Job ads targeting equity-seeking groups are OK, say experts – but employers should still tread carefully
Two job postings for government-established Research Chair positions at the University of Waterloo drew attention last week for their specific equity, diversity and inclusion (EDI) eligibility requirements.
The posting stated the requirements are meant “to address the underrepresentation of individuals from equity-seeking groups among our Canada Research Chairs, which has been identified through research … to be systemic in nature.”
Included in a list of other academic and professional qualifications, the EDI qualifications of the research chair positions are listed as such:
- Position 1, all areas of artificial intelligence. The call is open only to qualified individuals who self-identify as women, transgender, gender-fluid, non-binary, or Two-spirit.
- Position 2, all areas of computer science. The call is open only to qualified individuals who self-identify as a member of a racialized minority.
While a focus on these postings, and others like them, might be viewed by some as meant to explicitly “exclude white people”, that misses the point of what such requirement are meant to achieve, said Eddy Ng, associate professor of Equity and Inclusion in Business at Queen’s University.
Affirmative action: EDI hiring inclusive, not exclusive
It’s not about excluding or discriminating, it’s about opening space for underrepresented groups, said Ng.
And, it’s completely legal; the requirements in these postings follow guidelines for special programs under the Ontario Human Rights Commission, as well as the Federal Contractors Program under the Employment Equity Act which requires entities with contracts with the federal government of over $10 million to comply.
“Universities receive a lot of federal grants, research grants for $10 million, and all the universities have to comply,” said Ng, explaining that areas that are systemically and historically prone to underrepresentation by minority groups are required to conduct thorough market research when hiring, and to report that research to the government.
Fixing historical under-representation
Private organizations that wish to apply affirmative action in their hiring policies are, for the most part, free to do so, says Jensen Leung, employment lawyer with KSW Lawyers in Surrey, B.C.
“Typically, when those hiring policies are implemented, they’re aimed not at discrimination against individuals who don't fit that criteria, but rather it is seen as a form of corrective action to help address inequality,” he told HRD. “If it's implemented in a way that's targeted at essentially fixing a historical under-representation of a certain demographic in that type of role, then generally speaking, that's going to be allowed.”
Provincial human rights tribunals typically find in favour of employee rights if ever a human rights complaint is filed concerning discriminatory hiring, Leung said. However, it is important to ensure job postings are carefully worded to prevent any possible discrimination claims.
“This is a sensitive topic in general, with people who feel pretty strongly on both sides, so for employers, it makes sense to approach this relatively delicately. When in doubt, talking to a lawyer early on is almost always going to be less expensive than talking to a lawyer after something has happened,” he said.
Leung also advises to keep job postings as general as possible when identifying affirmative action procedures.
However, human rights tribunals generally accept that affirmative, or corrective action in hiring practices in the private sector have positive impacts on society, and therefore any claims of discrimination against an employer who is implementing such policies are rare, he said.
“As a general rule, I think that affirmative action programs are ones that will be supported by the Human Rights Tribunal, both at the provincial and federal level, because of the recognition that, generally speaking, these programs are geared towards fixing systemic underrepresentation. And that because of that they're a net positive to society,” said Leung.
Provide tools to support employees from minority groups
However, aiming for closing gaps in job inequities is just one part of the equation, said Ng, as many organizations still have systemically discriminatory systems within them that are only visible to minority employees.
“It could be subgroups, invisible power structures, or who gets invited out for lunch networking opportunities,” he said. “As a case in point, who gets promoted? Somebody who did really well on the highly visible assignment. Who gets the opportunity to do a highly visible assignment? Generally, middle-aged white men.”
To counter these effects, organizations need to analyse the metrics around more than who they are hiring, Ng said. This includes who is being laid off; when there are company-wide layoffs, who gets laid off first. Also, when there is involuntary separation or people from under-represented groups quit, finding out why.
“Those are important metrics that employees could do, to ensure that we didn't just bring them in so they’re all stuck on the bottom,” he said, adding that employees can quickly spot when EDI efforts have been performative.
Authenticity is important when advertising jobs that are aiming to achieve proportional representation, Ng said, explaining that historically, organizations have used the business case as a reason to hire underrepresented groups, but this tactic can lead to individuals from those groups feeling tokenized.
“It doesn't take long after joining an organization that was really welcoming in the glossy brochures, but pretty soon you go, ‘Wait, all the managers are still middle-aged white males,’” he said. “You need to create an inclusive climate, but you also need to provide the tools in order to help them succeed.”
“Instead, you should say it's the right thing to do.”
