Employment Equity is the Law in Ontario

By Mary Cornish

“Employment equity is a strategy designed to obliterate the effects of discrimination and to open equitably the competition for employment opportunities to those arbitrarily excluded. It requires a "special blend of what is necessary, what is fair and what is workable" ...“What is needed to achieve equality in employment is a massive policy response to systemic discrimination. This requires taking steps to bring each group to a point of fair competition. It means making the workplace respond by eliminating barriers that interfere unreasonably with employment options.... It is both intolerable and insensitive if we simply wait and hope that the barriers will disappear with time. Equality in employment will not happen unless we make it happen” Equality in Employment: A Royal Commission Report - General Summary.1984., chaired by SCC Justice Rosalie Abella.

Introduction

Despite the 1995 repeal of Ontario’s Employment Equity Act, employers in Ontario are still required to pro-actively work and bargain with trade unions the establishment and maintenance of workplace employment equity (“EE”). Ontario Human Rights Commission reports continue to document that Ontario workers experience widespread systemic discrimination because of their sex, race, disability, age, Aboriginal status, sexual orientation and other prohibited factors. This discrimination affects all aspects of their labour market experience, including gaining access to work, the type and conditions of work and work retention and retirement. Workplace rules and practices can reinforce that discrimination.

Employment equity means ensuring workplaces are free of such unlawful discrimination. Employment equity planning is the recognized systematic human rights method for workplace parties to identify and redress, within the spheres of their responsibility, such systemic discrimination.

Guide to Pro-Active Employment Equity Obligations

The Ontario Federation of Labour is taking a leading role in this area by developing a “how to bargain employment equity” course for trade union negotiators for the Fall, 2009. Our firm has provided advice to the Federation on the legal requirements for employers and trade unions. We have prepared a Guide to Pro-Active Employment Equity Obligations in Ontario`s Provincially Regulated Workplaces (co-authored by Mary Cornish and Fay Faraday) (“Guide”).

The Guide covers the following areas:

• Part 1 - Overview of Employer and Trade Union Employment Equity Obligations. See below.
• Part II - Development of Employment Equity Planning and Measures as Human Rights Remedies. This part provides important background starting with the 1984 Royal Commission on Equality in Employment. It reviews the numerous Supreme Court of Canada and human rights tribunal decisions which call for such planning and measures.
• Part III - Ontario Equity Laws and Ontario Human Rights Commission Policies. This part reviews the various Ontario laws which drive employment equity obligations: the Human Rights Code, the Labour Relations Act (“LRA”),anti-discrimination collective agreement provisions and the Charter for government workers. Ontario Human Rights Commission Policies interpret the Code to require pro-active planning and these Policies now must be considered before the Human Right Tribunal of Ontario (“HRTO”) as a result of new Bill 107 provisions. (See Cornish, Faraday & Pickel, Enforcing Human Rights in Ontario, Canada Law Book, April, 2009 which provides a guide to the new human rights enforcement system.)
• Part IV - Taking Action to Achieve and Maintain Employment Equity. This Part reviews the necessary employment equity planning process, the responsibility of employers to work with unions and provide disclosure, the union responsibility to work towards employment equity, the relationship between employment equity, accommodation and collective bargaining and what to do where the employer fails to carry out its employment equity obligations.
• Appendix A – CHSMC Overview of Requirements of Federal Employment Equity Act.
• Appendix B – CHSMC Checklist for Initial Employment Equity Production Request
• Appendix C – CHSMC Examples of Employment Equity Measures
• Appendix D – List of Ontario Human Rights Commission Guidelines

The Importance of Employment Equity Planning

In the current recession, employment equity rights and obligations are an important union tool to further the equality and workplace interests of all bargaining unit members. Employers have no “discretion” to violate the Human Rights Code (“Code”) because they think human rights enforcement is too `costly`or `difficult`. Employment equity measures also maximize productivity and economic viability by making full use of the skills of Ontario’s diverse workforce. Yet many employers resist the notion and others see the process as exclusively an employer rather than a joint obligation. Unions have a long history of supporting employment equity - bargaining for equality promoting provisions in collective agreements and using equality promoting collective agreement provisions to further the rights of disadvantaged employees. Such union participation is also critical to protecting unions from incurring costly legal liabilities. With the recent amendments to the Code, both unions and dissatisfied employees have easier access to an adjudication of their human rights claims before the Human Rights Tribunal of Ontario.

Overview of Employer and Trade Union Employment Equity Obligations

While there are a number of Supreme Court of Canada decisions mandating employment equity obligations, the 1999 British Columbia v. B. C. Government and Service Employees Union (Meiorin) decision is a watershed one. The Court made it clear that employers must act to prevent and eradicate discrimination. They are not to wait for complaints, proven discrimination cases or requests for accommodation. Workplace standards and rules, including collective agreement provisions must be designed to reflect all members of society from the outset. Important Ontario employment equity law provisions include:

a. Code - Sections 5 and 6 require equal treatment in employment and with respect to membership in a trade union. Section 14 provides that special programs designed to alleviate disadvantage do not violate the Code.

b. LRA - Section 54 provides that a collective agreement must not discriminate against any person if the discrimination is contrary to the Code or the Charter. Section 17 requires parties to bargain in good faith for a collective agreement. Section 74 provides for the union`s duty of fair representation and fair referral which prohibits unions from acting in a discriminatory manner Employers, as well as unions, will violate the LRA if they enter into, renew or apply collective agreements so as to cause discrimination. The duty to bargain includes a duty not to make illegal demands. The OLRB has a wide-ranging power under s. 96(4) to redress any violation of these provisions ``despite the provisions of any collective agreement`` and can order the employer and the trade union to cease doing` or `rectify` the act complained of`which would include amending the collective agreement or directing parties to apply it in a non-discriminatory manner.

c. Most collective agreements have a provision that states that there will be no prohibited discrimination under the Code. Arbitrators have the power to interpret and apply the Code.

Taken together these various laws and provisions require employers and trade unions to do the following:

1. Unionized employers have the pro-active obligation to engage in a joint workplace employment equity planning process with bargaining agents, despite the absence of a specific employment equity law. Where provincially-regulated unionized employers are also part of the Federal Contractors Programme, they are required to follow the provisions of the Federal Employment Equity Act. (See Guide -Appendix A - CHSMC Overview of Requirements of Federal Employment Equity Act.)
2. Human rights laws require workplace parties to engage in proactive investigation, planning and corrective and positive measures. This is necessary to ensure equality of employment for disadvantaged groups protected by Ontario’s Code or by the Charter where a government employer. The Code provides that the following groups are protected from discrimination in relation to employment: persons disadvantaged by reason of their race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability (s.5). The Charter prohibits discrimination, and in particular where based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability (s. 15(1)).
3. While the existence of proven discrimination in a particular workplace will require immediate remedial action, such proof is not necessary before EE planning steps must be taken. This is because human rights obligations extend to the pro-active awareness, identification and prevention of discrimination
4. These obligations flow from the overall societal evidence concerning the systemic employment discrimination faced by disadvantaged groups. The particulars of the actions which will need to be taken will depend on the specifics of the discrimination faced by each group and the size and nature of the workplace. (See Guide Appendix C - CHSMC Examples of Employment Equity Measures.) While historically women, visible minorities, persons with disabilities and aboriginal peoples have been considered to experience the most discrimination and have been focus of specific EE legislation, the Code does not make this distinction and other Code protected groups, such as those experiencing discrimination based on age, sexual orientation or creed are also entitled to pro-active relief.
5. As the exclusive bargaining agent and negotiator for collective agreements governing the workplace conditions of all employees, including disadvantaged group members, unions have both the right to participate in and negotiate EE provisions and also the obligation to do so. Employers often argue that they have no responsibility to bargain with trade unions on matters outside of the regular collective bargaining process. As the employment equity process subjects all employment systems, policies, and practices to review for discriminatory barriers, employers can no longer simply rely on “management rights” to fend off challenges to their authority to run the workplace. Pursuant to the LRA, employers have an obligation where there is a bargaining agent to bargain exclusively with that agent. Required human rights changes to pay, promotion practices and other matters found in the collective agreement must only be changed with consent of the trade union or by order of the OLRB or HRTO, if discrimination is found.
6. Proposing unlawful collective agreement provisions or failing to accede to necessary collective agreement amendments to rectify discrimination could violate the LRA. The human rights obligation to monitor and revise the collective agreement is ongoing and not just one which exists during renewal bargaining. The Union is entitled and in fact required to seek amendments immediately, where discrimination is found.
7. A “human rights-based” process separate from but related to collective bargaining properly prioritizes EE planning and measures as required and time-sensitive human rights procedures and remedies. This helps to protect such measures from the notion that human rights compliance is “optional” or subject to cost-cutting agendas. Just as pay equity is a right not a discretionary pay increase, securing employment equity is mandatory. EE is a minimum standard like the minimum wage and is not subject to being obtained only in exchange for giving up other proposals in collective bargaining. Workers should not be required to continue to work in discriminatory conditions.
8. The courts have found bargaining agents must take action to ensure that any collective agreement they negotiate does not discriminate but rather promotes the equality of disadvantaged groups and that their representational responsibilities do not directly or through disparate impact discriminate against disadvantaged group members. While adjudicators have generally, although not always, recognized that unions have a lesser and different equality responsibility from employers, unions still face significant human rights liabilities. Trade union action to engage in employment equity planning and challenging of discriminatory collective agreement provisions or employer practices helps to discharge human rights responsibilities, minimize liabilities and maximize the benefits unions can bring to workplaces. To be effective in taking this action, trade unions will need to obtain production from employers of employment equity-related workplace information. (See Guide Appendix B CHSMC Checklist for Initial Employment Equity Production Request)
9. Where an employer refuses a trade union request to engage in appropriate employment equity planning or measures or fails to cooperate in agreeing to end a discriminatory practice, the best course of action for unions is to contest such action. This could take the form, depending on the circumstances, of a complaint under section 5 of the Code to the HRTO, a grievance or a section 96 unfair labour practice complaint .

Ontario Human Rights Commission Policies

The Commission has issued 21 Guide policies most of which are employment-related and cover various Code grounds. (See Appendix D) All explain the need for planning pro-active steps and measures to be taken by employers and trade unions to provide a discrimination-free workplace. These now have a formal status under sections 30 and 45.5 of the Code as providing guidance to the Human Rights Tribunal of Ontario for the application of the Code policies.

The Commission`s Guidelines on Developing Human Rights Policies and Procedures provide specific advice about what employers and trade unions must do in order to address their pro-active human rights obligations and secure a discrimination-free environment. They call for employers to engage in planning, remedial measures and monitoring, with the involvement of the union as a “key partner”.

Under the Code, employers, service providers and housing providers have the ultimate responsibility for ensuring a healthy and inclusive environment, and preventing and addressing discrimination and harassment. They must ensure that their organizations are free from discriminatory or harassing behaviour.

Organizations have an obligation to be aware of whether their policies, practices and programs are having an adverse impact or resulting in systemic discrimination based on a Code ground. Whether or not a formal complaint has been made, organizations must acknowledge and address potential human rights issues.

Unions, professional organizations and vocational associations are responsible for ensuring .... they are not causing or contributing to discriminatory actions in the workplace. ....Under section 45 of the Code, a corporation, trade union or occupational association, unincorporated association, or employers’ organization will be held responsible for discrimination, including acts or omissions, committed by employees or agents in the course of their employment.

Employment Equity Planning Process

While the nature and scope of EE planning will vary depending on the size and structure of the workplace, a comprehensive EE planning process usually involves the following steps:

a. a self-identification workforce survey or other measure to collect information on the disadvantaged group members in the workforce;

b. a workforce analysis to ascertain the degree of under-representation of those groups in the various workplace occupational groups

c. an employment systems review of all employer policies, procedures and practices, including collective agreement provisions and their application;

d. identification of barriers and positive policies and practices which would make reasonable accommodation and promote equitable representation in the workplace;

e. preparation and implementation of an employment equity plan or necessary EE measures which would eliminate the discriminatory barriers, institute positive policies and practices with respect to hiring, training, promotion and retention of members of the disadvantaged groups with a goal of making reasonable progress towards a representative workforce.

f. monitoring and revision of the plan as necessary.

Throughout the above-noted steps, it is important to provide information to employees to explain the process and for the employer to establish and maintain appropriate records to measure progress.

Conclusion

The existence or repeal of specific Employment Equity Acts does not detract from the force of the EE obligations which flow from the Code which is a quasi-constitutional law and from the LRA or collective agreement. The only legal discretion employers have is to identify, working with unions, the specific steps, based on their particular workplace circumstances that will be taken to prevent discrimination and dismantle the patterns of human rights violations which may be operating.