sutton v Jarvis Ryan Associates, 2010 HRTO 2421. See, for example, Parry Sound (District) Social Services Administration Board v Ontario Public Service Employees Union, Local 324 (OPSEU) [2003] 2 SCR 157, where the Court stated that, at para 52, granting arbitrators the authority to enforce the substantive rights and obligations of human rights and other employment-related statutes has the additional advantage of bolstering human rights protection. See St Joseph’s Villa (19 Aug 1993) 0345-92 (PEHT) and Ottawa Board of Education (1995), 6 PER 45. See York Region Board of Education (CUPE) (1995), 6 PER 3. Ontario Human Rights Commission (2008). It is essential that workplace parties look to these policies for guidance as they may be found liable under the Code if they do not. For an overview of these requirements, see the Cornish, Schucher, and Pask (1998), the Canadian Human Rights Commission website on Employment Equity; and Cornish and Pask (1999).

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27 Central Okanagan School District No 23 v Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970. 28 British Columbia (Public Service Employee Relations Commission) v BCGSEU [1999] 3 SCR 3, at para 65. 29 See Thomson v Fleetwood Ambulance Service 96 CLLC para 230-007 (Ont Bd Inq), where union was not held liable for discriminatory collective agreement provisions where the union had tried to remove the provision and had filed a grievance. See also University of Ottawa and APUO (1999) 85 LAC (4th) 214 (Ont Arb Bd Adams) where the union was found not to be equivalent of co-conspirator. While the top up provision in the collective agreement was only for parental leave for adoptive and not birth parents, the union was not found liable as it had originally proposed a universal top up and had filed grievance over the issue.

REFERENCES Abella, Rosalie Silberman. 1984. Equality in Employment: A Royal Commission Report. Ottawa: Minister of Supply and Services Canada. Bakan, A., and A. Kobayashi. 2000. “Employment Equity Policy in Canada: An Interprovincial Comparison.” Ottawa: Status of Women Canada Research Papers. Beck, Helen, Jeffrey G. Reitz, and Nan Weiner. 2002. “Addressing Systemic Racial Discrimination in Employment: The Health Canada Case and Implications for Legislative Change.” Canadian Public Policy 28 (3): 373–94. Block, Sheila. 2007. Ontario’s Growing Gap. Ottawa: Canadian Centre for Policy Alternatives. Block, Sheila, and Grace-Edward Galabuzi. 2011. Canada’s Colour Coded Labour Market: The Gap for Racialized Workers. Ottawa: Canadian Centre for Policy Alternatives. Canada, Labour Program. 2014. Federal Contractors Program. Ottawa. http://www. labour.gc.ca/eng/standards_equity/eq/emp/fcp/. Cornish, M., F. Faraday, and J. Pickel. 2009. Enforcing Human Rights in Ontario. Aurora, ON: Canada Law Books. Cornish, Mary, and Amanda Pask. 1999. “CLC Trade Union Guide to the Federal Employment Equity Act.” Cavalluzzo, Hayes, Shilton, McIntyre, & Cornish. http://www.cavalluzzo.com/docs/default-source/publications/199905-01-human-rights-and-administrative-justice-going-into-the-year-2000-(marycornish-amanda-pask)---human-rights.pdf?sfvrsn=2.

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Cornish, Mary, Karen Schucher, and Amanda Pask. 1998. “Federal Employment Equity Act (1995).” Cavalluzzo Hayes Shilton McIntyre & Cornish. http:// www.cavalluzzo.com/docs/default-source/publications/1999-04-01-summarof-recent-federal-pay-equity-rulings-(mary-cornish-amanda-pask)-humanrights.pdf. Employment Equity Act 1995, c 44, Statutes of Canada. Faraday, F., M. Denike, and K. Stephenson. 2006. Making Equality Rights Real: Securing Substantive Equality under the Charter. Toronto: Irwin Law. Lum, Janet. 2008. “The Federal Employment Equity Act: Goals vs Implementation.” Canadian Public Administration 38 (1): 45–76. http://dx.doi.org/10.1111/ j.1754-7121.1995.tb01129.x. Ng, Eddy, and Ronald J. Burke. 2010. “A Comparison of the Legislated Employment Equity Program, Federal Contractors Program, and Financial Post 500 Firms.” Canadian Journal of Administrative Sciences 27 (3): 224–35. Ontario Human Rights Commission. 2008. “Human Rights at Work.” http:// www.ohrc.on.ca/en/human-rights-work-2008-third-edition?page=humancontents.html. – n.d. “An Intersectional Approach to Discrimination: Addressing Multiple Grounds in Human Rights Claims.” Discussion paper. http://www.ohrc.on.ca/ sites/default/files/attachments/An_intersectional_approach_to_discrimina tion%3A_Addressing_multiple_grounds_in_human_rights_claims.pdf. Pinto, Andrew. 2012. Report of the Ontario Human Rights Review 2012. Ministry of the Attorney General of Ontario. http://www.attorneygeneral.jus.gov.on.ca/ english/about/pubs/human_rights/Pinto_human_rights_report_2012-ENG.pdf. Standing Senate Committee on Human Rights. 2010. Reflecting the Changing Face of Canada: Employment Equity in the Federal Public Service. http://www.parl. gc.ca/Content/SEN/Committee/403/huma/rep/rep02jun10-e.pdf. “Tories Take Aim at Employment Equity.” Globe and Mail, 22 July 2010.

Chapter 11

The Employment Equity Mandate of the United Nations Convention on the Rights of Persons with Disabilities: Some Preliminary Observations for Canada MICHAEL ASHLEY STEIN

The United Nations Convention on the Rights of Persons with Disabilities (United Nations General Assembly, CRPD 2007) entered into force on 3 May 2008, becoming the first human rights treaty of the twentyfirst century as well as the first legally enforceable international instrument specifically directed at persons with disabilities (United Nations Enable 2011). This chapter provides background on the CRPD and its employment equity mandates – including Canadian contributions – then briefly assesses Canada’s progress and prospects towards achieving the CRPD’s requirements. It starts by setting out a brief overview of what motivated enactment and adoption of the CRPD. The next section describes the CRPD’s employment-related provisions with emphasis on article 27, provides a sense of the two main debates surrounding article 27, and identifies some thematic issues that have arisen from the CRPD’s operation. The chapter then turns to Canada, and relates a few key interventions by Canadian state representatives at the CRPD negotiations on the linked topics of employment and equity. It concludes with an account of what progress Canada has attained on the CRPD and offers some thoughts on the relationship between article 27 and the Employment Equity Act (EEA 1995). What Motivated a Disability-Specific Rights Convention? Prior to the CRPD, persons with disabilities – as humans – were protected in theory but not in practice by existing United Nations (UN) human rights treaties, including the International Covenant on Civil and Political Rights (1966, art 6, s 1) and the International Covenant on Economic, Social and Cultural Rights (1966). To illustrate, over the decade 1993–2002,

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seventeen disability-related complaints were brought to UN treatymonitoring bodies, thirteen of which were declared inadmissible.1 In addition, people with disabilities are not referenced in significant United Nations endeavours, despite the relevance of such schemes to their daily lives. A primary example is the Millennium Development Goals (MDGs), a global UN program with eight target areas directed at halving the world’s severe poverty by 2015 (United Nations General Assembly 2000). To illustrate, the MDGs are aimed primarily at poverty reduction (Millennium Development Goal 1), and the prevalence of people with disabilities among those living below the dollar-a-day standard is 20 per cent, double that of the global rate of disability (Elwan 1999, 15); the MDGs likewise target education (Millennium Development Goal 2), and children with disabilities in the developing world attend school at a rate under 2 per cent (Committee on the Rights of the Child 1997, s 2). Nonetheless, and despite early recognition by the president of the World Bank that people with disabilities had to be included in MDG schemes if they were to succeed (Wolfensohn 2002), the MDGs neither specifically reference nor programmatically include the disabled.2 In terms of employment, persons with disabilities in the developing world are two to three times as likely to be unemployed as their peers without disabilities, and the disability employment rate in developing countries is not much more promising (Elwan 1999, 12–13). In the United States, for instance, the unemployment rate among working-age persons with disabilities hovers near 80 per cent (Harris Interactive 2010, 8). Women with disabilities are especially vulnerable to being shut out of the workplace, with data indicating the global unemployment rate around 75 per cent (Stoddard et al. 1998, s 2.3), but with rates in the developing world well above 90 per cent (O’Reilly 2003). Worse, even when women with disabilities secure employment, they earn disproportionately less than disabled men, and their particular needs are often ignored by those promoting the rights of persons with disabilities as well as those ensuring gender equality and advancement (Women Watch 2008).3 Provisions encouraging employment of workers with disabilities are contained in the International Labour Organization Convention 159 (2008, art 3), the World Program of Action concerning Disabled Persons (United Nations General Assembly 1982, 185) and the Standard Rules on the Equalization of Opportunities for Persons with Disabilities (United Nations General Assembly 1993a, rule 7). However, as soft law, these are not binding, and neither empirical nor anecdotal evidence suggests they have been effective.

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Hence, the CRPD was precipitated by an absence of disability rights protection and of employment equity, in theory and practice (Quinn and Degener 2002). The CRPD and Its Employment Provisions The CRPD provides comprehensive employment-related provisions and encourages equality schemes that are needed to realize these rights. During the ad hoc sessions, the two main issues debated were the role of sheltered workshops and the extent of employment equity measures. The CRPD’s adoption has engendered significant global law reform in the disability realm, with certain thematic issues recurring across states.

Employment Provisions Article 27 prohibits discrimination in all aspects of the employment relationship, including hiring, retention, and promotion (CRPD 2007). It protects workers with disabilities on an equal basis with others, including equal access to employment opportunities, pay, health and safety conditions, freedom from harassment, and the ability to exercise labour rights. Article 27 also underscores that states parties must ensure the provision of reasonable workplace accommodations, a mandate that two commentators characterized as “perhaps the most fundamental instrumental element of the convention” (Kayess and French 2008, 27). And, although geared towards the open labour market, article 27 prohibits exploitive working conditions. These protections in turn are aided by article 2 defining the denial of reasonable accommodation as an actionable ground for discrimination, as well as defining the term (CRPD 2007).4 Article 27 complements these strong non-discrimination provisions with enabling equity measures that include vocational training and employment services, self-employment opportunities, public sector hiring, and affirmative action programs. Notably, equity measures deemed necessary to achieve equality for disabled persons are stipulated as non-discriminatory throughout the CRPD under article 5. To further strengthen disability-related employment, article 26 requires states parties to take appropriate and effective measures to create and bolster habilitation and rehabilitation services related to employment, including access to information technology for disabled persons and training for rehabilitation professionals (CRPD 2007).

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Negotiation Issues States representatives, as well as disabled persons organizations (DPOs) – the CRPD is the first UN human rights treaty to include non-government organizations from the targeted group in its negotiations (Stein and Lord 2008, 177–8) – uniformly agreed that the CRPD should focus on encouraging voluntary participation by workers with disabilities in the open labour market. For example, New Zealand noted that because the CRPD sets the gold standard, it ought to foster an open and inclusive labour market, whether formal or informal, without aiming for lesser ideals (UN CHRPD Ad Hoc Committee 2005a). A representative from the International Disability Caucus, an umbrella group of DPOs, concurred with these sentiments, noting that any alternative would dilute the current employment rights held by persons with disabilities under the International Covenant of Economic, Social and Cultural Rights, which refers to the right to work that the individual freely chooses or accepts (UN CHRPD Ad Hoc Committee 2006). Nonetheless, there was some divergence on the merits and scope of sheltered workshop arrangements. Bahrain suggested a sub-paragraph to an early draft article on the right to work that would affirmatively encourage “the creation of workshops for persons with disabilities” in order to “promote their production” (UN CHRPD Ad Hoc Committee 2004b). Serbia and Montenegro sought to mitigate this provision as being merely a reserve option to the open labour market, and one wherein meaningful work and working conditions would be offered (UN CHRPD Ad Hoc 2005a). In contrast, the very possibility of segregated workshops was strongly opposed as an outdated concept that created barriers to open labour market employment, reinforced stereotypes and exploitation, and was considered a form of institutionalization by several DPOs, including the World Network of Users and Survivors of Psychiatry, and jointly by Inclusion International and the Canadian Association for Community Living (UN CHRPD Ad Hoc Committee 2004b). The International Labour Organization, in conjunction with Israel, mediated a central position by noting that the majority of disabled employees function outside the formal labour market. Accordingly, in circumstances where separated workshops exist, they ought to provide meaningful work, be used to transition workers to the open labour market, and protect their disabled employees from abuse and exploitation (UN CHRPD Ad Hoc Committee 2004b, 2005b, 2005c). Consensus was reached by not referencing sheltered workshops in the text of article 27

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and acknowledging that all forms of employment – including potentially by inference, segregating employment – must be equally protected from discrimination (CRPD 2007). Several employment equity measures were raised and considered during the Ad Hoc Committee sessions.5 Initially there were proposals to track existing measures, such as the European Union’s Framework Directive and the International Labour Organization’s Convention 159 (UN CHRPD Ad Hoc Committee 2002a, 2002b). A minority of states representatives favoured the use of quotas as an effective scheme to increase the relative employment rate of persons with disabilities, especially when directed to the public sphere or used in conjunction with other measures (UN CHRPD Ad Hoc Committee 2005a, Interventions from Yemen and Tunisia). However, the majority of states viewed quotas as counterproductive, either as practically ineffective (UN CHRPD Ad Hoc 2005b, Intervention from Australia), or because they limit the career opportunities open to persons with disabilities (UN CHRPD Ad Hoc Committee 2005a, Intervention by Trinidad and Tobago). By contrast, affirmative action was lauded by several states as an effective means for reducing historic workplace inequalities (UN CHRPD Ad Hoc Committee 2004b, Intervention by Israel), and necessary in order to preserve existing employment rights under other treaties (UN CHRPD Ad Hoc Committee 2005c, Intervention by Chile). The World Network of Users and Survivors of Psychiatry suggested that specifically encouraging affirmative action while also enumerating appropriate measures was an appropriate way to reflect the different national experiences on quotas, and to allow implementation of whichever measure is appropriate in a given situation (UN CHRPD Ad Hoc Committee 2005b). Concluding the discussion of the draft article on work and employment, the chair noted that the ultimate text was amenable to interpretation (UN CHRPD Ad Hoc Committee 2006). Accordingly, the final version of article 27 does not contain specific mention of quota systems – but also does not prohibit them as an alternative measure – while also highlighting affirmative action as one positive measure that states parties might pursue when appropriate (CRPD 2007).

Thematic Issues Fewer than fifty states have any sort of systemic disability legislation, and many of those laws are in need of drastic revision. Hence, the CRPD has precipitated worldwide law reform on behalf of the globe’s largest

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minority group (Lord and Stein 2008, 451). When revising domestic disability laws and polices relating to employment, each state must consider its individual socio-legal and financial circumstances in determining how to balance anti-discrimination prohibitions with equity measures in an effort to honour its treaty obligations. Take, as a far-reaching example, the European Union Framework Directive (Council of the European Union 2000) prohibiting discrimination in employment on the basis of disability. The directive requires individual employers to take “appropriate measures” to provide reasonable accommodations. However, it is neutral on whether member states may support disabled employment through “specific measures.” This issue is now at the forefront, since the European Union ratified the CRPD as a regional body, the first human rights treaty it entered into as a collective (International Disability and Development Consortium 2010). A related and equally undetermined issue is how states parties with pre-existing programs – such as the employment quota system operated in Germany, which ratified on its own initiative – will respond to the EU directive’s purely anti-discrimination mandate in view of the CRPD (Waddington 2005). Successive Japanese governments have been pressed for over a decade by disability rights groups to supplant or supplement the existing quota system with anti-discrimination laws, but the scope of such protection and the manner it will balance with the quota system have yet to be resolved (Stein 2005). Despite regional variations, at least three cross-cutting issues can be taken away from the experience of individual domestic-level initiatives that have global significance: crafting culturally appropriate legal regimes, adapting enforcement mechanisms that can be effective within their national contexts, and the imperative of altering employer attitudes towards workers with disabilities. As an initial matter, it would be imprudent to work within a single model or to attempt to apply it universally. Returning to the deliberations in Japan, for example, transposing the Americans with Disabilities Act (2000) – an anti-discrimination statute that is driven by a litigious and confrontational dynamic of individual rights self-enforcement – would engender disastrous effects in Japan, which has the globe’s lowest per capita number of lawyers (Melville 1999, 60), and a historically cooperative approach to labour relations. Indeed, domestic experimentation often brings about innovation and can serve as a laboratory from which other states can learn. For some states, quotas work better than for others. The same may be said for affirmative action, job set-asides, tax

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subsidies, government procurement plans, self-employment schemes, and micro-credit initiatives (Stein and Stein 2007, 1225–40). Moreover, effective rights enforcement is an issue in every state, irrespective of how progressive their laws appear on paper. Here again, culture and socio-legal norms must drive the structuring of remedies. Thus, the use of fines is currently considered appealing for development of regulations in Vietnam, whereas in Serbia shaming and public denouncement are viewed as an expedient way to implement their omnibus anti-discrimination law.6 For other states, structured mediation or informal dialogue may be viewed as the preferred course; or formal complaint mechanisms that proceed through courts or general or specialized commissions; and in still others, the use of criminal sanctions (Degener and Quinn 2002). Ultimately, and at issue universally is the question of changing social attitudes towards persons with disabilities so that employers affirmatively wish to include them in the workforce. CRPD article 8 requires state parties to raise awareness about persons with disabilities in order to break down entrenched stereotypes. Such a sea change is necessary to offset deeply instantiated mindsets if meaningful enforcement of the CRPD or a domestic parallel is to be seen as an opportunity for fostering diversity rather than as a burden. It also is essential if disability-inclusion is to be viewed as enhancing the capabilities of valued citizens rather than as a drain on limited resources. When educated on these possibilities, employers can be significant allies in transforming their workplaces into empowering mechanisms for the overall social inclusion of disabled persons (Neudfeldt and Albright 1998). There is reason to hope that attitudes can change and societies become more inclusive, including in their workplaces, but such optimism must be tempered with the understanding that obviating entrenched prejudice requires both time and state-sponsored support. Canada and the CRPD Canada’s state representatives were at front and centre in supporting employment equity during the CRPD negotiations. Canada subsequently ratified the CRPD and is putting into place national mechanisms for its monitoring and implementation. Article 27 and the Employment Equity Act (EEA) share some common goals. Assessing progress under the EEA can thus lend insight on the efficacy of implementing the CRPD’s employment provisions, and ultimately vice-versa. However, Canadian

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federalism restrains the reach of both measures. Hence, best practice examples will remain more illustrative than prescriptive in the absence of parliamentary passage of supplemental equity measures.

Canadian Interventions at the UN State representatives for Canada played an active role in the eight Ad Hoc negotiation sessions leading to the adoption of the CRPD. Perhaps most notable among their interventions was support of employment equity, and specifically, championing the notion of reasonable workplace accommodations. This contribution was noted in a statement by a Canadian representative during formal adoption of the CRPD by the General Assembly (Normandin 2006) and reiterated by a prominent and highly involved Canadian disability rights advocate (CCD 2011a). Although Canada regularly intervened during the CRPD negotiations on the topic of employment equity, the fullest expression of its position appeared during the Sixth Ad Hoc session when commenting on the evolving article relating to work and employment. Those pronouncements are worth reproducing at length: Canada supports the full inclusion of persons with disabilities into economic life, including the labour market and work environment, and recognizes that the opportunity to contribute through work is an integral aspect of human life … In Canada’s view, although the duty of reasonable accommodation is included [in the draft article on equality and non-discrimination] it is of such importance to this context that it should also be highlighted in this article in order to remove existing barriers and to prevent new ones from arising so as to “open the employment door.” Reasonable accommodation should require employers to ensure that persons with disabilities are enabled to perform duties of employment. (Canada 2005, art 22)

Canadian support for reasonable workplace accommodation was part of a larger agenda directed at including a right under the CRPD that would emulate the Canadian notion of “substantive equality” (Maillé 2003). To quote Canada’s representative to the General Assembly on the adoption of the CRPD by general consensus, Canada is pleased to welcome the strong equality rights provision, and the significant contribution this Convention makes to developing the concept of reasonable accommodation, so crucial to ensuring the full inclusion

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and participation of persons with disabilities in society … The concepts of equality and reasonable accommodation reflect “substantive equality,” namely treating persons with disabilities according to their actual merits, capacities and circumstances, not based on stereotypes. Substantive equality does not mean simply treating everyone in exactly the same way. Indeed, accommodating people’s differences is the essence of substantive equality, and this understanding is especially key to eliminating discrimination against persons with disabilities. (Normandin 2006)

Jurisprudence arising under section 15 of the Canadian Charter of Fundamental Rights and Freedoms, which includes disability as a protected category (Neufeldt 2003), views substantive equality as encompassing non-discrimination and equity measures that ultimately yield both equality of opportunity and equality of result (Baker and Godwin 2008). This understanding is clearly evidenced in the Supreme Court’s 1997 Eldridge decision,7 and reinforced a decade later by Justice Abella’s eloquent opinion for the Supreme Court in VIA Rail.8

Canadian Ratification and Implementation Despite heavy involvement in the CRPD negotiations, as well as being among the states that signed the treaty on the first day it opened for signature, it was nearly three years before Canada ratified the CRPD on 11 March 2010 (United Nations Enable 2011). Since then Canada has been working towards establishing a national infrastructure to monitor and put into operation the CRPD (CHRC 2010a). Pursuant to article 33 (1), Canada must designate one or more focal points for treaty implementation. Further to article 33 (2), Canada must designate or establish “one or more independent mechanisms” that will promote, protect and monitor implementation. Article 35 requires Canada to submit to the CRPD monitoring body of experts a “comprehensive report” on measures taken to effectuate the treaty within two years of Canada’s ratification (i.e., March 2012), and every four years thereafter (CHRC 2010a). A post-ratification report of the Canadian Human Rights Commission, which contains a statistical overview of employment status and many other facets of the lives of Canadians with disabilities, documents current realities (CHRC 2012). The Canadian disability rights movement has continued its active UN negotiation advocacy at home. These advocates have taken to heart CRPD article 4 (3)’s requirement that states parties “closely consult with

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and actively involve” persons with disabilities and DPOs in any national action by providing detailed suggestions to the Canadian government. Thematically, the advocates identified their priorities as poverty alleviation, access to disability related support, labour force participation, and access. A Working Paper on CRPD implementation drafted by the Council of Canadians with Disabilities (CCD) in conjunction with the Canadian Association for Community Living (CACL), and endorsed by 130 organizations, was released in February 2011 and provides specific recommendations (CCD 2011b, 2011c). Highlights include a robust participation strategy, a concrete national action plan, a public and transparent review process, and the designation of the Canadian Human Rights Commission (CHRC) under article 33 (2) (CCD 2011b, 2011c). The latter suggestion was initially raised at the time of Canadian ratification by CHRC chair Jennifer Lynch (CHRC 2010b) and reflects the CHRC’s expertise on disability,9 as well as the understanding of CRPD negotiators that national human rights institutions were particularly well suited to undertake article 33 (2) duties (Stein and Lord 2010, 703–5).10 In any event, Canadian disability rights advocates have been forthright in stating they fully “expect progressive realization of our rights” (Derksen 2011). This aspiration is of a piece with Canada’s representation during the Sixth Ad Hoc session “that the true measure of the Convention’s success will be real improvements in the quality of life of persons with disabilities” (UN CHRPD Ad Hoc Committee 2005a). One such determinant is employment equity.

Employment Equity Article 27 and the EEA share common aspirations. Each seeks to eradicate discriminatory barriers that prevent equal access to, and advancement within, the workplace by persons with disabilities. Similarly, each requires the provision of reasonable accommodations that enable those workers to perform their duties, as well as the use of positive measures to equalize historical equity gaps. Moreover, each comprehends that failing to counteract the unequal position of people with disabilities perpetuates their social stigma and the attitudes that maintain workplace hierarchies and cultures (Stein and Stein 2007, 1209). Put another way, both article 27 and the EEA encompass non-discrimination and equality, and they acknowledge that as human rights these concepts are “indivisible and interdependent and interrelated” (United Nations General Assembly 1993b, para. 5).

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As of this writing, mechanisms for monitoring and implementing article 27 are being developed. However, enforcement schemes for the EEA are well ensconced. The EEA tasks the Canadian Human Rights Commission (CHRC) with auditing employers and assessing their compliance with the EEA. Employment equity audits – initially of randomly selected applicable employers, but afterwards as well of previously audited entities to ascertain their progress – assess employer compliance with nine statutory requirements. These include companies having a representative number of designated group members employed, preparing and enforcing an adequate employment equity plan, and consulting with employees on compliance with that plan. Employers who fail to heed CHRC directives can be referred to an Employment Equity Review Tribunal (EEA 1995, part 2). For this reason, an optimal outcome would have the EEA reinforcing article 27, and one day the CRPD returning the favour, with each under the auspices of the CHRC. At the same time, the two legal measures are limited in the extent of their respective coverage by Canadian federalism. The implications of international law for federal states are complicated and doctrinally unclear, and their resolution goes well beyond the remit of this chapter. This is especially true when the sources of those obligations are positive equality measures, as opposed to non-discrimination, which is addressed by a number of legal mandates, most notably the Canadian Charter of Fundamental Rights and Freedoms (Malhotra and Hansen 2011). It bears noting, however, that Canada included a declaration and reservation on the subject of federalism and implementation as part of its CRPD ratification (United Nations Enable 2011). As a state party obligation, the CRPD requires Canada as an employer to hire persons with disabilities in the public sector, “promote” preemployment schemes such as vocational training and placement services, “ensure” that reasonable workplace accommodations are provided, and “promote” private sector employment of disabled workers through “appropriate” equality measures (article 27). As the result of federalism restraints, the EEA applies to federal public administration, designated portions of the public sector employing more than 100 people (including, for example, the Royal Canadian Mounted Police), and private employers of more than 100 people engaged in “federal work” (EEA 1995). Consequently, both article 27 and the EEA are structurally limited on how deeply they can affect the private sector beyond highlighting good practices and bringing those examples to the attention of the larger

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private sector labour market. Prospects for change therefore hinge on the extent to which Parliament is willing to commit to the type of employment equity measures whose progressive realization are encouraged in article 27, and advocated for by the Canadian disability rights movement in their Working Paper.

NOTES 1 Despouy (1993) notes that “persons with disabilities are going to find themselves in a legal disadvantage in relation to other vulnerable groups” because “unlike the other vulnerable groups, they do not have an international control body to provide them with particular and specific protection.” 2 The General Assembly, in response to extensive pressure from disability rights groups, passed the resolution Realizing the Millennium Development Goals for Persons with Disabilities through the Implementation of the World Programme of Action concerning Disabled Persons and the Convention on the Rights of Persons with Disabilities (2009) to include disability. It remains to be seen, however, when and to what extent this will manifest. 3 “When women with disabilities work, they often experience unequal hiring and promotion standards, unequal access to training and retraining, unequal access to credit and other productive resources, unequal pay for equal work and occupational segregation, and they rarely participate in economic decision-making” (O’Reilly 2003, 31–2). 4 The CRPD, in article 2, delineates reasonable accommodation as “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.” 5 For instance, during the 12 January 2004 session of the Working Group that focused on the article 22, “Right to Work,” Uganda suggested career guidance; China recommended private employer tax incentives as well as government procurement contracts; and India advocated for provisions related to self-employment, and worksite training (United Nations 2004a). 6 These observations are from the author’s experience assisting these states in formulating domestic legislation. 7 Eldridge v British Columbia (Attorney General) [1997] 3 SCR 624 (Can). 8 Council of Canadians with Disabilities v Via Rail Canada [2007] 1 SCR 650 (Can). Read more at vLex, http://ca.vlex.com/vid/canadians-with-disabilities-viarail-37673570#ixzz1KHyG5qrQ.

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9 For example, 44 per cent of all 2010 complaints accepted by CHRC related to disability. http://publications.gc.ca/collections/collection_2011/ccdpchrc/HR1-2010-eng.pdf. 10 The author, as executive director of the Harvard Law School Project on Disability (www.hpod.org), notes with gratitude the collaboration of the CHRC and the International Coordinating Committee of National Institutions, both chaired by Jennifer Lynch on a number of joint initiatives relating to the development of article 33 (2) monitoring mechanisms. These include side sessions during the CRPD negotiations and afterwards at the annual Conference of States Parties, and the development at Harvard Law School of a submission on domestic level monitoring by national institutions to the Sixth Ad Hoc session, parts of which were incorporated into the CRPD. The author likewise notes contributions by Harvey Goldberg of the CHRC in these initiatives. Ms Lynch passed away after a long illness in November 2013, but her efforts will long be remembered.

REFERENCES Abella, Rosalie Silberman. 1984. Equality in Employment: A Royal Commission Report. Ottawa: Minister of Supply and Services Canada. Americans with Disabilities Act. 2000. 42 USC s 12101. Baker, David, and Sarah Godwin. 2008. “All Aboard: The Supreme Court of Canada Confirms That Canadians with Disabilities Have Substantive Equality Rights.” Saskatchewan Law Review 71:39–77. Canada. 2005. “Contribution by Governments.” Proposed Modifications by Governments to the Draft Text of the United Nations Convention on People with Disabilities. Sixth Session. http://www.un.org/esa/socdev/enable/rights/ ahc6canada.htm. Canadian Human Rights Commission (CHRC). 2010a. “Background Paper: Convention on the Rights of People with Disabilities – Article 33.” – 2010b. “United Nations’ Convention on the Rights of Persons with Disabilities.” News Room. – 2012. Report on Equality Rights of People with Disabilities. Ottawa: Minister of Public Works and Government Services. http://www.chrc-ccdp.ca/sites/default/ files/rerpd_rdepad-eng.pdf. Committee on the Rights of the Child. 1997. Convention on the Rights of the Child: Summary Record of the 418th Session. U.N. Doc CRC/C/SR.418 (16th Sess., 27 Jan.). Council of Canadians with Disabilities. 2011a. “A Call to Action: UN Convention on the Rights of Persons with Disabilities.” http://www.ccdonline.ca/

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en/international/un/canada/making-domestic-implementation-realmeaningful. – 2011b. “UN Convention on the Rights of Persons with Disabilities: Making Domestic Implementation Real and Meaningful.” CCD-CACL Working Paper. Council of Canadians with Disabilities. http://www.ccdonline.ca/en/ international/un/canada/making-domestic-implementation-real-andmeaningful-feb2011. – 2011c. “CCD-CACL Working Paper on the UN Convention on the Rights of Persons with Disabilities 2011.” http://biac-aclc.ca/wp-content/uploads/ 2011/03/CCD-CACL-CRPD-Action-Plan-Overview.pdf. Council of the European Union. 2000. Council of Europe Directive Establishing a General Framework for Equal Treatment in Employment and Occupation. U.N. Doc. 2000/78/EC (27 Nov.). Degener, Theresia, and Gerard Quinn. 2002. “A Survey of International, Comparative and Regional Disability Law Reform.” In Disability Rights Law and Policy: International and National Perspectives, ed. Mary Lou Breslin and Silvia Yee. Amsterdam: Hotei Publishing. http://www.dredf.org/international/ degener_quinn.html. Derksen, Jim. 2011. “Disability Community Priorities and Expectations.” Presentation to Council of Canadians with Disabilities, 29 March. http://www. ccdonline.ca/en/international/un/canada/jim-derksen-march2011. Despouy, Leandro. 1993. “Human Rights and Disabled Persons.” United Nations Enable. http://www.un.org/esa/socdev/enable/dispaperdes0.htm. Elwan, Ann. 1999. “Poverty and Disability: A Survey of the Literature.” World Bank Social Protection Discussion Paper Series no. 9932. http://sitere sources.worldbank.org/DISABILITY/Resources/280658-1172608138489/ PovertyDisabElwan.pdf. Employment Equity Act 1995 SC c 44 (Can.). http://laws-lois.justice.gc.ca/eng/ acts/E-5.401/. Harris Interactive. 2010. The ADA, 20 Years Later. New York: Harris Interactive. http://www.2010disabilitysurveys.org/pdfs/surveyresults.pdf. International Disability and Development Consortium (IDDC). 2010. “EU Ratification of the UN Convention on the Rights of Persons with Disabilities: From Charity to a Human Rights Perspective.” International Labor Organization. 2008. ILO Vocational Rehabilitation and Employment (Disabled Persons) Convention (No. 159) and Recommendation (No. 168). Geneva: International Labour Organization. Kayess, Rosemary, and Phillip French. 2008. “Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities.” Human Rights Law Review 8 (1): 1–34. http://dx.doi.org/10.1093/hrlr/ngm044.

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Lord, Janet E., and Michael Ashley Stein. 2008. “The Domestic Incorporation of Human Rights Law and the United Nations Convention on the Rights of Persons with Disabilities.” Washington Law Review. 83:449–79. Maillé, Béatrice. 2003. “Statement on Contributions to Proposals for a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities.” Second Session of the Ad Hoc Committee. 18 June. Malhotra, Ravi, and Robin F. Hansen. 2011. “The United Nations Convention on the Rights of Persons with Disabilities and Its Implications for the Equality Rights of Canadians with Disabilities: The Case of Education.” Windsor Yearbook of Access to Justice 29 (73): 1–29. Melville, Ian. 1999. Marketing in Japan. Oxford: Butterworth-Heinemann. Millennium Development Goals. n.d.a. “Millennium Development Goal 1.” United Nations. http://www.un.org/millenniumgoals/poverty.shtml. Millennium Development Goals. n.d.b. “Millennium Development Goal 2.” United Nations. http://www.un.org/millenniumgoals/education.shtml. Neufeldt, Aldred H. 2003. “Disability in Canada: An Historical Perspective.” In In Pursuit of Equal Participation: Canada and Disability at Home and Abroad, ed. Henry Enns and Aldred H. Neufeldt, 22–80. Concord, ON: Captus. Neufeldt, Aldred H., and Alison L. Albright, eds. 1998. Disability and Self-directed Employment: Business Development Models. Ottawa: International Development Research Centre. Normandin, Henri-Paul. 2006. “Statement by Ambassador Normandin to the General Assembly on the Convention on the Rights of Persons with Disabilities” New York, 13 December. http://www.un.org/disabilities/default.asp?id=155#ca. O’Reilly, Arthur. 2003. “Employment Barriers for Women with Disabilities.” In The Right to Decent Work of Persons with Disabilities, IFP/Skills Working Paper No. 14, 31–2. Geneva: International Labor Organization. Quinn, Gerard, and Theresia Degener. 2002. “Human Rights and Disability: The Current Issue and Future Potential of United Nations Human Rights Instruments in the Context of Disability.” Geneva: United Nations. http:// www.nhri.net/pdf/disability.pdf. Seelman, Katherine D. 1998. “Chartbook on Work and Disability.” National Institute on Disability and Rehabilitation Research. http://www.infouse. com/disabilitydata/workdisability/2_3.php. Stein, Michael Ashley. 2005. “Americans with Disabilities Act Policy Implications for Reforming Japanese Disability Employment Law: Proceedings of a Presentation to the Japan Diet” In Japan Disability Forum Bulletin. English speech, with published Japanese translation.

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Stein, Michael Ashley, and Janet E. Lord. 2008. “Jacobus tenBroek, Participatory Justice, and the UN Convention on the Rights of Persons with Disabilities.” Texas Journal on Civil Liberties and Civil Rights 13:167–85. – 2010. “Monitoring the Committee on the Rights of Persons with Disabilities: Innovations, Lost Opportunities, and Future Potential.” Human Rights Quarterly 31: 689–728 Stein, Michael Ashley, and Penelope J.S. Stein. 2007. “Beyond Disability Civil Rights.” Hastings Law Journal 58:1203–40. Stoddard, Susan, Lita Jans, Joan M. Ripple, and Lewis Kraus. 1998. “Chartbook on Work and Disability.” Washington, DC: U.S. National Institute on Disability and Rehabilitation Research. http://www.infouse.com/disabilitydata/ workdisability/index.php. United Nations Convention on the Human Rights of People with Disabilities Ad Hoc Committee. 2002a. “Daily Summaries of the First Session,” 1 (1). – 2002b. “Daily Summaries of the First Session,” 1 (7). – 2004a. “Daily Summary Related to Draft Art. 22,” 3 (6). – 2004b. “Daily Summary of Discussion at the Third Session,” 4 (7). http://www. un.org/esa/socdev/enable/rights/ahc3sum2june.htm. – 2005a. “Daily Summary of Discussion of the Sixth Session,” 7 (7). http://www. un.org/esa/socdev/enable/rights/ahc6sum9aug.htm. – 2005b. “Daily Summary of Discussion of the Sixth Session,” 7 (8). http://www. un.org/esa/socdev/enable/rights/ahc6sum10aug.htm. – 2005c. “Daily Summary of Discussion of the Seventh Session,” 8 (8). http:// www.un.org/esa/socdev/enable/rights/ahc7sum25jan.htm. – 2006. “Daily Summary of Discussion of the Seventh Session,” 8 (9). http:// www.un.org/esa/socdev/enable/rights/ahc7sum26jan.htm. United Nations Enable. 2008. “Convention on the Rights of Persons with Disabilities.” http://www.un.org/disabilities/default.asp?navid=13&pid=150. – 2011. “Declarations and Reservations.” http://www.un.org/disabilities/. United Nations General Assembly. 1966a. International Covenant on Civil and Political Rights. G.A. Res. 2200(XXI)A. (21st Sess., Dec. 16). – 1966b International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200(XXI)A. (21st Sess., Dec. 16). – 1982. World Programme of Action Concerning Disabled Persons. G.A. Res. 37/52 (37th Sess., Dec. 3). – 1993a. Standard Rules on the Equalization of Opportunities for Persons with Disabilities. G.A. Res. 48/96. (48th Sess., Dec. 20). – 1993b. Vienna Declaration and Programme of Action. World Conference on Human Rights, 14–25 June 1993. U.N. Doc A/CONF. 157/24 (12 July).

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– 2000. United Nations Millennium Declaration, G.A. Res. 55/2. (55th Sess., 18 Sept.). http://www.un.org/millennium/declaration/ares552e.htm. – 2007. Convention on the Rights of Persons with Disabilities (CRDP). G.A. Res. 61/106. (61st Sess., Jan. 24). – 2009. Realizing the Millennium Development Goals for Persons with Disabilities Through the Implementation of the World Programme of Action Concerning Disabled Persons and the Convention on the Rights of Persons with Disabilities. G.A. Res. 63/150. (63rd Sess., Feb. 11). Waddington, Lisa. 2005. “Implementing the Disability Provisions of the Framework Employment Directive: Room for Exercising National Discretion.” In Disability Rights in Europe: From Theory to Practice, ed. Anna Lawson and Caroline Gooding, 107–34. Portland, OR: Hart Publishing. Wolfensohn, James D. 2002. “Poor, Disabled and Shut Out.” Washington Post, 3 Dec. Women Watch. “Women with Disabilities.” Inter-Agency Network on Women and Gender Equality. http://www.un.org/womenwatch/enable/.

Chapter 12

New Narratives, Same Old Problems: The Risk of Diversity-Centred Workplace Decision-Making in a “Post-Racial” America N ATA S H A M A R T I N

Achieving employment equity in the American workplace remains an enduring quandary. Barriers to entry, at least in their most blatant forms, have diminished appreciably for women, people of colour, and other marginalized individuals. Notwithstanding the important gains over the years in dismantling impediments to access, efforts to harness the valuable contributions from a blended workforce have not attained this ideal. The prevalence of societal discrimination in education, housing, transportation, consumer markets, and employment is simply undeniable (Shuford 2009). A country with a complex labour history, the United States continues to struggle with reconciling its past atrocities, including slavery and Jim Crow, with its articulated constitutional values of equality and justice for all (Gotanda 1991). Despite the implementation of a national policy on equal employment opportunity and nearly fifty years of jurisprudential exploration, why does employment discrimination remain a central justice issue for American society? In this chapter, I will suggest that workplace equity remains elusive in large part because of an intense ideological divide over the proper conception of equality that ought to shape the nation’s policy and approach to equal employment opportunity. After decades of an oppressive employment system of slavery and legal segregation, American policy towards workplace inclusion took a dramatic turn in the early 1960s when Congress enacted Title VII of the Civil Rights Act of 1964 – the first legislative stance towards a national policy on employment equity. This progress was years in the making and embodied “colour blindness” as the antidote to oppression in American society. Briefly, prior to this period, the United States had not adopted a legislative stance on equal employment opportunity. In fact, discrimination in

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employment was the order of the day and mirrored the prevailing societal attitudes and behaviours. The law not only tolerated racial differences but also facilitated racial hierarchy in society. Thus, the enactment of Title VII codified the policy ideal that an inclusive society embraced all individuals without regard to race or ethnicity. This positive stance to advance the rights of African-Americans and others in all facets of American life without regard to skin colour was embraced by civil rights leaders, past presidents, and many in society at large. Somewhere along the way, however, this positive conception of the colour-blind ideal became strained, subverted in fact, by those who sought retrenchment of progressive endeavours towards economic justice including race-conscious affirmative action measures. Trina Jones eloquently documents this shift, describing it as a period in which American courts abandoned colour blindness as a “proactive tool for social change,” giving way to a “mechanism for validating the status quo” (Jones 2010, 431). Prior to the emergence of this negative conception of affirmative action, however, diversity efforts were an integral part of organizational growth. As employers, particularly those in the private sector, sought to amass the building blocks to revitalize their businesses and capture competitive global advantage, enhancing diversity became integral to their strategic plans. Employers engaged in targeted efforts to articulate their commitments to diversity, to engage in direct action to promote inclusiveness, and to broadcast their efforts far and wide. Propelled by the apparent decisiveness of the enactment of Title VII and the passionate determination of the civil rights movement, colour blindness became a constant refrain in America’s sonata on equality. Accordingly, as the jurisprudence of workplace law evolved, we became a society that spoke in colour-blind terms and professed to think in colour-blind terms, further blurring the understanding of what constitutes discrimination. Enter “post-racialism” – the notion that in American society race no longer represents an impediment to opportunity; it no longer accounts for any real or perceived inequality in society. The election of Barack Obama as the nation’s first Black president deepened this sentiment. This viewpoint was reinforced by the campaign and re-election of President Obama to the country’s highest leadership post for a second term. In employment policy terms, the post-racial stance has hastened the view that Title VII has run its course, amounting to a pesky remedial structure that seeks to solve a problem that no longer exists in American society. Certainly the post-racial narrative has intensified the equality debate, and in

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the employment context, under this theory, “minority-minded” decisionmaking becomes unnecessary. The colour-blind thrust that drove early progress has morphed in a manner that, in my view, has resulted in a stalemate on employment equality. The colour-blind stance and resentment towards affirmative action efforts are deeply embedded in the judiciary’s interpretive rule-making under Title VII and the reform efforts of federal and state legislative bodies across the country. In this chapter, I will explore how this tension has manifested unworkable definitions of discrimination. I contend that despite the sophisticated legal frameworks for identifying and proving workplace discrimination, court records expose an American judiciary that largely fails to recognize the dynamics of American workplaces, and therefore misapprehends the complex human, cultural, relational, and structural forces that constitute bias in the modern employment setting. This myopia hinders efforts to unearth and rectify the corrosive effects of workplace bias. I argue that the persistence of the post-racial narrative amounts to a dangerous turn, not only because it does not reflect reality, but also precisely because the contemporary workplace is a far more complex social environment than the courts and lawmakers are willing to acknowledge. I also explore whether it is possible to reduce the polarization of discourse about equality in employment and suggest that employer-initiated efforts remain critical to the arduous task of combating discrimination. I will offer some observations and recommendations for private employers that wish to realize diversity goals, and significantly, to enhance workplace inclusion. On the basis of recent signals from the Supreme Court, in order to survive judicial scrutiny in employing identity-conscious action plans, employers must present a “values-centred” justification for their voluntary affirmative action efforts, reframing the remedy-centred and diversity-preference approaches that are more susceptible to legal challenge. Title VII Law and the Meaning of Discrimination Most certainly, Title VII marked a turning point in establishing an explicit national policy on equity in employment. Despite this hallmark move towards justice, Title VII was enacted at a time of turbulent race relations that books, newspapers, and other media across the world graphically documented. Images of impassioned civil rights protests and often violent encounters with local governments exposed a sharp racial divide

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and a nation struggling to come to terms with a growing demand for inclusion by historically oppressed groups. The international exposure of the turmoil left indelible impressions of a nation terribly marred by its oppressive history of slave labour and enforcement of legal segregation across all spectrums of American life. The calls for justice fell largely on the deaf ears of lawmakers at all levels. In 1963, even President John F. Kennedy attempted to appeal to the hearts and minds of lawmakers by characterizing racism and civil rights as moral issues. A confluence of events resulted in the passage of the civil rights law in 1964 – demonstrations and unrest in the southern states over rampant unemployment and blatant discrimination; the March on Washington for Jobs and Freedom where Martin Luther King Jr delivered one of his many famous speeches; the assassination of President Kennedy; and the bombing of a church in Birmingham, Alabama, that killed four young Black girls. These tumultuous circumstances gave rise to the massive legislative response by Congress less than a year after President Lyndon Johnson succeeded President Kennedy. For the first time, the country adopted a stance on civil rights, espousing a commitment to equality, including economic and employment equity (Williams 1988). Title VII prohibits discrimination based on five specifically enumerated categories – race, colour, sex, religion, and national origin. The legislative history reflects a curative role for this legislation to ensure that identity characteristics do not pose liability to access and advancement in work life. The law encompasses two major theories of discrimination – disparate treatment and disparate impact. The disparate treatment theory focuses on treatment of an individual worker that differs from the treatment of other similarly situated individuals, while disparate impact concerns the structural barriers created by an employer’s facially neutral practices that disproportionally affect a particular group. Thus, Title VII supports two conceptions of employment equity – equal treatment (the colour-blind philosophy that deems identity differences irrelevant), and equal opportunity (valuing equal access with a broader view of discrimination as structural rather than intentional). In a 2007 Supreme Court decision addressing affirmative action in education under equal protection law, Chief Justice Roberts declared, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race” (Parents Involved in Comty Sch v Seattle Sch Dist No 1 2007). In its most potent form, “equal treatment” would proscribe employer-initiated affirmative action to address the continuing effects of societal discrimination, precisely because merit becomes the

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distinguishing principle, notwithstanding difference or disparity in access to opportunities. On the other end of the spectrum, the “equal opportunity” theory premises unfairness on the deprivation of employment opportunities, and thus embraces the notion of preferential decisionmaking to counter such exclusion, recognizing that identical treatment sometimes results in disproportionality and unfairness. Thus, “minority mindfulness” in decision-making embodies the essence of “equal opportunity,” particularly in a society where inequality remains engrained (Chander 2003, 120). The evolution of the jurisprudence of employment discrimination reflects the struggle to harmonize the colour-blind theory of equality with the reality of the present and continuing effects of societal discrimination that hinders access to opportunities. Notwithstanding Title VII’s equity principles and its sophisticated analytical schema, the American legal system has proven largely ineffective at protecting plaintiffs from workplace bias and ensuring a level playing field for all workers. I submit that several factors contribute to the sustainability of a legal framework that overwhelmingly benefits employers to the detriment of individual and collective employment rights.

Society’s Psychological Resistance to the Problem of Discrimination There is a malaise about the problem of discrimination in society. Public sentiment casts employment discrimination claims as unimportant, annoyances, or simply unbelievable. Interestingly, public opinion polls highlight the fact that few in American society view discrimination as a continuing issue (Pager and Shepherd 2008).1 This perspective derives from the notion that discrimination does not exist or that it deserves little or no policing through careful judicial oversight. Progress towards equality in work life has been realized in some respects – federal law prohibits discrimination based on five specifically enumerated categories and a host of other laws protect workers from discrimination on the basis of disability, age, and pregnancy. In addition, serious consideration has been given in recent years to enhancing protection of workers’ religious practices and sexual orientation, including transgender identity. Despite this advancement, however, employees in the American workplace continue to experience discrimination at alarming rates (Parker 2006; Blumrosen and Blumrosen 2002). The state of affairs for plaintiffs is bleak, to say the least, with their plight exacerbated if they reside at the intersection of race and gender. Empirical

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data reflect the fact that women and people of colour experience lower success rates at jury trials and most often have their claims summarily dismissed by the courts (Oppenheimer 2003; Parker 2006; Chew and Kelley 2006). I submit that there is a deeper ideological disposition embedded in the legal system that mirrors attitudes in broader society. Arguably, this hostility towards the reality of discrimination pervades all anti-discrimination law, not just workplace law. Society no longer has the “taste” for serving up justice based on the remedial purposes of the past. Not only is there great psychological resistance to the concept of discrimination, but also there remains a large gulf in understanding the essence of human motivation and the complexity of bias in modern employment settings.

Judges Drive the Meaning of Discrimination with a Light Touch Whether Americans suffer from “discrimination fatigue” or hold a deeply rooted belief that discrimination is a problem of the past, claims of discrimination are met with scepticism. This jaundiced view pervades the courts as well. There is a strongly held perception that judges maintain hostility towards employment discrimination matters, and empirical studies of judicial action seem to support this hypothesis (Beiner 1999; Oppenheimer 2003; Parker 2006; Chew and Kelley 2006). While Title VII expressly prohibits discrimination, Congress did not define exactly what constitutes illegal discrimination. Thus it remains within the purview of the courts’ authority to decipher complex disputes and to construe unlawful discriminatory conduct. In interpreting Title VII, courts attempt to balance the competing interests of those in the labour force and the organizations that employ them. This standard prohibition against discrimination and the judiciary’s latitude in ferreting out unlawful conduct encompass the strengths and weaknesses of Title VII. Direct evidence of discrimination is rare in contemporary workplaces. Employers know that blatant statements of bias should be neither memorialized in writing nor uttered with respect to the terms and conditions of an employee’s work status. Hence plaintiffs rarely possess the smoking gun document, the blatantly discriminatory statement, or other direct evidence of discrimination. In most employment discrimination cases, courts evaluate circumstantial evidence for reliable markers of an employer’s discriminatory motive – that the employer harboured

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discriminatory bias and therefore intended to treat the person less favourably. The Supreme Court devised and modified a fairly sophisticated rubric for establishing employment discrimination in the absence of direct evidence. In sum, the plaintiff must prove that the employer’s articulated legitimate non-discriminatory reason for its adverse action is unworthy of credence – a mere pretext for unlawful discrimination (McDonnell Douglas Corp v Green 1973; Texas Department of Community Affairs v Burdine 1981; Reeves v Sanderson Plumbing Prods, Inc 2000). Not all discrimination is illegal. Judges and juries determine the bounds of socially acceptable conduct in evaluating claims of workplace bias. Plaintiffs’ success depends on the fact-finder’s conception of equality. It is largely undisputed that under Title VII doctrine, employment discrimination remains exceedingly hard to prove (Selmi 2001; McGinley 1993). The Supreme Court’s efforts to refine the analytical framework over the years to promote a fair and balanced evaluation of the evidence has produced more confusion and limited the reach of Title VII’s antidiscrimination mandate. To be fair, courts developed the analytical structure to account for the lack of direct evidence and to facilitate a holistic assessment of the circumstances surrounding a worker’s tenure. While most courts profess to engage in a totality-of-circumstances review, plaintiffs often fail to prove discriminatory motive, even where the employer makes a mistake, utters offensive statements, or relies on a false or pretextual reason (Lanctot 2001; Martin 2010, 344–55). As one court put it, the bottom line is that “bigotry, per se, is not actionable” unless a plaintiff can establish a “real link” with the alleged adverse action (Gorence v Eagle Food Ctrs, Inc 2001, 762). Moreover, most judges in the federal judiciary are white and male, and their experiences do not typically mirror the complex layers of society. Recent studies demonstrate that the race and gender of the judge influence perceptions of claims of workplace bias and affect the outcome of cases (Chew and Kelley 2009; Peresie 2005). A largely homogeneous judiciary narrows the view of discrimination because as arbiters of American culture, judges bring their social realities and sensibilities to the bench. What begins as a holistic evaluation of the evidence withers into enforcement of a cabined view of human motivation influenced by a life lived in the bosom of American privilege (McIntosh 1989). As one judge observes, judicial officers “usually live in a narrow segment of the enormously broad American socioeconomic spectrum, generally lacking the current real-life experience required in interpreting subtle … dynamics of the workplace based on nuances, subtle perceptions, and implicit

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communications” (Gallagher v Delaney 1998, 342). Hence the weakness of the framework lies in the nearly unbridled discretion of the courts to ferret out credible claims of discrimination. The courts apply the law in a manner that accords great deference to employers in workplace decisionmaking. As a result of this permissive ethos, plaintiffs have a hard row to hoe in proving workplace bias.

Procedural Hurdles: Evidentiary Dilution and Employer Deference Title VII and federal civil procedure constitute the dual bodies of law that affect the ability of plaintiffs to prove workplace bias. The interaction of these forces makes the goal of equality in employment nearly impossible. Trials are rare in employment discrimination cases, with most of these matters resolved at the summary judgment stage of litigation based on the court’s assessment of an abbreviated paper record. Procedural impediments, particularly summary judgment, are the silent killers of plaintiffs’ efforts to prove illegal discrimination (McGinley 1993; Parker 2006; Chambers 2005; Jones 2010, 440). Summary dismissal, a pretrial adjudicatory procedure, facilitates a court’s determination that a matter (or any portion of claim) comprises no material dispute that warrants further court resources through a trial (Friedenthal, Kane, and Miller 2005). Thus, based on the pleadings and supporting evidence such as affidavits and deposition transcripts, courts evaluate the factual data, draw inferences, and more often determine that no factual basis exists to support an inference of discrimination, and thus, the plaintiff fails to state a claim under the statute. This pretrial process has become a routine screening mechanism. Employers regularly file motions for summary dismissal of plaintiffs’ claims, and courts overwhelming resolve them in their favour. This procedural device accords courts tremendous discretion in evaluating employment discrimination claims. As summary judgment is a mixture of substantive and procedural requirements, the process creates an impenetrable wall for plaintiffs in their quest for workplace equality. Through the use of procedural devices like summary judgment, courts lose sight of the intricacies of an individual’s experience in a particular work setting. Courts dilute the evidentiary value of plaintiff’s evidence of discrimination by rationalizing any of the various challenges a worker proffers in response to the employer’s business justification for its actions (Martin 2010). Elizabeth Schneider has also explored this

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phenomenon with respect to gender equality in employment and concludes that judges demand “more evidence at summary judgment than would suffice to support a jury verdict” (Schneider 2007). Courts have manipulated substance and procedure, and equipped employers with a playbook full of defences. This symbiosis between courts and employers and deference to business judgment in interpretive rule-making allows courts to chisel away at plaintiffs’ evidence and thus heighten the burden for proving discrimination (Martin 2010). Whether the courts are searching for ways to deal with voluminous dockets or acting on their disdain for discrimination plaintiffs, they are deploying oversimplified heuristics – evaluative constructs that have emerged from the courts’ interpretive rule-making. For example, courts often dismiss wholesale a plaintiff’s claim if the same person both hired and fired her (Martin 2008, 2010, 368–75). Such manoeuvres allow courts to dilute the evidentiary value of plaintiffs’ circumstantial evidence. Thus, the evidentiary dilution with its procedural reinforcement thwarts plaintiffs’ efforts to prove illegal discrimination because courts remain willing to bypass trials on the merits by employing extremely narrow interpretations of the law and drawing inferences that should rest in the hands of a jury (Martin 2010).

Elusive Nature of Discrimination Discrimination has gone underground. Reliance on procedural law to evaluate claims of bias ignores the complex human and organizational dimensions of contemporary work environments. As organizations adjust to maintain a competitive advantage or to respond to market forces for survival, the nature of work has changed tremendously, further frustrating efforts to define discrimination. Since modern discrimination emanates from the intersection of complex variables within institutions, it has become virtually unrecognizable, appearing in subtleties that are easy to conceal and far more difficult to uncover. Management theory, organizational behaviour, and cognitive psychological literature lend sophisticated insight into the relational, structural, and cultural aspects of contemporary work environments. These aspects shape behavioural norms of employees and decision-makers. Shifts in power dynamics, organizational structures, and cultures complicate workplace decision-making, an inherently subjective process. This dynamism has been far too removed from the courts’ enforcement of Title VII in claims of intentional and systemic discrimination.

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CORPORATE CULTURE

Donald Schein’s work on culture highlights the capacity of organizational culture to socially engineer loyalty among workers by inspiring a workforce to identify with the employer’s business (Schein 2004). While theorists acknowledge the abstract quality of culture, most agree that it comprises a system of shared values and norms that becomes unconsciously embedded within an environment – its “DNA” (21–3). Corporate culture becomes a powerful force that influences how employees perceive, think, and feel about work-related matters, including their co-workers (Chatman and Cha 2003, 24). Scholars have explored the normative aspects of workplace culture as well as its potential as a vector for bias. For example, Susan Fiske (1998), Susan Sturm (2001) and Tristin Green (2005) have explored power dynamics in work settings and theorized the effect of stereotyping on inter-office engagement and decision-making. Green maintains that work culture is a social relations phenomenon at its core, and thus a potential source of discrimination within organizations. While corporate culture can foster equity-oriented work environments open to diverse perspectives, it can be dangerous precisely because it sets behavioural norms and enforces boundaries, creating an incubator for bias to flourish. Social theorists including Judith Butler (1990), in work on gender, and legal scholars Devon Carbado, Mitu Gulati, and Kenji Yoshino, in work on racial identity in the workplace, capture the essence of the performative aspects of identity, which can influence how employers engage with a worker and make decisions regarding the terms and conditions of the individual’s employment. Carbado and Gulati (2000) have pointed out that workers must be cognizant of how others interpret their behaviour, appearance, and speech. Kenji Yoshino suggests that how a worker performs her identity, particularly in ethnic and racial terms, “matters almost as much as how one looks in the post–Civil Rights era.” Yoshino asserts that the primary influence for determining discrimination becomes “how white one acts” (2002, 21–2). Thus, employees mask aspects of themselves to gain acceptance in particular contexts. This kind of “impression management” falls more heavily on outsider groups, including people of colour (Houh 2006, 910). The contemporary workplace consists of vectors in which bias can flourish – flattened reporting structures, horizontal work configurations, collaboration, collective decision-making, and corporate culture.

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Moreover, technological advances such as social networking, blogs, and text messaging have created additional loci for workplace bias (Griffith, Sawyer, and Neale 2003; Citron 2009). Contemporary workplace realities – including work structures, evaluative models, and powerful relational forces require multidimensional engagement, and that complexity bears on human motivation in decisional processing. For example, organizational and management theorists highlight the fragile nature of selfdirected work teams with respect to group processing, interpersonal dynamics, information exchange, and conflict resolution (Jehn 1998; Orsburn et al. 1990). Social demography research reveals that women and people of colour suffer most from such dynamics because as outsiders they experience exclusion from informational networks, and by extension, opportunities for advancement (Barak and Levin 2002, 136; Sturm 2001; Natay v Murray Sch Dist 2005). Enhancements in employee management and productivity create new patterns of hierarchy, manifest complex psychological dynamics, and make unearthing discrimination particularly vexing. Notwithstanding the complexities of modern work settings, the American judiciary largely ignores these dynamics and substitutes unworkable heuristics for deeply layered manifestations of discriminatory conduct. Interdisciplinary sources teach us, however, that the modern workplace comprises social strata and contextual forces that evolve from numerous interrelated aspects (Post et al. 2001). How we define discrimination then must embrace a deeper and more sophisticated understanding of bias in contemporary society – one that considers the relational, organizational, and systemic aspects of employment that bear on human motivation. BRAND -MANAGEMENT BIAS

Saturated markets, global competition, and discriminating consumers of goods and services have spurred businesses to apply laser-like focus to strengthening and promoting brands (Lee 2004). Business literature reflects the adjustments and creative solutions that employers embrace to ensure the viability of their brands. As organizations search for the optimal balance of quality and efficiency, the salience of corporate culture significantly affects the manner in which companies set goals about the management of resources, including human capital. Large organizations such as Walmart, for example, seek to build customer loyalty that permeates the brick-and-mortar of the building from the aesthetics to

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the line worker (Johansson 2007). In this manner, promoting the brand infuses the employer’s values into the workplace and integrates the worker with the corporate mission (Crain 2010). From an employer’s perspective, subjective decision-making facilitates its ability to select a candidate who best complements the organization’s brand. Thus it becomes easy for a decision-maker to evaluate a candidate on the basis of characteristics such as appearance, dress, hairstyle, perceived race or gender, and speech patterns (Post et al. 2001; Onwuachi-Willig 2010). In selecting workers, the decision-maker imports the messaging of the organizational culture rooted in how the employer defines and brands the essence of its business. Therefore, promoting diversity detracts from an employer’s ability to maintain a distinct brand and maintain its prominence. Brand management emboldens employers to seek candidate-to-culture alignment. An affinity selection system can activate bias when “cultural fit” is based on a highly contingent perception of who belongs. A recent example of such cultural-fit decision-making occurred in a 2003 class action lawsuit against the Ohio-based retailer Abercrombie and Fitch. African-American, Latino, and Asian-American plaintiffs alleged that the company’s brand of “culture and lifestyle” operated to exclude employees of colour from certain positions. In fact, the suit alleged that Abercrombie fostered a segregated workplace that relegated minority employees to stockroom work, secondary shifts, and other non-customer contact roles (Gonzalez et al. v Abercrombie & Fitch 2003). In establishing a brand, employers desire cohesion and homogeneity, subordinating diversity-centred values. In addition, job stratification based on class becomes more pronounced. Without regulatory measures to ensure equal opportunity, we risk the possibility that organizations will prioritize investment of resources in the commodification of their goods and services rather than in efforts to foster genuine workplace inclusion. UNCONSCIOUS BIAS

The work of Dovidio and Gaertner on “aversive racism” calls attention to the unconscious nature of biased decision-making (Dovidio and Gaertner 1986). Charles Lawrence made the theory of unconscious bias evident in law in his groundbreaking article, “The Id, the Ego, and Equal Protection.” As he highlighted more than twenty-five years ago, where an “employer perceives the white candidate as ‘more articulate,’ ‘more collegial,’ ‘more thoughtful,’ or ‘more charismatic[,]’ [h]e is unaware of the learned stereotype that influenced his decision” (1987, 343). Subjective

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evaluation and selection processes are commonplace as employers attempt to distinguish candidates. However, as one court in an oft-cited case indicates, “Absent evidence that subjective hiring criteria were used as a mask for discrimination, the fact that an employer based a hiring or promotion decision on purely subjective criteria will rarely if ever, prove pretext under Title VII” (Millbrook v IBP, Inc 2002, 1176). More recent advances in empirical research demonstrate the influence of one’s unwittingly deployed stereotypes on perceptions of who is more apt to commit a crime, purchase goods and services, and obtain jobs (Greenwald and Kreiger 2006; Kang 2005). Unconscious bias masks discrimination in employment precisely because the decision-maker’s incognizant layering of meaning is undetectable, and therefore it becomes nearly impossible to prove motive (Bartlett 2009; McGinley 2000; OnwuachiWillig and Barnes 2005). As the plot of workplace discrimination thickens, unconscious biases such as aversive racism have become natural and automatic – the “default” in American society (Wang 2006). “Post-Racialism”: The New Colour Blindness Since Barack Obama became president in 2008 a resurgence of the “colour-blind” rhetoric has taken hold, and not only in the political sphere. Even before then, when Senator Barack Obama gained the nomination for the presidency, many in American society began speculating on what an “Obama” win would signal with respect to equality. Progressives and conservatives engaged in what appeared an interesting dance of convergence, each side overcompensating for the interesting confluence of circumstances that resulted in a Black man being elected to the nation’s highest office. For example, conservatives viewed Obama’s nomination as the antidote to the pesky cries of civil rights groups. And more progressive minds celebrated the moment as representative of its open-minded acceptance. Underneath this veneer of “colour-blindness” lay the perception that Obama was somehow different from the stereotypical Black man in American society. Barack Obama’s election as the first Black president of the United States was a sight to behold. As the country savoured this pinnacle achievement, buoyed by the promise of a new beginning, post-racialist sentiment intensified. Yet Obama’s ascendency to the presidency itself served as a stark reminder of the country’s complicated history and continuing legacy of oppression. During the campaign, race became spectacle – from caricatured images of Obama wearing a turban or portrayed with ribs and buckets of fried chicken, to confusing tales of his

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religious belief, stereotypical depictions of life in the White House with a Black first family, and horrid images of a seductively dressed Michelle Obama tied to a tree. This saga of racial animosity continued during the re-election campaign, with hyper focus on side issues such as locating President Obama’s Hawaii birth certificate and college transcripts. These inflammatory images underscored the fact that racism is deeply braided into the fabric of our nation and debunked the myth of a postracial society. Thus Obama’s election served merely as a distraction from dealing with the reality of America’s storied past on race, rights, and equality. This fallacy continues to bolster the view that “race matters” are passé. Adoption of this illusory perspective allows the United States to take credit for work it has not done, namely, recognition and acceptance that difference does matter and affects equity and justice for marginalized individuals. The “post-racial” narrative recycles the colour-blind philosophy. This opportunistic manoeuvre has well served the interests of those who subscribe to the colour-blind theory in the employment context as well. This is a dangerous turn, precisely because it derails efforts to promote economic justice. In a climate of “post-racialism,” diversity becomes unimportant. Employers proceed on autopilot with regard to diversity, engaging in perfunctory acts like placing anti-discrimination notices in break rooms and requiring supervisors to attend yearly online diversity training. In this way, diversity becomes a necessary cost of doing business rather than a pathway to meaningful inclusion and opportunity. Ricci: What’s Race Got to Do with It? Over the years, affirmative action in the private workplace has evolved from the recognition of its purpose as a remedy for under-representation, to a more positively framed rationale emphasizing the benefits of diversity to an institution’s bottom line. The post-racial narrative presents a new angle that appears regressive, one that seems to pigeonhole employers into a remedial stance on diversity. This posture legitimizes the assumption that past exclusionary acts are the only credible basis for taking affirmative steps to make conscious decisions based on race or related factors. In a culture obsessed with the artifice of “post-racialism” we must consider how a post-racial climate may affect efforts to diversify American workplaces. A recent Supreme Court decision highlights the tenuousness of voluntary efforts to promote inclusive workplaces. In Ricci v DeStefano, the

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Court held that the City of New Haven intentionally discriminated against white employees when it declined to certify exam results that would have resulted in no African-American employees being promoted (2009, 2663–4). Attempting to avoid Title VII liability from African-American firefighters who may allege that they were denied promotions based on a test that had a disparate impact, the City of New Haven decided to forego certification of test results for promotion eligibility where the pass rate for Black firefighters was only half that of white firefighters. For nearly three decades, the city had faced lawsuits from Black firefighters precisely as the result of prima facie evidence of the disparate impact of examinations it had used before. New Haven argued that by not certifying the results of an exam that clearly had an adverse impact on Black workers, for example, it was complying with Title VII’s prohibition against disparate impact discrimination. The prima facie evidence of disparate impact served as New Haven’s legitimate non-discriminatory reason for the disparate treatment alleged by white firefighters. Yet the Court determined that New Haven’s decision to abandon the test results constituted unlawful intentional discrimination against the white testtakers who would have been eligible for promotion if the test results had been used. Notwithstanding the well-documented disparate impact on Black workers, the Court determined that the employer could not rely on that as a defence to a claim of intentional discrimination against the white firefighters (Ricci v DeStefano 2009, 2663–7). The City of New Haven was caught between a rock and a hard place. While it avoided more lawsuits from the African-American firefighters (by not certifying the list of eligible candidates), the same decision made it vulnerable to a suit by white candidates who, but for New Haven’s decision, could have been promoted. The Court set a very high standard for employers facing this conundrum. “Before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to such liability if it fails to take the race-conscious discriminatory action” (2009, 2664). Ricci embodies the philosophical divide between equal treatment and equal opportunity. The doctrinal collision of disparate treatment and disparate impact discrimination placed the City of New Haven in an untenable position. It did not aim to deny promotions to AfricanAmerican and Latino employees, but the test it used yielded that result. Confronted with this exclusionary effect, the City of New Haven sought to avoid the arbitrary screening out of minority candidates. It did not

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act with malign racial motives and its response was diversity-sensitive. New Haven did not explicitly use race as a criterion. As Justice Ginsburg pointed out in her dissent, New Haven gave “no individual preference”; rather, it made a judgment because the results were so at odds with the demographic make-up of the applicant pool (2009, 2705). However, the Court’s majority viewed New Haven’s actions as expressly race-based in violation of Title VII’s command that employers cannot take adverse employment action because of an individual’s race. This phenomenon can significantly affect the plight of marginalized workers and efforts towards greater inclusion. The Court opined that its standard leaves ample room for employers to engage in voluntary efforts to promote diversity. However, the Court’s analysis and strong-basis-in-evidence standard disables employers in their efforts to be diversity-centred. Thus Ricci imports the colour-blind thrust of equal protection law into Title VII, and by extension, to voluntary efforts to inject “minority-mindfulness’” into its decision-making. Employer selection procedures remain vulnerable post-Ricci. For example, Ricci seems to hold that once an employer has activated a selection process it may not deviate from it, unless there is a “strong basis in evidence” to believe that its decision tree would not survive a disparateimpact lawsuit. Thus, taking affirmative steps to avoid discrimination, as well as to promote diversity across the ranks, exposes employers to risk. Decided in the wake of the country’s “post-racial” surge, Ricci embodies a meta-narrative about personal responsibility and meritocracy (McGinley 2010). What the justices failed to acknowledge is the nature of structural impediments to equality that had resulted in the Black firefighters’ lack of upward mobility in the department for years. American legal scholars have begun to theorize this dangerous post-racial turn and its effect on identifying and ferreting out contemporary discrimination, especially as it is compounded by complex social, psychological, and cultural phenomena (Barnes, Chemerinsky, and Jones 2010). As Harris and West-Faulcon (2010) posit, Ricci constitutes a shift in what it means to discriminate against someone because of race. I agree with their assertion, and I believe Ricci will further constrain and even deter employers’ voluntary efforts to address structural impediments to employment equity. What is emerging from post-Ricci cases is a new victim of workplace discrimination – the white male candidate (Dobbin 2010). While courts generally remain hostile to claims of workplace discrimination from people of colour, for example, judges are beginning to show increased empathy for white plaintiffs alleging discrimination.

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The Risk to Diversity: The “Post-Racial” Trap In the wake of Ricci, the question that we are not engaging enough is why diversity matters. Instead, we prefer the distraction of the “post-racial” narrative. The persistence of this mantra is unlikely to diminish anytime soon. Whether diversity for diversity’s sake is a worthy aspiration is beside the point. Women and people of colour make up a significant faction of the American labour pool, and an increasing number of them are immigrants. Therefore we cannot afford to entertain the folly of “postracialism” by “playing in the dark” (Morrison 1992, 9–10). How do we get beyond the stalemate on affirmative action or targeted efforts to promote diverse workplaces? Meaningful participation of marginalized individuals should be the goal. President Barack Obama makes the case for continued focus on affirmative action, and specifically, meaningful inclusion. We need to look no further than the ongoing craven debate about whether the country’s first black President is qualified for the job. Obama, a Harvard law graduate, editor of the Harvard Law Review, gifted writer and eloquent speaker, continues to be depicted as a racial stereotype including basketball player, pimp and monkey, and his acumen and accomplishments routinely dismissed as evidence of stigmatized affirmative action. “Post-racialism” ideas further entrench the divide and hinder efforts to make employment equality a reality. We should reject its premise. As author Tim Wise asserts, we should attend more, not less, to race consciousness and its import for equal opportunity (Wise 2010). Three consequences derive from the post-racial stance: (1) dilution of the diversity-centred rationale for voluntary affirmative action efforts; (2) distancing from the legitimacy of demographic variables in decisionmaking; and (3) scepticism over the correlation of diversity and business performance. The evolution of the affirmative action debate comprises some interesting semantic shifts, but at the end of the day, the problem of workplace discrimination remains salient. From the advancements towards equality spurred by the Civil Rights Movement of the 1960s grew enforcement mechanisms including the Equal Employment Opportunity Commission’s charge to ensure compliance with Title VII. “Affirmative action” then became the preferred moniker, particularly after President Lyndon B. Johnson signed an executive order requiring all federal contractors to halt discrimination. From this endeavour we witnessed the concept of “representative diversity” emerge, which focused on ensuring that

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individuals of all hues had access to gainful employment opportunities. As more women and minorities gained entry into organizations, the concept of “managing diversity” became the goal of most employers in the mid-1980s, a period that reflected a rollback of regulatory enforcement and a rise of employer autonomy. Employers focused less on compliance with Title VII’s anti-discrimination proscriptions and became more occupied with “managing” the challenges of a more diverse workplace. This orientation placed employers in survival mode on diversity and bred palpable resentment from employers, their workers, as well as from the courts, legislatures, and society at large. “Post-racialism” in the employment context emanates from a misunderstanding of the nature of discrimination, particularly bias embedded in contemporary workplace environments. The normative effect of the “post-racial” stance convinces decision-makers, judges, and legislators of the irrelevance of race, and all differences, more broadly. From this viewpoint, it becomes the rare instance that an employer subjects a worker to discriminatory treatment based on racial or other socially constructed differences. This illusion not only denies the contemporary role of race in the American labour force but also misplaces human motivation by blaming discrimination on a few bad actors who harbour bias. We must avoid being captured by “post-racialism,” because it constitutes an inaccurate picture of the realities of the modern American workplace and discounts the long-standing societal discrimination that continues to threaten the quest for workplace inclusion. Conclusion Over the years, scholars have analysed the affirmative action movement, its challenges, and lost opportunities (Oppenheimer 1996; Lawrence and Matsuda 1997). Notwithstanding the critical lens, these and other proponents continue to argue the utility and potential viability of affirmative action as a pathway to greater inclusion in the American workplace (Engels 1991; Braswell, Moore, and Poe 1993). Neither mandatory nor voluntary efforts towards diversity alone will ever truly result in what the goal of workplace equality should be – real inclusion. Mandatory efforts can diminish the seriousness of the endeavour, resort to window dressing, and as recent demography reveals, result in job segregation (Saucedo 2008). Voluntary efforts under constrained conditions, on the other hand, can stagnate progress or serve merely as public relations campaigns that do little to stimulate the upward mobility of workers

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marginalized on the basis of race or ethnicity, gender, religious identity, sexual orientation, national origin, or immigration status, to name a few. Employers collectively spend millions annually on “managing” diversity. And this financial investment has not yielded the kind of net results in equity in employment that we would hope for. In light of the complexity of bias and the multidimensionality of contemporary workplaces, is there a viable way forward? Instead of approaching diversity as a business nuisance or with ceremonial fanfare, we must thoughtfully develop measures to promote and sustain real inclusion. This kind of reorientation begins with a change in values. Good values flow from a deep understanding of how bias operates and an appreciation of new patterns of hierarchy that emerge from complex contemporary work settings. This recommendation should not be interpreted as simply another in a series of semantic shifts. To make employment equality a reality, the focus must be on promoting inclusive workplaces. That is, employers must facilitate the full participation and engagement of all workers. This requires proactively leveraging diversity as an asset to the organization. Workplace inclusion manifests through efforts to promote environments conducive for employee productivity and advancement. Practical measures should include consistent coaching and mentoring for all workers, particularly those from traditionally excluded groups, “stretch” job assignments with visibility, flexible work schedules and configurations, training and education. Employers must require management accountability for diversity tied to performance assessment and compensation. Managers must be held responsible for access beyond “representative” diversity; they must create meaningful avenues for career development that yield advancement for marginalized workers. A change in the culture of work will require increased transparency in communication as well. Accordingly, employers must take responsibility for promoting economic justice. If employers lead, out of deference, the courts are more likely to follow. Thus the attainment of inclusion, not racial balance, should drive employers to absorb the costs of diversity on the front end. If employers focus on inclusion rather than representation, we can begin a shift away from “diversity” management to “performance” management of all workers – a framework that allows employers to harness the potential of diversity rather than eschewing divergent thought, constraining cultures, and maintaining the status quo. Signals from American jurisprudence suggest that courts wanting to uphold affirmative action efforts support the policy ideal of equal

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employment opportunity, but they do so with a deferential eye towards employer business judgment (United Steelworkers of America v Weber 1979; Dowd 1980). Thus more nuanced justifications are needed from employers. This value proposition, as I frame it, is an update of the business necessity rationale articulated in the numerous amicus curia briefs submitted by more than eighty organizations in Grutter v Bollinger, the fairly recent affirmative action case in the education context (2003). Moreover, research on diversity reflects a positive correlation between diverse workplaces and business performance outcomes (Ayres 2001). Because courts often defer to employers, organizations must lead by courageously amplifying a desire for diversity and continue to build interdisciplinary coalitions. In sum, to sustain challenges to affirmative efforts to promote inclusion, employers must move beyond remedy-centred rationale and adopt a more values-centred approach that “spotlights” the impact of diversity on business goals (Ciocchetti and Holcomb 2010; Estlund 2005). Discrimination is a moving target, especially in work environments comprising vectors for the injection of bias in the decision-making process. Hence, redefining discrimination requires confronting the nature of prejudice, openness to new theories of equality, and attention to the historical and sociological complexities of employment disparities between the privileged and marginalized in society. The equality narrative has shifted from a cry for social change to a demand to ignore race and difference altogether. There are no perfect solutions. However, the “post-racial” trance will be interrupted only by courageous courts that apply Title VII doctrine in the nuanced and contextual fashion necessary to unearth workplace discrimination, and employers who commit to fairness in access and opportunity.

NOTE 1 Also see “Fewer Call Racism a Major Problem,” 2009. Additional race and ethnicity opinion polling on the prevalence of racism in society available at http://www.pollingreport.com/race.htm.

REFERENCES Ayres, Ian. 2001. Pervasive Prejudice? Unconventional Evidence of Race and Gender Discrimination. Chicago: University of Chicago Press.

The Risk of Diversity-Centred Workplace Decision-Making 279 Barak, Mor, and Amy Levin. 2002. “Outside of the Corporate Mainstream and Excluded from the Work Community: A Study of Diversity, Job Satisfaction and Well-being.” Community Work & Family 5 (2): 133–57. http://dx.doi.org/ 10.1080/13668800220146346. Barnes, Mario, Erwin Chemerinsky, and Trina Jones. 2010. “A Post-Race Equal Protection?” Georgetown Law Journal 98:967–1004. Bartlett, Katherine T. 2009. “Making Good on Good Intentions: The Critical Role of Motivation in Reducing Implicit Workplace Discrimination.” Virginia Law Review 95:1895–6. Beiner, Theresa M. 1999. “The Misuse of Summary Judgment in Hostile Environment Cases.” Wake Forest Law Review 34:86–95. Blumrosen, Alfred W., and Ruth G. Blumrosen. 2002. The Reality of Intentional Job Discrimination in Metropolitan America – 1999. Newark, NJ: Rutgers University Law School. Braswell, Michael K., Gary A. Moore, and Stephen L. Poe. 1993. “Affirmative Action: An Assessment of Its Continuing Role in Employment Discrimination Policy.” Albany Law Review 57:365. Butler, Judith. 1990. Gender Trouble: Feminism and the Subversion of Identity. New York: Routledge. Carbado, Devon, and Mitu Gulati. 2000. “Working Identity.” Cornell Law Review 85:1259–1308. Chambers, Henry L., Jr. 2005. “Recapturing Summary Adjudication Principles in Disparate Treatment Cases.” SMU Law Review 58:103–36. Chander, Anupam. 2003. “Minorities, Shareholders, and Otherwise.” Yale Law Journal 113 (1): 119–78. http://dx.doi.org/10.2307/3657465. Chatman, Jennifer A., and Sandra Eunyoung Cha. 2003. “Leading by Leveraging Culture.” California Management Review 45 (4): 20–34. http://dx.doi.org/ 10.2307/41166186. Chatman, Jennifer, Jeffrey T. Polzer, Sigal G. Barsade, and Margaret A. Neale. 1998. “Being Different Yet Feeling Similar: The Influence of Demographic Composition and Organizational Culture on Work Processes and Outcomes.” Administrative Science Quarterly 43 (4): 749–80. http://dx.doi.org/10.2307/ 2393615. Chew, Pat K., and Robert E. Kelley. 2006. “Unwrapping Racial Harassment Law.” Berkeley Journal of Employment and Labor Law 27:49–111. – 2009. “Myth of the Color-Blind Judge: An Empirical Analysis of Racial Harassment Cases.” Washington University Law Review 86 (5): 1117–66. Cho, Sumi. 2009. “Post-Racialism.” Iowa Law Review 94:1589–650. Ciocchetti, Corey A., and John Holcomb. 2010. “The Frontier of Affirmative Action: Employment Preferences and Diversity in the Private Workplace.” University of Pennsylvania Journal of Business Law 12 (2): 283–350.

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Citron, Danielle Keats. 2009. “Law’s Expressive Value in Combating Cyber Gender Harassment.” Michigan Law Review 108:373–416. Crain, Marion. 2010. “Managing Identity: Buying into the Brand.” Iowa Law Review 95:1179–1258. Dobbin, Frank. 2010. Inventing Equal Opportunity. Princeton, NJ: Princeton University Press. Dovidio, John F., and Samuel L. Gaertner. 1986. Prejudice, Discrimination, and Racism. Waltham, MA: Academic. – 1991. “Changes in the Expression and Assessment of Racial Prejudice.” In Opening Doors: Perspectives on Race Relations in Contemporary America, ed. Harry Knopke, R. Norrell, and R. Rogers, 131–4. Tuscaloosa, AL: University of Alabama Press. Dowd, Nancy E. 1980. “Bakke and Weber: The Concept of Societal Discrimination.” Loyola University of Chicago Law Journal 11:297–326. Engels, Chris. 1991. “Voluntary Affirmative Action in Employment for Women and Minorities under Title VII of the Civil Rights Act: Extending Possibilities for Employers to Engage in Preferential Treatment to Achieve Equal Employment Opportunity.” John Marshall Law Review 24:731–70. Estlund, Cynthia L. 2005. “Putting Grutter to Work: Diversity, Integration, and Affirmative Action in the Workplace.” Berkeley Journal of Employment and Labor Law 26 (1): 2–38. “Fewer Call Racism a Major Problem though Discrimination Remains.” 2009. ABC News / Washington Post Poll, 29 January. http://abcnews.go.com/ images/PollingUnit/1085a2RaceRelations.pdf. Fiske, Susan T. 1998. “Stereotyping, Prejudice, and Discrimination.” In The Handbook of Social Psychology, vol. 2, ed. Susan Fiske, 357–92. Hoboken, NJ: Wiley. Flagg, Barbara J. 1995. “Fashioning a Title VII Remedy for Transparently White Subjective Decisionmaking.” Yale Law Journal 104 (8): 2009–51. http://dx.doi. org/10.2307/796991. Friedenthal, Jack, Mary Kay Kane, and Arthur R. Miller. 2005. Civil Procedure. St Paul, MN: Thomson West Publishers. Gallagher v Delaney, 139 F 3d 338, 342 (2d Circ. 1998). Gonzalez v Abercrombie & Fitch Stores, Inc, N.D. Cal. Case No. 03-2817-SI. Gorence v Eagle Foods Ctrs, Inc, 242 F 3d 759 (7th Cir 2001). Gotanda, Neil. 1991. “A Critique of ‘Our Constitution Is Color-Blind.’” Stanford Law Review 44 (1): 1–68. http://dx.doi.org/10.2307/1228940. Green, Tristan, K. 2003. “Discrimination in Workplace Dynamics: Toward a Structural Account of Disparate Treatment Theory.” Harvard Civil Rights-Civil Liberties Law Review 38:91–158.

The Risk of Diversity-Centred Workplace Decision-Making 281 – 2005. “Work Culture and Discrimination.” California Law Review 93 (628): 647–50. Greenwald, Anthony G., and Linda Hamilton Kreiger. 2006. “Implicit Bias: Scientific Foundations.” California Law Review 94 (4): 945-67. http://dx.doi. org/10.2307/20439056. Griffith, Terri L., John Sawyer, and Margaret Neal. 2003. “Virtualness and Knowledge in Teams: Managing the Love Triangle of Organizations, Individuals, and Information Technology.” Management Information Systems Quarterly 27:279–82. Grutter v Bollinger, 539 US 306 (2003). Harris, Angela P. 2000. “Equality Trouble: Sameness and Difference in Twentieth-Century Race Law.” California Law Review 88 (6): 1923–2015. http:// dx.doi.org/10.2307/3481212. Harris, Cheryl, and Kimberly West-Faulcon. 2010. “Reading Ricci: Whitening Discrimination, Racing Test Fairness.” UCLA Law Review 58:73–166. Houh, Emily. 2006. “Toward Praxis.” UC Davis Law Review 39:905–40. Jehn, Karen A. 1998. “Managing Workteam Diversity, Conflict and Productivity: A New Form of Organizing in the Twenty-First Century Workplace.” University of Pennsylvania Journal of Labor and Employment Law 1:473–86. Johansson, Erin. 2007. “Checking Out the Rise of Wal-mart and the Fall of Middle–Class Retailing Jobs.” Connecticut Law Review 39:1461–92. Jones, Trina. 2010. “Anti-Discrimination Law in Peril.” Missouri Law Review 75 (86): 423–42. Kang, Jerry. 2005. “Trojan Horses of Race.” Harvard Law Review 118:1498–528. Krieger, Linda Hamilton, and Susan T. Fiske. 2006. “Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment.” California Law Review 94 (4): 997–1062. http://dx.doi.org/10.2307/20439058. Lanctot, Catherine J. 2001. “Secrets and Lies: The Need for a Definitive Rule of Law in Pretext Cases.” Louisiana Law Review 61:539–54. Lawrence, Charles R., III. 1987. “The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism.” Stanford Law Review 39:317–88. Lawrence, Charles R., III, and Mari J. Matsuda. 1997. We Won’t Go Back: Making the Case for Affirmative Action. Boston: Houghton Mifflin Harcourt. Lee, Brant T. 2004. “The Network Effects of Whiteness.” American University Law Review 53:1259–304. Martin, Natasha T. 2008. “Immunity for Hire: How the Same-Actor Doctrine Sustains Discrimination in the Contemporary Workplace.” Connecticut Law Review 40:1138–61. – 2010. “Pretext in Peril.” Missouri Law Review 75:343–55. McDonnell Douglas Corp v Green, 411 US 792 (1973).

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McGinley, Ann C. 1993. “Credulous Courts and the Tortured Trilogy: The Improper Use of Summary Judgment in Title VII and ADEA cases.” Boston College Law Review 34 (2): 203–56. – 2000. “Viva la Evolucion! Recognizing Unconscious Motive in Title VII.” Cornell Journal of Law and Public Policy 9 (2): 415–92. – 2010. “Ricci v. DeStefano: A Masculinities Theory Analysis.” Harvard Journal of Law and Gender 33:581–624. McIntosh, Peggy. 1989. “White Privilege: Unpacking the Invisible Knapsack.” Peace and Freedom July/August, 9–10. Millbrook v IBP, Inc, 280 F 3d 1169 (7th Cir 2002). Morrison, Toni. 1992. Playing in the Dark: Whiteness and the Literary Imagination. New York: Knopf Doubleday. Natay v Murray Sch Dist, No 04-4084, 2005 WL 44965 (10th Cir Jan 11, 2005). Onwuachi-Willig, Angela. 2010. “Another Hair Piece: Exploring New Strands of Analysis under Title VII.” Georgetown Law Journal 98:1079–132. Onwuachi-Willig, Angela, and Mario Barnes. 2005. “By Any Other Name? On Being ‘Regarded as’ Black, and Why Title VII Should Apply Even If Lakisha and Jamal Are White.” Wisconsin Law Review, 1283–344. Oppenheimer, David Benjamin. 1996. “Understanding Affirmative Action.” Hastings Constitutional Law Quarterly 23:921–98. – 2003. “Verdicts Matter: An Empirical Study of California Employment Discrimination and Wrongful Discharge Jury Verdicts Reveals Low Success Rates for Women and Minorities.” UC Davis Law Review 37:511–66. Orsburn, Jack, Linda Moran, Ed Musselwhite, and John Zenger. 1990. SelfDirected Work Teams: The New American Challenge. Homewood, IL: Business One Irwin. Pager, Devah, and Hana Shepherd. 2008. “The Sociology of Discrimination: Race Discrimination in Employment, Housing, Credit and Consumer Markets.” Annual Review of Sociology 34 (1): 181–209. http://dx.doi.org/10.1146/ annurev.soc.33.040406.131740. Parents Involved in Comty Sch v Seattle Sch Dist No 1, 551 US 701, 747–8 (2007). Parker, Wendy. 2006. “Lessons in Losing: Race Discrimination in Employment.” Notre Dame Law Review 81:889–954. Peresie, Jennifer L. 2005. “Female Judges Matter: Gender & Collegial Decision Making in the Federal Appellate Courts.” Yale Law Journal 114:1759–90. Post, Robert, A. Appiah, J. Butler, T. Grey, and R. Seigel. 2001. Prejudicial Appearances: The Logic of American Antidiscrimination Law. Durham, NC: Duke University Press. Reeves v Sanderson Plumbing Prods, Inc, 530 US 133 (2000). Ricci v DeStefano, 129 S Ct 2658 (2009).

The Risk of Diversity-Centred Workplace Decision-Making 283 Saucedo, Leticia M. 2008. “Addressing Segregation in the Brown Collar Workplace: Toward a Solution for the Inexorable 100%.” University of Michigan Journal of Law Reform 41 (2): 447–506. Schein, Edgar H. 2004. Organizational Culture and Leadership. 3rd ed. San Francisco: Jossey-Bass. Schneider, Elizabeth M. 2007. “The Dangers of Summary Judgment: Gender and Federal Civil Litigation.” Rutgers Law Review 59:705–78. Selmi, Michael. 2001. “Why Are Employment Discrimination Cases so Hard to Win?” Louisiana Law Review 61:555–76. Shuford, Reginald T. 2009. “Why Affirmative Action Remains Essential in the Age of Obama.” Campbell Law Review 31:510–23. Sturm, Susan. 2001. “Second Generation Employment Discrimination: A Structural Approach.” Columbia Law Review 101 (3): 458–568. http://dx.doi. org/10.2307/1123737. Sullivan, Charles A. 2004. “The World Turned Upside Down? Disparate Impact Claims by White Males.” Northwestern University Law Review 98: 1505–66. Supreme Court of the United States. 2003. “Brief for 65 Leading American Businesses as Amici Curiae Supporting Respondents” at 2 (nos 02-241 and 02-516). Texas Department of Community Affairs v Burdine, 450 US 248 (1981). United States Equal Employment Opportunity Commission. 2004. “EEOC Agrees to Landmark Resolution of Discrimination Case against Abercrombie & Fitch.” News release, 16 November. http://www.eeoc.gov/press/11-18-4.html. United Steelworkers of America v Weber, 443 US 193 (1979). Wade, Cheryl L. 2002. “Corporate Governance as Corporate Social Responsibility: Empathy and Race Discrimination.” Tulane Law Review 76:1461–73. – 2004. “‘We Are an Equal Opportunity Employer’: Diversity Doublespeak.” Washington and Lee Law Review 61:1541–82. Wang, Lu-In. 2006. Discrimination by Default: How Racism Becomes Routine. New York: New York University Press. Williams, Juan. 1988. Eyes on the Prize: America’s Civil Rights Years 1954–1965. New York: Penguin Books. Wise, Tim. 2010. Colorblind: The Rise of Post-Racial Politics and the Retreat from Racial Equity. San Francisco: City Lights. Yoshino, Kenji. 2002. “Covering.” Yale Law Journal 111 (4): 769–939. http:// dx.doi.org/10.2307/797566.

Chapter 13

Employment Equity: The Next Thirty Years BRIAN W. BURKETT1

Twenty-five years ago, Justice Rosalie Silberman Abella (then a judge in the Family Division of the Ontario Provincial Court) took on the daunting task of exploring how to promote equality in employment for four historically underrepresented groups: women, Aboriginal people, persons with disabilities, and visible minorities. What resulted proved to be a comprehensive blueprint to address systemic discrimination in Canadian workplaces. Within two years the federal government enacted the Employment Equity Act, the first legislation of its kind in the country. Since then, employment equity legislation in Canada has travelled something of an uneven road. The legislation enacted by the federal government has been revised once since its introduction in an attempt to strengthen the enforcement mechanisms by which employment equity principles are implemented in workplaces regulated by federal law. Meanwhile, at the provincial level, only three provinces have enacted employment equity legislation in the past thirty years; two of those provinces subsequently repealed that legislation. This stands in contrast to employment equity’s reception internationally: the intellectual and policy foundations set out by Justice Abella in 1984 have been embraced and adopted in employment equity legislation enacted in several countries around the world. Attitudes to workplace diversity have changed dramatically since 1984, not only in Canada but internationally. Many businesses have embraced diversity in employment as an important strategic value quite apart from any considerations of the inherent injustice of workplace discrimination. Some governments are reconsidering employment equity initiatives and anti-discrimination laws more broadly to ensure their currency and effectiveness. A number of scholars have begun to debate the extent to

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which traditional workplace structures and norms may impede attempts to achieve employment equity. The twenty-fifth anniversary of the release of Justice Abella’s royal commission report, Equality in Employment, gave us a unique opportunity to take a close look at employment equity in Canada – not just in terms of where we have been or where we are now but, more importantly, where we might go from here. Where Have We Been?

The Abella Report and “Employment Equity” The term employment equity entered the Canadian lexicon in 1984 with the publication of Equality in Employment: A Royal Commission Report. The report was the product of more than a year of research and broad consultation conducted under the supervision of Commissioner Rosalie Abella, who had been directed by the federal government to “explore the most efficient, effective, and equitable means of promoting equality in employment for four groups: women, native people, disabled persons, and visible minorities. At the same time, [the commission] was to inquire specifically into the employment practices of 11 designated crown and government-owned corporations” (Abella 1984, v). The Abella Report, as it has become popularly known, represented a dramatic shift in the ways that Canadians thought about inequality generally, and specifically in the context of the Canadian workplace. Most importantly, perhaps, the Abella Report was the first high-level recognition of the existence of “systemic discrimination” – the presence of pervasive institutional biases and barriers that have disproportionately negative impacts on individuals who are not “white able-bodied males” (Abella 1984, 10). The crucial corollary to systemic discrimination was the principle that the traditional approach to combating discrimination, which focused on the discriminatory intent of individuals, did not fully capture differential treatment as it actually existed in Canadian society. As the report put it, “[systemic discrimination] suggests that the inexorable, cumulative effect on individuals or groups of behaviour that has an arbitrarily negative impact on them is more significant than whether the behaviour flows from insensitivity or intentional discrimination” (9). In the context of employment, these “negative” impacts were most obviously evidenced by the difficulty that women, Native peoples, disabled

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persons, and visible minorities faced in finding jobs and advancing in a chosen area of work. Following from this diagnosis was the Abella Report’s recognition that systemic discrimination could be remedied only by policy tools that had systemic reach. To cite the language of the Abella Report once more, “Remedial measures of a systemic and systematic kind are the object of employment equity and affirmative action. They are meant to improve the situation for individuals who, by virtue of belonging to and being identified with a particular group, find themselves unfairly and adversely affected by certain systems or practices” (Abella 1984, 9). From this conceptual foundation, the Abella Report constructed a bold policy program that sought to provide a comprehensive blueprint to address systemic discrimination in Canadian workplaces. To convey some idea of the report’s prescriptive breadth, its suggestions included, inter alia, that financial institutions review their lending practices towards members of the four designated groups, that a national childcare system be created, and that the existing school curriculum for Native children be modified (see recommendations, Abella 1984, 255–69). At the centre of this blueprint was the recommendation that legislation be enacted requiring federally regulated employers to take positive steps to eliminate institutional barriers in employment faced by members of the four designated groups.

Employment Equity in Context In retrospect, many of the Abella Report’s insights and recommendations appear uncontroversial and, perhaps, even obvious. Such an account would be a deeply superficial and ahistorical assessment of the intellectual and political development of concepts of discrimination in recent decades. Rather, a deeper analysis reveals that it is difficult to overstate the extent to which the principles set out in the Abella Report represented a visionary reformulation of notions of equality at work, both in Canada and internationally. This is especially true in Abella’s recognition that discrimination is an underlying fact of the structures of modern businesses and national economies that, in turn, requires proactive, system-wide policy action. In this sense, the Abella Report both recognized and sought to address the “social dimension” of modern business and employment practices from a wholly new policy perspective.

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The groundbreaking nature of Abella’s approach is perhaps best reflected by the fact that high-level policy initiatives in the area of discrimination and equality rights in employment did not really begin to emphasize positive duties to encourage equality until the mid- to late 1990s. Probably the best-known example of such an initiative was the International Labour Organization’s (ILO) promulgation of the “Decent Work” agenda in 1999. The concept of “decent work” was introduced by ILO Director-General Juan Somavia in his report to the 87th Session of the International Labour Conference and constituted his attempt to fundamentally refocus the goals and resources of the ILO. In succinct terms, the Decent Work agenda established that “the primary goal of the ILO today is to promote opportunities for women and men to obtain decent and productive work, in conditions of freedom, equity, security and human dignity” (ILO 1999, 7). While this brief statement of principle is in many ways unremarkable, many observers note that it signalled a basic reorientation of the ILO’s approach to discrimination and equality. The prominent labour law scholar Bob Hepple, for example, has written that decent work must be viewed in a context that envisions “national and local action increasingly moving away from negative duties to avoid discrimination towards positive and inclusive duties to promote equality” (Hepple 2001, 5). Indeed, Hepple’s vision of the potentials of the Decent Work agenda is instructive for our purposes. For Hepple, the introduction of Decent Work was a welcome opportunity to consider elements of inequality that traditional concepts of discrimination failed to capture, and objectives that the ILO could achieve with a new approach. He argued, for example, “By focusing on positive duties to promote equality one can encourage an inclusive, proactive approach. Organizations which have positive duties are compelled to devise coordinated strategies to improve diversity in the workforce or to pursue equality policies in the delivery of services to those who are socially excluded” (Hepple 2001, 12). This expression of principle mirrors that articulated by Justice Abella in her report, published a full fifteen years prior to the creation of the Decent Work agenda, and seventeen years prior to Hepple’s comments on the policy possibilities engendered by this approach. Hepple notes that Canadian employment equity legislation was an early example of government action that sought to achieve “equality of results,” rather than mere formal legal equality. Moreover, and as is discussed below, by the time the concept of Decent Work was introduced in Geneva in 1999,

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federal employment equity legislation in Canada was already in its second iteration.

Employment Equity Legislation at the Federal Level In 1986, the federal government responded to the Abella Report with the Employment Equity Act (Government of Canada 1986, c 31). The 1986 act required that employers “implement” employment equity in broad terms. To this end, it obligated federally regulated employers with more than 100 employees to create annual employment equity plans that set out how barriers to employment faced by the designated groups were to be reduced by removing or modifying past discriminatory practices and by instituting new proactive policies (s 6). It also required regulated employers to file annual reports that outlined the nature and structure of the employer’s workplace, the representation of employees across major job groups and in the salary quartiles within those groups, the number of employees hired, promoted, and terminated, and the degree of representation of members of the designated groups in the context of those analyses (ss 1, 5). The 1986 act was characterized by some as only a tentative endorsement of the framework advocated by the Abella Report, irrespective of the extent to which it embraced its broader principles. Abigail Bakan and Audrey Kobayashi, for example, have argued that the requirements actually imposed by the 1986 act seriously limited any effect it could have in regulated workplaces, because it included “virtually no obligation to follow up” on the employment equity plans that employers were now mandated to create (Bakan and Kobayashi 2007, 153). In other words, the 1986 act lacked “teeth.” The legislation was substantially amended in 1995 (Government of Canada 1995, c 44). The revised Employment Equity Act, which remains in effect, maintains the proactive workplace planning and reporting obligations contained in the 1986 act, but adds enforcement provisions that ostensibly create a means to compel non-compliant employers to fulfil their statutory duties. For example, the revised act gives the Canadian Human Rights Commission the authority to audit an employer’s compliance with its obligation to survey its workplace and identify proactive ways to eliminate barriers to equality in employment (s 22). Further, the revised act empowers compliance officers to negotiate undertakings from, and give directions to, employers who are found to be non-compliant with their obligations under the legislation (s 25).

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Employment Equity Legislation at the Provincial Level At the federal level, the history of employment equity legislation is that of gradual entrenchment and relative stability. The trajectory of provincial employment equity legislation has been marked by controversy, illustrated most vividly by the dearth of provincial legislative action in this area. While most provinces have formulated some sort of employment equity policy, only British Columbia, Ontario, and Quebec have enacted employment equity legislation at any point since 1984. Moreover, both British Columbia and Ontario have since repealed that legislation. While Quebec’s legislation (which came into force in April 2001) remains, its application is limited to the public sector.2 Ontario’s history with employment equity is an especially instructive example of the often virulent response that the concept has received from some quarters in Canada, as well as the related political problems that governments have faced when attempting to implement it (Bakan and Kobayashi 2003, 2007; this discussion relies heavily on both studies). Employment equity legislation was introduced in Ontario in 1994 by Bob Rae’s New Democratic Party (NDP) government (Government of Ontario 1993, c 35). The Ontario legislation was somewhat similar to the federal act in that it did not rely on quotas, but instead required employers to create plans that established goals for achieving equity in an individual workplace (Bakan and Kobayashi 2003, 160). It went beyond the federal legislation, however, in the range of employers that fell within its scope. The law covered the provincial government and its agencies, all public sector employers that employed ten or more people, and private sector employers with more than fifty employees (Bakan and Kobayashi 2007, 9). In their detailed examination of the Ontario experience, Bakan and Kobayashi argue that the legislation was poorly received from its inception. They note that both the federal and Ontario governments were entering election campaign periods at the time the legislation was introduced, and the federal Reform Party, as well as Ontario’s Progressive Conservative Party led by Mike Harris, had made opposition to employment equity a central plank in their platforms. Bakan and Kobayashi (2007) point out that the Harris Conservatives’ political tactic of choice was to frame the legislation as a “job quotas” act, in order to create a wedge issue that would benefit them in the campaign, which seemed to have a decidedly negative effect on public support for employment equity. Even some groups representing individuals who were the intended beneficiaries of the legislation opposed it, because they believed it would

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do away with hiring practices based on “merit” (Bakan and Kobayashi 2007, 9–10). Moreover, the NDP did not enjoy the support of some traditional supporters of “progressive” employment practices. Public sector unions, for example, opposed the NDP plans as a retaliatory response to the Rae government’s decision to cut public sector wages. Private sector unions, which interestingly had remained more favourable to the government than those in the public sector, expressed only tepid support for the principles of employment equity, let alone its legislative enactment. Bakan and Kobayashi (2007) suggest that this was because the employment equity movement in a broad sense did not mesh well with traditional union political culture. Conversely, many supporters of employment equity (Bakan and Kobayashi point specifically to women’s and anti-racist groups) felt strongly that the NDP law did not go far enough. In particular, these groups felt that the legislation was problematic because it did not cover small business and did not provide for sufficient penalties against noncompliant employers (Bakan and Kobayashi 2007, 10–11). Against this backdrop, in 1995 the newly elected Progressive Conservative government led by Mike Harris moved quickly to repeal the NDP employment equity legislation, and to amend other acts (such as the Police Services Act) to repeal discrete employment equity provisions contained therein ( Job Quotas Repeal Act SO 1995, c 4). This had the effect of dismantling the broader employment equity governance structure, including voluntary measures taken by some public sector employers, that had preexisted the NDP legislation. The title of the Conservative legislation – the Job Quotas Repeal Act – coupled with its requirement that all employment equity information collected under the NDP law be destroyed (Government of Ontario 1995, s 4), indicates the level of controversy that surrounded employment equity in Ontario in the mid-1990s.

Employment Equity and Canadian Workplaces In addition to the often tumultuous reception that employment equity has received in the political sphere, Canadian attitudes to workplace diversity have also changed dramatically since 1984. Perhaps most importantly for our purposes, many businesses in Canada (and internationally) have embraced diversity in employment as an important ethical and strategic value that should be pursued irrespective of strict legal requirements.

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At a broad level, the emergence of Corporate Social Responsibility (CSR) is a helpful illustration of these changing attitudes. While the concept is impossible to strictly define, it is generally accepted that CSR refers to the increasing focus by some corporations on a “triple bottom line”: people, planet, and profits (Clavet 2008, 2). In other words, CSR is a concept that proposes that human rights, worker rights, and environmental protection, among other principles, should be incorporated into and fostered alongside traditional corporate structures and business objectives. For our purposes it is important to highlight that within these broad parameters, most CSR programs and initiatives place a heavy emphasis on fostering non-discrimination in employment (Ruggie 2008). For example, in his 2008 report to the UN Human Rights Council, John Ruggie, the UN special representative of the secretary general business and human rights argued that a central operational component of corporations’ ethical obligation to “respect” human rights involves “positive steps,” such as workplace “anti-discrimination policies,” that would “require the company to adopt specific recruitment and training programmes” (17). In this light, certain strands of CSR at least broadly intersect with employment equity principles and also seek to employ some of the same workplace mechanisms intended to implement those principles. As such, Canadian employers’ opinions on CSR can shed some light on how attitudes towards the goal of enhancing workplace diversity and the tools used to implement that goal are developing. In 2008, the Canadian Employers Council (CEC) released a report that documented the current attitudes of Canadian employers to CSR. The report was funded by Human Resources and Skills Development Canada (HRSDC) and sought to examine emerging challenges for employers in the international context. As a part of this consultation project, the CEC conducted a survey of over one hundred Canadian employers and business associations that examined how CSR was perceived in the context of business goals and strategy. Among other things, the survey found that: • 81 per cent of respondent companies agreed that CSR was important to the viability of their operations; • 87 per cent thought that CSR initiatives promoted the competitiveness and financial performance of the business; • 69 per cent believed that CSR resulted in enhanced corporate reputation and brand image; and

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• 81 per cent found that CSR initiatives resulted in improved employee recruitment and retention. In addition, the CEC survey found that even though a majority of major Canadian companies had a CSR program in place and believed that they had benefited from that program through better business results and increased workplace diversity, over 80 per cent of respondent companies believed that CSR should not be formally regulated at either the domestic or international level (Canadian Employers Council 2008, 52–7). A more pointed example of new ways in which employers are thinking about diversity is the increasing willingness of some enterprises to exceed the minimum requirements of the federal Employment Equity Act when formulating, implementing, and communicating human resources policy. Royal Bank of Canada (RBC) provides us with an illustrative example. RBC positions diversity as a strategic resource: “‘Diversity for growth and innovation’ is one of RBC’s Values and part of our business strategy. We know that understanding and drawing on the strength of diversity means meeting the needs of clients around the world, building strong relationships in the many communities we serve, and fully engaging the talents of our people. Or simply put, making the most of our diversity has always been the right thing to do and the smart thing to do” (Royal Bank of Canada 2008). The perception that, from a business perspective, fostering workplace diversity is both the “right thing” and the “smart thing” to do helps situate legislated employment equity obligations within RBC’s larger strategy to encourage diversity in employment. This is reinforced by the focus and place given to employment equity relative to other diversity initiatives described in RBC’s public relations documents. In connection with its obligations under the Employment Equity Act, RBC produces an annual Employment Equity Narrative Report, which provides an outline of the quantitative and qualitative information required under the federal employment equity scheme. In effect, it is a public restatement of RBC’s statutory filing requirements. As such, this information is restricted to the segments of its business that fall within federal jurisdiction, and to the degree of workforce representation of the four designated groups. In addition to the Employment Equity Narrative Report, RBC also releases an annual Diversity Progress Report outlining diversity initiatives from the past year (Diversity Report), and the RBC Diversity Blueprint: Priorities and Objectives 2009–2011 (Diversity Blueprint) setting out the direction of the

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company’s diversity policy. The 2008 Diversity Report contains information on RBC’s business operations in Canada and internationally, and highlights diversity initiatives intended to assist a variety of groups in addition to those designated in the Employment Equity Act. With respect to the gay, lesbian, bisexual, and transgendered community, for example, the Diversity Report highlights an employee resource group called PRIDE that seeks to “create a positive and sustainable environment” and to “enhance employee engagement and retention” (Royal Bank of Canada 2008, 8). Similarly, the Diversity Blueprint is a brief prospective document that applies to RBC’s international businesses. In addition to establishing commitments on employment equity in the strict sense (pledging to increase representation of Aboriginals in the workforce, for example), the document also sets goals for such things as the bank’s planned community involvement in early childhood Aboriginal education (8). While RBC is only one employer out of the many operating within the federal jurisdiction (and, admittedly, is generally recognized as a leader in diversity), its activity in this area demonstrates that legislated employment equity obligations can work alongside and overlap with similar (and, occasionally, more rigorous) workplace diversity initiatives that companies have initiated absent strict legal requirements. Indeed, in a growing number of workplaces in Canada today, employee diversity is increasingly perceived as being “good for business.” Where Are We Now?

The Impact of Employment Equity Legislation Given the multiplicity of factors that have changed the face and nature of employment during the past thirty years, it is difficult to assess the impact of employment equity legislation in Canadian workplaces. It is possible, however, to identify both potential successes and possible failings. The most obvious of the potential successes is that the representation of the designated groups in workplaces governed by the Employment Equity Act has been increasing since the legislation was enacted. This is evidenced, in part, by data obtained by the federal government from employers under the act. HRSDC publishes an annual report on the act that aggregates the quantitative data provided by employers pursuant to their employment equity reporting obligations. The Employment Equity Act: Annual Report series attempts to provide a “report card” on the progress that federally regulated employers are making on increasing the

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representation of the designated groups in their workforces (HRSDC 2008, iii). The 2009 annual report, which presents data for 2008, includes the most recent data at this writing, and charts the levels of representation of the designated groups in the federal private sector from 1987 to 2008. The data show in that time period women’s representation increased from 40.9 per cent to 42.6 per cent; Aboriginal peoples’ increased from 0.7 per cent to 1.9 per cent; disabled persons’ increased from 1.6 per cent to 2.7 per cent; and visible minorities’ increased from 5 per cent to 16.6 per cent. In its brief analysis of these figures, the report notes that, although there has been “continued improvement” in the employment of all four designated groups, the “glass ceiling” persists for women, “as they remain highly concentrated in clerical-related occupations and continue to be underrepresented in senior management and professional occupations.” It also points out that the representation of visible minorities actually exceeded “labour market availability” in the federally regulated private sector in 2008 (HRSDC 2009, 4). In other words, the representation level of visible minorities actually exceeded notional equity goals, at least as they are quantified under the federal scheme. Scholars have emphasized, however, that while these figures might show limited improvement, we remain far from achieving the goals of employment equity. Carol Agócs and Bob Osborne, for example, have noted that, at a global level, “since the origins of employment equity policy there have been some gains for women and visible minorities, but very little improvement for persons with disabilities and Aboriginal people” (Agócs and Osborne 2009, 248). Moreover, they argue that these overall figures mask the fact that visible minorities are still underrepresented in a variety of important areas, such as in “professional” and “managerial” categories. Similarly, they note that women remain underrepresented at senior managerial levels (248–9). Indeed, Agócs and Osborne are generally sceptical of the ability of the Employment Equity Act – and that of the federal government itself – to make progress towards achieving real employment equity. They argue that the enforcement powers currently vested in the Canadian Human Rights Commission by the legislation are weak and obligate the commission to rely on “persuasion” to encourage employers to meet their obligations (Agócs and Osborne 2009, 244, 250). In addition, they also note that any potential success is necessarily limited by the legislation’s limited scope – only 5 per cent of Canadian employees fall within the federal sector. Finally, and in broad strokes, Agócs and Osborne argue that

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the dominance of “neoliberalism” in Canadian politics and public policy plays a large role in the continuing “failure” of Canadian employment equity policy, because it has oriented governments towards the interests of business corporations. For Agócs and Osborne, a rather striking indication of the low priority that employment equity has been given by the federal government is its continuing failure to conduct the legislatively mandated review of act programs that has been due since 2006. However, they note that the Canadian model of employment equity has been implemented in Northern Ireland with relatively strong positive results, showing that this model has the potential to deliver gains for disadvantaged groups. (International comparisons illustrating factors that can make Canada’s employment equity model successful will be discussed below.)

The Potential Impact of Workplace Structures and Norms It is also helpful to consider the extent to which traditional workplace structures and norms – quite apart from the operation of legislation or government policy – impede attempts to reach employment equity when examining how employment equity initiatives are operating in Canada. “Seniority”-based job protection, which lies at the heart of employeeemployer relations in most unionized Canadian workplaces, is an example of a pervasive employment practice that could hinder employment equity initiatives. The complicating qualities of seniority in the context of employment equity were first raised in the Abella Report, which stated rather emphatically that “the potential for collision exists between the principles of affirmative action and of seniority” (Abella 1984, 219, 220). Conceptually, this is because the central purpose of job security practices that rely on seniority considerations is, at a broad level, to render the employment of new workers more vulnerable than that of longerterm workers to events such as layoffs or restructurings. Accordingly, in the context of workplace diversity, long-time employees who established themselves in a workplace prior to the advent of employment equity are more likely to have secure employment than, say, a visible minority employee who has only recently begun working because of past discriminatory practices. In other words, women, Aboriginals, visible minorities, and persons with disabilities are – at least notionally – much more likely to lose their employment than able-bodied white men because of the operation of seniority provisions. However, the Abella Report does not advance a particular substantive approach to resolve this potential

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conflict; instead, it argues that any modification to seniority systems is a proper subject for collective bargaining rather than government legislative action (220). Arguments regarding the role of seniority are receiving increasing support in the academic literature, and especially that which examines the interaction between American workplace norms and anti-discrimination policy. The American scholar Julie Suk, for example, has argued that formal job security in general can work against anti-discrimination protections. This is because “a general limitation on employers’ firing discretion, by way of job security protections, can magnify employers’ tendencies to discriminate in hiring” (Suk 2007, 107). Importantly, she notes that this dynamic occurs in situations of unintentional, systemic discrimination or “implicit bias,” as well as in more overt intentional discrimination. In short, Suk’s argument is that employers who are unable to fire an employee easily become more “careful” when hiring employees. As such, Suk argues, discriminatory tendencies have simply “migrated” around the strictures of job security to the pre-employment stage (107–8). Suk’s argument is doubly troubling in the context of our larger discussion, because it demonstrates that strong job security protections, construed broadly, might give rise to discriminatory consequences quite apart from the specific concerns raised by seniority systems in unionized workplaces. At a more practical level, Suk argues that these questions surrounding job security are particularly problematic because the conventional wisdom holds – and particularly in left-leaning progressive circles – that job security and equal employment opportunity are almost necessarily compatible. Indeed, she notes that many anti-discrimination advocates see strong job security as the cornerstone of a discriminationfree workplace. In reality, she believes that the opposite is proving true and must be recognized by practitioners and policymakers: Job security protections and the pursuit of equal employment opportunity can impose mutual costs on each other. Universal job security protections might exclude racial minorities from the labor market in the long run, and measures that target benefits to racial minorities can have detrimental effects on social solidarity. Universalistic, race-blind strategies for eradicating group disadvantage tend to obscure, if not deny, the possibility that promoting racial equality can conflict with promoting social welfare for all. This is a conflict that equal employment opportunity law should negotiate and manage rather than ignore. (Suk 2007, 74–5)

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At the same time, it is important to highlight that some forms of legislated job security – broadly defined – can play an important role in fostering workplace diversity. For example, in the Canadian context human rights legislation that protects employees from being dismissed from their employment as the result of personal characteristics such as religion, ethnicity, and sexual orientation can help promote the same goals that motivate employment equity. While an extensive consideration of these concerns is outside the scope of this discussion, this suggests the need for a nuanced consideration of the ways in which job security protections can both reinforce and promote or hinder employment equity. For example, it would seem appropriate in light of the foregoing to question whether certain wellentrenched Canadian workplace structures such as seniority protections in collective agreements are compatible with the processes and goals of current employment equity legislation. In a different vein, Samuel Bagenstos, who is a leading scholar of systemic discrimination in the United States and a deputy assistant attorney general for civil rights in the Obama administration, has argued that many still-nascent changes to traditional workplaces – such as the decline of job security and the collapse of reporting hierarchies – also complicate the use of systemic anti-discrimination policy. Specifically, Bagenstos argues that anti-discrimination law has traditionally focused on hiring and promotion practices that occur along a well-defined “ladder” within a large organization that implicitly guarantees long-term employment (Bagenstos 2006, 10). For Bagenstos, however, this caricature no longer describes the nature of employment in many modern workplaces: In many modern-day workplaces, particularly those in the knowledge and service industries, flexibility is the operative word. Hierarchies are flatter, much work occurs in teams, and what is most important to a worker is often the development of skills and experience that can be marketed to other employers rather than advancing to the next steps on the promotion ladder of her current employer. In these circumstances, passing over an employee for a particular assignment – or assigning that employee to a team with whom she has personality conflicts – can be as consequential as passing over that employee for a promotion. (Bagenstos 2006, 11)

This vision of the modern workplace seriously complicates the implementation of employment equity legislation (or for that matter, the intellectual underpinnings of any diversity policy) that assesses discrimination

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in a context that looks to formal hiring and advancement practices in a strictly hierarchical workplace. In the same way that we must scrutinize traditional workplace practices like job security, then, we must also examine emerging employment practices to determine if they are compatible with extant principles of employment equity.

Employment Equity in Other Jurisdictions If we evaluate the Canadian approach to employment equity on the basis of how it has been received and imitated internationally, it would appear to be successful indeed. South Africa, Northern Ireland, Australia, and the Netherlands all built employment equity legislation on the intellectual and policy foundations set out in the Abella Report and the act (Agócs and Osborne 2009, 242). The Northern Ireland experience under the Canadian model is particularly noteworthy (258). The 1989 Northern Ireland Fair Employment Act is “similar in essential respects” to Canada’s Employment Equity Act (Agócs and Osborne 2009, 258). However, the contexts in which the laws have been implemented differ dramatically. While the act aims to achieve equity in employment for four historically disadvantaged groups (women, Native people, disabled persons, and visible minorities), Northern Ireland’s legislation targets inequality between Catholics and Protestants. In their recent comparative study of employment equity in Northern Ireland and Canada, Agócs and Osborne argue that Northern Ireland’s more rigorous approach to implementation and enforcement, coupled with a vastly different socio-political and economic landscape, in large part explains the success of employment equity legislation in increasing Catholic participation rates in the workforce (251). It is difficult to overstate the importance played by the history of religious violence and socio-economic inequality when considering Northern Ireland’s experience with employment equity. As Agócs and Osborne note, “The trauma of sectarian violence demanded an effective response that would address the economic and social roots of political conflict. Initiatives of government, employers, unions, the courts, and political parties came together in ways that began to address, through fair employment policy, the disadvantages and discrimination Catholics suffered” (Agócs and Osborne 2009, 254). Crucially, then, the legacy of Northern Ireland’s violent history created a consensus on the importance of employment equity legislation. For example, businesses in Northern Ireland have been quite supportive of employment equity as a legislated standard, rather than as mere

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principles to aspire to (Agócs and Osborne 2009, 251). Businesses have complied with a strong and mandatory government regime of reporting, monitoring, and enforcement that has underlined the importance of employment equity as a national priority. Similarly, the union movement also embraced employment equity legislation to the extent that some seniority arrangements in unionized workplaces have been modified to diminish the emphasis placed on length of service in order to retain relatively junior Catholic employees during layoffs. In ways like this, the willing involvement of interested parties like business and labour in the policy process has given Northern Ireland a distinct advantage in achieving progress towards employment equity. Governments elsewhere around the world are taking the opportunity to reconsider employment equity initiatives and, for that matter, antidiscrimination laws more broadly, to ensure their currency and effectiveness. For example, in 2009 the Australian government announced that it would conduct a full review of Australia’s key piece of employment equity legislation, the Equal Opportunity for Women in the Workplace Act 1999 (EOWWA). This statute is the only employment equity legislation that extends to the Australian private sector and is quite similar to Canadian legislation in that it requires organizations with 100 employees or more to develop and implement plans to increase workplace diversity, and also imposes annual reporting obligations on those organizations (Government of Australia 2009, 7). It differs from the Canadian act, however, in that it extends solely to women. Moreover, in a 1999 review of the legislation, a proposal that would have extended its scope to cover “other equal employment opportunity groups” was rejected (Government of Australia 2009, 8). The stated purpose of Australia’s review of the EOWWA is to ensure that, inter alia, “equal employment opportunity policies remain appropriate for current economic and social conditions” (1). To this end, the review’s terms of reference are expansive and mandate an analysis of the EOWWA’s past impact on women’s employment, the administrative structures that implement it, its place in the broader legislative human rights framework, and consideration of any future effects that the legislation (or changes to it) might have on economic and social issues in Australia (2). The review is ongoing and the government is engaged in consultations with stakeholders. In contrast, in April 2009 the British government introduced an “Equality Bill” that consolidated existing anti-discrimination law in the United Kingdom and sought to introduce some robust employment equity measures. The content included in the government’s draft legislation proposed, for example, that the government require or give preference to

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contractors or suppliers who engage in employment equity initiatives (Government of the United Kingdom 2009, 12–13). Also included was a requirement that public sector organizations that employ over 150 employees publish annual reports on the gender pay gap, the ethnic minority employment rate, and the disability employment rate in their workplaces (16). Notably, the legislation would permit employers to take diversity considerations into account in their hiring practices, a consideration that was previously unlawful in most circumstances (18). The Equality Act 2010 became an act of Parliament in the United Kingdom on 8 April 2010, and a majority of the legislation’s provisions came into force on 1 October 2010. While a detailed discussion of the final legislation is outside the scope of this paper, it is noteworthy, given our discussion, that sections 158 and 159 make it lawful for employers to treat individuals with a “protected characteristic” more “favourably” in the context of hiring and promotion practices. The legislation defines age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation as “protected characteristics” (United Kingdom 2010, c 15, s 4). Where Are We Headed? The principles of employment equity have thus had a long and eventful history in the period since the Abella Report was released in 1984. This stands in sharp contrast to the Employment Equity Act itself, which, despite substantial changes introduced in 1995, has been rooted in similar processes and markers of success since its introduction in 1986. This is a striking incongruity, and it should raise many questions about the trajectory of the act and the principles of employment equity more broadly in the twenty-first century. The most crucial of these questions relates to how the principles underlying the employment equity movement can be implemented effectively in modern Canadian workplaces. Numerous observers have argued that more progress would have been made over the past two decades towards achieving the goals of the act if they were buttressed by better or stronger enforcement mechanisms. If such mechanisms were put in place, this argument continues, then employers would truly be obligated to work towards increased representation of the designated groups in their workforces. Instead, and to use the language employed by Agócs and Osborne (2009), employer obligations under the act currently rely only on the “persuasive” power of the Canadian Human Rights Commission.

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Moreover, some believe that we cannot move towards employment equity if we continue to rely on employers to, in effect, implement the act themselves. As Bakan and Kobayashi have noted, Ontario’s experiment with employment equity legislation did not satisfy NDP members of the provincial Parliament, many of whom believed that effective legislation required “quotas or statistical standards” rather than language that “called upon employers to develop appropriate goals and flexible plans” (Bakan and Kobayashi 2007, 160). There may be much to be said in support of such positions. Nevertheless, we should not overlook the fact that such positions presuppose that the best tool to achieve the ultimate goal of employment equity, which is a workplace free from systemic discrimination, is legislation like the federal Employment Equity Act or that enacted in Ontario. This should not be assumed in light of the discussion above. Rather, a fulsome conversation about the future of employment equity must also consider the evolution of the Canadian workplace and its interaction with diversity considerations. Also, there is no reason to believe that the negative attitudes surrounding legislated employment equity standards have changed in the years since the political battles fought over such legislation in the 1990s. Indeed, the leader of the opposition in Ontario made a vow to abolish the Ontario Human Rights Tribunal in his successful bid for that post in 2009. Some have argued that this was a strategic move that can be traced directly to the Harris government’s successful attack on employment equity from 1994 to 1995 (Go 2009). If indeed employment equity legislation is still a political lightning rod, then it would be wise to consider alternate routes towards these goals. Elsewhere I have argued that law reform processes – at least in the context of labour and employment law – are most effective when they emphasize multi-party consultation (Burkett 2005, 261). More importantly, that consultation should include participation by each of the interested parties who will ultimately be governed by the law being formulated. For example, “tripartism” was developed by the International Labour Organization to formalize consultation between worker representatives, employer representatives, and governments in the international labour law and policy formulation process. In Canada, the adoption of a similar labour and employment policy process at the federal level – reflected in the processes employed by the Woods and Sims Task Forces – has resulted in federal legislation that has been largely acceptable to employers and worker representatives,

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notwithstanding the perception that those parties’ interests necessarily conflict (Burkett 2005, 272–8). Conversely, the recent experience with labour law reform in Ontario would seem to demonstrate that a reform process that does not meaningfully involve a key player can result in controversial and, ultimately, short-lived legislation (278–84). Achieving consensus is an important goal of tripartism. However, that does not mean that labour and employment law must be frozen until a consensus on reform is reached. Rather, tripartism focuses on the process leading to substantive reform and dictates that workers and employers must have an equal opportunity to be consulted in the process and articulate their views. By contrast, a one-sided approach to labour law reform that promotes only the interests of the governing party’s supporters may not only disturb the balance that labour relations systems require, but also set in motion disruptive “pendulum swings” that can undermine the legitimacy of labour laws and institutions (Burkett 2005, 289). Given recent developments in Ontario, it could be an opportune time to initiate a tripartite review of employment equity policy and, more broadly, other legislative approaches that seek to promote workplace diversity. With the recent amendments to the Human Rights Code, the Ontario Human Rights Commission has abandoned its status as chief litigant in discrimination matters in favour of a broader role as an educator and social resource in the realm of human rights education and policy formulation. The commission could partner with employer, employee, and designated group representatives to create a steering committee on the future of employment equity in Ontario. Such a committee would investigate, consider, and ultimately propose policies and recommendations that represent innovative and mutually acceptable diversity goals for Ontario workplaces. The history of labour law reform – which, like employment equity, has a demonstrated potential for controversy – has shown that policy goals are usually achievable only in the long term when key players “buy in” to the means employed to reach them. Looking ahead, both proponents and detractors of employment equity law and policy must consider how Canadian workplaces have changed over the course of thirty years. Employment equity law must come to terms with, for example, the issues raised by increasingly informal, non-hierarchical workplace structures and the emergence of transient employment relationships. As noted above, Samuel Bagenstos envisions innumerable situations in which unconscious bias may limit an individual’s opportunities. Such bias may affect supervisors when they assign tasks among employees; it may affect supervisors, coworkers, and even

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subordinates in making judgments under flexible work-evaluation procedures; and it may affect other team members in their ability to work cooperatively with a fellow employee. Because the development and skills take on prime importance for workers, the operation of bias at any of these interim points may be devastating for an individual’s career. (Bagenstos 2006, 11)

Similarly, we must also ask hard questions about whether traditional but entrenched workplace structures, like seniority provisions in collective agreements, are inadvertently hindering employment opportunities for disadvantaged groups in the workforce. If this is the case, policymakers and practitioners must address this conflict directly and attempt to find some balance between what could be equally valid but divergent goals. Employment equity policymakers and practitioners should also consider the emergence of CSR and similar movements in the context of employment equity goals. It would appear that, at least for employers like RBC, employment equity is viewed within a far more expansive drive towards workplace diversity, rather than merely as a legislated minimum standard. While this certainly does not reflect the views and practices of many employers covered by the Employment Equity Act, the existence of employers with sophisticated diversity initiatives should encourage us to ask how employment equity legislation can be made relevant and useful to those companies that already exceed the minimum standards prescribed in the legislation. Indeed, perhaps the most difficult question of all goes to the very utility of employment equity legislation in today’s workplace. Would it be more useful, for example, to replace such legislation with a system of robust technical assistance programs that would help employers implement diversity programs? Or incentives to encourage employer-driven diversity initiatives? Conversely, should we continue in the direction contemplated by the federal act? We are indeed fortunate to have the opportunity at the thirtieth anniversary of the Abella Report to consider these and other compelling issues related to the future of employment equity law and policy in Canada.

NOTES 1 I acknowledge with gratitude the contributions of my colleagues John Craig, Rhonda Shirreff, and Christopher Pigott.

304 Brian W. Burkett 2 A discussion of provincial employment equity policies (and the variations across provinces) is outside the scope of this paper. For a detailed discussion of employment equity across Canadian jurisdictions, see Bakan and Kobayashi (2000).

REFERENCES Abella, Rosalie Silberman. 1984. Equality in Employment: A Royal Commission Report. Ottawa: Minister of Supply and Services Canada. Agócs, Carol, and Bob Osborne. 2009. “Comparing Equity Policies in Canada and Northern Ireland: Policy Learning in Two Directions?” Canadian Public Policy 35 (2): 237–62. http://dx.doi.org/10.3138/cpp.35.2.237. Bagenstos, Samuel R. 2006. “The Structural Turn and the Limits of AntiDiscrimination Law.” California Law Review 94 (1): 1–47. http://dx.doi.org/ 10.2307/20439026. Bakan, Abigail, and Audrey Kobayashi. 2000. “Employment Equity Policy in Canada: An Interprovincial Comparison.” Ottawa: Status of Women Canada. – 2003. Ontario: Lessons of the Rise and Fall of Employment Equity Legislation from the Perspective of Rights Advocacy. Toronto: Canadian Race Relations Foundation. – 2007. “Affirmative Action and Employment Equity: Policy, Ideology, and Backlash in Canadian Context.” Studies in Political Economy 79:145–66. Burkett, Brian. 2005. “Reflections on Tripartism and Labour Law Reform.” Canadian Labour and Employment Law Journal 12 (261): 261–90. Canadian Employers Council. 2008. Final Report of the CEC’s Consultation Project on International Issues. Clavet, Remi, Gregorio de Castro, Isabelle Daugareidh, Isabelle Duplessis, Eric Gravel, Hagen Henry, Jean-Claude Javillier, Marianna Linnik, Sune S. Thorsen, Yun Gao, and Arnold Zak. 2008. “Introduction.” In Governance, International Law & Corporate Social Responsibility, 1–6. Geneva: International Labour Organization. Go, Avvy. 2009. “Making Human Rights an Issue for All the Wrong Reasons.” Toronto Star, 24 May. Government of Canada. 1986. Employment Equity Act SC 1986, c 31. – 1995. Employment Equity Act SC 1995, c 44. Government of Ontario. 1993. Employment Equity Act SO 1993, c 35. – 1995. Job Quotas Repeal Act SO 1995, c 4. Government of the Commonwealth of Australia. 2009.“Review of the Equal Opportunity for Women in the Workplace Act 1999: Issues Paper.” Canberra: Department of Families, Housing, Community Services, and Indigenous Affairs.

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Government of the United Kingdom. 2009. A Fairer Future: The Equality Bill and Other Action to Make It a Reality. London: Government Equalities Office. Hepple, R. 2001. “Equality and Empowerment for Decent Work.” International Labour Review 140 (5): 5–18. Human Resources and Skills Development Canada. 2008. Employment Equity Act: Annual Report. Ottawa: HRSDC. – 2009. Employment Equity Act: Annual Report. Ottawa: HRSDC. International Labour Organisation (ILO). 1999. Decent Work. Report of the Director-General of the ILO to the 87th Session of the International Labour Conference. 1999. Geneva: ILO. Royal Bank of Canada. 2008. “About RBC: Diversity, CEO’s Message.” www.rbc. com/diversity/index.html. Ruggie, John. 2008. “Protect, Respect, and Remedy: A Framework for Business and Human Rights.” UN Human Rights Council A/HRC/8/5 7 April. http://dx.doi.org/10.1162/itgg.2008.3.2.189. Suk, Julie. 2007. “Discrimination at Will: Job Security Protections and Equal Employment Opportunity in Conflict.” Stanford Law Review 60 (73): 73–114. United Kingdom. 2010. Equality Act 2010. http://www.legislation.gov.uk/ ukpga/2010/15/pdfs/ukpga_20100015_en.pdf.

Conclusion

Looking Forward: The Unfinished Business of Employment Equity CAROL AGÓCS

Why has Canada’s progress for designated groups under employment equity stalled and not lived up to its potential? As suggested in the introduction and several chapters in this book, part of the explanation lies in Canada’s failure to implement several important recommendations of the Abella Report. As Sandra Burt suggested, “Public policy consists of actions that governments choose to take, as well as actions that they choose not to take” (Burt 1995, 357). Four problem areas stand out as elements of the unfinished business of effective employment equity policy: 1 meaningful enforcement and sanctions; 2 creating a role for representatives of the designated groups in employment equity implementation; 3 addressing the failure of the provinces to put into place their own employment equity legislation; and 4 implementing the social and economic supports Justice Abella recommended nearly three decades ago to ensure that each of the equity groups has the conditions for success and fairness in the workplace. In thinking towards the future of employment equity policy, it is important to consider the changing labour market, economy, and society in which it is situated, and the place of employment equity within a larger policy framework aimed at creating employment opportunity and fairness in Canada. This chapter examines each of these four themes, ending with a discussion of the current and emerging context for employment equity.

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Enforcement and Sanctions The Abella Report (1984, 214–19 and 258–60) offered four different models for monitoring and enforcement of employment equity compliance, preferably by “an agency independent from government,” working with the Canadian Human Rights Commission (CHRC), and focusing on the reporting by employers of workforce data on representation. However the report made no specific recommendations about sanctions for non-compliance or about how government should respond if the consultative approach it recommended did not result in employers’ compliance with the law. Experience under the act suggests that monitoring, enforcement, and sanctions for failure to comply must be robust and have the leverage needed to induce employers to take seriously their legal employment equity requirements (e.g., HRSDC 2012, v). Ensuring compliance is particularly challenging in a self-regulatory regime such as employment equity in which employers are not required to implement quotas imposed by government; in fact the act forbids CHRC from imposing quotas even when employers are not in compliance (Employment Equity Act, SC 1995, c 44, 33(1e) and 33(2)). The Employment Equity Act does not include traditional top-down regulatory oversight mechanisms of the kind found in employment standards or workplace safety legislation. Instead, employers are in charge of developing their own goals, timetables, and plans for achieving a representative workforce, and they have substantial freedom in the content of their response to these requirements. Using self-regulation as a strategy for enforcing the implementation of a policy has the benefit of being responsive to business necessities and of minimizing backlash to the policy. However, researchers have identified a “vexing enforcement gap” in self-regulatory approaches to workplace legal protections (Glynn 2011, 279), because employers face few penalties or rewards, and weak oversight. Employers’ self-management of their employment equity programs might not be problematic if their progress towards achieving their own goals and implementing their plans were vigorously audited by government regulatory authorities, and if there were meaningful consequences for failure to demonstrate good faith effort to achieve the legislative purpose of the Employment Equity Act. However, the only sanction employers face under the act is a fine (maximum of $50,000) for failure to file the required annual reports. The act does not provide for sanctions when employers fail to comply with the law’s other requirements, or when they

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do not carry out their employment equity plans or attain the goals they set for themselves. Legislative changes resulting from the 1995 review and rewriting of the Employment Equity Act and the Canadian Human Rights Act gave the CHRC the mandate to monitor and enforce compliance with both acts. While this was an improvement over the 1986 Employment Equity Act, the 1995 changes also tied the hands of the CHRC, leaving it without some powers it previously had, while requiring the use of negotiation and persuasion to gain compliance.1 Although the 1995 act also established an Employment Equity Review Tribunal, the CHRC can use it only as a last resort if an employer persists in avoiding employment equity requirements.2 Among many other responsibilities, the CHRC is mandated to ensure that over 600 federally regulated employers comply with the Employment Equity Act. It has concentrated on auditing those employers with more than 500 employees and below-average representation of the designated groups for their sector. In 2010 the CHRC completed fifty-three employment equity audits and found that only twenty-one of these employers were in compliance with the act. A 2012 HRSDC report on an evaluation of employment equity programs based on data collected in 2006–7 observed that “the level of LEEP and FCP employer compliance with the development and implementation of employment equity plans is still low, with stakeholders suggesting that employers may be doing the minimum to comply with the program requirements under both LEEP and FCP, until they are subjected to compliance audits or reviews. It was also found that enforcement mechanisms for LEEP employers reporting obligations and FCP employers overall compliance are rarely applied” (HRSCD 2012, v). Aside from a near-absence of sanctions and a weak mandate for dealing with lack of employer compliance, the CHRC is provided with insufficient and declining resources in general, and for employment equity in particular.3 With reference to its Strategic Outcome in its Departmental Performance Reports for 2008–9, the commission commented, with palpable frustration, “Systemic change takes time. The Commission has made some strides … by reallocating limited resources to programs, initiatives, and emerging issues, but these stop-gap efforts fall short of fully exploring and fulfilling the objectives of the CHRA [Canadian Human Rights Act], the EEA [Employment Equity Act], and, more precisely, the mandate of the Commission” (Treasury Board of Canada Secretariat 2008–9, 1). Of the CHRC’s total budget in 2010–11, only 21 per cent was devoted to the Discrimination Prevention Program, which includes employment

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equity audits (Treasury Board of Canada Secretariat 2010–11), while the majority of its resources must be applied to its responsibilities under the Canadian Human Rights Act, including responding to hundreds of individual complaints. The CHRC has continued to “streamline” its employment equity audit model in an attempt to gain efficiencies in light of its limited funds and staff. It seeks to gain compliance without auditing employers by developing informational and educational resources to communicate the benefits of meeting their employment equity requirements and avoiding discrimination (CHRC 2010). The CHRC also develops voluntary tools such as the Human Rights Maturity Model and a Disability Action Plan to assist in prevention of discrimination by developing an inclusive workplace culture, and conducts workshops and forums and provides educational materials to support this mandate in ways that make efficient use of staff resources. In 2011–12 the Discrimination Prevention Branch of the CHRC initiated a new employment equity auditing process, which gives priority to “employers with difficulty in maintaining equity” for the designated groups (CHRC 2012b, 5).4 It also launched the Human Rights Maturity Model designed to help organizations to “integrate their legislative requirements under the Canadian Human Rights Act and the Employment Equity Act into their own policies and practices.” The model is “consistent” with the recommendations of the government’s Red Tape Reduction Commission in advising employers on how to fulfil their legislative requirements while “easing their reporting burden.” Initial experience with enrolling fourteen organizations in the model project, of which just six completed the pilot testing, showed that firm commitment from organizational leaders is required for successful implementation. The role of auditing and enforcement in the implementation process is crucial, and weakness in these essential functions undermines the impact of employment equity policy. The available evidence indicates that most employers are not taking significant actions to address systemic discrimination and racism in their workplaces and would resist changing the enforcement process to give it more teeth. Roles for Equity Groups in Employment Equity Implementation The Abella Report made a recommendation on the role of stakeholders, particularly members of the designated groups, in the implementation of employment equity, suggesting that employers establish workplace

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employment equity committees representing labour, management, and the designated groups (Abella 1984, 205). This recommendation was not taken up as a legislated requirement. A significant limitation of employment equity policy is that it does not require the involvement of designated group representatives, and the requirement to involve unions and employee representatives is limited to consultation, vaguely defined, as Pilon explains in chapter 9. Canada’s employment equity model is an early and somewhat limited example of what Sandra Fredman (2002, 121–2) termed a fourthgeneration equality policy. Such policies go beyond both the “negative requirement to refrain from discriminating,” and fault-based approaches triggered by complaints from victims of discrimination, to impose “positive duties to promote equality.” The aim of fourth-generation equality policies is to restructure and transform institutions through “a continuing process of diagnosing the problem, working out possible responses, monitoring the effectiveness of strategies, and modifying those strategies as required” (123; also 176–95). Positive duties to identify, remove, and remedy discriminatory practices are assigned to employers and public bodies, and in particular, to persons with decision-making authority and responsibility who are in a position to direct change. However, if it is to be relevant and successful, this process must involve the democratic participation of stakeholder groups in the workplace, particularly unions and members of groups who have experienced discrimination and exclusion, and of community-based advocates for these groups (for extensive discussion of the role of designated groups in employment equity change, see Agócs, Burr, and Somerset 1992). An important lesson on the role of designated groups and their representatives was learned in the Canadian Human Rights Tribunal decision in National Capital Alliance on Race Relations (NCARR) v Health and Welfare Canada (1997), the first successful Canadian human rights decision finding systemic racial discrimination and requiring systemic remedies. The remedies, which included training on bias-free selection and an appointment target for visible minority representation in permanent management positions of twice availability over five years, resulted in change at Health Canada, a federal government department (Beck, Reitz, and Weiner 2002). In this case, unions and designated group advocacy organizations played a critical role in amassing the evidence required to prove systemic racial discrimination.5 Another potential model can be found in the Joint Health and Safety Committees required under Ontario’s Occupational Health and Safety Act (RSO 1990). Committee members must be at least half composed of

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employees without managerial functions, selected by the employees. These committees have powers to identify health and safety hazards, make recommendations to which employers must respond, and obtain information from the employer that is needed to monitor health and safety. Their role has recently been extended under an amendment to the OHSA (Bill 168) to include identifying and acting on threats of violence in the workplace.6 Employment equity could be made more effective in identifying and removing discriminatory barriers experienced by members of each of the designated groups by incorporating a more explicitly participative model of workplace change. Requiring a role for employee representatives and civil society organizations representing the designated groups in implementing, monitoring, and ensuring compliance would help to translate employment equity requirements into concrete actions to improve inclusiveness in the workplace, and would reflect current thinking about employee empowerment. The Need for Provincial Employment Equity Legislation As discussed in chapters 2 and 3, the coverage of employment equity policy is limited largely to the federal jurisdiction and federal contractors, leaving out approximately 87 per cent of the Canadian labour force, because most workers and employers fall within a provincial jurisdiction.7 The constitutional division of responsibilities between the provincial and federal governments adds substantial complexity to the task of addressing social and economic policy issues that span the jurisdictions, such as education and training, immigrant selection and settlement, and urban Aboriginal employment needs. The province of Quebec has legislated employment equity within the broader public sector; however, the provinces have not chosen to create and maintain their own employment equity policy frameworks for both public and private sector employers within their jurisdictions in parallel with federal policy, as the Abella report suggested (Abella 1984, 222–3).8 Again, the choice not to act is itself a policy choice.

The Larger Socio-Economic Context for Employment Equity The Abella Report made several recommendations concerning the need for institutional support within the larger social context in which employment equity policy functions and on which it depends. Nearly thirty years ago the Abella Report pointed to barriers faced by immigrants, the

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majority of whom are members of racialized groups, because the education and work experience they brought from their home countries – assets that may have gained them entry into Canada as immigrants in the first place – are not appropriately recognized and valued. Canada still lacks an effective system at the federal or provincial levels for centralized and authoritative assessment of credentials and experience, and immigrants still face this barrier (Reitz 2005). Abella also cited a need for a national publicly funded child care program as an essential complement to employment equity for women (Abella 1984, chapter 5 and 267–8). The only Canadian jurisdiction that has established such a program is the province of Quebec. Comparative policy research has found that the availability of publicly funded childcare significantly reduces the likelihood that families headed by women will live in poverty (Misra, Moller, and Budig 2007, 818), probably because they face fewer barriers to accessing and retaining full-time employment.9 In recent years the issue of intersectionality has emerged as a critical aspect of systemic discrimination that has not been adequately addressed in employment equity policy, as discussed in chapter 4. The specific kinds of disadvantage in access to work, fair pay, working conditions, and career development that women of Aboriginal and visible minority origin and those with disabilities confront in the workplace are not being recognized and addressed. For example, the absence of a national public childcare system covering all Canadian women imposes particularly large burdens on visible minority and Aboriginal women and those with disabilities, because they are more likely to work in precarious jobs and to live in poverty. Their access to education and employment is particularly constrained by Canada’s failure to establish a national public childcare program. In summary, the Abella Commission report provided a strong foundation for the Canadian model of employment equity by identifying essential building blocks of a policy framework that can lead to equality of opportunity in employment. However, the project remains incomplete. An obvious way to improve the results of employment equity policy is to address this unfinished business. Looking Forward: Towards Workplace Equality in Canada? Canada has become one of the most diverse of the OECD countries, and Canada’s diversity has strong public support and has long been

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celebrated in a discourse of bilingualism, multiculturalism, equity, and opportunity, which reflects national pride and the view that immigration is an asset to the economy (Reitz 2011). Indeed, Canada achieved the highest score on an index of community tolerance of minority groups (including racialized groups and sexual minorities) as measured in a 2008 Gallup World Poll reporting results for thirty-five developed countries (OECD 2011). However, support for diversity and multiculturalism exists side by side with entrenched as well as emerging forms of social and economic inequality and discrimination on the basis of race, gender, disability, and Aboriginal identity. Evidence of current patterns of inequality in the workplace in representation, in presence in senior positions, pay, and other structural variables is reviewed in detail in chapters 2, 3, 4, 5, 6, 7, and 8 and will not be repeated here. In addition to data on representation across the dimensions of variation in the workplace, there is survey evidence of experience of discrimination in employment. The 2009 General Social Survey conducted by Statistics Canada (2011, 36) found that visible minorities were twice as likely as non-visible minorities to report having experienced discrimination on the basis of race or colour (17 per cent versus about 3 per cent), and the workplace was one of the most common situations where discrimination occurred. Statistics Canada’s 2002 Ethnic Diversity Survey found that 35 per cent of visible minorities, and 61 per cent of visible minorities who were born in Canada, had experienced discrimination within the previous five years, primarily in the workplace (Reitz 2007, 27). The 2002 General Social Survey found that 44 per cent of gays and lesbians had experienced discrimination; 78 per cent of those respondents believed it was because of their sexual orientation, compared with 2 per cent of heterosexuals (Statistics Canada 2008a, 11). Researchers regularly document discriminatory behaviour in Canada. For example, a recent field experiment using emailed résumés in response to job ads reported significant discrimination by recruiters against applicants with names of Indian, Chinese, and/or Pakistani origin, compared with applicants with similar résumés but English-sounding names (Oreopoulos 2012). The evidence discussed throughout this book makes clear that the belief that a post-racial, post-feminist era has arrived is a myth. Persistent patterns of inequality endure, despite substantial progress over the past quarter-century towards demolishing the formal and informal structures of racism, sexism, and homophobia. Yet public opinion is currently divided about whether there is unfair inequality, whether discrimination

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plays a part, whether inequality is an injustice that demands policy responses, and if so, what responses are appropriate. These policy debates are taking place against the background of a long-term trend towards the development of a global economy accompanied by the restructuring of the Canadian labour market as employers seek competitiveness, increased profits, and decreased costs by maximizing the flexibility and minimizing the cost of the labour supply. While a global labour market has brought high levels of immigration to Canada, with benefits to economic growth and government tax revenues that benefit all Canadians, and although Canada depends heavily on the labour of immigrants, immigrants have experienced a downward trend in their earnings, and barriers to access to jobs for which they offer qualifications and experience. Women have seen their employment opportunities and earnings increase, particularly in the public sector and in unionized workplaces, over the past quarter-century. However, cuts to social programs and to public sector employment, and the continuing privatization of caring work, along with economic stagnation and fiscal challenges, are now posing threats to employment opportunities for many women. These developments have added new urgency to the struggle for fairness and equity in employment. As a consequence of restructuring, there has been a decline in the proportion of standard full-time, full-year jobs with stability, better pay and benefits, and protection under labour standards and collective agreements, dropping to about 63 per cent of jobs by 2002 (Cranford, Vosko, and Zukewich (2003, 11). The proportion of precarious jobs including part-time, temporary (term, contract, or temp), seasonal, casual, own-account self-employment, and multiple job holding, grew in the early 1990s and stabilized at about 38 per cent of the workforce by 2001, despite economic growth (Kapsalis and Tourigny 2005, 31). (See chapter 8 for detailed discussion of vulnerable workers and precarious jobs.) A growing segment of the workforce, particularly immigrants, racialized and Aboriginal workers and women, are vulnerable workers. Of persons working part-time, 70 per cent are women, and over a quarter of them are working part-time because they could not obtain full time jobs (Statistics Canada 2005, chapter 5). Immigrants are more likely than Canadianborn workers to work part-time involuntarily, to hold temporary jobs, and to be over-qualified for their jobs (Statistics Canada 2009, 1). The distribution of incomes in Canada, as in other developed countries, became polarized in the 1990s, and this trend is continuing, with

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significant implications for the employment equity designated groups. On the whole, women are more likely than men to live below the poverty line, and in addition, a gap has opened between educated middle-and upper-income women and poorer women, who include many immigrants, members of visible minorities, and lone parents (Macdonald 2006, 137–41). Persistent low income and limited occupational opportunity has become a reality for growing proportions of immigrants, persons with disabilities, Aboriginal people, and women (Statistics Canada 2005). Data from 2005 show that members of visible minorities who are not immigrants are twice as likely to be in a low-income situation as Canadians who are not members of visible minorities (about 18 per cent versus 9 per cent), and the same is true of members of visible minorities who are immigrants (22 per cent versus 10.5 per cent) (Statistics Canada 2011, 34). Aboriginal and visible minority workers and those with disabilities, both women and men, will comprise a large proportion of Canada’s future workforce, and immigration will be the source of labour force growth “for the foreseeable future” (Reitz 2005, 4). About 72 per cent of immigrants belong to visible minorities, who are projected to comprise about one-fifth of Canada’s total population by 2017, and over half the populations of Toronto and Vancouver (Belanger and Malenfant 2005). The visible minority population’s median age in 2017 is projected to be 35.5, in comparison to 43.4 for the rest of the population (Berlanger and Malenfant), and the Aboriginal population is still younger, on average (chapter 5), which means that Canada’s dependence on visible minorities and Aboriginal people for a labour supply will increase substantially in the coming years. The analysis provided in this book makes it clear that the four employment equity populations continue to experience disadvantage, inequality, and systemic discrimination in employment in Canada, even when covered by employment equity policy. To the degree that members of these groups are unable to fully use their talents, knowledge, experience, and energy in paid work that contributes to the welfare of their families, as well as to Canada’s tax revenues and economic growth, the human resources they offer to Canadian society are being wasted. Immigrants who belong to racialized groups suffer a greater earnings disadvantage than the immigrant population as a whole, and racial discrimination undoubtedly contributes to under-utilization of skills (Reitz 2005, 3, 12). Immigrants’ skills and educational qualifications exceed the average for the Canadian-born population, yet a recent report by Craig Alexander,

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a senior vice-president of TD Economics, proposes, “Simply raising the employment rate … of immigrant workers to the same level as nonimmigrants is equivalent to roughly 370,000 additional people working. A recent estimate of the potential increased personal income if newcomers’ skills were rewarded on par with that of native-born Canadians topped $30 billion or 2 percent of GDP … Canada would gain a major competitive advantage if this country were recognized around the world as one where all migrants are successful in being able to practice their own trade and raise their standard of living” (Alexander, Burleton, and Fong 2012, 7). The TD report mentions immigrants’ perceptions of barriers to access, including employers’ requirements for Canadian experience, lack of credential recognition, cultural difficulties and racism (Alexander, Burleton and Fong 2012, 13, 15), and discusses a number of needed policy responses, but does not mention employment equity as a part of the solution. Yet given the productivity challenges and labour shortages Canada faces, and given the discrimination and inequality that designated groups continue to experience, effective employment equity policy is needed now more than ever. It has a significant role to play as part of a suite of policy approaches designed to reduce inequality and disadvantage, thereby advancing social justice as well as contributing solutions to Canada’s productivity and human resources deficits. Research comparing large firms covered by LEEP and the FCP with Financial Post 500 companies that were not covered by these programs found a greater number of diversity-management practices in LEEP firms, followed by FCP firms and then FP500 companies not covered by employment equity. Differences were significant on recruitment, training and development, and accountability for employment equity goals, leading to the conclusion that “employment equity legislation remains the most effective tool at promoting equity and diversity in Canadian organizations” (Ng and Burke 2010, 232). However, recent changes in the economic and political landscape, the political culture of Canada, and the structure and culture of the workplace and labour market have created an environment in which the effective implementation of employment equity faces significant challenges. The most significant of these is a shift in consciousness over the past quarter-century such that “a commitment to enhance justice and respect in a diverse society, while not abandoned entirely, has been muted,” and there has been a lack of leadership and commitment on the part of governments and employers to removing barriers to equal employment

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opportunity (Abu-Laban and Gabriel 2002, 12). The displacement of social justice and equality agendas by a market-driven neoliberal policy focus has been augmented by policy supports for the traditional family, and withdrawal of government support for programs and organizations working for the equality of women in employment (Porter 2012). The reduction of the role of the state and transfer of public responsibilities to the private sphere has taken on an air of inevitability, and voices proposing and defending collective solutions to problems of inequality have been pushed to the margins (Brodie 1995, chapters 4 and 5). The neoliberal ideological turn in Canada since the Mulroney years, and in other countries such as the United Kingdom since Thatcher, and the United States since Reagan, is rooted in individualism and the assumption that market relationships are the source of progress for individuals and societies. It follows that business interests and the private sector generally are accorded high social and political value, and government is regarded as an expense to be minimized by cutbacks in social programs and benefits, and cuts to government employment. Under the rubric of New Public Management, governments in Canada and elsewhere have adopted a range of approaches to governance that are directed towards creating an optimal climate for business growth while shrinking the size and scope of government. Business-friendly policy outcomes take the form of low business taxes and reductions in government regulation of business activities and “red tape,” and withdrawal of government from responsibility for providing a social safety net. These neoliberal impulses have influenced a broad range of policies, including employment equity, that affect relationships between governments, the private sector, and citizens in Canada. For example, in a number of policy domains including workplace health and safety and food and drug safety, as well as employment equity, self-regulation has been adopted as the enforcement mechanism of choice. Glynn (2011, 280) notes, “Business enterprises have had great success in the last three decades pushing back against regulatory oversight” in a variety of fields. In response, rather than seeking compliance with regulation by means of robust monitoring, enforcement, and sanctions, government makes the employer responsible for regulating itself, and seeks to persuade business that it is in its interest to comply by making a “business case” for implementing the policy. Hart (2010, 587) points out that it is unlikely that under this regime employers will initiate real change directed towards eliminating systemic discrimination unless they see this as an immediate business necessity (see Hart 2010

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for a cogent critique of self-regulation as an approach to enforcement of workplace equality and safety policies). Employment equity policy and implementation has been further weakened recently by the generalized policy directions of the Conservative majority government in Ottawa, which has not indicated that it sees employment equity as a part of the solution to the productivity and labour supply problems Canada faces in the global economy of the present and future. On the contrary, government decisions on a number of issues directly affecting employment equity policy pose threats to its viability. In June 2010, the Harper government announced its controversial decision to cancel the mandatory long-form census for the 2011 census year, prompting Canada’s chief statistician to resign in protest.10 This decision will leave employers without the data they need to compile the reports they are legally required to file with the Ministry of Human Resources and Skills Development Canada.11 Employers rely upon the mandatory long form census for data on the occupations of designated groups in Canada’s labour markets, in order to carry out the required comparison of their workforce with availability data on the labour force from which they hire, and set goals for improving the representation of the designated groups. Furthermore, the Canadian Human Rights Commission relies upon census data to conduct its audits, and organizations representing the designated groups use it to monitor the progress of employment equity. As chapters 2, 4, and 6 pointed out, even with the long form census in place, there are notable limitations in the availability data used for employment equity analysis. Without it, employment equity implementation faces severe challenges. Another government decision that threatens the viability of employment equity policy was contained in the Omnibus Budget Bill C-38 of 2012. Previously, employers of 100 or more employees wishing to bid on a federal government contract worth $200,000 or more were required to comply with the federal Employment Equity Act (s 42 (2)). Budget Bill C-38 (article 602) amended section 42 (2), making the minister responsible for administering the Federal Contractors Program. In 2013 the threshold for government contracts subject to the FCP was raised to $1,000,000 (Labour Program 2014), which significantly reduces the number of employers covered. In 2012 the government’s Red Tape Reduction Commission released its Recommendations Report – Cutting Red Tape … Freeing Business to Grow (2012). Appendix B of the report recommended to the Ministry of Human Resources and Skills Development (Labour) that “a legislative review of the Employment Equity Act be undertaken” with a

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view to reducing the administrative burden and considering the regulatory design of the act. In this context it is obvious that a legislative review would not be conducted with the purpose of improving the effectiveness of the act in removing barriers to workplace equality for the designated groups. Conclusion Canada has lost its leadership in the world on equality policies, yet the confluence of current economic and social trends in Canada, and projected for the future, means that effective employment equity policy is needed more now than ever. The chapters in this book review evidence that employment equity makes a difference and can reduce barriers that create inequality for women, visible minorities, Aboriginal people, and persons with disabilities. Strengthening the act would improve its effectiveness in attaining positive results. The twenty-first century economy and labour market is complex and challenging and there is a critical need for evidence-based policy innovation across a range of fields and government jurisdictions. Employment equity has a central place in the suite of policies that will be needed to address the productivity, labour supply, and social justice issues of the present and future. Women, members of visible minorities, Aboriginal people, and persons with disabilities must be part of the discussion about how these issues will be addressed. We hope that this book will contribute to a national, and perhaps an international, consideration of policy responses to inequality. The challenge of the future is to make a new commitment to effective implementation of an equality framework that will realize the transformative promise of employment equity.

NOTES 1 The discussion in this book refers to the requirements of the 1995 act, which remain in force. The 1995 review of the Employment Equity Act and the Canadian Human Rights Act resulted in the passage of a new Employment Equity Act that introduced some significant changes in the 1986 act while retaining its essential characteristics (for details, see Agócs 2002). The Federal Contractors Program and the federal public service, commissions and agencies were brought under the act, and the Canadian Human Rights Commission was given the responsibility to audit employers’ compliance with the act, an improvement over the earlier act. However the CHRC was no longer

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permitted to use its power to order quotas or other systemic remedies when allegations of systemic discrimination against employers were substantiated, or to use statistical patterns as a basis for filing systemic discrimination complaints against employers. The commission could no longer use the threat of legal action as a lever in negotiating agreements with employers whose employment equity reports showed significant under-representation of designated groups and lack of employment equity effort, relative to other employers in the same sector. In the early to mid-1990s such agreements, particularly with banks, resulted in improved employment equity efforts and improvements in representation. Today, banks such as the Royal Bank are considered private sector employment equity leaders in Canada. Very few cases have gone before Employment Equity Review Tribunals. Between 2001–2 and 2010–11 the CHRC’s total budget increased only marginally, representing a 20 per cent decline in resources after adjusting for inflation, and it was forced to close its offices in Toronto, Halifax, and Vancouver in 2010 (CHRC 2010). In 2008–9 the CHRC was given the substantial additional responsibility for the imminent application of the Canadian Human Rights Act in over six hundred First Nations communities, with no additional resources. In 2011–12 the Discrimination Prevention Branch of the CHRC had thirtyfour full-time equivalents to deliver 12 per cent of the CHRC’s programs (CHRC 2012b). It should be noted that NCARR v Health Canada was a human rights case in which a complainant brought an allegation of systemic discrimination that was substantiated by a Canadian Human Rights Tribunal, which ordered a systemic remedy under the affirmative action provisions of human rights legislation and section 15 of the Charter of Rights in order to prevent future discrimination of the same kind. Under human rights laws, special programs such as the remedy in NCARR may be undertaken by an employer voluntarily, or ordered by a court or tribunal in a case in which an employer has been found to have discriminated on the basis of a protected ground in a human rights code. In contrast, under the Employment Equity Act employers covered by the act are required to proactively remove discriminatory barriers and develop goals and plans for improving the representation of under-represented groups. The NCARR case is instructive for employment equity purposes as an example of how to identify the kinds of employment systems that create discrimination, and the kinds of actions that can be taken to remove systemic barriers to the representation and career advancement of members of racialized groups. The Joint Committees also have a role in implementing a worker’s right to refuse work if he or she has reason to believe that a safety hazard or workplace violence is likely to endanger himself or herself.

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7 The Employment Equity Act makes employment equity programs mandatory for federally regulated employers of 100 employees of more, including federal Crown corporations and private sector employers within the federal jurisdiction, such as banks and firms in interprovincial communication or transportation businesses, as well as the federal public service and other federal agencies. This sector amounts to about 7 per cent of Canada’s labour force. The Federal Contractors Program applies to private sector employers, most of whom are provincially regulated, who have 100 or more employees and wish to sell goods or services to the federal government valued at $200,000 or more, until 2013 when the threshold for FCP coverage was changed to $1 million. Under the lower threshold the FCP covered about 6 per cent of Canada’s labour force (Human Resources and Skills Development Canada 2008). 8 Chapters 10 and 13 mention Ontario’s brief experience with legislated employment equity in the early 1990s. In one of its first acts upon taking office in 1996, the Harris government repealed Ontario’s Employment Equity Act, after having used its opposition to employment equity as a wedge issue in its election campaign. 9 In Canada approximately half of single women raising young children live in poverty, a considerably higher proportion than is found in other developed countries (Misra, Moller, and Budig 2007, 813). 10 For a discussion of the implications of this decision for public policy see Sheikh (2011), former chief statistician of Canada. On the politics of the decision see Valpy (2010). For a historical review of the role of statistics in providing evidence of systemic discrimination on the basis of race in legal and policy contexts, see Potvin (2005). 11 In its guidelines to employers on how to file their legally required employment equity reports, HRSDC (Labour Program 2013) instructs them to use census data, which come from the long form, as their source of availability data because “the Census is the most comprehensive and reliable data source for the total population and for three designated groups (women, Aboriginal peoples and visible minorities) by industry and occupation for provinces, territories, and CMAs. Because the designated group questions were similar in the last three censuses, they permit an assessment of the changes that have occurred in the makeup of Canada over time.” The Participation and Activity Limitation Survey, which was the only source of data on employment of persons with disabilities, was also cancelled, as was the Longitudinal Survey of Immigrants to Canada (Clark 2010). Researchers as well as governments and agencies that provide services to these groups also depend upon these data sources to examine labour market disadvantage over time.

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REFERENCES Abella, Rosalie Silberman. 1984. Equality in Employment: A Royal Commission Report. Ottawa: Minister of Supply and Services Canada. Abu-Laban, Yasmeen, and Christina Gabriel. 2002. Selling Diversity: Immigration, Multiculturalism, Employment Equity, and Globalization. Peterborough, ON: Broadview. Agócs, Carol. 2002. “Canada’s Employment Equity Legislation and Policy, 1986–2000: Unfulfilled Promises.” In Workplace Equality: International Perspectives on Legislation, Policy and Practice, ed. Carol Agócs, 65–90. The Hague: Kluwer Law International. Agócs, Carol, Catherine Burr, and Felicity Somerset. 1992. Employment Equity: Cooperative Strategies for Organizational Change. Scarborough, ON. Prentice Hall. Alexander, Craig, Derek Burleton, and Francis Fong. 2012. “Knocking Down Barriers Faced by New Immigrants to Canada: Fitting the Pieces Together.” TD Economics Special Report, 7 February. http://www.td.com/document/ PDF/economics/special/ff0212_immigration.pdf. Beck, J. Helen, Jeffrey Reitz, and Nan Weiner. 2002. “Addressing Systemic Racial Discrimination in Employment: The Health Canada Case and Implications of Legislative Change.” Canadian Public Policy 28 (3): 373–94. http:// dx.doi.org/10.2307/3552228. Belanger, A., and E. Caron Malenfant. 2005. Population Projections of Visible Minority Groups, Canada, Provinces and Regions, 2001–2017. Ottawa: Statistics Canada. Brodie, Janine. 1995. Politics on the Margins: Restructuring and the Canadian Women’s Movement. Halifax: Fernwood. Burt, Sandra. 1995. “The Several Worlds of Policy Analysis: Traditional Approaches and Feminist Critiques.” In Changing Methods: Feminists Transforming Practice, ed. Sandra Burt and Lorraine Code, 357–78. Peterborough, ON: Broadview. Canada, Labour Program. 2014. “Federal Contractors Program.” http://www/ labour.gc.ca/eng/standards_equity/eq/emp/fcp. Canada, Red Tape Reduction Commission. 2012. Recommendations Report: Cutting Red Tape … Freeing Business to Grow. http://www.reduceredtape.gc.ca/ heard-entendu/rr/rrtb-eng.asp. Canadian Human Rights Commission (CHRC). 2010. 2010 Annual Report. http://publications.gc.ca/collections/collection_2011/ccdp-chrc/HR1-2010eng.pdf. – 2010–11. 2010–2011 Report on Plans and Priorities. http://www.tbs-sct.gc.ca/rpp/ 2010-2011/inst/hrc/hrc-eng.pdf. – 2012a. “Annual Report 2011.” http://www.chrc-ccdp.ca/sites/default/files/ annual-report-chrc-2011_eng.pdf.

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– 2012b. “Departmental Performance Report, 2011–12.” http://www.chrc-ccdp. ca/eng/content/departmental-performance-report-2011-2012. Clark, Campbell. 2010. “Scrapped Mandatory Census Cuts Even Deeper for Disability Advocacy Group.” Globe and Mail, 24 July. Cranford, Cynthia, Leah Vosko, and Nancy Zukewich. 2003. “Precarious Employment in the Canadian Labour Market: A Statistical Portrait.” Just Labour 3:6–22. Employment Equity Act, SC 1995, c 44. Fredman, Sandra. 2002. Discrimination Law. Oxford: Oxford University Press. Glynn, Timothy. 2011. “Taking Self-Regulation Seriously: High-Ranking Officer Sanctions for Work-Law Violations.” Berkeley Journal of Employment and Labor Law 32:279–345. Hart, Susan M. 2010. “Self-Regulation, Corporate Social Responsibility, and the Business Case: Do They Work in Achieving Workplace Equality and Safety?” Journal of Business Ethics 92 (4): 585–600. http://dx.doi.org/10.1007/ s10551-009-0174-1. Human Resources and Skills Development Canada. 2008. “Ten Years of Experience: A Background Issues Paper for the Employment Equity Act and Federal Contractors Program in Preparation for the Parliamentary Review, 2006.” Ottawa: HRSDC. – 2012. Strategic Evaluation of the Employment Equity Programs: Final Report. http:// www.esdc.gc.ca/eng/publications/evaluations/labour/2013/sp_1047_04_13eng.pdf. Human Resources and Skills Development Canada, Labour Program. 2013. “2006 Employment Equity Data Report.” http://www.labour.gc.ca/eng/stan dards_equity/eq/pubs_eq/eedr/2006/report/page13.shtml. Kapsalis, Costa, and Pierre Tourigny. 2005. “Duration of Non-Standard Employment.” Perspectives on Labour and Income (spring): 31–9. Macdonald, Laura. 2006. “Globalization and Gender in Canada.” In Women, Democracy, and Globalization in North America, ed. Jane Bayes, Patricia Begne, Laura Gonzalez, Lois Harder, Mary Hawkesworth, and Laura MacDonald, 131–44. New York: Palgrave Macmillan. Misra, Joya, Stephanie Moller, and Michelle Budig. 2007. “Work-Family Policies and Poverty for Partnered and Single Women in Europe and North America.” Gender & Society 21 (6): 804–27. http://dx.doi.org/10.1177/0891243207308445. National Capital Alliance on Race Relations (NCARR) v Health and Welfare Canada. 1997. 28 CHRR D/179. Ng, Eddy, and Ronald Burke. 2010. “A Comparison of the Legislated Employment Equity Program, Federal Contractors Program, and Financial Post 500 Firms.” Canadian Journal of Administrative Sciences 27:224–35. OECD. 2011. “8. Social Cohesion Indicators. 5. Tolerance.” www.oecd.org/ berlin/47570353.pdf.

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Ontario. Occupational Health and Safety Act, RSO 1990. Oreopoulos, Philip. 2012. “Why Do Recent Immigrants to Canada Struggle in the Labour Market? New Evidence from a Field Experiment Using Six Thousand Résumés.” http://canada.metropolis.net/pdfs/OreopoulosE.pdf. Porter, Ann. 2012. “Neo-Conservatism, Neo-Liberalism and Canadian Social Policy,” Canadian Woman Studies 29 (3): 19–31. Potvin, Maryse. 2005. “The Role of Statistics on Ethnic Origin and ‘Race’ in Canadian Anti-discrimination Policy.” International Social Science Journal 57 (183): 27–42. http://dx.doi.org/10.1111/j.0020-8701.2005.00529.x. Reitz, Jeffrey. 2005. “Tapping Immigrants’ Skills.” IRPP Choices 11 (1): 1–15. – 2007. “Immigrant Employment Success in Canada, Part I: Individual and Contextual Causes.” International Migration and Integration 8 (1): 11–36. http:// dx.doi.org/10.1007/s12134-007-0001-4. – 2011. “Pro-Immigration Canada: Social and Economic Roots of Popular Views.” IRRP Study no. 20, October. Sheikh, Munir. 2011. “Good Data and Intelligent Government.” In New Directions for Intelligent Government in Canada: Papers in Honour of Ian Stewart. Centre for the Study of Living Standards, 19 September, 305–35. http://www.csls. ca/stewartfestschrift.asp. Statistics Canada. 2005. “Study: Are Good Jobs Disappearing in Canada?” Daily, 26 January. – 2008a. “Sexual Orientation and Victimization.” Ottawa: Minister of Industry. – 2008b. “Visible Minorities and Victimization.” Ottawa: Minister of Industry. – 2009. The 2008 Canadian Immigrant Labour Market: Analysis of Quality of Employment. Ottawa: Ministry of Industry. – 2011. “Women in Canada: A Gender-Based Statistical Report, Visible Minority Women.” Ottawa: Minister of Industry. Treasury Board of Canada Secretariat. 2005–6. “Estimates, Departmental Performance Report 2005–2006, Canadian Human Rights Commission, Section II – Analysis of Program Activities by Strategic Outcome.” – 2008–9. “Estimates and Supply, Departmental Performance Reports; Canadian Human Rights Commission, Section II – Analysis of Program Activities by Strategic Outcome.” http://www.tbs-sct.gc.ca/dpr-rmr/2008-2009/inst/ hrc/hrc02-eng.asp. – 2010–11. “Estimates and Supply, Departmental Performance Reports, 2010– 2011, Canadian Human Rights Commission – Report, Section II: Analysis of Program Activities by Strategic Outcome.” http://www.tbs-sct.gc.ca/dprrmr/2010-2011/inst/HRC/HRC02-eng.asp. Valpy, Michael. 2010. “Harper’s Census Push Months in the Making.” Globe and Mail, 26 July.

Contributors

Carol Agócs is professor emerita and adjunct research professor in the Department of Political Science at Western University in Ontario. She is co-author of Employment Equity: Cooperative Strategies for Organizational Change (Prentice-Hall Canada, 1992) and editor of Workplace Equality: International Perspectives on Legislation, Policy and Practice (Kluwer Law International, 2002) and has published articles and chapters on employment equity policy and its implementation in Canada and in comparative perspective, on systemic discrimination in employment, and on local government administration. She is former director of the Local Government Program at Western University. Raj Anand is partner in the Toronto firm of Weir Foulds LLP, where he practises in human rights, constitutional and administrative law, labour relations, civil litigation, professional negligence, and discipline. He is a former chief commissioner of the Ontario Human Rights Commission and founding chair of the Ontario Human Rights Legal Support Centre. He has acted as a Board of Inquiry under the Ontario Human Rights Code and the Police Services Act. He has published on human rights, constitutional law, and other topics, and served as adjunct professor at Osgoode Hall Law School and the University of Toronto’s Faculty of Law. Raj Anand is the recipient of the Law Society Medal (2003) and was elected as a bencher of the Law Society, and has received the Distinguished Career award from the South Asian Bar Association (2010). Jan Borowy is an associate with the Toronto firm Cavalluzzo Shilton McIntyre & Cornish LLP, where her areas of practice include labour relations, human rights, pay equity, and professional regulation. Prior

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Contributors

to joining the firm she worked at the Ontario Public Service Employees Union and was research co-ordinator at the International Ladies’ Garment Workers Union. She earned her LLB from Osgoode Hall Law School in 2008 and has a master of arts in Canadian politics from York University. She has published numerous articles on the impact of economic restructuring in the Canadian labour market. Brian W. Burkett is a senior partner at Fasken Martineau, a national law firm in Canada emphasizing the practice of labour and employment law on behalf of employers and employer associations. He is recognized as a leading practitioner in his field by Chambers Global; AV® Preeminent™ Peer Review Rated by Martindale-Hubbell, the highest peer review rating awarded to a lawyer for legal skills and sense of ethics; a fellow of the College of Labor and Employment Lawyers in the United States; co-author of Canadian Labour and Employment Law for the U.S. Practitioner (BNA Books, Washington, DC); and co-editor and author of Federal Labour Law and Practice (Canada Law Book). Mary Cornish, senior partner with Cavalluzzo Shilton McIntyre & Cornish, is recognized nationally and internationally as an expert in human rights, gender equality, administrative law, labour law, and alternative dispute resolution. She is also a research associate with the Canadian Centre for Policy Alternatives. She has written and consulted extensively on pay and employment equity rights and is co-author of Enforcing Human Rights in Ontario (Canada Law Book, 2009). Cornish chaired the 1992 Ontario Human Rights Code Review Task Force, whose report, Achieving Equality, was used by the Ontario government as the basis of Bill 107, which reformed Ontario’s Human Rights Code. She is chair of the Ontario Equal Pay Coalition. Kim England is professor of geography and former director of Canadian studies at the University of Washington. She is an urban social and feminist geographer who focuses on workplace equity, care work, critical social policy analysis, economic restructuring, and inequalities in North America. She is the co-editor with Kevin Ward of Neoliberalization: States, Networks, Peoples (Wiley/Blackwell 2007). Fay Faraday is a lawyer with an independent social justice practice in Toronto. She represents unions, civil society organizations, and individuals in constitutional and appellate litigation, human rights, and pay

Contributors

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equity. She writes extensively on constitutional law, human rights, labour, and rights of migrant workers. She is the co-author and/or co-editor of Making Equality Rights Real (Irwin Law, 2006), Enforcing Human Rights in Ontario (Canada Law Book, 2009), and Constitutional Labour Rights in Canada (Irwin Law, 2012). She is also a visiting professor at Osgoode Hall Law School and an Innovation Fellow with the Metcalf Foundation. Patricia Hughes is executive director of the Law Commission of Ontario. She has also been dean of law at the University of Calgary, a vice-chair of the Ontario Labour Relations Board, alternate chair of the Ontario Pay Equity Hearings Tribunal, and chair in women and law at the Faculty of Law, University of New Brunswick. She received her PhD from the University of Toronto and her LLB from Osgoode Hall Law School. She is a past member of the Labour Law Casebook Group and editorial board of the Canadian Labour & Employment Law journal and has published extensively on labour and employment law and constitutional law. She prepared background papers for the Abella Commission on Equality in Employment. Gerald Hunt is professor of human resources management and organizational behaviour at Ryerson University in Toronto. His research focuses on organized labour’s response to equity issues (Equity, Diversity and Canadian Labour, University of Toronto Press). He is also a fellow at the Mark Bonham Centre for Sexual Diversity Studies at the University of Toronto. Michael Lynk is associate professor at the Faculty of Law, Western University, Ontario. He received his law degrees from Dalhousie University and Queen's University. Before entering academia, Professor Lynk practised labour law for a decade in Toronto and Ottawa. He has written widely on workplace law in Canada and is the co-author of Trade Union Law in Canada (Canada Law Book), and co-editor of Globalization and the Future of Labour Law (Cambridge University Press) and International Law and the Israeli-Palestinian Conflict (Routledge). He is also a labour arbitrator and a vice-chair on the Ontario Grievance Settlement Board. Natasha Martin is associate professor of law at the Seattle University School of Law, where she teaches Employment Discrimination and Professional Responsibility. Her interdisciplinary research focuses on employment discrimination law, critical race theory, and organizational behaviour. The main thrust of her academic work centres on

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Contributors

contemporary workplace realities and the impact of discrimination law on the inclusion of women, people of colour, and other marginalized groups. Professor Martin has served the past three years as associate dean for research and faculty development and was appointed twice to the Washington State Gender and Justice Commission. She is a Research Fellow with the Fred T. Korematsu Center for Law and Equality. A frequent presenter at national conferences, Professor Martin is dedicated to gender and racial equity, and was named to the Lawyers of Color’s “50 under 50” list of minority law professors under age 50 making an impact in legal education (2014). Lora Patton is a Toronto lawyer, teacher, and researcher. Ms Patton practises primarily in health law with a focus on mental health, disability, and social justice. Her research interests focus on disability and social justice, and she has written on mental health law, consent and capacity, and disability and low income. Allison Pilon was the employment equity officer / human rights officer at the Public Service Alliance of Canada (PSAC) at the time of writing. Ms Pilon served as a bargaining agent representative on the Joint Employment Equity Committee of the National Joint Council of the Public Service of Canada, a role she also held in her previous position as a research officer at the Professional Institute of the Public Service of Canada (PIPSC). Ms Pilon has a Master of Industrial Relations degree from the University of Toronto. She is also a long-time labour and human rights activist and advocate. David Rayside is professor emeritus of political science at the University of Toronto and has long been associated with the Mark S. Bonham Centre for Sexual Diversity Studies (serving as director until 2008). Among his publications are Queer Inclusions, Continental Divisions (2008), Faith, Politics, and Sexual Diversity, co-edited with Clyde Wilcox (2011), Equity, Diversity, and Canadian Labour, co-edited with Gerald Hunt (2007), and Conservatism in Canada, co-edited with Jim Farney (2013). He has served on the governing bodies of both the Canadian and American political science associations, and for over thirty years has been an activist on sexual diversity and gender. Marcia Rioux is a Distinguished Research Professor in the School of Health Policy and Management at York University in Toronto. She

Contributors

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teaches in the MA and PhD (Critical Disability Studies) and in the MA/ PhD program in Health Policy and Equity. She is also the director of the York University Institute for Health Research. She is the principal investigator and director of Disability Rights Promotion International, a multiyear project to monitor disability rights nationally and internationally under the UN Convention of the Rights of Persons with Disabilities and other international instruments. DRPI now has regional centres on five continents. Her PhD is in Jurisprudence and Social Policy from Boalt Hall Law School at the University of California, Berkeley. Donn Short is an associate professor in the Faculty of Law at the University of Manitoba. His principal areas of research and teaching are education law and human rights, particularly homophobic bullying in high schools. He is the editor-in-chief of the Canadian Journal of Human Rights. Michael Ashley Stein holds a JD from Harvard Law School and a PhD from Cambridge University. He is co-founder and executive director of the Harvard Law School Project on Disability, visiting professor at Harvard Law School, and Cabell Professor at William & Mary Law School. Stein is an internationally recognized expert on disability rights. He participated in the drafting of the United Nations Convention on the Rights of Persons with Disabilities and consults with international governments, disabled persons organizations, and United Nations bodies on disability law and policy. Nan Weiner, PhD, has been in Canada working on workplace equity – employment equity, diversity, pay equity, human rights, and harassmentprevention – since 1983. She has worked on consulting assignments for the federal Public Service, including the evaluation of the Federal Contractors Program and Special Measures Initiative Program, and has been an expert witness in three cases before the Canadian Human Rights Tribunal. Nan has written Employment Equity: Making It Work (1993), Making Cultural Diversity Work (1997), and Pay Equity: Issues, Options and Experiences (1990, with Morley Gunderson).

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Index

Abella, Justice Rosalie Silberman, vii–viii, ix, 3, 6, 13–28, 51–2 Abella Report. See Royal Commission on Equality in Employment, Report Aboriginal people(s), 3, 4, 7, 18–19, 24, 34–5, 36, 37, 38, 39, 44, 47, 51, 52, 60–1, 67, 71–98, 99–132, 178, 190, 203, 206, 314–15; education, 105–7; employment and income, 107–9; employment equity coverage and results, 109–23, 207, 209, 293, 294; social and economic conditions, 101–5 accessibility for persons with disabilities, 139, 230–1, 233 accommodation, viii, 5, 21, 25–6, 63, 91–2, 222, 223–4, 247, 249–50 affirmative action, viii, 4, 9, 14, 15, 19–21, 51, 54, 60–2, 137, 156, 177, 225, 246–7, 260, 261–3, 272–8, 286 African-Americans, 260, 273–4 age discrimination, 25, 228 Alberta, 158, 164 America. See United States Americans with Disabilities Act, 247 attitudes: toward diversity, 313–14; toward homosexuality, 161–2, 167–70

audit of employers’ employment equity performance, 6, 31, 57. See also enforcement and monitoring of employers’ compliance auditor general of Canada, 103 Australia, 13, 298, 299 availability data, 5, 32–3, 47, 142–3, 318 Axworthy, Lloyd, minister of employment and immigration, 15 backlash to employment equity, 91–2, 145, 307 barriers to equality, viii, 4, 5, 6, 8, 21, 25–6, 42, 45, 52, 60, 89, 133, 136, 138, 147, 186, 189, 195, 196, 217, 222, 249, 311–12, 316, 319 bisexuals. See sexual minorities Black Canadian population, 64–6 British Columbia, 146, 161, 164, 168, 221, 289 business. See Crown corporations; employers; private sector Canadian Human Rights Act, 56–61, 197, 199, 222–3 Canadian Human Rights Commission, 31, 45–6, 55–7, 90,

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197, 198, 199, 251, 252, 288, 294, 307–9, 318 census of Canada: mandatory long form, 47, 143, 220, 318 census (or survey) of employer’s workforce, 5, 31, 56–9, 75, 141 Charter of Rights and Freedoms, 3, 15, 51–2, 54, 61, 136, 138, 146, 156, 157, 188, 220, 225–6, 250, 252 child care program, 312 Chinese population, 66 civil rights movement, 9, 158, 275 collective bargaining or collective agreements, 9, 115, 165, 196, 206, 217, 218, 229, 231, 234, 296 colour blindness, 259–61, 263, 271–4 consultation: with employment equity designated groups, 309–11; with unions on employment equity implementation, 201, 204–6 Corporate Social Responsibility, 9, 291–3, 303 courts: Canadian, 6, 8–9, 15, 54, 56–61, 135; U.S., 261–7, 277–8. See also Supreme Court of Canada; Supreme Court of the United States Crown corporations, federal, 16, 17, 114 culture of the workplace, 5, 89, 227, 268–71, 277, 302–3 data about persons with disabilities, 141–3 disability. See persons with disabilities discrimination in employment, 9, 21, 52–3, 55, 62–3, 158–9, 168, 170, 207, 259–61, 267–71, 273–5, 278, 313; public and judicial scepticism about, 263–4. See also systemic discrimination diversity programs, 9, 68, 115, 260–1, 272, 275–8, 284, 292, 303, 316

employers, 5–6, 16, 29–30, 55, 62, 159, 166, 179, 200–1, 209, 223, 247, 248, 261, 263, 267, 276, 277–8, 284, 290–3, 303, 307 Employment Equity Act, vii, ix, 4, 9, 13, 22–3, 54–62, 110–11, 137, 156, 169–72, 197–9, 219, 220, 248, 251–3, 284, 288, 294, 300, 318–19; requirements, 5–6, 75, 218, 307–9 employment equity policy: coverage, 29–30, 89–90, 134, 156–7, 220; data collection and reporting, 75–6; effectiveness, 10, 31, 67–9, 89–90; future, 9, 211–12, 301–3; implementation, 42, 44–7, 52, 61–2, 138–9, 140–3, 209, 217–19; inadequacies and limitations, 7–9, 9–10, 89–90, 134, 209, 217, 220, 306–19; planning, 218, 224, 233–4; public attitudes about, 43, 44, 62–3; reforms, 7–8, 10, 44–7, 92–3, 157, 169–72, 200, 210–11, 306–19; requirements, 8, 18, 30, 43, 45–7, 134–5, 199, 217–18, 222–3; results, 6–8, 9–10, 31, 39–47, 67–9, 76–7, 88, 100–1, 111–23, 134–5, 140–4, 207, 233, 293–5, 316; role of unions, 195–216; theory of, vii–viii, 13–28, 52–4, 90–1, 133–5, 176, 186, 188–91, 217–26, 286–7, 310; United Nations Convention on the Rights of Persons with Disabilities: employment equity mandate, 242–58, 251–3 Employment Equity Review Tribunal, 56, 198, 252, 308 Employment Standards Act, 179, 183 employment systems review, 5–6, 45, 47, 75, 199 enforcement and monitoring of employers’ compliance, 6, 31, 46, 47, 52, 56–9, 90, 134–5, 137, 146–7,

Index 209, 217, 220, 247, 248, 252, 284, 288, 294, 300–1, 307–9, 317–18 equality, viii, 4, 5, 51–4, 60, 259, 262; formal, 26, 222, 287; rights to, 218, 222; struggle for, 3–4, 133, 137, 212–13. See also substantive equality equal opportunities, 91–2, 259 European Union, 247 Federal Contractors Program (FCP), 4, 29–31, 43–5, 54–5, 199, 219, 220, 308, 318 federalism, 252, 311 feminism, 72–3 First Nations. See Aboriginal people(s) flexibility in employment, 184, 297–8 forestry sector, employment equity programs in, 116–18 francophone Canadians, 15, 20–1 gays. See sexual minorities gender identity, 156, 164 goals and timetables for representation, 5–6 Harper, Stephen, prime minister, 161, 220; decisions of the Harper government, 318–19 Health Canada, 223, 310 Human Resources and Skills Development Canada, Ministry of, 31, 45–6, 201, 318 human rights, struggles for, 3–4, 133, 137, 157–9, 162, 196, 213, 250–1, 261–2 human rights codes, processes and protections, 3, 8–9, 15, 30, 51, 53–4, 68, 133, 138, 146, 157–60, 163–4, 196, 217, 221, 222, 227–9, 231–2, 236, 242, 247 human rights tribunal(s), 6, 54, 60, 61, 219, 226–7

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immigrants, 178, 180–2, 185, 311–12, 314–16 Indigenous peoples. See Aboriginal people(s) International Labour Organization (ILO): decent work agenda, 287 intersectionality, 7, 45, 67, 71–93, 187–8, 228, 243, 312 Inuit, 101, 103 Johnson, Lyndon, president of the United States, 262, 275 Kennedy, John F., president of the United States, 262 King, Martin Luther Jr, 262 Korean population, 66 labour unions. See unions Law Commission of Ontario, 177 lawyers, inequality among, 66–8 Legislated Employment Equity Program (LEEP), 29–38, 44, 54, 308 lesbians. See sexual minorities MacDonald, Flora, minister of employment and immigration, vii, 22 Manitoba, 164 McLachlin, Justice Beverley, chief justice of the Supreme Court of Canada, 14, 24 men, 76–88, 92–3 Metis, 101 mining sector, voluntary employment equity in, 118–21 Montreal, 161, 162 Mulroney, Brian, prime minister, vii, 22, 73 multiculturalism, 15

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neoliberalism, 10, 91, 295, 316–17 Netherlands, 298 Newfoundland, 164 New Zealand, 13, 24, 245 Northern Ireland, 13, 23–4, 46, 295, 298–9 Northwest Territories, 164 Nova Scotia, 164 Nunavut, 206 Obama, Barack, president of the United States, 260, 271–2, 275 occupational categories, 72, 81–8 occupational segregation, 72, 75, 77–8, 85–8 Ontario, 13, 24, 54, 63, 64–5, 68, 139, 156, 157, 160, 164, 168, 169, 184, 219, 220, 227, 228–33, 289–90 Ontario Human Rights Commission, 16, 53, 302 Ontario Occupational Health and Safety Act, 183, 310–11 Parliament, 22, 160–1, 200 pay, inequality in, 43–4, 65–6, 162–3 pay equity, 176–7, 186–7, 190–1, 217, 219, 229–30 persons with disabilities, 3, 7–8, 9, 18–19, 25, 35, 36, 37, 38, 39, 42, 44, 47, 52, 67, 71–98, 133–55, 178, 204, 207, 209, 242–58, 294, 314–15 post-racialism, 9, 260–1, 271–8 precarious employment, 177–91, 219, 314–15. See also vulnerable workers pre-employment conditions, 134–5, 137–8, 143–4, 146 private sector (federally regulated): employment in, 76–90, 114–15; voluntary employment equity or

diversity programs in, 116–23, 196–7 provincial employment equity programs, 9, 109–10, 206, 217, 221, 284, 289, 311–12 Public Service Alliance of Canada (PSAC), 8, 38, 195–216 Public Service Employment Act, 206 public service of Canada, 15, 38–40, 44, 54–5, 111–14, 138, 195–216, 220 Public Service Reform Act, 198 Quebec, 13, 156, 157, 163–4, 206, 289, 311, 312 quotas, 14, 22, 137, 246, 247, 301, 307 race or racialized groups. See visible minorities racial inequality in employment and income, 64–7 racialization of poverty, 65 racism, 52, 63–4; aversive, 270–2 red tape reduction, 309, 318–19 repeal of employment equity legislation, 24, 145–6, 219, 221, 289–90 representation of employment equity designated groups, 5–6, 31–44, 52, 55–61, 78–89, 111–21, 140–3, 171, 207 research on employment equity in Canada, 10, 39, 41–4 reverse discrimination, 24–5, 54, 137, 146, 225–6, 228 Royal Canadian Mounted Police, 158 Royal Commission on Aboriginal Peoples, 102 Royal Commission on Equality in Employment, vii, ix, 3, 13–28, 197,

Index 285; Report, 4, 10, 13–28, 29, 51–4, 69, 73, 99–100, 133–7, 185, 188, 189, 197, 218, 237, 285, 306 Royal Commission on the Economic Union and Development Prospects for Canada, 16 Royal Commission on the Status of Women, 73 same-sex relationship, parenting and marriage rights, 159–60 self-regulation, 307, 317–18 Senate Standing Committee on Human Rights, 204, 208–9, 220 seniority, 18, 295–8, 303 sexual minorities, 8, 156–75, 198 sexual orientation, 156, 158, 228 sheltered workshops, 245–6 South Africa, 13, 24, 298 South Asian population, 64–6 special measures and positive policies and practices, 5–6, 53–4, 60–1, 75, 228 special programs, 24–5 substantive equality, 5–6, 24–6, 133–4, 138, 145–6, 177, 225, 249–50 Supreme Court of Canada, 6, 13, 14, 53, 156; decisions of, 23, 24–6, 59–60, 63, 102, 158, 160, 161, 188–9, 218, 219, 220, 221–4, 250 Supreme Court of the United States, 21, 51, 53, 261, 262, 265, 272–4 systemic discrimination, 4, 5, 9, 21, 23, 29, 53–4, 57–60, 62–4, 145, 177, 186–8, 190, 196, 219, 220, 221–7, 267–71, 284, 285–6, 297, 302–3, 310. See also barriers to equality systemic remedies, 59–61, 221–7, 286, 310

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temporary workers, 181–2, 185 Toronto, 64–5, 161, 162 transgendered persons, 163–5. See also sexual minorities Treasury Board Secretariat, 197, 198, 200, 201, 202, 203–4, 208 tripartism, 301–2 Trudeau, Pierre Elliott, prime minister, vii, 3, 73 unions, 6, 8, 9, 18, 159, 165, 195–216, 218, 219, 220, 223, 229, 235–6, 295, 310 United Kingdom, 299–300 United Nations Convention on the Rights of Persons with Disabilities, 9, 135, 140, 147, 242–58 United States, viii, 4, 9, 14, 15, 20–2, 51, 166–7, 259–83; Civil Rights Act, Title VII, 259–67, 273–4 Vancouver, 161, 162 visible minorities, 3, 4, 6, 7, 18–19, 34, 36, 37, 38, 43, 44, 52, 58, 63, 64–7, 71–98, 178, 187, 190, 199–200, 208, 209, 223, 225, 294, 310, 314–15 voluntary corporate employment equity programs, 115–21, 145, 166–7, 169–70, 272–5 vulnerable workers, 8, 176–8, 181–5, 314–15 women, 3, 7, 18–19, 33–4, 37, 38, 42, 43, 46, 47, 52, 60, 61, 67, 71–98, 178, 180, 181, 185–7, 190, 207, 209–10, 222, 224, 243, 294, 299, 312, 314–15 workforce survey. See census (or survey) of employer’s workforce