LORNE FOSTER SCHOOL OF PUBLIC POLICY AND ADMINISTRATION DEPARTMENT OF EQUITY STUDIES

HUMAN RIGHTS IN THE PUBLIC SECTOR

UNDERSTANDING THE CANADIAN HUMAN RIGHTS ANTI-DISCRIMINATION MODEL

LORNE FOSTERSCHOOL OF PUBLIC POLICY AND

ADMINISTRATION

DEPARTMENT OF EQUITY STUDIES

Table of Contents

Introduction Canada’s Human Rights Agenda Protected Grounds and Protected Social

Areas Equality and Discrimination in a modern

Canadian Context Public Sector Employment New Public Management Theory and the

Human Rights Paradigm

2 Foster – Human Rights & Public Sector

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Importance of Human Rights

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

Foster – Human Rights & Public Sector

Foster – Human Rights & Public Sector 4

Rights Scaffolding in Canada

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.

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.

Foundations of Human Rights


United Nations Declaration of Human Rights

Canadian Chart of Rights and Freedoms

Canadian Bill of Rights 1960

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Charter of Rights and Freedoms

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:

• 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]


Canadian Bill of Rights

Canadian Bill of Rights, which was enacted in 1960. However, the Bill of Rights was only a federal statute, rather than a constitutional document.

Limited in scope

Easily amendable by parliament

No application to provincial laws.

The Supreme Court Of Canada also narrowly interpreted the bill of rights and the court was reluctant to declare laws inoperative.

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)).

Racial Discrimination Act, 1944Fair Employment Practices Act, 1951

Fair Accommodation Practices Act, 1954

Ontario Human Rights Code, 1962


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Protected Grounds Are 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.


Protected Social Areas Are

The Code requires equal treatment in:

1. Accommodation (housing)

2. Contracts

3. Employment

4. Services

5. Vocational associations (unions).

Human Rights Act

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.

11 Foster – Human Rights & Public Sector


Complementarities Of The Charter and Human Rights Codes

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].


What is Equality?Section 15 of the Charter states that:

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"


What is Substantive Equality

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

The objective: Equity (fairness & representation) in employment

and services (through inclusive design & barrier removal)


What is Discrimination

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


Examples of Discrimination

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.


What is Discrimination?

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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Equal Treatment With Respect To Employment

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 co-workers and supervisors.


Human Rights Commissions and Employment

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.


Other Workplace Legislation

“Formal barriers” to discrimination and income equality:

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]


Informal Covert and Hidden Barriers

Human Rights Codes go beyond formal, overt, blatant adverse, systemic discrimination to address:

Constructive DiscriminationPoisoned EnvironmentHarassment

I. Sexual

II. Racial

III. General (i.e. bullying or personal harassment).


The Employers Obligation

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.


What is the Public Sector in Canada

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


Public Sector Employment in Canada


Public Sector Employment in CanadaRolling Back of the State

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


The Ratio Of Public Employment

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.”


Values And Ethics Code For The Public Sector – Benchmarking

Canada Palestinian Authority (NDP)

(I) Respect For Democracy,

(II) Respect For People,

(III) Integrity,

(IV) Stewardship

(V) Excellence – [professionalism]

(I) Transparency

(II) Performance [measurable targets]

(III) Partnership

(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


New Public Management Theory

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.


Public Sector Workers in Canada


Public Sector Employment in Ontario



Public Employment As A Share of Total Employment

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.



Human Rights Paradigm vs. New Public Management

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


Historical Hiring Practice Of The Federal Government

An internal audit report in 2002 conducted by the Research Division of the Public Service Commission found:

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.

51% of placements it was unable to conclude competency and fairness were respected, because key documents were missing


Historical Hiring Practice Of The Federal Government (Con’t)

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

Managers had prepared lists of possible candidates when no competition was ever held

Managers list job qualifications in such a specific way that employees can accurately predict who in the office will get the job.


Contemporary Pubic Sector Employment Problems

Issues of concern pertaining to representation and recruitment of women, persons with disabilities, visible minorities and aboriginal peoples.

Concerns expressed regarding the public service commission’s new method for calculating recruitment rates [e.g., over 25% hires through non-postings].

Some improvement, but continuing scarcity, of members of visible minority groups in executive positions.

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.


People Tend to Hire People Like Themselves

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. 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’

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.


Contemporary Human Rights Workplace Tools

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

The Human Rights Maturity Model

Discrimination Prevention Program

Accessibility For Ontarians With Disabilities Act, 2005 – [(I) Customer Service (Ii) Employment (Iii) Information And Communications (Iv) Transportation (V) Design Of Public Spaces

Canadian Experience Policy

Accommodation Policy*


Steps To An Inclusive Workplace

o Diversity

o Cultural

Competence

o Equity

o Anti-racism/

Oppression

Is about efficiency

Is working effectively in cross-cultural situations

Involves addressing systemic discrimination, historical disadvantage, representativeness

Is about proactively removing ‘isms’ and the oppression / discrimination they cause

Human Rights Framework for Diversity

HUMAN RIGHTSPrinciples & Law

EQUITYDIVERSITY

GOAL:Inclusivity +

Cultural Competence

ANTI-RACISM /ANTI-

OPPRESSION


Documents

LORNE FOSTER SCHOOL OF PUBLIC POLICY AND ADMINISTRATION DEPARTMENT OF EQUITY STUDIES