Affirmative Action: Does it work?

Section 15(2) of the Canadian Charter guarantees equality to everyone.

A very good friend of mine raised a very interesting issue about that section. In his email message to me, he wrote; “This section has been absolutely devastating to white males who are employed by governments. It is also responsible for incompetents being hired and then promoted into positions that they are incapable of handling.”

This essay is my response to his complaint.

The equality section of the Canadian Charter of Rights and Freedoms explicitly guarantees the legal status of affirmative action. Subsection 2 of Section 15 states that the equality provisions do "not preclude any law, program or activity that has as its object the amelioration (to make better or more tolerable) of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."

The term ‘affirmative action’ refers to policies that take race, ethnicity, or gender etc., into consideration in an attempt to promote equal opportunity for all. The focus of such policies ranges from employment and education to public contracting and health programs etc.

Affirmative action is seen by its proponents as a foundational principle of democratic societies such as in India, that seek to redress imbalances, due to disproportionate representation of underprivileged sections of society in governmental, educational and industrial institutions.

Opponents say that affirmative action devalues the accomplishments of people who are chosen because of the social group to which they belong rather than based upon their qualifications. Opponents also contend that affirmative action devalues the accomplishments of all those who belong to groups it is intended to help, therefore making affirmative action counterproductive.

In some countries which have laws on racial equality, affirmative action is rendered illegal because it doesn't treat all races equally. This approach of equal treatment is sometimes described as being ‘color blind’, in hopes that it is effective against discrimination without engaging in reverse discrimination.

In such countries, the focus tends to be on ensuring equal opportunity and, for example, targeted advertising campaigns to encourage ethnic minority candidates to join the police force. This is sometimes described as ‘positive action’ or ‘positive discrimination’. This can be a good thing. For example, the Toronto Police Service also hires gays and lesbians because the police force does not discriminate. Such officers can relate to the gay and lesbian community within Toronto.

If follows then that if there was an opening specifically for a gay person in a police force so that that person can work with criminals who are gay and a heterosexual man also applies for the job and both men are otherwise equally qualified to work as a police officer, it would not necessarily be a form of affirmative action if the homosexual was hired instead.

The underlying motive for affirmative action is the Constitutional principle of equal opportunity, which holds that all persons have the right to equal access to self-development. In other words, persons with equal abilities should have equal opportunities.

However, affirmative action nowadays in countries like Canada are not really necessary anymore because concrete steps are taken not only to eliminate discrimination—whether in employment, education, or contracting—but also to attempt to redress the effects of past discrimination.

The Canadian Employment Equity Act requires employers in federally-regulated industries to give preferential treatment to four designated groups: Women, people with disabilities, aboriginal people, and visible minorities. In most Canadian Universities, people of Aboriginal background normally have lower entrance requirements and are eligible to receive exclusive scholarships. Some provinces and territories also have affirmative action-type polices.

For example, in Northwest Territories in the Canadian north, aboriginal people are given preference for jobs and education and are considered to have P1 status.

Non-aboriginal people who were born in the NWT or have resided half of their life there are considered to have a P2 status as well as women and disabled people. White males receive the lowest priority, by being assigned a P3 status. His means that in some instances, people are hired for jobs who have lesser credentials than other people applying, because their status is higher.

This policy in my opinion can backfire and it does. For example, would you want a pathologist to be hired whose qualifications are less than another applicant’s qualifications simply because the one who is hired is a member of a visible minority? Canada has already had the terrible experience of having an unqualified pathologist who bungled many cases where innocent people were sent to prison. How would you feel if you went to prison and it turned out that the pathologist who testified against you was unqualified but he got the job instead of a more qualified person because the man that testified against you was a member of a visible minority? How would you feel if a fireman who didn’t do his job properly and a member of your family died as a result and you later learned that he was given the job over another more qualified applicant simply because he too was a member of a visible minority?

Don’t get me wrong. I am not saying that minorities shouldn’t be hired. Canada has always wanted to have an aboriginal on the Supreme Court of Canada and when one of them got the appointment, he did a marvelous job. The Supreme Court of the United States has had blacks serving in that court and they too did a marvelous job.

In the United Kingdom, positive discrimination is unlawful and quotas/selective systems are not permitted. An exception to this is a provision made under the 1998 Good Friday Agreement which requires that the Police Service of Northern Ireland recruit equal numbers of Catholics and non-Catholics. Positive action in encouraging people from under-represented backgrounds to apply for jobs is permitted, but it is illegal to discriminate in favour of them in awarding employment

As affirmative action evolved, employment practices that were not intentionally discriminatory but that nevertheless had a ‘disparate impact’ on affected groups were considered a violation of affirmative action regulations. Another central issue was whether members of affected groups could receive preferential treatment and, if so, the means by which they could be preferred. For example, a black person who was single might get the job instead of the white person who has a family to support despite the fact that both men are equally qualified.

In Entrop v. Imperial Oil Limited a 1996 case heard in Canada, the court said that an employer has the right to ensure that its business operations are conducted safely, and a corresponding right to assess whether employees are incapable of performing their essential duties. It follows that if employers have that right, then surely that can refuse to hire someone who is a member of a visible minority if that person is unable to perform the specific job that requires a certain amount of expertise that the person doesn’t have.

This raises the important question as to whether a Human Rights Tribunal appointed under s. 39 of the Canadian Human Rights Act, had the power under s. 41(2)(a) to impose upon an employer, such as the Canadian National Railway Co., a program tailored specifically to address the problem of ‘systemic discrimination’ in the hiring and promotion of a disadvantaged group.

On February 18, 1982, 155 complaints against CN had been lodged with the federal Human Rights Commission on behalf of women who were denied promotions. Evidence was brought to the Commission that women employed by the CN were being systematically abused and treated as second-class citizens by their male colleagues. In actual fact, they were denied promotions they deserved simply because they were women.

The Human Rights Tribunal concluded that it was essential to impose upon the CN a special employment program if the proportion of women in blue-collar jobs at CN was to mirror even roughly the proportion of women in similar jobs across the country.

The Commission ordered that the CN was to immediately discontinue all practices pursued by foremen or others in which female candidates underwent physical tests not required of male candidates, mainly the test which consisted of lifting a brakeshoe with one arm; a test that was clearly unfair.

The Commission also ordered that the CN was to immediately modify its system of interviewing candidates; in particular, it was to ensure that those responsible for conducting such interviews were to be given strict instructions on how to treat all candidates in the same way, regardless of their sex.

But suppose a woman applicant was a midget. Would the CN be forced to hire her knowing that she couldn’t do the heavy work required of her?

The edict of section 15(2) of the Canadian Charter guarantees that everyone in Canada is entitled to equal treatment irrespective to race, creed and sex etc.

In direct discrimination cases, where the complainant has shown a prima facie case of discrimination on a prohibited ground, the onus falls on the employer to justify that he is not acting in a discriminatory manner based on a balance of probabilities. The question then is whether section 15(2) should apply in cases of adverse effect discrimination. Obviously, the CN failed to show that they were not discriminatory in their treatment of women employees.

Mr. Justice McIntyre of the Supreme Court of Canada in the case of Ontario Human Rights Commission v. Simpsons-Sears said in part;

“Where adverse effect discrimination on the basis of creed is shown and the offending rule is rationally connected to the performance of the job, as in the case at bar, the employer is not required to justify it but rather to show that he has taken such reasonable steps toward accommodation of the employee's position as are open to him without undue hardship. It seems evident to me that in this kind of case the onus should again rest on the employer, for it is the employer who will be in possession of the necessary information to show undue hardship, and the employee will rarely, if ever, be in a position to show its absence. The onus will not be a heavy one in all cases. In some cases it may be established without evidence; for example, a requirement that all employees work on Saturday in a business which is open only on Saturdays, but once the prima facie proof of a discriminatory effect is made it will remain for the employer to show undue hardship if required to take more steps for its accommodation than he has done.” unquote

Orthodox Jews are not supposed to work from sundown Fridays to sundown Saturdays because that is their Sabbath so employers should not make them work on those days. If the employers don’t accommodate them, they are conducting their business in a discriminatory manner. This means they can’t fire an employee who is a Jew because he refuses to work during those time periods.

If discriminated in this manner, the complainant first has to establish a prima facie case of discrimination. The onus then shifts to the employer to show that he has taken such reasonable steps to accommodate the employee as are open to him without undue hardship such as having the employee work on other days instead. In the Sears’ case, the employer did not discharge the onus of showing that it had taken reasonable steps to accommodate the complainant.

But this raises an interesting and very perplexing question. Suppose two men apply for the same job and both men are also collecting employment insurance. Both men are equally experienced and trained in electronics. The job is to repair items brought back to Sears for repair. The opening is a part-time job for three days a week (Friday through Sunday beginning at 9:00 a.m. to 5:00 p.m. each day) One man is an orthodox Jew who is black and the other man in a non Jew who is white. Affirmative action would dictate that the job would be offered first to the Jew because he is black. If when offered the job, he refuses to accept it because it would entail him working on the Sabbath, would his employment insurance benefits be cancelled?

There was a case where a man was employed as a laboratory coordinator by a college in Alberta, and was given a permanent, full time position in 1988. Throughout his term of employment, he received positive evaluations, salary increases and promotions for his work performance. In 1990, in response to an inquiry by the president of the college, the man disclosed that he was homosexual. In early 1991, the college’s board of governors adopted a position statement on homosexuality, and shortly thereafter, the president of the college requested the man’s resignation. The man declined to resign so his employment was terminated by the college. The sole reason given was his non compliance with the college’s policy on homosexual practice.

Gays and lesbians do not have formal equality with reference to other protected groups, since those other groups are explicitly included and they are not. There is a more fundamental, distinction is between homosexuals and heterosexuals. The exclusion of the ground of sexual orientation, considered in the context of the social reality of discrimination against gays and lesbians, clearly has a disproportionate impact on them as opposed to heterosexuals.

By reason of its under-inclusiveness, it creates a distinction which results in the denial of the equal benefit and protection of the law on the basis of sexual orientation, a personal characteristic which is analogous to those enumerated in section 15(1) of the Charter This, in itself, is sufficient to conclude that discrimination is present and that there is a violation of Section 15. The serious discriminatory effects of the exclusion of sexual orientation from the Act reinforces this conclusion. The distinction has the effect of imposing a burden or disadvantage not imposed on others.

ut this raises another interesting and perplexing question. Suppose that the man didn’t return to his job and two other men applied for the job of laboratory coordinator and one of them is a homosexual and is more qualified than the other man who is a heterosexual. Would the college be forced to hire the less qualified man because he is not a homosexual?

If that were to happen, then the college would certainly suffer just to accommodate the less qualified man, not to mention the suffering that the qualified man would undergo by not getting the job he was more qualified to get.

I can say with conviction that it is counterproductive to hire someone who is not as qualified as other applicants simply because the person hired is a member of a visible minority.

Now there are some who will say that this could mean that aboriginals will be denied employment because they are aboriginals irrespective of their qualifications. In the past, that was a common problem they faced but nowadays, it would be illegal to refuse to hire them, simply because they are aboriginals.

But to hire an aboriginal or any other member of a visible minority even though that the applicant is not qualified for the job, is to bring an unfair burden upon the employer.

Everyone in Canada has an equal opportunity to obtain an education and if young persons choose to leave school before they are properly educated, then they must suffer the consequences that face them when they are applying for jobs that require a good education. To say that uneducated people who are members of a visible minority should automatically be hired despite the fact that they are not qualified because of their lack of proper education is ridiculous. The same applies with newcomers to Canada who don’t have a sufficient understanding of the English language.

The principle of affirmative action was a good idea when it was first conceived. The reason was that many minorities were being denied employment even though they were as qualified as non minorities who were applying for the jobs were. However, over the years, it went too far.

A good example of this is what has happened in Zimbabwe. The whites were told to get out of their farms so that the blacks could take over their farms. Unfortunately, the blacks didn’t know how to operate the farms and as a result, many of the blacks in that country are starving since the farms are no longer supplying the food to feed the people in that nation.

As I see it, everyone should have the same rights as every other person and if two people apply for a job, a minority factor should not be considered. What should be considered is the qualification of the applicant and nothing more. That way, the employer will benefit and the person most qualified for the job, is not cheated out of the opportunity to get the job simply because he is not a member of a visible or non visible minority.