Enforcing Employment Equity
Supreme Court of Canada Building
Enter Action Travail des Femmes, a public interest lobby group that supports women's rights. It complained to the Canadian Human Rights Commission that CNR had broken s. 10 of the Canadian Human Rights Act and thereby guilty of systemic discrimination. A tribunal discovered that CNR had indeed made no real effort to hire women. It found that the company had done wrong in the following ways:
In the end, the tribunal ordered CNR to start an employment equity program. CNR refused and appealed its case to the Supreme Court of Canada.
The result? CNR got de-railed.
Citing s. 41(2)(a) of the Canadian Human Rights Act, the Supreme Court ruled that the commission had the right to impose an employment equity program to break CNR's continuing cycle of systemic discrimination which included exclusionary hiring and promotion policies as well as the harassment of female employees.
When it came to employment equity, CNR was forced get on board.
"They told me they did not want me there. How did they behave? Well, they tried to confuse me. Instead of telling me things like two or three moves at a time, which is all you have to do, they would tell me about 15 moves in a row, like talking really quickly, using the numbers, like this "take a locomotive, put it there, go here, go there", you know, so that I would get confused, or they would tell me to jump off the train at a switch, I would get off at the switch, and they would leave me at the switch, and they would not tell me what they were doing, they would leave me there, or they would just go off on break, and they would not tell me they were going on break. Sometimes they would leave me at a switch, or at an engine. They would say "go release the brakes on that engine and wait for my signal" I would never hear the signal, they would go off and eat lunch and leave me there. They used to do that all the time."
A female CN employee testifying about some of the problems she faced as the only woman in her work place.
Let's say 90% of the people working for a large computer company are tall - over 6 feet in height. Now, only 30% of the general population is tall. So, you would expect that if the company hired without regard to height, about 30% of its employees would be tall, just like the population. The fact that 90% of employees are tall suggests that the company unfairly favours tall people when it hires. When two qualified people - one tall and one short - apply for a job there, the company must almost always hire the tall person. Otherwise, only about 30% of the employees would be tall. And that is systemic discrimination against short people. The Canadian Human Rights Act in 1987 makes it illegal in Canada to systemically discriminate on the basis of a prohibited ground of discrimination - race, national or ethnic origin, colour, religion, age, sex or marital status, conviction for an offence for which a pardon has been granted, or by discriminatory employment practices based on physical handicap. Sexual orientation will be added later.
How do you fix systemic discrimination? Good question.
One way is to use an employment equity program. An employment equity program puts emphasis on creating equality in a workplace by favouring disadvantaged groups when hiring. In other words, if women are under-represented in a company, then women will be given preference over men in hiring. This preference can take several forms:
The company hiring tall people is a basketball team? In that case, being tall would be an advantage for the job.
Very few short people applied for jobs at the company? Perhaps the company hires every single short person that applies for a job. In that case, would the company be discriminating against tall people? Would it be guilty of systemic discrimination against short people because those people are not applying for jobs with the company?
C.N.R. v. Canada
Canadian Human Rights Act