Affirmative action in women's employment: Lessons from Canada

Journal of Law and Society

Volumn 33, Issue 1, 2006, Pages 42-58

  Busby, Nicole ^a  

^a UNIVERSITY OF STIRLING   (United Kingdom)

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[No Author keywords available]

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EID: 33645159107     PISSN: 0263323X     EISSN: 14676478     Source Type: Journal    
DOI: 10.1111/j.1467-6478.2006.00346.x     Document Type: Article

References (81)

1. In Great Britain, full-time female workers earn 18 per cent less than their male counterparts; this rises to 40 per cent for part-time workers - Equal Opportunities Commission, Facts about Men and Women in Great Britain (2005).
2. Such as the United Kingdom's Equal Pay Act 1975 and Sex Discrimination Act 1976 (SDA).
3. Based on factors such as access to education, training, and affordable childcare, restrictive working practices, and employers' assumptions about female workers.
4. For example, the prohibition of direct discrimination by s, 1(1)(a) SDA.
5. Employment Equity Acts of 1986 and 1995 (EEA).
6. EEA 1995, id., s. 2.
7. id., s, 5.
8. id., Part 1.
9. id., s. 6.
10. For example, in the United States of America in the context of race and under Northern Ireland's fair employment legislation aimed at countering religious sectarianism.
11. See, for example, the SDA in the United Kingdom and the European Community provisions of the Equal Treatment Directive 76/207/EC, Classifications of anti-discrimination legislation generally distinguish between three approaches: formal, substantive, and equal opportunities - see S. Fredman, Discrimination Law (2002) 7-15.
12. Under EC law, motherhood constitutes a special case requiring different treatment for a specified 'protected period' - see Case C-394/96, Brown v. Rentokil [1998] ECR I-4185.
13. C. Agócs, 'On the Need for Effective Employment Equity and Pay Equity in a Global Labour Market' in Globalization and the Canadian Economy: The Implications for Labour Markets, Society and the State, ed, R. Chaykowski (2001) 147.
14. The federal system of law-making is similar to that of the bicameral United Kingdom parliament and, with the exception of Quebec whose civil law is based on the Napoleonic code, the dominant model for provincial and federal law in Canada is the Anglo-Irish system,
15. Case C-450/93, Kaianke v. Freie Hansestadt Bremen [1995] ECR 1-3051.
16. Inserted into the Constitution in 1982 by Schedule B of the Constitution Act 1982.
17. Subject to the 'notwithstanding clause' provided by s. 33, which provides legislators with a possible 5-year exclusion. This is overridden by s. 28 which provides that the rights and freedoms are 'guaranteed equally to male and female persons'.
18. CNR v. Canada (Human Rights Commission) [1987] 1 SCR 1114.
19. This power was subsequently withdrawn.
20. Known as the Abella Commission.
21. This is an extension of the classic Aristotelian view of distributive justice that like cases should be treated alike and different cases differently. For a fuller discussion of the two prevailing approaches to the elimination of discrimination, see R.A. Lee, 'The Evolution of Affirmative Action' (1999) 28 Public Personnel Management 393.
22. R. Abella, Equality in Employment; A Royal Commission Report (1984) (the Abella report).
23. Defined as the 'unintentional consequence of employment practices and policies that have a differential effect on specific groups': H.G. Krahn and G.S. Lowe, Work, Industry and Canadian Society (1993).
24. H.G. Krahn and G.S. Lowe, Abella report, Work, Industry and Canadian Society op. cit., n. 22, p. 214.
25. See M. Cohen, 'Employment Equity is not Affirmative Action' (1984) 6 Cdn. Woman Studies 23.
26. An Act to Provide for Employment Equity for Aboriginal People, People with Disabilities, Members of Racial Minorities and Women 1994.
27. Ferrel et al. v. Attorney General of Ontario [1998] 42 OR (3d) 97.
28. See, further, Alliance for Employment Equity, 'Charter Challenge - The Case for Equity' (Spring 1998), update at 〈http://www.web.net/~allforee/ 〉.
29. By the provocatively named Act to Repeal Job Quotas and Restore Merit-based Employment Practices in Ontario 1995. The repeal process was completed in just eight weeks.
30. See the Abella report, Charter Challenge - The Case for Equity op. cit., n, 22, pp. 6-7.
31. id., p. 7.
32. See L. Chavez, The Color Blind: California's Battle to End Affirmative Action (1998).
33. See Cohen, The Color Blind: California's Battle to End Affirmative Action op. cit., n. 25.
34. For the Canadian take on the 'business case' against affirmative action legislation, see T. Wilson, Diversity at Work: the Business Case for Equity (1996),
35. For an analysis of the effects of male backlash on the organizational climate, see J.A. Gilbert and J.M. Ivancevich, 'Organizational Diplomacy: The Bridge for Managing Diversity' (1999) 22 Human Resource Planning 29.
36. A further study found that the backlash had not subsided following the introduction of the legislation with resultant negative effects on employers' attitudes: J.A. Gilbert et al., 'Diversity Management: A New Organizational Paradigm' (1999) 21 J. of Business Ethics 61.
37. Ontario Human Rights Commission and O'Malley v, Simpson Sears Ltd [1985] 2 SCR 536.
38. So-called 'Crown corporations'.
39. Minister of Supply and Services, Employment Equity in the Public Service, Annual Report 1992-1993 (1994).
40. The literature does record some minor improvements following the Act's introduction: see H.C. Jain and R.D. Hackett, 'Measuring Effectiveness of Employment Equity Programs in Canada: Public Policy and a Survey' (1989) XV Cnd. Public Policy 189;
41. J.D. Leek and D.M. Saunders, 'Canada's Employment Equity Act: Effects on Employee Selection' (1992) 11 Population Research and Policy Rev. 21.
42. See Cohen, Population Research and Policy Rev op. cit., n. 25, p. 24.
43. Press release to accompany the Employment Equity Bill C-62 (1985).
44. See Department of Human Resources and Skills Development, Employment Equity: Myths and Realities (2003).
45. id., p. 7.
46. Defined, under s. 10 (3), as a period of not less than 1 year and not more than 3 years.
47. Defined, under s. 10(3), as a period of more than 3 years
48. 44 s. 14.
49. 45 s. 15.
50. Public Service Human Resources Management Agency of Canada, The Employment Equity Act (1996) from a Public Service Perspective (2002).
51. The Employment Equity Act (1996) from a Public Service Perspective 47 s. 22.
52. The Employment Equity Act (1996) from a Public Service Perspective 48 s. 24.
53. The Employment Equity Act (1996) from A Public Service Perspective 49 s. 29.
54. The Employment Equity Act (1996) from A Public Service Perspective 50 s. 33,
55. Canadian Human Rights Commission 〈http://www.chrc-ccdp.ca/ publications/page4-en.asp〉.
56. J.D. Leek, 'Making Employment Equity Programs Work for Women' (2002) XXVIII Cnd. Public Policy Supplement 85, 89,
57. The highest representation of women in the workforce was found in New Brunswick (51.8 per cent) and the lowest in Manitoba (37.4 per cent).
58. On the various provincial policy initiatives, see H. Antecol and P, Kuhn, 'Employment Equity Programs and the Job Search Outcomes of Unemployed Men and Women' (1999) 25 Cnd. Public Policy 28.
59. A. Bakan and A. Kobayashi, Employment Equity Policy in Canada: An Interprovincial Comparison (2000) 8.
60. id., p. 65, The authors make a distinction between representation and distribution, noting that the distribution of women across occupations had not significantly improved. Furthermore, despite the advances made by 'women' as a designated group, women in the other three groups had not experienced any improvements in representation or distribution.
61. The total public service declined by 16.2 per cent between 1994 and 1997: Public Service Commission of Canada, Diversity Management Directorate, Employment Systems Review: A Guide for the Federal Public Service (1998),
62. The literature appears to support this, see Antecol and Kuhn, op. cit., n. 54. The same survey also found negative perceptions of employment equity among respondents with women unable to identify or acknowledge increases in re-employment rates and men believing themselves (erroneously) to be the victims of reverse discrimination,
63. See J. Leek and D. Saunders, 'Hiring Women: The Effects of Canada's Employment Equity Act' (1992) 18 Cnd. Public Policy 203;
64. C. Edwards and O. Robinson, 'Lost Opportunities? Organisational Restructuring and Women Managers' (1999) 9 Human Resource Management J. 55.
65. Bakan and Kobayashi, Human Resource Management J. op, cit., n. 55, p. 17.
66. Communications, Energy and Paperworkers Union of Canada (CEP), 'Submission to the Canadian Human Rights Commission concerning the Federal Employment Equity Act' (2002), at 〈http://www.cep.ca.human_rights/equity/ brief/〉.
67. Bakan and Kobayashi, Submission to the Canadian Human Rights Commission Concerning the Federal Employment Equity Act op. cit., n. 55.
68. On the importance of education, employee involvement, and training in improving understanding and acceptance of employment equity programmes at the organizational level, see Leek, Submission to the Canadian Human Rights Commission Concerning the Federal Employment Equity Act op, cit., n. 52.
69. Canadian Human Rights Commission, Legislative Review of the Employment Equity Act, Report and Recommendations to the House of Commons Standing Committee on Human Resources and Development and the Status of Persons with Disabilities (2002).
70. Under the European Employment Strategy, see D. Ashiagbor, 'EMU and the Shift in the Labour Law Agenda: from "Social Policy" to "Employment Policy"' (2001) 7 European Law J. 311.
71. One-third of Canada's workforce is currently engaged in such arrangements: see J. Fudge and L. Vosko, 'Gender, Segmentation and the Standard Employment Relationship in Canadian Law and Policy' (2001) 22 Economic and Industrial Democracy 271;
72. C. Cranford et al., 'Precarious Employment in the Canadian Labour Market: A Statistical Portrait' (Fall 2003) 3 Just Labour 6.
73. S. Fredman, 'Women at Work: The Broken Promise of Flexicurity' (2004) 33 Industrial Law J. 299.
74. EEA 1995, s.5.
75. For a compelling critique of the conceptualization of affirmative action in policy-making, see C. Bacchi, 'Policy and Discourse: Challenging the Construction of Affirmative Action as Preferential Treatment' (2004) 11 J. of European Public Policy 128.
76. C. Echevarria and M. Huq, 'Redesigning Employment Equity in Canada: The Need to Include Men' (2001) XXVIII Cnd. Public Policy 53 suggest that the next logical step is to increase male employment in female-dominated occupations. This would have the dual benefits of reducing the occupational segregation that ghettoizes 'women's work' and producing an effective response to the male backlash which arises where programmes are focused on increasing women's representation.
77. This would necessitate provisions far beyond the United Kingdom's current 'right to request' a flexible working arrangement provided by s. 104(c) of the Employment Rights Act 1996.
78. For example, to take account of experience other than that based on length of service for promotion purposes.
79. Incidentally, although not specifically provided for in the United Kingdom's legislative framework, the use of targets is already legally acceptable and is actually encouraged under European provisions.
80. See Ronald Dworkin's argument that an individual's right to 'equal treatment' can be set aside if justified by a policy goal which aims to provide 'treatment as an equal' to all members of society: R. Dworkin, Taking Rights Seriously (1978) 223-39.
81. ss. 2 and 10(1)(a) EEA 1995, The CHRC has called for improved articulation of these terms, which have, until now, been interpreted in accordance with a perceived prohibition of quotas and related measures.