Canadian HR Reporter Weekly

3 Canadian HR Reporter, a Thomson Reuters business 2018 February 21, 2018 process if diversity is an issue and determine where racialized barriers exist. Blind screening and employing a more diverse hiring committee are tools more and more employers are using to address lack of diversity." However, the chances of a court or tribunal actually declaring the practice illegal are low, said Gatchalian. "I don't see a human rights commission taking such a complaint or any such complaint being successful because (of ) the exception for employment equity programs — it doesn't say that in the human rights act, it says, 'ameliorative' program," she said. Legal precedents A precedent to this type of discriminatory hiring practice was established in 1987, with CN v. Canada (Canadian Human Rights Commission), where the Supreme Court of Canada considered a complaint against CN Rail about systemic discrimination against women and women be- ing severely underrepresented in blue-collar jobs. "e human rights tribunal in that case ordered CN to hire one woman for every four jobs until they reached a certain percentage in the workforce," said Gatchalian. e Supreme Court also "talked about the importance of providing substantive equality for disadvantaged groups, and upheld that order by the human rights tribunal under the Canadian Human Rights Act," said Gatchalian. "is is a movement that will keep going until we achieve acceptable levels of employment equity." Dalhousie University wants to get out in front of its staffing issues by only allowing certain individuals to apply, and the courts should back the effort, said Martin. "It can support what Dalhousie is trying to do as a proactive measure. And we see the courts are certainly prepared to sanction such programs. And I expect any challenge to Dalhousie's program will not be successful, given the legislation and the court's desire or inherent authority to order such programs," he said. "It'd be odd that a court would not support Dalhousie's decision when, in the past, they've sanctioned these very types of programs." Another case that also suggests Dalhousie is well within its rights is the 1999 British Columbia (Public Service Employee Relations Commission) v. BCGSEU or the "Meiorin" case, said Martin. "In this case, the Supreme Court held that employers designing workplace standards owe an obligation to be aware of both the differences between individuals and differences that characterize groups of individuals. And… the court held that employers must build conceptions of equality into workplace standards," he said. "In both of those cases, we have the courts signalling that employers are to take these measures and certainly in the (CN v. Canada) case, the court upheld the Canadian Human Rights Tribunal decision to impose such a hiring program on the employer." Governments have also weighed into the debate about establishing more diverse workplaces, said Martin. "Since 1996, the Employment Equity Act has required employers to take progressive measures, including reviewing barriers and planning to achieve equity for four designated groups that are defined on that act, and those four designated groups are women, Aboriginal people, members of visible minorities and persons with disabilities," he said. "ey have a commitment to compliance with the Federal Contractors Program which falls under the Employment Equity Act and this program requires employers with at least 100 employees who do business of $1 million or more with the federal government to achieve and maintain a workforce that is reactive of the labour market for the four designated groups." Excluding candidates But could otherwise qualified candidates be excluded if Dalhousie continues this practice? Absolutely, said Chaudhri. "My guess is that leadership positions at Canadian universities are scarce and that there are a limited number of candidates that are even qualified to apply. e goal of increasing diversity should run parallel and not in opposition to finding the best candidate for the role. Revisiting selection criteria and encouraging more candidates to apply with more diverse backgrounds is likely the better approach." But this targeted approach will benefit the university, said Gatchalian. "It's only going to attract and retain employees and students from racialized and Indigenous groups, if those individuals in those groups can see themselves reflected in the workforce and, in particular, in the leadership of the university." It's an appropriate response, said Martin. "It shows that Dalhousie certainly takes seriously these types of issues, and is willing to take proactive steps to remedy these types of situations and I think that they should be applauded for doing so." It shows that Dalhousie University certainly takes these types of issues seriously." ON THE COVER Dalhousie University in Halifax. "This is a movement that will keep going until we achieve acceptable levels of employment equity," said Halifax lawyer Gail Gatchalian, citing the recruitment by Dalhousie (pictured). Credit: Google Street View

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