LORNE FOSTER
SCHOOL OF PUBLIC POLICY AND
ADMINISTRATION
DEPARTMENT OF EQUITY STUDIES
Introduction
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Canada’s Human Rights Agenda
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Protected Grounds and Protected Social
Areas
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Equality and Discrimination in a modern
Canadian Context
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Public Sector Employment
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New Public Management Theory and the
Human Rights Paradigm
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Whether we like it or not, religious, ethnic and cultural
diversity is part of our modern world – and increasingly,
part of our national and community reality. Human rights
and the respect for every individual upon which they
rest, offer the best hope for reconciling the conflicts
this diversity is bound to generate. If we are to live
together in peace and harmony – within our nations and as
nations in the wider world – we must find ways to
accommodate each other. Human rights, expressed in the
fabric of our law and administered by our courts and
tribunals, provide a way to accomplish this.
 The Right Honourable Beverley McLachlin, Chief Justice of Canada
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The Charter, Bill of Rights and Human Rights Codes
provide the structural scaffold for collective and individual
rights standards and equal opportunity in Canadian society.
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The Charter of Rights and Freedoms – constitutional
supremacy
The Bill of Rights – statutory support instrument
Federal and Provincial Human Rights Codes – remedial
in nature and aimed at eliminating discrimination.
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United Nations
Declaration of
Human Rights
Canadian Bill of
Rights 1960
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Canadian Chart of Rights
and Freedoms
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The Canadian Charter of Rights and Freedoms (also
known as The Charter of Rights and Freedoms or simply
the Charter, is a bill of rights entrenched in the Constitution
of Canada guaranteeing certain:
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Fundamental Freedoms [religion, beliefs, conscience,
expression, press, assembly, thought, expression]
Democratic Rights [right to vote & a democratic form of
government]
Mobility Rights
Equality Rights
Language Rights
Minority Language Education [French/ English
minorities]
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Canadian Bill of Rights, which was enacted in 1960.
However, the Bill of Rights was only a federal statute,
rather than a constitutional document.
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Limited in scope
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Easily amendable by parliament
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No application to provincial laws.
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The Supreme Court Of Canada also narrowly
interpreted the bill of rights and the court was reluctant
to declare laws inoperative.
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The Bill Of Rights continues in force in Canada and its
importance lies in those provisions which the Charter
does not duplicate – for example, the right to the
enjoyment of property (section 1(a)).
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Ontario Human Rights Code, 1962
Racial Discrimination Act, 1944
Fair Employment Practices Act, 1951
Fair Accommodation Practices Act, 1954
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Age
Ancestry, colour, race
Citizenship
Ethnic origin
Place of origin
Creed
Disability
Family status
Marital status (including single status)
Gender identity, gender expression
Receipt of public assistance (in housing only)
Record of offences (in employment only)
Sex (including pregnancy and breastfeeding)
Sexual orientation.
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The Code requires equal treatment in:
1.
2.
3.
4.
5.
Accommodation (housing)
Contracts
Employment
Services
Vocational associations (unions).
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The Human Rights Act embodies the important public
policy of eliminating (removing/ redressing) discrimination
in society.
In recognition of the prominence of such public policy, the
Supreme Court of Canada has characterized human rights
legislation as quasi-constitutional.
This means that the Act is almost as fundamental to our
legal structure as the Charter, even though it is a law
passed by Parliament.
Moreover, the Court has ruled that where there is a conflict
between human rights legislation and other laws, human
rights legislation takes priority, unless the human rights law
creates a clear exception.
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The Charter is a constitutional discourse that applies to the
acts and conduct of government, the Human Rights Codes
apply to the acts of, and conduct between, individuals.
The Charter defines the structure of public institutions and
there operating culture [accentuates equality].
The Code(s) provide public policy remedies for the person
or group discriminated against, and for the prevention of
further discrimination [accentuates anti-discrimination].
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Section 15 of the Charter states that:
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Every individual is equal before and under the law and has
the rights to equal protection and equal benefit of the law
without discrimination and, in particular, without
discrimination based on race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.
What does equality mean? People's understanding of this idea
has changed and developed over the years. At one time,
people believed that only certain people had the right to
equality, such as White men, adults, or landowners. Until
recently, many people thought that equality meant getting the
exact same treatment as other people. We call this approach
"formal equality". Now, the courts and many equality seekers
have a broader view of equality, one that is often called
"substantive equality"
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The Definition:
Making sure everyone is treated in a fair and equitable
manner both in employment and service by addressing
genuine disadvantage – individual and group.
 Fairness - Steps taken to ensure that such impacts do not
impact negatively on others, while remaining consistent
with the overall purpose of equity.
 Generally more aggressive than “diversity” approaches
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The objective:
 Equity (fairness & representation) in employment and
services (through inclusive design & barrier removal)
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Discrimination is differential treatment based on a personal
characteristic which has an adverse impact on an individual
or group. Examples of personal characteristics include
race, ancestry, place of origin, colour, ethnic origin,
citizenship, creed, sex, sexual orientation, age, marital
status, family status or handicap.
Types of discriminatory conduct are: (1) Harassment
[sexual, racial, general] (2) poisoned environment, (3)
indirect or constructive discrimination & (5) systemic
discrimination
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Denying someone goods, services, facilities or
accommodation.
Providing someone goods, services, facilities or
accommodation in a way that treats them adversely and
differently.
Refusing to employ or continue to employ someone, or
treating them unfairly in the workplace.
Following policies or practices that deprive people of
employment opportunities.
Paying men and women differently when they are doing
work of the same value.
Retaliating against a person who has filed a complaint with
the Commission or against someone who has filed a
complaint for them.
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Different treatment and adverse impact
Case law:
 No formulaic way of applying a test
 Has “substantive discrimination” been
demonstrated in the context
Often confirmed where differential treatment is:
 associated with a stereotype
 offensive to human dignity
 targets a historically disadvantaged community
Maybe also require disadvantage relative to others be
shown
No Intent required:
 Discrimination doesn’t have to be intentional
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The right to “equal opportunity with respect to employment”
covers every aspect of the workplace in the private and
public sector employment relationship – including job
applications, recruitment, training, transfers, promotions,
apprenticeship terms, dismissal and layoffs. It also covers
rate of pay, overtime, hours of work, holidays, benefits, shift
work, discipline and performance evaluations.
Human rights claims of discrimination and harassment can
be made against employers, contractors, unions, and
directors or other people in the workplace such as coworkers and supervisors.
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Federal and Provincial Commissions have only one aim: to
advance equality for all Canadians through public policy.
Unlike in court, a human rights adjudication has the agility
to make any award, other than legal fees, to remedy
discrimination in the workplace.
The list includes extraordinary situational powers such as
mandatory reinstatement with back pay – sometimes years
after an employee's departure – general damages for
discrimination, wage loss recovery, public interest
remedies, human rights training, and forced sensitivity
courses.
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“Formal barriers” to discrimination and income equality:
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The Employment Equity Act
The Public Sector Equitable Compensation Act
Public Service Labour Relations Act
Public Service Employment Act [Non-partisanship]
Employment Standards Legislation
Workplace Health And Safety [(i) Right to Refuse
Unsafe Work, (ii) Getting Hurt at Work/ Workers
Compensation]
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Human Rights Codes go beyond formal, overt, blatant
adverse, systemic discrimination to address:
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Constructive Discrimination
Poisoned Environment
Harassment
I.
Sexual
II.
Racial
III. General (i.e. bullying or personal harassment).
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It is the obligation of employers in the private and public
sector to follows the letter and spirit of the Ontario Human
Rights Code – to support and protect the dignity and worth
of everyone.
This means providing equal rights and opportunities for all
employees, clients and volunteers.
Creating policies, programs and processes designed to
address, prevent and eliminate discrimination in all aspects
of employment and when providing services to others.
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The public sector in Canada refers to the part of the
economy concerned with providing various government
services – universities, hospitals, utilities, Crown
corporations and other government-funded institutions.
The composition of the public sector varies by country, but
in most countries the public sector includes such services
as the military, police, public transit and care of public
roads, public education, along with healthcare and those
working for the government itself, including the public
service workers and elected officials
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If public employment is taken as a whole – meaning,
according to the Financial Management System definition,
the three public administrations (federal, provincial and
local), the health and social services networks, the
education networks, and government business enterprises
– the public sector workforce of all provinces declined in
size during the 1990s.
Recently, more cuts to the public service sector have been
recommended at both the provincial and federal levels of
government
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The ratio of public employment to total employment is one
of the main indicators for measuring the scale of
government intervention in a given society. The greater this
proportion is, the more that the public sector is present in
the capacity of employer and the more this role is assumed
to be considerable.
Neo-liberal ideology of fiscalized consciousness  New
Public Management – running government like a business
 financial restraint, spending reductions, labour force
downsizing  “value for dollars” // “bang for your buck” //
“reducing government footprint.”
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Canada
Palestinian Authority (NDP)
(I) Respect For Democracy,
(I) Transparency
(II) Respect For People,
(II) Performance
[measurable targets]
(III) Integrity,
(IV) Stewardship
(III) Partnership
(V) Excellence –
[professionalism]
(IV) Oversight – [regulatory
consumer protection]
Source: Palestinian Auutoruity National Development Plan 2011-2013;
Code Of Conduct For The Civil Service, Palestinian Authority,
Benchmarking Report, OECD 2011
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The (NPM) model implies redefining core business and
streamlining government functions under the auspice of
budgetary restraints and expenditure reductions
(NPM) is largely driven by the same values that underlie
those of the private sector – the three Es – efficiency,
effectiveness, and economy.
These are placed within the framework of “quality service”
to citizens, who are now referred to as “customers” or
“clients.”
Generally speaking – (NPM) tends to turn all state
intervention of “policy space” into market functions.
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The number of employees per 1000 inhabitants is an
indicator of the capacity of the public sector to deliver
services. It provides an idea of the scale of administrative
systems in the provinces of Canada. It is also indicative of
the size of government relative to a given society, although,
on this score, the ratio of public employees to total
employment is thought to be more suitable.
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The ratio of public employment to total employment is
partially determined by the dynamism of total employment.
A human rights paradigm would argue that a dynamic
workforce is base on the inclusion and the actualization of
all of our abilities and talents. Therefore, harnessing people
skills is the lever to financial management not the reverse.
The goal is to apply a human rights paradigm to decision
making across public services in order to achieve better
public service employee relations – and better service
provision to the public
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An internal audit report in 2002 conducted by the
Research Division of the Public Service Commission found:
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Managers in the federal public service continue to hire
people they know – including spouses, siblings and
cousins – rather than comply with prescribed rules to
ensure all Canadians have a fair chance at government
jobs.
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51% of placements it was unable to conclude
competency and fairness were respected, because key
documents were missing
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Managers avoided hiring employees through an open
competition. In 115 cases where individuals were
referred by name for a job, 110 were listed as if they
had been hired through a public competition
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Managers had prepared lists of possible candidates
when no competition was ever held
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Managers list job qualifications in such a specific way
that employees can accurately predict who in the office
will get the job.
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Issues of concern pertaining to representation and
recruitment of women, persons with disabilities, visible
minorities and aboriginal peoples.
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Concerns expressed regarding the public service
commission’s new method for calculating recruitment rates
[e.g., over 25% hires through non-postings].
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Some improvement, but continuing scarcity, of members of
visible minority groups in executive positions.
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Expenditure reduction initiatives (including layoffs of public
servants, wage freezes, and rollbacks), negatively impact
racialized workers who generally lack the same level of
seniority as White workers.
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Workplace composition studies in USA and Canada have
confirmed that people tend to hire people like themselves. Out of
these studies we start to recognize that discrimination can be
deliberate or unintentional // overt or covert // blatant or hidden.
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Dr. York Professor Frances Henry and her colleagues – and
the UARR - conducted ‘audit studies’ supporting racialized
barriers - these have involved interview “audits” and
“employment agency referral studies” – with very similar
findings to the Americans – in regard to ‘names’ and ‘accents’
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A British Columbia based “resume study” by Philip
Oreopoulos, (2009) to investigate the reasons why skilled
immigrants struggle in the labour market – found that when
education and skill levels were comparable, the applicants
with “English-sounding names” received interview requests 40
percent more often than applicants with Chinese, Indian, or
Pakistani names.
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Address “subtle and informal barriers” preventing people of
colour from having full and equal involvement in society
occur at the level of norms and values
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The Human Rights Maturity Model
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Discrimination Prevention Program
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Accessibility For Ontarians With Disabilities Act, 2005
– [(I) Customer Service (Ii) Employment (Iii) Information
And Communications (Iv) Transportation (V) Design Of
Public Spaces
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Canadian Experience Policy
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Accommodation Policy*
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o
Diversity
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Is about efficiency
o
Cultural
Competence
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Is working effectively in crosscultural situations
o
Equity
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Involves addressing systemic
discrimination, historical
disadvantage, representativeness
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Is about proactively removing
‘isms’ and the oppression /
discrimination they cause
o
Anti-racism/
Oppression
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HUMAN RIGHTS
HUMAN RIGHTS
Principles & Law
Principles & Law
EQUITY
EQUITY
DIVERSITY
DIVERSITY
ANTI-RACISM /
ANTI-RACISM /
ANTI-OPPRESSION
ANTI-OPPRESSION
GOAL:
GOAL:
Inclusivity +
Inclusivity +
Cultural Competence
Cultural Competence
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Human Rights
Framework for
Diversity
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