Recruiting to increase workplace diversity
Question: Can actively looking to recruit more individuals with certain characteristics (age, race, disability) to influence the diversity of an employer’s workforce be considered discrimination itself?
Answer: While making any distinction on the basis of certain characteristics may be prima facie discrimination, distinctions made for specific ameliorative purposes are typically deemed non-discriminatory. Section 15 of the Canadian Charter of Rights and Freedoms states that its protections do not “preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups."
When employers seek to recruit to broaden workplace diversity, they are likely engaging in an ameliorative program such as an “employment equity” or “affirmative action plan.” Such plans have the goal of amelioration of systemic discrimination and are therefore deemed non-discriminatory.
The recent Federal Court case, Canadian Doctors for Refugee Care v. Canada (Attorney General), provides insight regarding the administration of ameliorative programs. The court, drawing from various decisions of the Supreme Court of Canada, makes clear that s.15(2) of the charter — and corresponding provincial human rights legislation — affirm the validity of ameliorative programs, even though it is “unavoidable that ameliorative programs, in seeking to help one group, necessarily exclude others.” However, the court also makes clear the program should be genuine and directed at improving the situation of a group that is need of ameliorative assistance.
A case to watch is Rizzardo v. University of British Columbia, where a preliminary application to dismiss a complaint was denied by the British Columbia Human Rights Tribunal. The complaint alleged discrimination on the basis of “sex” where the employee had been hired by UBC to coach its women’s soccer team, but was dismissed shortly after and a female hired to replace him. The university denied sex was a factor in the decision, but it could have been “an appropriate consideration given the under-representation of women in coaching. ...(UBC) says hiring a female coach furthered the purposes of the code as it improved the participation of women in coaching positions.”
The tribunal found UBC didn’t advertise a preference for a female candidate and didn’t apply for an exemption from discrimination protections under the code for its employment equity program. It determined it would need to examine the circumstances more fully.
The UBC case demonstrates that a “naked declaration” a program is ameliorative is not determinative. For an ameliorative program to be deemed non-discriminatory, there often needs to be a human rights-approved program where the fundamental question has been asked: “does the distinction made by the program serve or advance its ameliorative goal?"
For more information see:
• O.S.S.T.F. v. Thames Valley District School Board, 2012 CarswellOnt 8676 (Ont. Arb.).
• Carscallen v. FRI Corporation, 2006 CarswellOnt 5517 (Ont. C.A.).
• Canadian Doctors for Refugee Care v. Canada (Attorney General), 2014 CarswellNat 2430 (F.C.).
• Rizzardo v. University of British Columbia, 2014 CarswellBC 292 (B.C. Human Rights Trib.).
