How to Achieve and Maintain Employment Equity

Mary Cornish and Jan Borowy for The Lawyers Weekly

March 5, 2010

Employment equity means just that - a workplace free of discrimination. It is not discretionary -something to be left for better times. Achieving and maintaining employment equity is the law in Canada.

Yet most employers seem to assume if they are not covered by the federal Employment Equity Act, they can wait for proven human rights complaints before taking proactive anti-discrimination measures. On numerous occasions over the last 25 years, the Supreme Court of Canada has made it clear that such thinking violates the human rights of disadvantaged workers. With unions and employees increasingly focusing on using human rights laws to secure equality rights in difficult economic times, employers taking this view are short-sighted. It also fails to maximize productivity and economic viability by making full use of all workforce skills. Like it or not, employers must partner with unions to build a culture of workplace equality.

Canada's 1984 Royal Commission on Equality in Employment report by Justice Rosalie Abella drew a picture of the widespread systemic discrimination faced by disadvantaged groups, particularly women, racialized groups, aboriginal persons and persons with disabilities. Justice Abella found that international and domestic human rights guarantees required protection from such discrimination. Employment equity was the answer-"a strategy designed to obliterate the effects of discrimination and to open equitably the competition for employment opportunities to those arbitrarily excluded."

With 2009 the twenty-fifth anniversary of the Abella Report, many of the same patterns of discrimination continue to be documented by human rights commissions across the country. While the federal government legislated the Employment Equity Act, most provinces either never followed suit, or, like Ontario, repealed their employment equity acts.

Yet since 1984, Canadian courts and adjudicators have created employment equity rights and responsibilities which bind employers and trade unions, despite the absence of a specialized law. Employment equity planning and measures are the recognized systematic human rights method for both employers and unions to identify and redress systemic discrimination within the spheres of their responsibility. They flow from the matrix of equity pro-active obligations found in provincial laws like Ontario's Human Rights Code and Labour Relations Act, collective agreement anti-discrimination provisions and the Charter for government employers.

Starting in the 1980s, the Supreme Court of Canada responded to the Abella report with Robichaud v. Canada (Treasury Board), [1987] S.C.J. No. 47, a decision requiring positive action by employers to prevent sexual harassment, and C.N.R. v. Canada (Human Rights Commission), [1987] S.C.J. No. 42, requiring employment equity and hiring measures when discrimination was proven. Many more decisions followed, requiring ever-increasing employment equity obligations and rights, including the 1998 Federal Court of Appeal decision in Perera v. Canada which found that s. 15(1) of the Charter could require government employers to implement employment equity measures as a human rights remedy.

While the existence of proven discrimination requires immediate remedial action, with the 1999 watershed decision of the Supreme Court of Canada in British Columbia (Public Service Employees Relations Commission) v. B.C.G.S.E.U, [1999] S.C.J. No. 46 it became clear that such proof is not necessary before employment equity steps must be taken. The court found that employers are required to ensure that their workplace rules and practices are designed for equality from the outset to reflect their diverse workforce and accommodate its needs. Human rights obligations extend to proactive awareness, identification and prevention.

The B.C.G.S.E.U obligations flow from the overall societal evidence concerning the systemic employment discrimination faced by disadvantaged groups. The particulars of the actions needed to be taken depend on the specifics of the discrimination faced by each group in a workplace. While historically women, workers of colour, persons with disabilities and aboriginal peoples have been considered to experience the most discrimination and are the focus of the federal Employment Equity Act, human rights laws have broader coverage. Those experiencing discrimination based on factors such as age, sexual orientation or creed are also entitled to employment equity.

The only way to carry the powerful direction of B.C.G.S.E.U to employers and bargaining agents is to engage in employment equity planning and measures such as those required by the federal Employment Equity Act:

  1. map out the workforce, identifying the disadvantaged group members and analyzing their circumstances;
  2. identify and eliminate barriers operating against those groups arising from employer policies, practices and collective agreement rules, including making reasonable accommodations where required;
  3. institute positive policies and practices to accelerate progress toward a representative workforce;
  4. develop an employment equity plan which reflects the above, and monitor plan compliance and amend where required to meet changing circumstances.

2010 will see the Ontario Federation of Labour training union representatives to negotiate such employment equity plans. Labour and human rights laws require unions to carry out their exclusive representational responsibilities without discrimination. As the collective agreement negotiator and enforcer, unions have both the right and obligation to negotiate employment equity.

With all employment systems, policies, and practices subject to review for discriminatory barriers, employers can no longer simply rely on "management rights" to fend off challenges to their authority. Section 54 of Ontario's Labour Relations Act provides that a collective agreement must not discriminate and under s. 96(4), the labour board can amend a collective agreement which does so. Section 17 also makes proposing unlawful collective agreement provisions or failing to agree to amendments to rectify discrimination unlawful.

Employment equity is a minimum standard like the minimum wage and not subject to exchange with other proposals in collective bargaining. A separate employment equity process properly prioritizes such planning and measures as required human rights remedies.

Human rights compliance requires that disadvantaged groups secure a level employment playing field with advantaged groups.

Mary Cornish is co-author of Enforcing Human Rights in Ontario. She works with Jan Borowy at the Toronto firm Cavalluzzo, Hayes, Shilton, McIntyre & Cornish.
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