The fundamental purpose of human rights legislation is to define and protect the rights of all persons to be treated as individuals, to be judged on their own merits, and to have equality of opportunity. This requires that society recognize and restrict unreasonable discrimination against individuals including discrimination based on stereotypes or generalizations about groups with whom the person is, or is thought to be, associated. It also requires a recognition that past, as well as current policies, practices and systems have directly and indirectly discriminated against certain groups.
It has been shown in numerous studies and reports *1, however, that disadvantages are suffered by certain groups or classes of persons in our society. Such groups do not enjoy equality of opportunities in vital areas of living including employment, housing, and public services and facilities. These disadvantages are usually based on, or related to, the group factors or characteristics mentioned in Section 9(2) of the Manitoba Human Rights Code. These include ancestry, nationality, ethnic background, religion, age, sex (including pregnancy), gender-determined characteristics, sexual orientation, marital or family status, source of income, political belief and physical or mental disability.
Frequently, although not in every instance, the disadvantage and inequality are longstanding and have resulted from past discrimination, both intentional and unintentional or systemic. As the human rights field evolves and the enforcement of human rights law has become more sophisticated, there has been a growing recognition that the discrimination which has the widest impact is not caused by overt or intentional acts of ill will, but by ordinary, seemingly neutral practices throughout our systems, particularly our employment systems.
*1 - Employment,April, 1985; Obstacles: Recommendations Formulated and
Progress Assessed by the Special Committee on the Disabled and
Handicapped by the Status of Disabled Persons Secretariat, March,
1985; As Things Stand: Ten Years of Recommendations by the
Canadian Advisory Council on the Status of Women, 1983; Equality
Now! by the Special Parliamentary Committee on Participation of
Visible Minorities in Canadian Society, March, 1984.
Neither passive non-discrimination nor the individual complaint
approach provided by human rights legislation effectively
addresses this type of discrimination and alters its impact.
In response to this reality, human rights legislation
recognizes the need for affirmative action and other special
programs to overcome this historic disadvantage.
"Equal opportunity programs"* are one way to end certain types of discrimination. These programs identify and eliminate systemic discrimination in an organization's policies, practices and procedures. They do not, however, include remedial measures to address the effects of past discrimination nor do they entail ensuring the minimum appropriate representation of target groups throughout all levels of the organization. Like special programs, equal opportunity programs seek to eliminate barriers which have resulted in limited access to services and/or under-representation of certain groups in particular areas or levels of employment. However, because these programs do not give preference or special consideration to any particular group(s), they are not considered as a `special program' under human rights legislation. Only where a program includes a special measure which gives preference on the basis of age, sex, etc. would it become a special program.
*See glossary
Special programs, by definition, give preference or special consideration to disadvantaged group(s) or individuals in a group. In order that these programs are not deemed to constitute unreasonable discrimination against other groups or individuals, human rights legislation includes specific provisions for such programs. The Charter of Rights and Freedoms, Section 15(2) allows for the existence of laws, programs or activities that have as their objective the amelioration of conditions of disadvantaged individuals or groups. Similarly, Section 11 of the Manitoba Human Rights Code states:
"Notwithstanding any other provisions of this Code,
it is not discrimination, a contravention of this Code,
or an offence under this Code
Certain groups in society have historically been disadvantaged and have faced limited opportunities to participate in employment, obtain suitable housing or utilize services, e.g. transportation. Special programs, by providing varying degrees of special consideration, address the need of the particular group in a direct and immediate manner. The Commission recognizes a variety of such programs, each seeking to restore or establish equality of opportunity or access. Examples could be:
General Criteria for Evaluation
It is the responsibility of the Commission to ensure that when a program provides differential treatment on the basis of a group factor, e.g. age, ancestry, it is meeting the conditions required to be a special program under the Code. The following elements will be considered by the Commission when evaluating any such activity:
The object of the program must seek to ameliorate specific disadvantaged condition(s) of the target group as determined from the analysis of relevant data.
The Commission will examine the definition and/or description of the designated group(s) to ensure that there is no ambiguity as to who is eligible for participation in the program. Unclear or broad definitions would tend to extend the program benefits beyond those persons intended and could result in unreasonable restrictions on the rights or opportunities of others.
There must be a suitable means or method for determining eligibility to participate in the program. Identification may be voluntary, e.g. self-declaration on an application form, or mandatory, e.g. presentation of appropriate identification indicating age, student status, etc. An inadequate identification system will impact on the accuracy of program monitoring.
The Commission will examine the quality and quantity of supportive data used in determining the nature and degree of the disadvantaged status of the target group(s). Data on socio-economic indicators such as unemployment rate, labour force participation rate, occupational representation, level of income, educational level or other such indicators which demonstrate the disadvantage of a group should be provided to the Commission where relevant.
There must be a well designed implementation plan which is likely to ensure the effective delivery of the program and the attainment of its objective. The plan or program must be implemented in a manner which recognizes and maintains the dignity and self-respect of the participants or target group(s).
Special programs should establish measurable criteria for the evaluation of effectiveness in meeting its objectives. Program reviews or evaluations should be conducted with sufficient frequency to assist in identifying any need for plan adjustments. Proper monitoring will also be required to assess whether the program should be continued or terminated.
One specific type of special program is an affirmative action plan, sometimes referred to as an "employment equity" plan.*2 These programs are intended to identify and eliminate systemic discrimination in an organization's employment policies, practices and procedures and to remedy the effects of past or historical discrimination. Remedial measures, including preferential training and hiring of target group members, is one aspect of such programs. These measures are intended to ensure progress is achieved in correcting the underrepresentation or concentration of target groups in particular areas or levels. Some examples of activities in a typical affirmative action program would be:
*2 The term "Employment Equity" was initiated by Judge R.
S.Abella in the Royal Commission Report Equality in Employment,
Chapter 1.
Evaluation of Affirmative Action PlansExperience has shown that an affirmative action plan is more likely to achieve its objectives when specific steps have been taken in its development. Therefore, the Commission will consider, in addition to the general criteria, the following specific elements when providing an advisory opinion or evaluating the validity of a defence based on the existence of an affirmative action program.
The Commission will examine documented policy statements, promotional activities, allocation of resources and delegation of authority/ responsibility for the implementation of the plan. Ideally, the responsibility for overall implementation will be assigned to a person at the senior management level and there will be joint consultation with employee representatives.
This analysis should indicate the representation of target group employees in relation to all other employees. At the very least, data must include overall representation of target group employees and representation within occupational groups or categories. Other data should include an analysis by salary levels, length of service, status of employment e.g. full-time, part-time. (Refer to the appendix for a sample workforce analysis sheet.)
Self-identification or declaration by employees as members of a target group(s) may be the method used in the collection of internal workforce data or identification may be done by management. (Refer to the appendix for a sample survey form.) In any event, the reason for collecting the data should be explained to employees. The data collected should be kept separate from personnel files and treated in a confidential manner. Safeguards should be taken to ensure that this information is not used for any other purpose or in any way that may adversely affect employees.
Available data on target group representation in the recruitment area labour force should be reviewed, taking care to ensure that only the most current data is used as a basis for the program. Data from Federal and Provincial employment departments should be reviewed. *3 Consultations with community agencies and educational institutions should also be considered. This information is necessary in order that reasonable long term goals can be established.
A comparison of the internal workforce data with the external labour force data should be made. Any area(s) in the workforce where there are fewer members of the target group(s) than would be reasonably expected by their representation in the community or the relevant labour pool should be identified. *4 As well, any areas where there is a concentration of members of the target group(s)should be noted. The areas so identified should substantiate the disadvantaged status of members of the target group(s) and become a focus for program activity.
*4 It may be that there is a limited labour pool of one or
more groups. The available pool of members of minority
groups qualified for employment or promotional
opportunities may be limited as a result of historical
barriers. Actions such as targeted training, targeted
recruitment and modified promotion and lay-off
procedures may be necessary considerations.
*3 The Canada Employment and Immigration Commission
(C.E.I.C.) is currently developing availability data packages for
women, Aboriginal people, persons with disabilities and persons who are,
because of their race, or colour, in a visible minority in Canada,
by industry,occupation, and various geographical recruitment areas.
Goals and objectives must be expressed in measurable criteria. Targets for short and long term increases in the representation of designated groups shall be expressed in numbers and percentages for each area being addressed in the program, e.g. participation in training, hirings. Goals should be flexible in order to respond to organizational changes. They should also be tied to reasonable timetables which take into account organizational growth and turnover of employees.
If not already completed, an analysis of all employment related policies and practices must be clearly planned. When completed, the results of the analysis must be adequately documented. This process should identify unnecessary barriers which tend to have any adverse impact on a designated or target group(s). *5 The analysis should yield information regarding:
*5 The usual test for systemic discrimination involves
assessing the system by questioning whether a
requirement is job-related, whether it is valid (i.e.
does a test or qualification have a direct relationship
to actual job performance?) and whether it has an
adverse impact on a designated or target group(s).
An Action Plan must outline the objectives and steps required to remedy the effects of any observed discriminatory situation and eliminate barriers to equal opportunity. The action plans should relate directly to any underrepresentation or concentration of target groups identified in the workplace and to any systemic barriers identified in the systems review. Corrective measures which give temporary preference to designated groups must be clearly defined.
Responsibility for each activity must be clearly assigned and target dates for completion or monitoring must be included. Wherever practicable, evaluation of effectiveness will be based on measurable criteria.
Monitoring systems and scheduled progress reviews are essential. Information reporting systems should examine the participation rates of target group(s) through the application, screening, hiring, training and development, transfer, promotion, lay off and termination processes. General reviews must be conducted at reasonable intervals to measure progress and add or delete from the plan as necessary.
Section 11 of the Code does not require any person to adopt an affirmative action or other special program. It simply defines such programs as not being discriminatory provided they meet certain conditions. The Commission's role is to ensure that, where such programs are implemented, they do meet these conditions.
Special programs may be initiated by an employer, business or service provider where they recognize a disadvantaged situation facing certain group(s) in relation to their access to employment, accommodations or services. As well, employers may elect to participate with existing special programs usually operated or funded by various levels of government. Most of these programs are designed to improve employment possibilities for a designated group and may provide training, work experience placements, referral services and wage subsidy incentives. In either case, the Commission is available to provide assistance and advice to any person considering a voluntary special program.
The investigation of a complaint may expose a need for the adoption of a special program. Such remedial action would generally be considered where the investigation revealed that a pattern or practice had been systemically discriminating against a particular group or groups. Where a negotiated settlement includes adoption of a special program, the Commission will provide assistance in the design of the program to ensure that it conforms to the Code. In this instance, the Commission may also conduct periodic evaluations of the program.
Section 43 of the Code states that where an adjudicator decides that a party has contravened the Code, the remedial order may require the person to, among other things:
"adopt and implement an affirmative action program or other
special program of the type referred to in clause 11(b),
if the evidence at the hearing has disclosed that the party
engaged in a pattern or practice of contravening this Code."
Where an order to adopt and implement a special
program has been made as the result of an adjudication,
ie. there is a legal requirement to adopt a special
program, it must still be designed to conform with the
Code requirements. The Commission will provide design
assistance upon request from either the adjudicator or
the person responsible for implementation of a program
in order to ensure that it conforms to the Code. The
Commission may also monitor the program if requested or
required and, in carrying out this supervisory role,
would require that documents, correspondence and records
be made available as necessary.
Section 56(1) of the Code provides for regulations which allows government, Crown agencies or local authorities to contain, as terms of any contracts, a requirement for the implementation of an affirmative action or other special program. While the role of the Commission in this process is yet to be determined, any such special program must meet the conditions set out in Section 11.
The Code prohibits differential treatment based on group characteristics where such treatment constitutes "unreasonable discrimination". Section 11 of the Code exempts special programs from the prohibition against differential treatment provided they meet certain conditions, e.g. the object of the program is the amelioration of conditions of disadvantaged individuals or groups. In this sense, since affirmative action and other special programs are intended to bring about an equality of access and, in effect, counteract inequalities already present in society, they do not constitute unreasonable discrimination.
A complaint may allege that a program or activity discriminates on a ground prohibited by the Code, e.g. age. The person making the complaint may allege that there is "reverse discrimination" against those persons or groups not included in the designated or target group(s). In cases where no advisory opinion had been given, the complaint would be received and investigated by the Commission. The Commission would then collect and evaluate all relevant information about the program and determine whether or not it met the requirements of a "special program" as set out in the Code. Where it is accepted by the Commission as such, the complaint would be dismissed. For this reason, any person responsible for a special program is well advised to document all relevant information as the program is developed and implemented. However, where the program did not meet the statutory standards for acceptance, the Commission may attempt conciliation or settlement. Where warranted, the complaint may be referred for adjudication.
A person who is responsible for a special program may want to ensure, in advance or after implementation of the program, that it will not be the subject of a complaint of discrimination from a member of a group not eligible for the special measures contained in the program. Such a prior ruling by the Commission is permitted under Section 21(1) of the Code in the form of a binding "advisory opinion".
Any person who is responsible for a special program (or other practice which is within the jurisdiction of the Code) may request an advisory opinion by contacting the nearest office of the Manitoba Human Rights Commission. The basic process involves:
If the Commission has stated in an advisory opinion that a practice or activity is not a contravention of The Human Rights Code and, if the facts upon which the opinion is based are complete and accurate, no Complaint of Discrimination alleging that the practice or activity is discriminatory will be acted upon by the Commission. However, a complaint may be accepted and investigated if it alleges that the differential treatment is not addressed in the advisory opinion or that the fact situation described in the opinion is not accurate. For this reason, persons receiving an advisory opinion are encouraged to discuss with the Commission any changing circumstances relevant to the opinion.
For further information on advisory opinions, contact the nearest office of the Manitoba Human Rights Commission.
Affirmative action and other special programs are recognized in human rights legislation as an appropriate response to overcome the disadvantaged situation facing certain groups. The disadvantage is typically the result of past discriminatory treatment. The majority of special programs are voluntary and are self-initiated by business, service providers and employers. In certain situations, special programs may be mandatory either as a contractual obligation or as part of an adjudicator's remedial order. In this latter situation, an order to adopt such a program would only be made where there had been a pattern or practice which had unreasonably discriminated against particular groups.
When required, the Manitoba Human Rights Commission must examine and ensure that any affirmative action or other special program meets the conditions set out in the Code. This would be done when and if a person implementing such a program requests an advisory opinion or when a complaint is received which is related to a special program that has not been examined by the Commission or that requires re-examination. In determining whether an activity may be considered a special program, the Commission will examine both the rationale for the differential treatment of the proposed group(s) and the quality of the program design. It is essential that where special programs are implemented, they operate in a manner which does not unnecessarily or unduly restrict the rights and opportunities of others.
Special programs play an important part in the achievement of an equal opportunity society free from the effects of historical discrimination. The Commission believes that all members of our community have a role to play in the promotion of human rights principles, including the consideration of special programs, for the betterment of society as a whole. All persons are urged to become more familiar with human rights principles, the Code, Commission education programs, the complaint investigation process and their rights and responsibilities as members of the human family.
Section 9(3) of The Code states that "discrimination" includes any act or omission that results in discrimination regardless of the form that the act or omission takes and regardless of whether the person responsible intended to discriminate.
NOTE: This sample questionnaire seeks information on the basis
of several group charactertistics. Surveys may focus on
one or more groups and, where useful, may request more
specific information, eg. country of ancestry, type of
disability.
1) Company ABC is committed to an employment program that
will ensure that all groups - including women,
aboriginal peoples, persons with disabilities and
members of visible minorities - participate
proportionately at all levels and in all areas of our
workforce and will have equal opportunity to further a
career in accordance with their abilities and
qualifications.
The purpose of this workforce survey is to gather
information which will help us determine if our current
workforce is reasonably representative of the community
around us. This information will also identify those
occupations where our employment practices may be
creating unnecessary barriers for certain groups seeking
initial employment or position changes with the company.
Responses to this survey are considered CONFIDENTIAL and
shall be used ONLY by, our Program Co-ordinator,
(office address and telephone number), to monitor the
effectiveness of our program. No reports used by the
company will identify names or employee numbers.
2) Employee Identification
Name:
Employee Number:
NOTE: Employee numbers will be used to identify your
current position classification and department
and will enable the Program Co-ordinator to
monitor job changes, eg. promotions,
transfers, without the employee's name being
used.
3) Group Characteristics
Your co-operation in answering these questions is vital
to the overall success of our program.
(A) Sex Please indicate whether you are: male ____ female ____
(B) Aboriginal peoples
Aboriginal peoples are persons in Canada who
identify themselves to be Status Indian, Non-Status
Indian, Inuit or Metis. Please indicate if you are
an Aboriginal person:
Yes ____ No ____
(C) Persons with disabilities
Disabled persons would be those who, for the
purposes of employment, consider themselves, or
believe that a potential employer would likely
consider them disadvantaged by reason of any
physical, intellectual, psychiatric, sensory or
learning impairment. Do you consider yourself to
be disabled?
Yes ____ No ____
Would you mind if the Program Co-ordinator
contacted you for more information?
Yes ____ No ____
(D) Visible Minorities
Visible minorities would be those who are
non-caucasian in race or non-white in colour
(Black, Chinese, Asian, Filipino, etc.). Are you a
member of a visible minority group?
Yes ____ No ____
Date ________________________ Signature _______________________
This survey information will be treated as CONFIDENTIAL,
will be used only by the Program Co-ordinator, and will not
be placed in employee files.
UPPER-LEVEL MANAGERS. Those people holding the most senior
positions in large firms or corporations. They are responsible
for the corporation's policy and strategic planning and for
directing and controlling the functions of the organization.
Includes: chief executive officer, president, vice-president,
chief operating officers, general managers and divisional heads
and directors who have several middle managers reporting to
them or are responsible for the direction of a critical
technical function.
MIDDLE MANAGERS. Middle managers receive instructions from upper-level managers and administer the organization's policy and operations through subordinate managers or supervisors. Upper-level managers and middle managers together comprise all managers. Includes: financial, personnel, sales, advertising, purchasing, production, data processing, marketing, and research and development managers.
PROFESSIONALS. These occupations usually require either university graduation or prolonged formal training and often require membership within a professional association. Includes: engineers (civil, mechanical, chemical, electrical, petroleum, nuclear, aerospace, etc.); architects; lawyers; airline pilots and navigators; social workers; biologists; geologists; chemists; economists; psychologists; librarians; accountants; and kindred workers.
TECHNICIANS AND SEMI-PROFESSIONALS. These occupations usually require knowledge equivalent to about two years of post-high school education, such as is offered in many technical institutes and community colleges, and often have further specialized on-the-job training. Technicians possess highly developed manual technical skills. Includes: computer programmers and systems analysts; nurses; physio and occupational therapists; draftsmen and draftswomen; musicians; actors; photographers; illustrating artists; product designers; radio and television announcers; translators and interpreters; writers and editors; specialized inspectors and testers of electronic, electrical, mechanical, etc. products; vocational instructors, technicians (medical, electronic, engineering, architectural, dental, physical science, life science, library, etc.); and kindred workers.
SUPERVISORS. Non-management first-line supervisors of white-collar (clerical, sales and service) workers. Supervisors may, but do not usually, perform any of the duties of the employees under their supervision. Includes: supervisors of stenographers, typists, account records, office machine and electronic data processing operators, library clerks, mail carriers and messengers, salespeople, food and beverage preparers, bookkeepers, receptionists, sales workers, and kindred workers.
FOREMEN/WOMEN. Non-management first-line supervisors of workers in blue-collar jobs. They may, but do not usually, perform any of the duties of the employees under their supervision. Includes: supervisors of machining, construction, heavy equipment operation, mechanical repairers, processing workers (food and beverage, textiles, wood, metals); workers in assembling and repairing, workers in air, railway, and water transportation; printers; excavators and pavers, and kindred workers.
CLERICAL. Includes all clerical work, regardless of difficulty, in which the activities are predominantly non-manual. Includes: bookkeepers, cashiers, collectors (bills and accounts), messengers and office helpers, office machine operators, mail clerks, typists, telephone operators, electronic data processing equipment operators, clerks (production, shipping and receiving, stock, scheduling, ticket, freight, library, reception, travel, hotel personnel, statistical, general office) and kindred workers.
SALES. Occupations engaged wholly or primarily in selling. Includes: advertising agents, real estate agents, sales workers and sales clerks, stock brokers, insurance agents, travel agents, salespeople of technical and business services, and kindred workers.
SERVICE. Workers who provide personal service. Includes: attendants (hospital and other institutions, including nurses' aides and orderlies); barbers, bartenders, guides, food and beverage serving occupations, travel attendants, housekeepers, child care occupations and kindred workers.
SKILLED CRAFTS AND TRADESMEN/WOMEN. Manual workers of a high skill level,having a thorough and comprehensive knowledge of the processes involved in their work. They are frequently journeymen and journeywomen who have received an extensive period of training. Includes: welders, tool and die makers, sheet metal workers, carpenters, plumbers, mechanics and repairers, engravers, stationary engineers, aircraft and railway transport equipment mechanics and repairers, radio and television broadcasting equipment operators, radio and television service repairers, tailors and dressmakers, fire fighters and kindred workers.
SEMI-SKILLED MANUAL WORKERS. Manual workers who perform duties that usually require a few months of specific vocational on-the-job training and a formal education which is less than high school completion. Generally, these are workers whose skill level is less than that of skilled crafts and trades workers, but greater than that of unskilled manual workers. Includes: truck and tractor drivers, bus drivers, paving, surfacing, and related occupations, roofers, photographic processors, sound and video recording equipment operators, those in apprenticeship training, textile workers, and kindred workers.
UNSKILLED MANUAL WORKERS. Workers in blue-collar jobs which generally require only a few days or no on-the-job training. The duties are manual, elementary, and require little or no independent judgement. Includes: garage labourers, car washers and greasers, swampers, gardeners (except farm), unskilled railway track workers, labourers performing lifting, digging, mixing, loading, and pulling operations, and kindred workers.
Name of Employer: ____________________________________
Date of Report: ______________________________________
| Occupational Groups or Categories | Total Workforce | Aboriginal People | Members of Visible Minorities | Persons with Disabilities | ||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| Women # % | Men # % | Women # % | Men # % | Women # % | Men # % | Women # % | Men # % |
|||||||||
| 1. Upper Level Managers | ||||||||||||||||
| 2. Middle Managers | ||||||||||||||||
| 3. Professionals | ||||||||||||||||
| 4. Technicials and Semi-Professionals | ||||||||||||||||
| 5. Supervisors | ||||||||||||||||
| 6. Foremen/women | ||||||||||||||||
| 7. Clerical Workers | ||||||||||||||||
| 8. Sales Workers | ||||||||||||||||
| 9. Service Workers | ||||||||||||||||
| 10. Skilled Crafts and Tradespeople | ||||||||||||||||
| 11. Semi-Skilled Manual Workers | ||||||||||||||||
| 12. Manual Workers | ||||||||||||||||
| TOTALS | ||||||||||||||||
For futher information contact The Manitoba Human Rights Commission office in your area.
