Archive/File: orgs/canadian/canada/justice/ethnocultural-groups/ecg-011-00 Last-Modified: 1997/01/29 Source: Department of Justice Canada CHAPTER ELEVEN EMPLOYMENT DISCRIMINATION AND EMPLOYMENT EQUITY 11.0 INTRODUCTION The key informants interviewed in the study of justice issues of importance to Canadian ethnocultural associations raised concerns about employment discrimination and mechanisms to achieve employment equity.<214> Etherington, in his review also notes the importance of these issues to ethnocultural groups.<275> In The Vertical Mosaic, John Porter shows that Canadian society has traditionally been stratified according to economic class and ethnicity.<276> Gaining access to employment is of fundamental importance to equality of opportunity and equality of condition in a market economy. To achieve the objectives of Canada's multicultural policy, finding the right balance between the principles of a multicultural society and the values of the market place is of crucial importance.<277> 11.1 Employment Discrimination The recognition by the courts of adverse effects discrimination and the duty of reasonable accommodation by employers are significant advances in protecting against employment discrimination.<278? These judicial decisions have become part of employment equity and human rights legislation at the federal level and in several provinces. It is within the area of reasonable accommodation where, according to Etherington's analysis, the most crucial advances for the recognition of the principles of a multicultural society are at issue.<279> The 1985 Bhinder decision by the Supreme Court of Canada<280> established that with respect to reasonable accommodation of employees' requirements regarding religious or cultural requirements, an employer's duty to establish a bona fide occupational requirement (BFOR) to define and limit what is required in terms of reasonable accommodation is to be determined by what is necessary on an occupation-wide basis. No duty to accommodate individual employees was imposed on employers.<281> The final report of the Windsor Roundtable on multicultural issues notes that a central issue with respect to reasonable accommodation lies in the concept of undue hardship. According to Etherington, "the extent to which recent gains in the case law will provide meaningful protection for the religious and cultural practices of employees from employer rules concerning hours of work, dress and appearance codes, and safety requirements will depend heavily on the content given to undue hardship. "<282> In the O'Malley case<283> and according to Etherington, in various early attempts at legislation, a minimalist threshold with respect to the BFOR was adopted.<284> A recent Supreme Court decision discussed in the Etherington report charts a middle course requiring that "some degree of hardship must be accepted and more than a mere negligible effort at accommodation is required."<285> This illustrates the difficulties inherent in the definition of undue hardship and reasonable accommodation. The forum where many of these important public policy decisions on occupational discrimination are being made is the Supreme Court. Since the proclamation of the Canadian Charter of Rights and Freedoms in 1983, the judiciary has been placed in an unprecedented policy role because of the impact of constitutional decisions. Employment discrimination is a policy issue which is of incalculable importance. Socio-economic inequality of condition, once established, can replicate itself due to inequality of opportunity generation after generation. An underclass delineated along racial and economic lines is a potential outcome. There are at least two ways in which the government can address the occupational discrimination issue, with respect to court decisions. One is to develop a strategy to appropriately communicate to the courts, while respecting the independence of the judiciary, the government's position on the important public policy matter of employment discrimination. This must be done in an effective manner if the government is to play more than a reactive role, responding to a precedent-based legal system which may introduce into the case law principles that, for good or ill, may endure for long periods of time. The second method is for the government to develop the capacity to marshall and use for policy development and for litigation support, the typically complicated and voluminous extrinsic evidence that is relevant to BFOR and undue hardship issues. Given the importance of this issue and what is at stake for society with respect to maintaining the principles of multiculturalism in Canada, and the risks to social harmony of reproducing generations of poverty along ethnic and racial lines, the federal government should establish a clear policy on undue hardship and BFOR, and establish an accompanying program of research to collect and analyze the empirical data required to address the main issues, such as the real economic costs to employers of accommodating individual religious and cultural requirements, and the impacts of failure to do so. Such research must adhere to the most careful standards of methodological rigour so as to stand the tests of litigation strategy. This research should be widely available in published reports for use in litigation. Second, the government might consider requesting intervenor status at key court cases. This will make the court aware of its considered policy positions and the socio-legal research underlying the policies. 11.2 Employment Equity In general, respondents in the Minority Advocacy Rights Council (MARC) study expressed their dissatisfaction with the slowness of governments to implement employment equity initiatives.<286> Respondents urged governments to implement and expand employment equity programs applying to both the public and private sectors.<287> The respondents, representing many different ethnocultural groups, expressed particular concern about the need for employment equity programs to redress the disadvantages experienced in the job market by women.<288> A second major concern of minority communities shown in the MARC study concerns a perceived deficit in enforcement of employment equity provisions.<289> This concern also emerged in the literature review by Etherington. His reading of the existing documentation concurs completely with the results of the MARC study; ethnocultural groups want increased enforoement and stiffer penalties for noncompliance.<290> The Etherington study identified mandatory enforcement as a major issue with regard to employment equity.<291> Many employment equity schemes have mandatory reporting requirements, with penalties for non-compliance of reporting requirements. However, hiring levels in most schemes are "targets" rather than quotas. The role of increased penalties and stronger enforcement is vague in schemes with hiring targets as opposed to quotas. Etherington notes that penalties for failure to submit a timely and satisfactory final report is not the aim of ethnocultural groups with respect to enforcement with regard to employment equity.<292> Greater efforts to implement and expand employment equity programs focussing on increased enforcement and stronger penalties should be accompanied by significant public education efforts. Communicating clearly that the objective of employment equity is to eliminate unfair disadvantages, rather than to give members of certain groups unfair advantages over others, might be crucial in forming more informed public opinion about employment equity. Such advantages of employment equity as eliminating reliance on social assistance and promoting full and productive participation in the economy must be highlighted. In addition, the fact that employment equity is not simply a "zero sum game" where advantage for one implies disadvantage for another should be communicated to the public so that efforts to achieve equality and full participation of ethnocultural minorities are not hindered by negative public opinion rooted in misperceptions.
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