Motion I: Affirmative action
Discriminatory attitudes have been integrated into Canadian employment and educational systems that prevent many individuals from consideration on the basis of individual merit. It calls for the adoption of affirmative action programs applying to historically disadvantaged groups. Requirements for the programs would be established by law, and guidelines would allow necessary resources such as training and accommodation. The motion requests that provincial governments take the lead by adopting such programs and calls for the strengthening of human rights enforcement agencies.
Some re-drafting of the motion would be advisable, but I recommend that we support it in principle and attempt to improve the wording at the Annual General Meeting. In particular, the phrase ’affirmative action’ is imprecise and requires further definition. However, the Board at present has no position concerning the various elements that might be included in an “affirmative action” program, and it seems important that we consider the matter in principle before dealing with the exact wording of the motion. I will first outline the inadequacies of the existing human rights legislation and then outline the forms an affirmative action program might take.
All of Canadian statutes now in effect are designed to provide a remedy, after the fact, for acts of discrimination. While some allow the enforcement agency or a public interest organization such as the BCCLA to file complaints, in practice the great majority of cases are initiated by the victim of the discrimination, and unless the victim files a complaint, the chances are very small that the incident will be brought to the attention of a human rights agency. There are a number of very serious problems with this approach including the following:
- The legislation provides the least protection to the most seriously disadvantaged individuals and groups. For a variety of reasons, including low educational level, fear of reprisal, alienation from governmental authority and the belief that discrimination is an inescapable fact of life, the most severely disadvantaged individuals will often not file a complaint even if the discrimination has been blatant.
- Current legislation requires proof that a particular event (such as the refusal to rent a house or hire an applicant) was motivated by bias. Thus, a B.C. case held that proof a trailer park owner was biased in general against native people was insufficient, and that the complainant would have to prove that the refusal to rent him space on the particular occasion at issue had been motivated by racial prejudice. Obviously, such proof can be very difficult to obtain.
Proof is especially difficult in cases concerning the denial of employment. Often, the choice is between applicants with qualifications that are about equal, and it is impossible to prove that prejudice was the motivating factor in the decision. Biases can be subtle, and the employer who has made an intuitive choice between two applicants may not even be aware that stereotyped assumptions about one of the applicants entered into the choice.
- Women and minority groups have, in the past, been excluded from many academic and vocational education programs. Sometimes this exclusion has been intentional and sometimes it has been the unintended consequence of factors such as lack of income. In either event, existing human rights legislation does nothing to remedy the problem.
If a group has historically been excluded from an occupation, many members of the group many never bother to apply, even though they have the necessary qualifications. Again, existing legislation does not deal with this problem.
Human rights legislation has been helpful in dealing with isolated incidents of discrimination, especially when they are particularly blatant. But as a result of problems such as those described above, it has done nothing to affect the economic status of groups, such as native people and women, who historically have been concentrated in lower paying jobs and, in the case of native people, have suffered extremely high levels of unemployment. Indeed, there is some indication that the gap between these groups and others may be widening. It seems clear that existing human rights legislation will not change these historical patterns of discrimination.
A great deal has been written in the past ten years about “affirmative action”, or “equal opportunity” programs, and whether they violate the principle of equality. This memorandum could not begin to deal with all of the points that have been raised, and in any event, many members of the Board are familiar with the issues. It seems to me, however, that three points are worth stressing. First, many elements have no potential conflict of with the principle of equality. For example, the vain attempts of the Vancouver Equal Employment Opportunity Officer to establish advertising procedures that would ensure employment openings would be widely publicized to eliminate nepotism are obviously consistent with the principle of equality.
A second point is that good faith attempts to choose on the basis of merit do not automatically achieve their aim. Sometimes irrelevant job requirements, such as requiring twelfth grade education for manual labour positions, unintentionally exclude disproportionate numbers of minority groups who are well qualified to perform the required duties. Subtle and unconscious biases can have the same effect, especially if the final choice is between applicants who, on the basis of objective criteria, are essentially equal. It seems likely that unintended barriers such as these do much more harm in the aggregate than conscious bigotry. They can be effectively eliminated only by some kind of affirmative program. Eliminating such barriers furthers the principle of equality.
A third point is that the nature of merit is not as clear as we might assume, as the disagreements about the well known Bakke case demonstrate. For example, academic institutions often do not question the assumption that past academic and intellectual performance is the sole measure of merit. But it can be argued that this assumption is too narrow and factors such as the likelihood the applicant will serve a minority community after graduation, or will be able to establish rapport with members of that community, are also arguably relevant to merit. Thus it is a mistake to presume that consideration of new factors in selecting applicants is inconsistent with the merit principle.
The term “affirmative action” has been applied to a variety of programs. The motion to be considered at the CRCLHRA meeting does not define the term, and it seems to me that our position concerning the notion may depend on what is included. Therefore, I have listed below a number of actions that might be included in an “affirmative action” program, some of which are more controversial than others. I hope that consideration of these elements individually may help expedite our decision, or at least narrow the area of disagreement.
Affirmative action might include any or all of the following:
- Requiring that an opening, in an educational institution or for employment, be brought to the attention of potential minority applicants. For example, it might be required that openings be advertised in the ethnic press.
- Requiring that qualification requirements be eliminated if they exclude a disproportionate number of members of target groups, unless it can be demonstrated that they are rationally related to the ability to perform the required duties. This type of requirement applies primarily to employment.
- (a) Requiring statistical studies to determine if a disproportionate number of minority applicants are excluded; and
(b) if they are, and if the exclusion is not explained by objective standards, establishing goals (but not quotas) for the selection of minority applicants in the future.
If properly administered, this type of program is consistent with the maintenance of the merit principle. The assumption is that if a disproportionate number of qualified minority applicants are not selected, the most likely reason is some unidentified barrier (often unconscious bias affecting subjective judgements). The establishment of goals is designed to counteract these hidden factors that in the past unintentionally prevented a fair application of the merit principle. If the goal is not met, the employer may be required to demonstrate that reasonable steps have been taken to hire qualified applicants, but there is no penalty for failing to meet the goal if such steps have been taken. Goals are established with reference to such matters as average employment turnover and the number of qualified minority applicants in the general population in that geographical area. Such programs never require that minority applicants be selected over others who, by objective standards, are more qualified.
This motion calls for the inclusion of sexual orientation in the prohibited grounds of discrimination in human rights statutes. The Association is on record as approving of this proposal and it need not be considered unless we wish to change our position.
Most Canadian human rights statutes now require equal pay for men and women performing substantially similar work. The federal statute goes further and requires equal pay for work of equal value even if that work is not similar. For example, it is not illegal under the B.C. Act to pay a woman performing highly skilled and responsible work 1ess than a man performing work requiring less skill, effort and responsibility, if the work is not found to be similar. While the federal wording involves some administrative problems, it is clearly justified in principle, and we should approve that part of the proposed motion that recommends its adoption.
The statutes now apply only to wage differences between men and women, and the motion proposes that this protection be extended to all groups. While this proposal is justifiable in principle, I believe that it would not serve any purpose. Women historically have been paid less for doing essentially the same work as men, and the equal pay provisions were designed to deal with this problem. While other minorities are often excluded from employment, there is no history in Canada of separate pay scales for different races as there is for men and women. Other sections of human rights statutes are sufficient to remedy those rare cases in which pay rates might be based on factors such as race and religion. The extension of equal pay sections to cover other groups could create very serious administrative problems that are not justified by the potential benefits.