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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