Systemic Discrimination in Employment and the Promotion of Ethnic Equality (International Studies in Human Rights)

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Systemic Discrimination in Employment and the Promotion of Ethnic Equality

International Studies in Human Rights volume 91

Systemic Discrimination in Employment and the Promotion of Ethnic Equality

by

Ronald Craig

MARTINUS NIJHOFF PUBLISHERS LEIDEN / BOSTON

A C.I.P. record for this book is available from the Library of Congress.

Printed on acid-free paper.

ISBN 10: 90 04 15462 0 ISBN 13: 978 90 04 15462 9 © 2007 Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishers, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. Printed in the Netherlands

Contents Chapter One Introduction ...................................................................................................... 1.1. Background and Aim of the Study ............................................................ 1.2. Sources of Law and Method .................................................................... 1.3. Barriers for Ethnic Minorities in Employment: Stories, Surveys, Studies and Statistics ................................................................................ a. Introduction .......................................................................................... b. Statistical Data ...................................................................................... c. Discrimination Testing ........................................................................ d. Laboratory Experiments ...................................................................... e. Research into Actions of “Gatekeepers” .............................................. f. Surveys ................................................................................................ g. Formal Complaints .............................................................................. h. Conclusion ............................................................................................

1 1 7 13 13 17 18 19 20 21 21 21

PART I Chapter 2 The Concept of Discrimination ........................................................................

25

2.1. Overview .................................................................................................. 2.2. Direct Discrimination .............................................................................. a. Comparable Circumstances .................................................................. b. Causal Link to Statutorily-Protected Characteristics ............................

25 33 33 34

vi

2.3.

2.4. 2.5.

2.6.

Contents c. Justiﬁcation Defenses and Exceptions .................................................. d. Critique of the Concept of Direct Discrimination ................................ Finding a comparator ............................................................................ Assimilation: Forcing the complainant to be like the comparator ........ No minimum content of fairness .......................................................... Indirect Discrimination .............................................................................. a. Introduction .......................................................................................... b. USA ...................................................................................................... c. Canada – From Bifurcated Analysis to Uniﬁed Approach .................. d. European Union .................................................................................... e. Selected Statutory Deﬁnitions of Indirect Discrimination: Great Britain, Northern Ireland and Australia ...................................... f. Norway ................................................................................................ g. European Convention on Human Rights .............................................. h. Selected United Nations Human Rights Instruments .......................... International Covenant on Civil and Political Rights (CCPR) ............ International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) ...................................................... International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) ...................................... Discriminatory Intent and Discriminatory Effect ...................................... Ethnic Discrimination .............................................................................. a. Introduction .......................................................................................... b. Race and Ethnic Origin ........................................................................ c. National Origin .................................................................................... d. Color .................................................................................................... e. Descent ................................................................................................ Conclusion ................................................................................................

Chapter 3 Systemic Discrimination in Employment ........................................................ 3.1. Systemic Discrimination in General ........................................................ 3.2. The Nature of Systemic Discrimination in an Employment Context ........ a. Introduction .......................................................................................... b. Action Travail des Femmes v. Canadian National Railway ................ c. National Capital Alliance on Race Relations (NCARR) v. Health Canada .................................................................................................. d. Summary of Mechanisms of Systemic Discrimination in the Action Travail des Femmes and National Capital Alliance Cases .................. e. Harassment and Hostile Work Environment (Poisonous Work Environment) ........................................................................................ f. Use of Recruitment Methods that Perpetuate Underrepresentation ...... g. Selection Criteria: Employment Tests That Are Not Job-Related ........

34 38 39 39 40 41 41 43 47 53 57 61 64 67 67 67 71 72 77 77 78 82 84 85 85

91 91 93 93 96 99 102 103 106 107

Contents h. Unguided Subjective Criteria, Unstructured Interviews and Differential Questioning ...................................................................... i. Unclear Selection Criteria .................................................................... j. Stereotyping in Performance Appraisals and Allocation of Work Assignments ........................................................................................ 3.3. Deﬁnition and Characteristics of Systemic Discrimination in Employment – And Thoughts on a Proper Response ................................ 3.4. Conclusion ................................................................................................ Chapter 4 The Limits of Complaint-Based Approaches in Addressing Systemic Discrimination in Employment ...................................................................... 4.1. Introduction .............................................................................................. 4.2. The Failure to Capture Discrimination that Does Not Result in a Formal Complaint .................................................................................. 4.3. The Individualization of Discrimination in Complaint-Based Approaches .......................................................................................... 4.4. The Difﬁculties in Proving Discrimination in Complaint-Based Approaches .......................................................................................... 4.5. Complaint-Based Approaches Cannot Bring about Organizational Transformation ............................................................ a. Introduction .......................................................................................... b. Traditional Remedies in Complaint-Based Approaches are not Transformative .................................................................................... c. The Remedy of Court-Ordered Employment Equity Programs is an Inadequate Response to Systemic Discrimination in Employment ........................................................................................ d. Complaint-Based Approaches Breed Hostility which is CounterProductive to Organizational Transformation ...................................... 4.6. Conclusion ................................................................................................

vii

108 111 112 115 124

125 125 128 133 138 151 151 152

155 157 158

Chapter 5 Ethnic Equality in Employment ........................................................................

161

5.1. Introduction: Formal and Substantive Equality ........................................ 5.2. Equality Before the Law and the Equal Protection of the Law ................ 5.3. Ethnic Equality in Employment ................................................................

161 164 167

viii

Contents PART II

Chapter 6 Proactive Obligations to Promote Equality in Employment: An Introduction

173

6.1. Introduction .............................................................................................. 6.2. Terminological Clariﬁcation ......................................................................

173 175

Chapter 7 Statutory-Based Proactive Obligations to Promote Equality in Employment: Five Approaches ..............................................................................................

181

7.1. Canada ...................................................................................................... a. Introduction .......................................................................................... b. Obligations Imposed on Employers Under the Act .............................. c. Enforcement and Sanctions .................................................................. 7.2. Great Britain .............................................................................................. a. Introduction .......................................................................................... b. Obligations Imposed on Public-Sector Employers Under the Act and Order .................................................................................................... c. Enforcement and Sanctions .................................................................. 7.3. Northern Ireland ...................................................................................... a. Introduction .......................................................................................... b. Northern Ireland Act 1998 .................................................................... c. Obligations Imposed on Public-Sector Employers Under the Act and Schedule 9 ............................................................................................ d. Enforcement and Sanctions under the Act and Schedule 9 .................. e. The Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO) ................................................................................................ f. Proactive Obligations Imposed on Public and Private Employers Under FETO ........................................................................................ g. Enforcement and Sanctions regarding the Employer’s Proactive Obligations under FETO ...................................................................... 7.4. Sweden ...................................................................................................... a. Proactive Obligations Imposed on Public and Private Employers Under the Act on Measures against Ethnic Discrimination in Working Life ...................................................................................................... b. Enforcement and Sanctions .................................................................. 7.5. Norway ...................................................................................................... a. Introduction .......................................................................................... b. Obligations Imposed on Public- and Private-Sector Employers under the Gender Equality Act ............................................................ c. Enforcement and Sanctions ..................................................................

181 181 182 185 187 187 188 191 192 192 192 194 196 197 197 200 201

201 203 205 205 206 208

Contents

ix

Chapter 8 Contract-Based Proactive Obligations to Promote Equality in Employment: Four Approaches ..............................................................................................

209

8.1. Impact of European Union Treaty Law and Procurement Rules on the Use of Contract Compliance: Background Framework for Great Britain and Sweden .................................................................................. 8.2. Great Britain .............................................................................................. a. Historical Background .......................................................................... b. Initiatives by the Commission for Racial Equality .............................. c. Initiatives by Local Authorities ............................................................ d. Future Initiatives from Local Authorities ............................................ 8.3. Sweden ...................................................................................................... 8.4. United States .............................................................................................. a. Introduction .......................................................................................... b. Contractual Obligations Undertaken by the Contractor Pursuant to the Equal Opportunity Clause .............................................................. c. Enforcement and Sanctions .................................................................. 8.5. Canada ...................................................................................................... a. Introduction .......................................................................................... b. Contractual Obligations Undertaken by Contractors by the Certiﬁcate of Commitment to Implement Employment Equity ............ c. Enforcement and Sanctions .................................................................. Chapter 9 A Rational Government Policy Response to Systemic Ethnic Discrimination in Employment ........................................................................ 9.1. Introduction and Scope ............................................................................ a. Introduction .......................................................................................... b. Scope of this Chapter ............................................................................ 9.2. General Overview of the Proactive Obligation Regimes .......................... 9.3. Do the Obligations Imposed on Employers Address the Problem in All of its Dimensions? .............................................................................. a. Introduction .......................................................................................... b. Diagnostic Actions: The Identiﬁcation of Barriers to Ethnic Equality in Employment ...................................................................... c. Remedial Actions ................................................................................ d. Facilitative Actions .............................................................................. Management commitment and accountability, communication and consultation .......................................................................................... Preparation and implementation of an equality plan ............................ Numerical goals and timetables ............................................................ Employer monitoring and review of progress; Revision ...................... e. A Word on the Remainder of this Chapter ............................................

209 214 214 217 218 222 223 226 226 227 231 233 233 233 235

237 237 237 241 245 248 248 249 254 257 257 261 264 268 269

x

Contents

9.4. The Speciﬁcity of Obligations and the Ability to Assess Compliance ...... 9.5. Guidance and Technical Assistance to Employers .................................... 9.6. The Monitoring of Compliance and Application of Regulatory Pressure .................................................................................................... 9.7. Sanctions for Non-Compliance ................................................................ 9.8. A Brief Word on Contract-Based Regimes vs. Statutory-Based Regimes .................................................................................................... 9.9. Conclusion ................................................................................................

269 273 277 285 289 291

Chapter 10 Conclusion ........................................................................................................

299

Bibliography ....................................................................................................

311

Index ................................................................................................................

323

Foreword This book is essentially an unchanged version of my doctoral thesis, delivered to the Law Faculty of the University of Oslo for the degree of dr. juris in law. It was delivered in May 2005 and is a reﬂection of the law at that time. The thesis would not have been possible without the ﬁnancial support of the Norwegian Research Council and the administrative, professional and moral support of my colleagues and friends at the Norwegian Centre for Human Rights. The feedback received during the presentations of particular chapters for the Legal Science Group of the Centre has been of invaluable help. Thanks to these and particularly to the staff of the Centre’s library – all of whom have gone far beyond the call of duty in providing me with the research materials needed. My heartfelt thanks go ﬁrst and foremost to my supervisor, Anne Hellum. Discussions with Anne have been central in helping me to ﬁnd my bearings between the two worlds of social science and law. Her comments have been incisive and instrumental in pointing out my lacunas. Her guidance and assistance have helped me to see more clearly the path ultimately taken, and her moral encouragement has been unsurpassed. I would also like to thank Martin Scheinin who read several chapters and provided me with necessary critical comments. Martin allowed me to pick his brain on many topics of discrimination and every time it added more lights to my own understanding. I would also like to thank all of the various equality bodies, government agencies and academic institutions that I have visited in connection with the thesis. They have provided me with much of the materials used in this thesis, and the persons interviewed have given me many hours of their time to help me get greater insights into the antidiscrimination laws and proactive obligation regimes that are the subject of this thesis. My thanks also go to the Norwegian Centre for Combating Ethnic Discrimination and its staff, with whom I have discussed discrimination issues over the years. Their support and encouragement have been a source of strength. I thank also the China

xii

Foreword

Programme at the Norwegian Centre for Human Rights for giving me the opportunity to further develop my ideas on the concept of discrimination and to present my ﬁndings for a group of Chinese scholars working with discrimination. I thank Lisa Stearns, the project leader of the China Programme, for her comments on the chapter on the concept of discrimination. The committee reviewing the thesis (Professors Hans Petter Graver, Titia Loenen and Ann Numhauser-Henning) also provided me with invaluable comments and insights. I thank the committee for this assistance. Finally, I would like to thank my wife, Lill Scherdin, who regularly spent her early morning hours discussing with me the intricacies of this thesis. The insights from those discussions were very often the impetus I needed to come one more step along the way. I also thank her, my daughter Mira and my son Marcus for giving me many other things to think about these last three years. Ronald Craig

Chapter 1 Introduction 1.1. Background and Aim of the Study Discrimination persists. Despite the many efforts to address discrimination – despite the adoption of antidiscrimination laws forbidding discrimination – despite the granting of legal remedies to victims of discrimination – despite the many campaigns and demonstrations – despite the media focus and the visible and disquieting consequences of underclass, marginalization and parallel societies – despite all this – discrimination persists. Ethnic discrimination is prohibited in nearly every major international human rights treaty adopted. Wars have been fought because of it; atrocious acts of genocide committed. The very term ethnic discrimination conjures pictures of apartheid in South Africa, segregation in the southern part of the USA – societies where inequality was stiﬂing and life-threatening. Closer to home we sometimes read or hear about ethnic minorities refused entry to nightclubs, the “no gypsies” signs at camping places, the job exchange that was requested to send only ethnic majority workers, the highly qualiﬁed engineer who was never called into interview until he changed his foreign-sounding name to a local name. Our notion of ethnic discrimination is framed by these pictures – overt, intentional acts of prejudice. It is easy to see the agents of these actions as bad apples and to view their actions as aberrant and isolated. In doing so, ethnic discrimination becomes less relevant for us in our own backyards, in our own workplaces where we know such people don’t exist. What is more, we lose sight of the more subtle forms of discrimination – actions inﬂuenced by non-conscious stereotypes and bias, and “neutral” rules applied to everyone, but which have unjustiﬁable disproportionate

2

Chapter 1

group impact. We don’t recognize them; we don’t view them as discrimination. They are woven into the fabric of the system or institution. They entail advantage for some and disadvantage for others. But those advantages and disadvantages are invisible without the help of statistical data or other special lenses. For most at the workplace, it is simply the way we have traditionally done things. A challenge to such workplace traditions is often viewed as disloyalty or even troublemaking. This thesis is about ethnic discrimination in employment.1 It is about a kind of discrimination often termed systemic, structural or institutional discrimination. It is about the difﬁculty and limits in addressing systemic discrimination in employment through traditional complaint-based approaches to antidiscrimination, and it searches for a rational government policy response to systemic ethnic discrimination in employment. In doing so, this thesis evaluates selected legal regimes that impose proactive obligations on employers to promote equality at the workplace. The thesis starts (in chapter 2) with a discussion of the concept of discrimination; for it is my experience that most people do not have a clear understanding of what discrimination is. Many mistakenly assume that so long as they treat all persons the same, then they do not discriminate. Others believe that it is only the actions of those who intentionally treat people differently on the basis of prejudice.2 In light of such misunderstandings, this thesis must lay some groundwork for a common understanding of the concept of discrimination. That common understanding should start here. As a start, one can say that discrimination is an unjustiﬁable difference in treatment or effect causally linked to a statutorily-prohibited ground. The common core of the concept of discrimination is important, not only to understand the working and effectiveness of antidiscrimination laws, but also to forge a common understanding of what it is that is sought to be eliminated by such laws. Two important sub-concepts, direct discrimination and indirect discrimination, have greatly helped in understanding the nature of discrimination. Direct discrimination is much more readily understood by people. It consists of a person receiving less favourable treatment than others in comparable circumstances, where that treatment is both unjustiﬁable and causally linked to a statutorily-prohibited ground. The greatest part of chapter 2, however, focuses on the development of the concept of indirect discrimination – the notion that “neutral” rules or practices which unjustiﬁably lead to dis-

1 2

Self-employed persons and own-account workers fall outside the scope of this thesis. These distorted perceptions of discrimination inﬂuence public opinion concerning the signiﬁcance and prevalence of ethnic discrimination as a societal problem. For example, in sharp contrast with research ﬁndings on discrimination, public opinion surveys taken in the USA show that many whites believe that ethnic discrimination is “largely a thing of the past.” In a national survey only 37 percent of whites believed that a black applicant who is as qualiﬁed as a white applicant would be less likely to get a job for which both applied. More than 80% black respondents believed the black applicant would be less likely to get the job. See Marc Bendick, “Adding Testing to the Nation’s Portfolio of Information on Employment Discrimination” in A National Report Card on Discrimination in America: The Role of Testing, edited by Michael Fix and Margery Turner (Washington, D.C.: The Urban Institute, 1998), 54.

Introduction

3

proportionate group impact, is discrimination. This concept has been particularly helpful in making visible some of the more subtle forms of discrimination, and as we shall see later plays a signiﬁcant role in understanding systemic discrimination in employment. It will not be possible, however, to examine all aspects of the concept of discrimination with the same amount of thoroughness.3 This aspect of the law of discrimination (in contrast with systemic discrimination issues) is already well-developed in legal literature. Nor is an exhaustive account necessary for the purpose of this thesis. My purpose is primarily to give the reader a sufﬁcient understanding of the concept so as to lay the groundwork for a subsequent understanding of the notion of systemic discrimination and the mechanisms and characteristics which make it difﬁcult to address. The notion of systemic discrimination in employment (the subject of chapter 3) builds upon the concept of discrimination; it does not compete with it. Many articles and books on discrimination pay a kind of lip service to systemic discrimination. It is often mentioned in a paragraph or two without any greater explanation than its connection to structure, system or institution. I submit that systemic discrimination in employment is made up of individual acts of discrimination or “neutral” rules with discriminatory effect, which form a pattern which reﬂects an organizational culture or administrative structure which condones or tolerates such acts – or permits such acts to go undetected and as a result to ﬂourish.4 I attempt to draw from selected judicial decisions (and occasionally from social science studies) an understanding of the mechanisms and characteristics of systemic discrimination. It is precisely these mechanisms that make systemic discrimination difﬁcult to address by way of traditional antidiscrimination law. At the same time, it is these mechanisms and characteristics which can inform employers of the kinds of preventive action that may be taken to alleviate systemic discrimination at the workplace. Countries have responded to the problem of ethnic discrimination by adopting antidiscrimination laws. Two basic elements of most antidiscrimination laws are that they prohibit discrimination and provide a legal remedy for victims of discrimination. This legal remedy is usually enforced by a court, a tribunal or an administrative enforcement agency. This traditional model of antidiscrimination law presupposes that victims of discrimination will come forth. In the employment discrimination and ethnic discrimination contexts, it presupposes that the victim of discrimination will accuse his

3

4

The employer’s justiﬁcation defense to allegations of discrimination is an example. Although I discuss the various justiﬁcation tests used and give a few examples, one could indeed analyze the acceptance of justiﬁcation defenses by courts and tribunals in many various and different types of factual contexts. Such an in depth discussion would be outside of the scope of this thesis. My working deﬁnition of systemic discrimination in employment is built upon the work of Carol Agocs in “Systemic Discrimination in Employment: Mapping the Issue and the Policy Responses,” in Workplace Equality: International Perspectives on Legislation, Policy and Practice, edited by Carol Agocs (The Hague: Kluwer Law International, 2002). See chapter 3 for more details.

4

Chapter 1

employer or fellow employee of ethnic discrimination, ﬁle a complaint with the appropriate enforcement body and pursue his or her case to judgment. This thesis refers to this model as the complaint-based model of antidiscrimination law. This thesis has as its hypothesis that the complaint-based model of antidiscrimination law, standing alone, is an inherently inadequate mechanism for responding to systemic discrimination in employment. I support this hypothesis in chapter 4. So as not to be misunderstood, I want to make it clear that I am not opposed to the complaint-based model of antidiscrimination. It plays a signiﬁcant role in human rights by providing victims of discrimination with an avenue for legal redress. States are indeed obligated to provide this legal redress under the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD), the International Covenant on Civil and Political Rights (CCPR) and the European Convention on Human Rights (ECHR). Moreover, the judicial decisions rendered in connection with the discrimination complaints ﬁled pursuant to these laws, help to develop the law of discrimination. The development of the concept of indirect discrimination is a good example of this. Thus, I would strongly oppose any attempt to abolish or weaken complaint-based models of antidiscrimination law. This thesis merely proposes that something more is needed to adequately respond to systemic discrimination in employment. And in Part II of this thesis I search for a rational government policy response that can adequately address the more narrowly focused concept of systemic ethnic discrimination in employment. I use the term systemic ethnic discrimination to refer to systemic discrimination which is connected to race, ethnic origin, national origin, color or descent.5 Furthermore, I use the terms ethnic equality in employment and systemic ethnic discrimination in employment as positive and negative ways of speaking of the same phenomenon. Ethnic equality in employment is of course informed by an understanding of systemic discrimination in employment. In chapter 5, I give expression to this more narrowed positive aim; I give expression to the meaning of ethnic equality in employment. One may question why I narrow the focus to systemic ethnic discrimination in employment. Part I of this thesis focuses on systemic discrimination in employment in general. I have used examples of systemic (ethnic) discrimination, as well as examples of systemic (gender) discrimination and systemic (religious) discrimination, to help understand the general concept of systemic discrimination in employment. Given the dearth of legal literature on systemic discrimination in employment generally, I felt the need to ﬂesh out this concept in general so as to better understand systemic ethnic discrimination in particular. In evaluating the capability of proactive regimes in addressing systemic discrimination, however, I narrow my focus to a search for a rational government policy response to systemic ethnic discrimination in employment. Why? First, the more narrowed focus has helped to keep this thesis within a reasonable length, Secondly, a broader focus would necessarily have entailed the examination of a greater number of proactive regimes, given that several other European countries have proactive regimes that promote gender equality. Thirdly, although there is a great deal of overlap here, there may indeed be differences in the elements that are essential in addressing the various grounds of systemic discrimination. For example, addressing 5

See section 2.5 for a discussion of these terms.

Introduction

5

systemic (disability) discrimination would (more than the other grounds) seemingly require proactive mechanisms for individualized reasonable accommodation. In addition, the collection of gender data on employees is a routine, unproblematic means of addressing systemic (gender) discrimination, whereas the collection of ethnic data is very problematic in some countries. For these reasons my search for a rational policy response is limited to addressing systemic ethnic discrimination in employment. In my search, this thesis examines legal regimes in selected countries which impose proactive obligations on employers. That is, employers are not merely obligated to passively avoid discrimination; they are obligated to undertake preventive steps. The obligation does not depend upon any allegation or ﬁnding of discrimination. Thus, there is no presumption that victims of discrimination must come forth. These proactive regimes are regulatory in nature, rather than adjudicatory in operation. They induce employer compliance largely through assistance and negotiation, rather than court orders. These proactive obligation regimes are complementary to the complaint-based approaches to antidiscrimination adopted in these countries. I introduce the two main types of proactive obligation regimes in chapter 6. Some countries have adopted statutory-based proactive obligations, while other countries have adopted contract-based proactive obligations. The former involves an obligation in the form of statutory law which imposes obligations on employers to carry out certain steps to promote equality. There is usually some form of sanction for failure to comply and most often a speciﬁc enforcement body to supervise compliance. The latter involves the use of the public procurement process as an incentive to employers to promote (ethnic)6 equality. The idea is not very complicated: If an employer wants to sell goods, services or construction works to the government, then that employer must undertake certain proactive steps in the promotion of (ethnic) equality. Different countries use different terminology in reference to these proactive obligations. In the USA the term afﬁrmative action is used, while in Canada the term employment equity is used. However, the term afﬁrmative action has for many people negative connotations; for some, it is synonymous with preferential hiring and quotas. None of the proactive obligation regimes examined in this thesis requires preferential hiring, preferential promotions or the use of quotas. For this reason and others (see section 6.2), this thesis uses the more generic term proactive obligations. This term, as used in this thesis, does not require preferential hiring, preferential promotions or the use of quotas. Five legal regimes entailing statutory-based proactive obligations for employers are presented in chapter 7. Canada, Great Britain,7 Northern Ireland,8 Sweden and Norway

6

7

8

Although most of the proactive obligation regimes examined in this thesis are adopted to promote, among other things, ethnic equality, some of the regimes are designed to promote other types of equality, for example, gender equality (Norway) or religious equality (Northern Ireland). Thus, I use parentheses around the word ethnic. The latter regimes are, however, examined in this thesis because they also help to shed light on the most effective ways that a proactive regime can be used to promote ethnic equality. Great Britain is used throughout this thesis to refer to England, Scotland and Wales, while United Kingdom or UK is used to refer to Great Britain and Northern Ireland. Northern Ireland has two separate statutory-based regimes. See section 7.3 for an explanation.

6

Chapter 1

have adopted such regimes. Four legal regimes entailing contract-based proactive obligations for employers are presented in chapter 8. The USA, Canada, Great Britain and Sweden have such regimes. Chapter 9 poses the question: What is a rational government policy response to systemic ethnic discrimination in employment? It searches for what key elements of proactive regimes are signiﬁcant for the promotion of ethnic equality. There are two separate inquiries. First, I assess whether the obligations imposed on the employer (i.e., the internal equality program) by the various proactive regimes address the problem of systemic (ethnic) discrimination in employment in all of its dimensions. Secondly, I assess the institutional framework set up to aid and enforce employer compliance with the proactive regimes. This latter assessment inquires into: (1) the speciﬁcity of the obligations and its impact on the ability to assess compliance, (2) the institutional guidance provided to employers, (3) the institutional monitoring of compliance and (4) the application of regulatory pressure, and the sanctions for non-compliance. In chapter 10, I draw my conclusions for this thesis. What new does this thesis bring to the law of discrimination? There are three main things: First, I provide a more in-depth explanation of the concept of systemic discrimination in employment, including the presentation of ideal-typical situations of systemic discrimination in employment – giving a “face” to the many forms in which it is to be found at the workplace, and enabling me to characterize its mechanisms of operation. The signiﬁcance of these characteristics and mechanisms is two-fold. They become the guiding perspective in my assessment of the inadequacy of complaint-based approaches and in my assessment of the key elements which enable proactive regimes to address more effectively systemic discrimination in employment. Secondly, I bring greater depth to the discussion of the limits of complaint-based approaches by orienting this discussion speciﬁcally to the challenges of systemic discrimination in employment. Although the limits of complaint-based approaches have been well-recognized for some time, earlier discussions on these limits have focused on discrimination in general, i.e., not speciﬁcally on systemic discrimination in employment. Moreover, they have concerned problems generated from the substantive and procedural workings of the various antidiscrimination laws. The limits I discuss have less to do with the various substantive and procedural rules of the antidiscrimination law and more to do with the complaint-based model as a legal technique. Thirdly, my evaluation of the various proactive regimes in light of their capability in addressing systemic discrimination in employment, has not been undertaken before. The social science studies that have looked at the signiﬁcance of individual components of the regimes have all been concerned with one speciﬁc regime. Furthermore, they have not had the characteristics and mechanisms of systemic discrimination in employment as their guiding perspective. These studies would, for example, judge the signiﬁcance of a component of the regime by viewing its effect on the growth in employment for ethnic minorities. Although this is indeed important, it does not say much about that component’s importance for addressing ideal-typical barriers to ethnic equality. It is precisely this link between: (a) the speciﬁc challenges of systemic discrimination in employment (as identiﬁed in chapter 3) and (b) the key elements of proactive regimes (as assessed in chapter 9), which enables conclusions which have not previously been discussed or presented.

Introduction

7

1.2. Sources of Law and Method Legal protection against discrimination is to be found in: (1) international human rights treaties, (2) national constitutions (3) supranational rules, such as European Union directives and (4) national antidiscrimination laws and orders. The non-discrimination provisions in the former two sources often have a higher level of abstraction than in the latter two sources. There are also comparatively few decisions concerning discrimination rendered by international human rights treaty bodies. It is speciﬁcally on the national and supranational levels that one ﬁnds detailed rules regarding, for example, deﬁnitions of direct and indirect discrimination, the shifting of the burden of proof, the remedies available, etc. It is also pursuant to national antidiscrimination laws that many states have established equality bodies with the speciﬁc purpose of enforcing the non-discrimination provisions and making it easier for victims to obtain legal assistance and to redress their claims. It is here on the national level and pursuant to the national antidiscrimination laws that the vast majority of discrimination claims have been dealt with – by courts, tribunals and enforcement agencies. The national level is rich with court practice and administrative agency practice interpreting antidiscrimination laws. Thus, the development of discrimination law over the last 30 years has to a great extent taken place on the level of national antidiscrimination law. The European Union has inﬂuenced the development on the national level by requiring its member states to implement in their national laws a minimum level of protection against discrimination. The interpretation of national antidiscrimination laws are also inﬂuenced by interpretations of both constitutional law and international human rights treaties. However, the inﬂuence does not go just one-way. As will be seen later in chapter 2 the development on the national level has indeed inﬂuenced the interpretation of non-discrimination provisions in international human rights treaties. The development of the concept of indirect discrimination is a clear example of this. One thing is common for all four sources of legal protection against discrimination: They largely involve a complaint-based approach to antidiscrimination. In that this thesis questions the sufﬁciency of the complaint-based approach to antidiscrimination law it is natural that the thesis focus on those sources of law and countries where the greatest amount of development has occurred: on the level of national antidiscrimination law – also as inﬂuenced by EU law, constitutional law and international human rights treaties. It is particularly in my discussion of the concept of indirect discrimination that I assess its development in EU law (three Directives and decisions of the European Court of Justice) and in selected human rights treaties: The European Convention on Human Rights (ECHR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the International Covenant on Civil and Political Rights (CCPR) and the International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). I have also examined relevant decisions of the treaty enforcement bodies, as well as their general recommendations and comments. Part I of this thesis, which deals with the concept of discrimination, systemic discrimination, and the limits of complaint-based approaches, has largely been based on the legal developments in the following national antidiscrimination laws:

8

Chapter 1 Canada: Canadian Human Rights Act 1985 (federal only) [Prohibited grounds: race, national origin, ethnic origin, color, religion, age, sex, sexual orientation, marital status, family status, disability, conviction for which a pardon has been granted] USA: Title VII of the Civil Rights Act 1964 (federal only) [Prohibited grounds: race, color, religion, sex, national origin]9 Great Britain: Race Relations Act 1976 [Prohibited grounds: racial grounds, i.e., colour, race, nationality, ethnic origins, national origins] Australia: Racial Discrimination Act 1975 (federal only) [Prohibited grounds: race, colour, descent, national origin, ethnic origin] Sweden: Act on Measures against Ethnic Discrimination in Working Life 1999 [Prohibited grounds: ethnic background (i.e., national origin, ethnic origin, race, color), religion, other belief ] Norway: Act on Working Environment 1977 [Prohibited grounds: sex, religion, lifestand, color, national origin, ethnic origin, political opinion, sexual orientation, disability, age, membership in trade union] Act on Gender Equality 1978 [Prohibited ground: sex]

There are several reasons why Part I of this thesis has chosen to use as its sources of law speciﬁcally the antidiscrimination laws of these countries. The laws prohibiting ethnic discrimination in employment in the USA, Canada, Great Britain and Australia are the oldest among the developed countries. Much of the early development regarding the concept and proof of discrimination is a result of judicial decisions from the highest courts interpreting these laws. This is particularly the case regarding such questions as: What is required in order to prove discrimination? Is discriminatory intent a necessary element of proof ? Should neutral rules which have unjustiﬁable adverse effect be deemed discrimination (i.e., indirect discrimination)? Does the burden of proof ever shift to the employer or does it always remain on the complainant? Furthermore, there are a large number of discrimination cases decided by courts and tribunals pursuant to these laws. As a result there were many discrimination cases from which I could draw in order to illustrate my discussion, for example, when I characterize in chapter 3 the nature and mechanisms of systemic discrimination in employment. Although the antidiscrimination laws in Norway10 and Sweden,11 prohibiting ethnic discrimination, are comparatively much younger and less developed judicially, the leg9

10

11

Disability and age are also prohibited grounds respectively under the Americans With Disabilities Act 1990 and the Age Discrimination in Employment Act 1967. The Equal Employment Opportunity Commission enforces all three laws. The Act on Working Environment 1977 was amended in 1998 so as to provide legal protection against ethnic discrimination in employment. The Act on Measures against Ethnic Discrimination in Working Life 1999 was preceded by Act (1994:134) against Ethnic Discrimination.

Introduction

9

islatures drew on the experiences of other countries. Thus, answers to such questions as the shifting of the burden of proof and indirect discrimination are indeed codiﬁed in the text of the laws. Although these two laws are sometimes mentioned in Part I of this thesis, in order to show how widespread a particular interpretation or practice is, these laws factor very seldom in the discussion simply because there is so little judicial precedent interpreting them. The laws are too recent. In Norway I know of only two lower court cases dealing with ethnic discrimination in employment, while Sweden has had less than 8 cases alleging ethnic discrimination before the Labor Court. In contrast, the Norwegian Act on Gender Equality was adopted in 1978 and there exists a good deal administrative agency practice interpreting it. The Norwegian and Swedish laws are heavily inﬂuenced by the European Union Directives providing a minimum standard of protection against ethnic discrimination in employment, thus they also provide insight into how the EU Directives have been implemented nationally. As is apparent from the abovementioned seven laws, they vary in scope with respect to the prohibited grounds of discrimination. They also differ in scope regarding the areas of life regulated by the prohibition against discrimination, for example employment, education, provision of goods and services, or in general. It is natural that these differences exist. States differ as to the kinds and prevalence of discrimination in society. States also differ as to the moment in history when the various kinds of discrimination ﬁrst become acknowledged as a signiﬁcant problem to be addressed. For the USA and Great Britain, ethnic discrimination was the ﬁrst major initiative. For Canada, it was language discrimination. For Northern Ireland, it was religious discrimination. For Norway and Sweden, it was gender discrimination. The acknowledgement and focus on one type of discrimination, has often made it easier for legal developments to be applied in subsequent initiatives against other types of discrimination. Knowledge regarding one type of discrimination has helped to inform and inﬂuence the law regarding other types of discrimination. Moreover, these developments have not occurred in vacuums; states have looked to other states to learn from the experiences of those who have gone before them. Thus, despite the differences, there are many similarities in the laws, particularly with respect to the concept and proof of discrimination. Some states have clearly been inﬂuenced by other states when drafting their laws. For example, the British Race Relations Act is largely word-for-word the same as the Northern Ireland Race Relations Order. The Australian Racial Discrimination Act has clearly been inﬂuenced by Britain’s Race Relations Act: the deﬁnition of indirect discrimination is almost word-for-word the same. The Canadian and US laws have many similarities, particularly regarding the establishment of equality bodies to provide legal assistance to victims and to enforce the laws in general. Because of these similarities, particularly regarding the concept and proof of discrimination, it is possible to ﬁnd a common core, despite the differences in the scope of the laws. In doing so, one must however be aware of differences in the application of the law to concrete cases. For example, one could not conclude that all states involved would come to a particular result given a concrete set of facts. I refer to many judicial decisions throughout Part I of the thesis. Most of them are cases involving ethnic discrimination, but many of them involve gender discrimination and some even involve discrimination on grounds of religion, language or disability. I ﬁnd the cases on gender, religious, language and disability discrimination just as

10

Chapter 1

signiﬁcant and helpful as the cases on ethnic discrimination. Despite differences in the prohibited grounds, all of these cases help to explain the contents of the concept and proof of discrimination. Furthermore, gender discrimination cases have been particularly useful in helping to visualize the mechanisms and characteristics of systemic discrimination, as well, as the limits of complaint-based approaches in addressing systemic discrimination. Thus, this thesis readily uses discrimination cases, other than ethnic discrimination, where it ﬁnds that such cases may give better insight into the nature of discrimination in general. A better understanding of discrimination in general enables a better understanding of ethnic discrimination in particular. Although I often point out similarities and differences in the development of the various national antidiscrimination laws and in the judicial decisions interpreting them, the main purpose has not been one of comparison, but rather one of illustration. In chapter 2, I search for the common core (or the least common denominator) of the concept and proof of discrimination, in particular indirect discrimination. Although I criticize aspects of the concepts of direct and indirect discrimination, this statement of the common core is largely a lex lata exercise i.e., a statement of legal doctrine, if viewed from the perspective of the individual laws, treaties and EU directives examined. The ﬁnding of this common core, particularly for the concept of indirect discrimination, means that my later ﬁndings with respect to the concept of systemic discrimination in employment will have resonance. It is the position of this thesis that systemic discrimination in employment is comprised of direct and indirect discrimination which is linked to the administrative structure or organizational culture of the workplace. The ﬁndings regarding systemic discrimination in employment are in return necessary to understand the inadequacy of complaint-based models of antidiscrimination law. Chapters 3 and 4 are, however, signiﬁcantly different method-wise. Here, there is no systematic statement of legal doctrine. Indeed the term systemic discrimination is neither used in complaint-based antidiscrimination laws nor in the vast majority of judicial decisions on discrimination. Only a few decisions that have used the term, have accorded any speciﬁc legal (remedial) consequences to ﬁnding systemic discrimination. In chapters 3 and 4, I refer to discrimination cases (and some social science studies), not as any statement of the law, but rather as illustrative examples of how discrimination is linked to the administrative structures and organizational culture of the workplace. The concept of systemic discrimination in employment is thus a tool for a lex ferenda assessment of the adequacy of traditional complaint-based approaches in addressing such discrimination. In this regard, I am preparing the way for that which is to follow in Part II, which is also lex ferenda in approach: A search for a rational government policy response to systemic discrimination in employment. Part II of this thesis, which entails an assessment of various legal regimes imposing statutory-based and contract-based proactive obligations on employers, has used a different set of legal sources. The statutory-based proactive obligations are all based in statute law and, in several cases, with accompanied regulations. In Sweden, Norway and Great Britain these statutory-based obligations are to be found as legal provisions within their respective complaint-based antidiscrimination laws. The same is true with respect to one of Northern Ireland’s two statutory-based proactive obligation regimes. Canada, on the other hand, has a separate act authorizing its statutory-based proactive obligations. The contract-based proactive obligations have a more complicated set of

Introduction

11

legal sources. The obligations themselves stem from contract clauses or other documents which have become part of the contract or tendering process. However, the decisions to adopt such contract-based regimes are usually derived from executive orders, cabinet decisions or local government decisions. There are very few judicial decisions concerning statutory-based or contract-based regimes. The entire purpose of these proactive obligation regimes is to function in a non-adjudicatory setting. Both types of regimes use codes of practice, practical guidance, handbooks or other types of material to assist employers in the carrying out of their obligations. This practical guidance is of invaluable assistance, both in detailing the employer’s obligations and in providing best practice examples. The statutory-based proactive obligation regimes examined in Part II are derived from the following legal instruments: Canada: Employment Equity Act 1986 and accompanied regulations (federal only) [Shall promote equality for members of visible minorities, women, aboriginal persons and disabled persons] Great Britain: Race Relations Act 1976 and accompanied regulations [Shall promote racial equality] Northern Ireland: Northern Ireland Act 1998 [Shall promote equality between persons of different religious beliefs, political opinions, racial groups, ages, marital status, sexual orientation, sexes, between persons with and without disabilities, and persons with and without dependents] Fair Employment Treatment Order 1998 and accompanied regulations [Shall promote religious equality] Sweden: Act on Measures against Ethnic Discrimination in Working Life [Shall promote ethnic equality and religious equality] Norway: Gender Equality Act 1978 [Shall promote gender equality]

There are very few countries that have legal regimes which impose statutory-based proactive obligations on employers – at least with respect to the promotion of ethnic equality. In Europe only Great Britain, Northern Ireland and Sweden impose such obligations.12 They have all been included in my study. Canada and Australia also have such regimes. Canada was chosen as a subject of study because its legal regime is far more comprehensive than Australia’s, both in terms of the content of the obligations as well as the powers of the enforcement body. There are several such legal regimes in developing countries such as India and Malaysia; however, I considered them to be signiﬁcantly different in character than those I have chosen. The legal regimes in India and Malaysia involve the imposition of quotas, whereas none of the legal regimes I have chosen require quotas, preferential hiring or preferential promotions.

12

The Netherlands had a temporary law, but it was not renewed in 2004.

12

Chapter 1

Two of the proactive regimes I examine are regimes that promote equality other than ethnic equality: the Norwegian proactive regime promotes only gender equality and one of the Northern Ireland proactive regimes promotes only religious equality. They have been included because the two regimes have been instrumental in helping to understand the strengths and weaknesses of proactive regimes as a regulatory technique in promoting equality. Although several other countries impose statutory-based proactive obligations to promote gender equality, Norway was an obvious choice, given my proximity, comparative language advantage and familiarity with Norwegian law. Both Norway and Sweden have proactive regimes that are younger and more limited in terms of obligations and sanctions than those of the other three countries. In this regard, they also make for an interesting comparison with the more comprehensive and established regimes. The contract-based proactive obligation regimes examined in Part II are derived from the following legal instruments: USA: Executive Order 11246 (from 1965) and Title 41 Code of Federal Regulations Chapter 60 [Shall promote racial, gender and religious equality, as well as the equality of disabled persons] Canada: Decision of the Canadian Cabinet in 1986 [Shall promote equality of visible minorities, women, persons with disabilities and aboriginal persons] Sweden: Decision of the Swedish Cabinet in 2002 [Shall promote equality as to sex, race, color, national origin, ethnic origin, religion, disability and sexual orientation] Great Britain: Decisions of local government authorities or individual central government contracting authorities [Shall promote racial equality]

As with statutory-based proactive regimes, there are very few countries that have adopted contract-based proactive regimes for the promotion of ethnic equality. The regimes in the USA and Canada are the most comprehensive in terms of obligations imposed and enforcement body supervision. Thus, it was natural to include these two regimes in the study. In Europe only Sweden and Great Britain have regimes where contract-based proactive obligations have been imposed on employers. Use of the regimes is discretionary in both countries, the decision being left up to the individual contracting authorities. These two regimes are of special interest also because they must operate within the conﬁnes of EU treaty and procurement rules. The EU principles of free movement of goods and services, as well as requirements of non-discrimination and transparency in the procurement process, entail signiﬁcant restrictions as to the operation of such proactive regimes. The framework of these EU treaty and procurement rules is examined in section 8.1. Chapters 7 and 8 are largely descriptive presentations of the various statutory-based and contract-based proactive regimes. However, the method used in chapter 9 is clearly a lex ferenda exercise, i.e., a normative search for the characteristics or aspects of the

Introduction

13

various kinds of proactive regimes that are most effective in responding to systemic ethnic discrimination in employment. It is heavily inﬂuenced by social science studies designed to measure the impact of proactive regimes. It is also inﬂuenced by studies which relate the experiences of employers themselves and of compliance ofﬁcers who work with enforcement agencies. I use these studies illustratively to show the signiﬁcance of key elements of proactive obligations on the promotion of equality at the workplace. I have been led to these studies for the most by references to them in the literature written on the proactive obligation regimes as well as literature on afﬁrmative action and employment equity generally. In several of the countries, however, there is little or nothing written on these proactive regimes. This is especially the case for the younger regimes. Thus, I make no claim that these social studies are exhaustive. Then again, I am not trying to prove empirically that this component will always lead to that effect. For example, I do not try to prove that the obligation for employers to set numerical goals and timetables will always result in greater outcomes for ethnic minorities. I merely state that a signiﬁcant correlation has been shown and together with other evidence, we have reason to view this component as signiﬁcant in the promotion of ethnic equality. This is nonetheless an important ﬁnding, particularly if the alternative antidiscrimination strategy (for example the complaint-based approach) is acknowledged to be inadequate. Much of the information gathered for this thesis was obtained on ﬁeld trips to USA, Canada, Northern Ireland, Great Britain and Sweden. My understanding of the proactive obligation regimes and the antidiscrimination laws have been greatly enhanced by having conducted interviews with key personnel at, among other institutions, the following equality bodies and government agencies: The Equality Commission (Northern Ireland), the Commission for Racial Equality (Great Britain), the Canadian Human Rights Commission (Canada), the Ombudsman for Ethnic Discrimination (Sweden), the Ofﬁce of Federal Contract Compliance Programs (USA), the Gender Equality Ombud (Norway), the National Board for Public Procurement (Sweden), and the Labour Standards and Workplace Equity Directorate (Canada). Access to the libraries of these institutions also proved invaluable.

1.3. Barriers for Ethnic Minorities in Employment: Stories, Surveys, Studies and Statistics a. Introduction Some years ago I was working as a lawyer at a legal assistance agency in Norway, representing victims of ethnic discrimination. One day a rather sickly-looking man, accompanied by a friend who could interpret, came to seek help. Mario (a ﬁctitious name) had been in the country for almost two years, but spoke very poor Norwegian. He had worked very long hours daily at a restaurant the last 18 months. He was single and without family, and at ﬁrst he did not mind the long hours and the weekend work. But after a while it began to affect his health and he told his employer that he only wanted to work ordinary hours. Nevertheless, the employer continued to call upon him outside of work time whenever a worker was needed. He always responded by doing as the employer

14

Chapter 1

asked, even though he felt that he was being abused. Mario’s health continued to decline and he was forced to take sick leave, but even during his sick leave the employer continued to call upon him almost daily. Mario felt forced into a corner and therefore he had come to our ofﬁce to seek help to have his sick leave respected by his employer. That was the only thing Mario wanted. Upon discussing the situation with Mario, I realized that there were several other dimensions to his case. Mario had been forced to work far more overtime that the law permits. According to his contract, Mario was to work 39 hours a week (156 hours a month). According to the Act on Working Environment, the maximum amount of overtime permitted is 25 hours a month. Mario was, however, averaging 64 hours of overtime per month and he had often worked up to 144 hours of overtime in certain months. He had never been paid any extra compensation for his overtime work, even though the Act requires that an employee receive at least 40% additional compensation for overtime work. In addition, six months prior to Mario’s coming to us, he had been promised a modest pay increase, but he had never in fact received that increase in his pay checks. Mario had also been involved in a conﬂict with another employee who had refused to work together with him. Mario had taken this conﬂict up both with his immediate supervisor and with top management, but management’s response was simply to say that the two had to solve the problem themselves. Although Mario had sought help from the local trade union representative, nothing had ever been done to ease his situation. My attempts to engage the local trade union representative were just as futile as Mario’s. We decided to ask for a meeting with the president of the company which operated the restaurant and several other associated businesses. Mario knew the president well as he was often involved in the operations of the restaurant. In light of my having informed Mario of his rights, he decided that there were four things he wanted out of the meeting: He wanted his sick leave to be respected; he wanted to work ordinary hours; he wanted the pay increase that he had been promised; and he wanted the company to help resolve the conﬂict with his fellow employee. Mario did not want to seek the additional compensation for the overtime he had worked. At the agreed meeting there were six persons: Mario and I, an interpreter, head of personnel, the president and the chairman of the board. The chairman of the board, who was a lawyer at a small, renown law ﬁrm, had no personal knowledge of Mario. However, the chairman took immediately control over the meeting. The chairman totally dominated the meeting, for the most part talking generally about conﬂicts and difﬁculties at the workplace. Every time Mario tried to speak, he was interrupted by the chairman; it seemed as though the chairman was simply bullying him. I tried without success to change the subject to the amount of overtime and the failure to respect Mario’s sick leave. After about a 30 minute monologue by the chairman, Mario attempted to comment, saying that it was his turn to talk now. But the chairman reacted almost demonically, banging the table and shouting back that he was the one leading the meeting, and he was the one to decide who could speak. I was totally shocked by this violent reaction, and I was prompted to call the meeting off. I understood that we were being subjected to a power game; it was obviously the chairman’s strategy to make the problem go away. No doubt he simply wanted me to break off the meeting. However, Mario had in reality very few options. A law suit or even a complaint to the Labour Inspection Authority would surely have resulted in an immediate termination of employ-

Introduction

15

ment. Mario was sick, extremely vulnerable and without alternative economic support. He was too weak for a ﬁght. Soon afterwards I noticed that Mario was crying, and I asked for a pause. The chairman walked out ﬁrst and I took the opportunity to pull the president aside. I told him one thing: I said to him that my ofﬁce had not accused the restaurant of discrimination; we were simply saying that the employer was in violation of the Act on Working Environment. The president knew Mario as a good, hard worker. I was hoping that he would inﬂuence the chairman during the break. After the pause the lion had turned into a lamb. The chairman immediately opened up for discussion about the overtime problem and the lack of respect for Mario’s sick leave. We quickly agreed in writing to three points: (1) The sick leave would be respected; (2) Mario would be given six months back pay for the promised increase in pay; and (3) Mario would not be forced to work more overtime than that permitted by law. It was also agreed that management would address the problem of the working milieu once Mario returned from his sick leave. For my part, that was the end of the case. Two months later I happened to meet Mario in passing. He told me that his sickness had been diagnosed as a brain tumor. But he was optimistic; for he had quit his job and had gotten a job with another restaurant, working ordinary hours. I wished him luck as we said goodbye. Why do I tell this story? I believe this story has three points of interest for this thesis. On a general level this case illustrates the extremely vulnerable position that many ethnic minorities (particularly newly arrived immigrants) have in employment. With little language capability and a lack of network, many are not aware of their rights, and have very little opportunity to assert the rights of which they are aware. It further illustrates the willingness of some employers to abuse that vulnerable position. Secondly, from experience I knew of the strong reaction of employers to any allegation of ethnic discrimination. Society has imprinted a badge of moral shame on those who discriminate because of a person’s ethnicity. Employers have internalized this taboo, often giving expression to egalitarian principles. Yet, they fail to see (or admit to themselves) that what they do is indeed discrimination. The chairman of the board had gone into a deadlock because the assumed accusation of ethnic discrimination was an accusation of a shameful act that had to be defended by all means necessary. Once released from the allegation of this shameful act, the chairman was willing to deal with the details regarding the employer’s treatment of my client within the limits of the Act on Working Environment. This denial of the reality of discrimination does not only occur on an individual level, but also on a macro level. Many believe their countries to be free of discrimination because they have no history of colonial oppression or slavery, or because their country’s own history of emigration has made them sympathetic to the problem.13 This, combined with the fact that many countries do not systematically collect evidence of ethnic discrimination, leads many to assume that ethnic discrimination is not a problem in their society.14

13

14

European Monitoring Centre on Racism and Xenophobia, Migrants, Minorities and Employment: Exclusion, Discrimination and Anti-Discrimination in 15 Member States of the European Union (Vienna: 2003), 84–85. Ibid.

16

Chapter 1

Thirdly, this story illustrates how barriers to equality in employment for ethnic minorities remain invisible. This incident would most likely never be registered as discrimination by those who measure the amount of ethnic discrimination in society. My client sought help because he wanted to have his sick leave respected. If he had not become sick, he would have never had any occasion to realize that he was being treated unlawfully regarding the amount of overtime worked and the amount of compensation paid. Furthermore, I have already explained that my client was far too weak for a ﬁght in the courts. It was simply unrealistic to imagine that a long, drawn-out law suit could provide the answer to his immediate and desperate situation. Yet, even if he had initiated a law suit against his employer, he may very well have found great difﬁculty in proving ethnic discrimination. He had clearly been treated unlawfully – but given the lack of any direct evidence as to the employer’s reason for the unlawful treatment, a court would have to infer that this was done because of my client’s ethnic or national origin. As we shall see in section 4.4, courts are very reluctant to draw such inferences. The discrimination in this case was not at all subtle, indeed it was very apparent. Nevertheless, there is no appropriate tool for measuring the barriers to equality encountered by my client. This story concerned working conditions, working hours, compensation and sick leave, but the same could be said for many other barriers to equality in areas such as recruitment, promotion, career development, assignment of work, termination of employment and a host of other personnel practices. In most industrialized countries with signiﬁcant ethnic minority populations, statistics show great disparities between ethnic minorities and ethnic majorities regarding rates of employment, unemployment, earnings and occupational attainment. Although there may be many reasons for these disparities, such as levels of education, qualiﬁcations etc., there are many indications that ethnic discrimination in employment plays a signiﬁcant role in any explanation of such disparities.15 However, we have no direct ways of measuring the amount of ethnic discrimination in society today. Ethnic discrimination in employment is illegal and thus rarely observed directly by those who seek to measure the incidence of such discrimination. For the most part any attempt to measure ethnic discrimination in employment must therefore be based on an inference that an observed adverse outcome is due to ethnicity.16 Such inferences are most often drawn on the basis of a variety of “indicators”. The most usual kinds of indicators, from which inferences of ethnic discrimination are drawn, are:17

15 16

17

Ibid., 81–86. National Research Council, Measuring Racial Discrimination, edited by Rebecca Blank, Marilyn Dabady and Constance Citro (Washington, D.C.: The National Academies Press, 2004)(Panel on Methods for Assessing Discrimination, Committee on National Statistics, Division of Behavioral and Social Sciences and Education, National Research Council of the National Academies), 5. See for example John Wrench, Preventing Racisim at the Workplace: A Report on 16 European Countries (Luxembourg: Ofﬁce for Ofﬁcial Publications of the European Communities, 1996), 40–54 and John Wrench, The Measurement of Discrimination: Problems and Solutions (A paper presented at the European Conference on Data to Promote Equality in Helsinki on

Introduction

17

(1) statistical data, (2) discrimination testing, (3) laboratory experiments, (4) research into the actions of “gatekeepers,” (5) surveys of attitudes of members of the ethnic majority and of subjectively experienced discrimination of ethnic minorities, and (6) formal complaints made to courts, tribunals, ombudsmen and enforcement agencies. Each of these methods has its weaknesses and strengths. Thus, it is best to use a combination of these methods when examining the nature and extent of ethnic discrimination in employment. Given the topic and scope of this thesis, it is not possible or necessary for me to give a full or thorough account of the prevalence or incidence of ethnic discrimination in countries whose antidiscrimination laws I examine, nor in industrialized countries in general. To some extent, the fact that states have adopted such laws indicates that ethnic discrimination is acknowledged to be a problem that needs addressing. Thus, this thesis will only provide some examples which help to illustrate the use of such “indicators” and methods by researchers and others to inform policymakers, employers and public opinion about the prevalence and nature of ethnic discrimination in employment. b. Statistical data One way of measuring ethnic discrimination in employment is to use statistical data on differential outcomes in employment for ethnic minorities and the ethnic majority. With the use of multivariate regression analysis one may control for such differential outcomes caused by key factors such as educational background, work experience, language capability, age, sex etc. More importantly, one may infer that the “residual amount” of measured disadvantage, after controlling for known factors, is due to, among other things, discrimination. Examples of such statistical data are rates of economic activity in the labor market, unemployment, occupational attainment and earnings. There are only a few countries that have carried out such studies using multivariate regression analysis. A report undertaken in 2002 by the United Kingdom Cabinet Ofﬁce analyzed several such studies involving rates of employment, unemployment, earnings and/or occupational attainment. The analysis of the studies concludes that the persisting disadvantage of ethnic minorities, even after key variables have been taken into account, “strongly suggests the existence of racism and discrimination in the labour market.”18 After supplementing the analysis of the multivariate regression studies with other indicators such as discrimination testing, surveys and formally decided cases, the Cabinet Ofﬁce report concludes that it is

18

9–10 December 2004), 3. See also National Research Council, op. cit., 6–10 and Time for Equality at Work: Global Report under the Follow-Up to the ILO Declaration on Fundamental Principles and Rights at Work (Geneva: International Labour Ofﬁce, 2003) (Report I (B) of the International Labour Conference, 91st Session 2003), 41. United Kingdom Cabinet Ofﬁce, Ethnic Minorities and the Labour Market: Interim Analytical Report (London: 2002), 114.

18

Chapter 1 undeniable that racial harassment and racial discrimination persist in the UK labour market . . . providing a partial and important explanation for the persisting disadvantage of ethnic minorities after taking into account key variables.19

One of the strengths of such tests is that it enables the possibility to evaluate the relative signiﬁcance of discrimination in relation to other factors causing differential outcomes. A major weakness is that the complex statistical methodology and uncertainty regarding possible unknown relevant factors, limit the immediacy, empathy and understanding of analysis results for most people. Another major weakness of this method is that it says nothing about the nature or dynamics of ethnic discrimination in employment. c. Discrimination testing Discrimination testing (also called paired-testing, audit testing or situational testing) has been carried out in a number of countries, whereby two matched test partners, one of ethnic majority status and the other of ethnic minority status, apply for the same job. The two applicants are matched in all ways that would normally be relevant, i.e., educational background, work experience, age, sex etc. Thereafter, the outcomes for the two test partners are compared, and any systematic or statistically signiﬁcant exclusion of the ethnic minority applicant would then be interpreted as discrimination. There are several advantages of discrimination testing:20 (1) Unlike other indicators of ethnic discrimination, discrimination testing involves direct observation of unequal treatment of equally qualiﬁed people. (2) The testing methodology and results are easily understood by policymakers. (3) Testing informs also as to the nature or context of the discrimination. For example, tests conducted on entry-level hiring have shown that discrimination occurs more often in jobs that have signiﬁcant interaction with customers. They have also shown that discrimination also occurs in the form of discouraging treatment such as “steering people to less desirable alternatives.” Marc Bendick characterized the unique strength of discrimination testing in this way: “In a world in which stories have more power than studies, [discrimination] testing generates studies that are also stories.”21 (emphasis added) Discrimination testing was ﬁrst used in the United Kingdom to measure discrimination of Hungarians and West Indians in employment in 1967. The method was subsequently reﬁned and has been applied in Netherlands, Canada, Australia, USA, Belgium, Spain and Germany. In Canada testing revealed a signiﬁcant amount of discrimination

19 20

21

Ibid., 128. Michael Fix and Margery Turner, “Measuring Racial and Ethnic Discrimination in America” in A National Report Card on Discrimination in America: The Role of Testing, edited by Michael Fix and Margery Turner (Washington, D.C.: The Urban Institute, 1998), 11. Marc Bendick, “Adding Testing to the Nation’s Portfolio of Information on Employment Discrimination” in A National Report Card on Discrimination in America: The Role of Testing, edited by Michael Fix and Margery Turner (Washington, D.C.: The Urban Institute, 1998), 48.

Introduction

19

against blacks in entry-level hiring. Of the 201 jobs applied for, the white applicant received 36 offers while the black applicant received 9 offers. Furthermore there were other differences in treatment of the black and white applicants. For example, the black applicant was often told that the job was ﬁlled, while the white applicant who arrived shortly afterwards was asked to ﬁll out an application or to leave a resume. Although the white applicant was never subjected to rude treatment, the black applicant was treated rudely in 38 cases.22 From 1989–1995 six major tests were conducted in major metropolitan areas of the USA. Cumulatively, the tests revealed substantial ethnic discrimination in hiring. Blacks and Hispanics were treated less favorably than equally qualiﬁed whites by a proportion of 25%.23 The International Labour Ofﬁce (ILO) carried out discrimination tests in several European countries in the 1990’s, including Belgium, Netherlands, Germany and Spain. In all four countries the tests showed signiﬁcant amounts of discrimination in hiring against Moroccans (in Belgium, Netherlands and Spain) and Turks (in Germany). The tests were divided into three stages: Stage 1 was where the test partners took initial contact with the employer, i.e., prior to any presentation of education and qualiﬁcations. Stage 2 was where the applicants presented their qualiﬁcations (usually by way of resume), i.e., prior to interview. Stage 3 was the interview and the ﬁnal decision. In all four countries the Moroccan or Turk applicant was far more likely to be refused the opportunity to even present his credentials. For every 100 cases in which the test partner of majority status was allowed to present his credentials, the Moroccan or Turk applicant was denied such opportunity in 19% (Belgium), 23% (Netherlands), 13% (Germany) and 25% (Spain) of the cases.24 Cumulatively for all three stages, more than one-third of the tested vacancies in Belgium, Netherlands and Spain involved discrimination of the testing partner of ethnic minority origin. In Germany it was not possible to carry out the third stage of the test, but cumulatively for the ﬁrst two stages, net discrimination was found in 19% of the tested vacancies.25 d. Laboratory experiments Laboratory experiments carried out under controlled circumstances can be helpful in understanding the nature of discrimination.26 They have proved to be particularly use-

22

23 24

25 26

Frances Henry and Efﬁe Ginzberg, Who Gets the Work: A Test of Racial Discrimination in Employment (Toronto: The Social Planning Council of Metropolitan Toronto, 1985), 29 and 51. See Marc Bendick, op. cit., 55–57 for a discussion of the various tests conducted. Rogers Zegers de Beijl, Documenting Discrimination against Migrant Workers in the Labour Market: A Comparative Study of Four European Countries (Geneva: International Labour Ofﬁce, 2001), 44, 57, 70 and 80. Ibid., 89. Niklas Reuter, Timo Makkonen and Olli Oosi, Study on Data Collection to Measure the Extent and Impact of Discrimination in Europe (Report delivered at the European Conference on Data to Promote Equality in Helsinki on 9–10 December 2004), 25.

20

Chapter 1

ful in examining the subtle psychological processes which lead to discrimination, for example, how non-conscious bias and stereotypes inﬂuence evaluation processes. The focus on the inﬂuence of non-conscious bias was a result of earlier research ﬁndings of a discrepancy between what people said (for example overtly egalitarian responses on surveys) and what people did (disguised discriminatory behavior).27 One well-known laboratory experiment concerned the evaluation of academic performance.28 Participants saw either of two 6-minute videotapes of a child playing. They depicted the child as coming from either a low or high socioeconomic background based on the setting in which the child played. Both sets of participants were asked to rate the child’s academic performance, but they responded that they did not have sufﬁcient information to do so. A different group of participants viewed the 6-minute videotape and thereafter a 12-minute videotape of the child taking an oral test where her performance was mixed. Participants, who viewed the second video after the 6-minute videotape depicting low socioeconomic status, rated the child’s academic performance as well-below grade level. On the other hand, participants, who viewed the second videotape after the 6-minute videotape depicting high socioeconomic status, rated the child’s academic performance as at grade level. Control participants who only saw the 12-minute test video rated the child’s academic performance as at grade level.29 The experiment showed how the evaluation process is inﬂuenced by non-conscious bias. Nonetheless, evaluators convince themselves that they have legitimate evidence on which to base their biased judgments. Although the child in the experiment was white, the implications for other objects of evaluation, particularly from non-dominant groups, are clear. Although laboratory experiments are very useful in showing psychological processes, they are limited in their ability to generalize with certainty to other uncontrolled, real-world settings and circumstances. e. Research into actions of “Gatekeepers” Research has been conducted into the opinions and practices of employers and staff of employment agencies, particularly regarding recruitment practices. Braddock and McPartland conducted a national survey in the USA, ﬁnding that the most frequent methods of recruitment used were informal methods that rely upon social networks for information.30 An example of this is “word-of-mouth” recruitment, whereby the employer relies upon current employees telling friends and acquaintances of job vacan27 28

29 30

National Research Council, op. cit., 95. The experiment was conducted by J. M. Darley and P. H. Gross and is referred to in National Research Council, Measuring Racial Discrimination, edited by Rebecca Blank, Marilyn Dabady and Constance Citro (Washington, D.C.: The National Academies Press, 2004) (Panel on Methods for Assessing Discrimination, Committee on National Statistics, Division of Behavioral and Social Sciences and Education, National Research Council of the National Academies), 98. Ibid. Jomills Braddock and James McPartland, “How Minorities Continue to Be Excluded from Equal Employment Opportunities: Research on Labor Market and Institutional Barriers,” Journal of Social Issues 43, no. 1 (1987): 5–39, 7 and 12.

Introduction

21

cies and encouraging them to apply. Given the socially-segregated networks of majority and minority groups in many countries, the signiﬁcance of this recruitment method for employment opportunities for ethnic minorities is obvious. The importance of this recruiting method for the concepts of indirect discrimination and systemic discrimination will be seen later in chapter 3. f. Surveys Two kinds of surveys are often used: (1) Surveys of attitudes of the general population which seek to reveal prejudice or the willingness to discriminate against ethnic minorities. An example is a European survey of 7 countries conducted in 2002 which revealed that 29.2% of the Italian sample agreed that immigrants represented a threat to employment for nationals.31 (2) Surveys of ethnic minorities’ subjective experiences of discrimination when seeking employment or at the workplace. Such surveys can help shed greater light on the nature and extent of ethnic discrimination. In doing so, they help to answer the questions how and who are affected by discrimination. Such surveys, however, are not representative of the extent of discrimination in society; they can either overestimate or underestimate the actual incidence of discrimination. g. Formal complaints Formal complaints of discrimination made to courts, tribunals, ombudsmen, enforcement agencies, legal assistance clinics and even NGO’s can give valuable insight as to the nature and mechanisms of ethnic discrimination. The stories in these cases are often strong, vivid and easily understood. When media gives attention to such cases the inﬂuence on public opinion and policymakers can be signiﬁcant. However, those who formally complain are but a very small percentage of those who experience discrimination. In light of this, formal complaints cannot help much in measuring the prevalence of discrimination in society. In chapters 2, 3 and 4 of this thesis, I often use cases to help illustrate the dynamics and characteristics of ethnic discrimination in employment. h. Conclusion Stories, surveys, studies and statistics tell us much about the nature and extent of ethnic discrimination in employment. I have used several of the indicators (formal complaints, surveys and research into actions of gatekeepers) later in chapter 3 to help show some ideal-typical situations of systemic discrimination in employment. Although there is no direct way of measuring the prevalence of discrimination in society, we know from the abovementioned “indicators” and research methods that ethnic discrimination is a major problem in industrialized countries with signiﬁcant populations of ethnic minorities. We may not know exactly how big the problem is, but we know that it is big

31

John Wrench, The Measurement of Discrimination: Problems and Solutions (A paper presented at the European Conference on Data to Promote Equality in Helsinki on 9–10 December 2004), 4.

22

Chapter 1

enough that it must be taken seriously and addressed by policymakers, employers and employees in the workplace, enforcement authorities, job exchanges and trade unions. Although I have described these indicators in relation to their usefulness in revealing ethnic discrimination on a societal level, several of the methods described, such as surveys, research on gatekeepers and review of formal complaints, may also be used on the workplace level. They are indeed regularly used by employers (pursuant to their proactive obligations) to help identify barriers to ethnic equality at the workplace. They do have, however, the same limitations on the workplace level as on the societal level: The methods and indicators can say a great deal about the nature of the barriers to ethnic equality, but less about the prevalence of systemic ethnic discrimination at the workplace. But even this limited knowledge is invaluable. It informs the employer of the remedial actions necessary to respond to systemic ethnic discrimination at the workplace.

PART I

Chapter 2 The Concept of Discrimination 2.1. Overview Early antidiscrimination legislation, such as the Civil Rights Act of 1964 (USA) and the Race Relations Act of 1965 (Great Britain), did not deﬁne the key concept of discrimination.1 Even today one may ﬁnd antidiscrimination laws that do not deﬁne discrimination.2 This absence of a deﬁnition of discrimination has led to much confusion3 about the concept of discrimination even among lawyers, enforcement agencies and courts who interpret the legislation. As for ordinary lay people, this confusion is compounded by the fact that dictionary deﬁnitions often give three different meanings for the term discrimination:4

1

2 3 4

Rather than use a general deﬁnition of discrimination, the laws speciﬁed in great detail what speciﬁc practices were forbidden (for example, failure to hire or promote) when done on speciﬁed grounds (for example, race or sex). Such forbidden conduct was then referred to as “discriminatory”. For example, the Canadian Human Rights Act of 1985. Béatrice Vizkelety, Proving Discrimination in Canada (Toronto: Carswell, 1987), 36. See for example the Oxford English Dictionary and Webster’s New World Dictionary of the American Language, cited in Walter Tarnopolsky and William Pentney, Discrimination and the Law, vol. 1, (Toronto: Carswell, 2001), 4–5.

26

Chapter 2 (1) The power of observing differences accurately (i.e., a positive characteristic) (2) Making distinctions or differences (i.e., a neutral characteristic) (3) A showing of prejudice in treatment (i.e., a negative characteristic)

Most antidiscrimination laws, judicial decisions and scholarly writings on discrimination today use the term discrimination in the third sense, i.e., the term discrimination carries with it a pejorative, negative or unlawful characteristic or meaning. But this deﬁnition does not really answer the question: What is discrimination? Furthermore, it is very misleading. Although the popular conception of discrimination for most people may be “a showing of prejudice in treatment”, this deﬁnition is clearly out of step with the development of the concept of discrimination over the last three decades. When antidiscrimination legislation was ﬁrst adopted in the middle of the Twentieth Century, this was a milestone as an attempt to address an invidious type of discrimination that had until that time been allowed to ﬂourish openly. The focus of such antidiscrimination legislation was to prohibit the intentional inﬂiction of prejudice upon individuals on the basis of statutorily-protected characteristics and to prohibit the differential treatment of like cases (i.e., the legislation pursued formal equality). Colleen Sheppard describes this focus: Intentional differential treatment based on group-based stereotypes and prejudices was the key mischief to be remedied by anti-discrimination laws. The perpetrator of discrimination was seen as aberrant and misguided, making unfair decisions based on inaccurate and prejudicial beliefs and stereotypes. Most institutional decision-making was presumed to be fair and rational, based on individual merit, or other pertinent non-discriminatory criteria. Thus discrimination was considered to be an isolated event caused by the prejudiced attitudes of individuals. . . .5

However, it soon became apparent that formal equality only managed to address the most overt and invidious types of discrimination. In his well-renown article on institutional discrimination, Christopher McCrudden traces the development of the study of discrimination from an early preoccupation with the notion of manifested prejudice to more classical sociological approaches focusing on class and stratiﬁcation systems and later to approaches viewing discrimination as structural and institutional. He also traces the development of the early antidiscrimination legislation with its focus on differential treatment and discriminatory intent to later enactments and judicial precedent that include within the concept of discrimination the unjustiﬁable failure of neutral practices to take into account relevant differences when the effect of the practice produces disadvantage for a particular group.6 In other words, there was a shift away from thinking of discrimination solely as a moral wrong.

5

6

Colleen Sheppard, “Equality Rights and Institutional Change: Insights from Canada and the United States,” in Arizona Journal of International and Comparative Law 15 (1998): 143–167, 144–145. Christopher McCrudden, “Institutional Discrimination,” Oxford Journal of Legal Studies 2, no. 3 (1982): 303–367.

The Concept of Discrimination

27

Over the last three decades, the concept and proof of discrimination has changed signiﬁcantly, both on the level of national law and in international human rights instruments: (1) The concept of discrimination has gradually come to include the notion that unjustiﬁable like treatment which produces disadvantage for particular groups is just as harmful as unjustiﬁable differential treatment and should therefore be prohibited. (2) Discriminatory intent has been all but eliminated as an essential element of the proof of discrimination.7 (3) Previously the entire burden of proof (burden of production and persuasion)8 rested with the complainant. In most jurisdictions today, the burden is shared in the sense that once a complainant has made a prima facie9 showing of discrimination, the burden of proof shifts to the employer to show that he is not in violation of the prohibition against discrimination.10 (4) Other forms of discrimination have been recognized and addressed, such as harassment,11 instructions to discriminate, victimization (retaliation),12 and the failure to reasonably accommodate.

7

8

9

10

11

Discriminatory intent is not required to prove discrimination in Canada, Australia, New Zealand, Norway, South Africa, nor in any of the 25 member states of the European Union. The USA, however, continues to require discriminatory intent as an essential element of the proof in disparate treatment (direct discrimination) cases. The burden of proof is often divided into two kinds: (1) The burden of going forward with the evidence by producing evidence for the court, is referred to as the burden of production; and (2) the risk of non-persuasion of the trier of fact is referred to as the burden of persuasion. Juliane Kokott, The Burden of Proof in Comparative and International Human Rights Law (The Hague: Kluwer Law International, 1998), 9. The terms prima facie case or prima facie showing are used to describe degrees of cogency (persuasiveness) in evidence. It is where the complainant establishes facts sufﬁcient to give reason to believe that discrimination has occurred – or in other words, facts sufﬁcient to set up a legal presumption that discrimination has occurred. It is a lower standard of proof than the preponderance of the evidence. See also Béatrice Vizkelety, Proving Discrimination in Canada (Toronto: Carswell, 1987), 109: A party’s evidence in support of an issue is so weighty that no reasonable person could help but decide the issue in the party’s favor in the absence of further evidence. In Scandinavia this type of burden of proof is referred to as shared burden of proof. Some scholars mistakenly refer to this as reversed burden of proof. I suggest that this is inappropriate usage and that the term shared burden of proof should be used instead. The shared burden of proof is where the original burden of proof is on the complainant and the burden shifts upon the complainant’s making out a prima facie case of discrimination. On the other hand, the reversed burden of proof is where the original burden of proof rests with the respondent. An example of reversed burden of proof is the following: The law of unfair dismissal in some countries is such that the original burden of proof is on the respondent-employer to show that the dismissal was justiﬁed. These two terms should not be confused. Harassment on grounds of statutorily-prohibited grounds such as sex, race, disability etc. is also deemed to be discrimination. See for example Article 2 (3) of EU’s Race Directive (June 29, 2000) which states that “Harassment shall be deemed to be discrimination within the meaning of [the Directive].” Harassment is thereafter deﬁned as “[W]hen an unwanted

28

Chapter 2

The popular conception of discrimination has thus not kept in step with the development of the legal concept of discrimination. In the minds of many people the terms “ethnic discrimination” or “racial discrimination” are emotively associated with racial hatred. Many do not understand how neutral rules or practices (which apply to everyone) can be discriminatory. It is a common occurrence of employers to reply to an allegation of discrimination with the remark: “We don’t discriminate here; we treat all our employees the same.” Yet, facially neutral rules and practices may result in serious disadvantages for groups because of race, sex, disability etc. Imagine the following rule: “No dogs allowed in government buildings.” It is neutral in form and applies to everyone. At ﬁrst blush it appears to be unproblematic. But for blind people who use seeing-eye dogs, this rule functions in an unacceptable, unjustiﬁable and discriminatory fashion. Discrimination may therefore involve either unjustiﬁable differential treatment or unjustiﬁable like treatment.13 Here lies the conceptual difference between two important sub-concepts of discrimination known as direct discrimination14 and indirect discrimination.15 Somewhat oversimpliﬁed, one may say that direct discrimination is when like cases are unjustiﬁably treated differently; while indirect discrimination16 is when relevantly different cases are treated in a way which unjustiﬁably fails to take into consideration the consequences of those differences.17 The concept of indirect discrimination has developed over the last three decades, but its full potential is yet to be reached. In some states, the courts have interpreted antidiscrimination legislation so as to include a prohibition against indirect discrimination, while other states have explicitly included its prohibition in the law.

12

13

14 15

16

17

conduct related to racial or ethnic origin takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment.” There are also comparable provisions in Article 2 (3) of the Employment Directive and Article 2 (2) of the Equal Treatment Directive (as amended on 23 September 2002). Similarly Supreme Court decisions in Canada and the USA have also recognized harassment as a form of discrimination. Canada: Janzen v. Platy Enterprises [1989] 1 S.C.R. 1252; 10 C.H.R.R. D/6205. USA: Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). Victimization is adverse treatment or adverse consequences as a reaction to a complaint or proceeding aimed at enforcing rights to non-discrimination. The term retaliation is used in the USA and Canada. The term reprisal is also used. In many jurisdictions victimization is deemed either by statute or judicial precedent to be a form of discrimination. Oddn´y Arnardóttir, Equality and Non-Discrimination under the European Convention on Human Rights (The Hague: Martinus Nijhoff Publishers, 2003), 92. In the USA the term disparate treatment discrimination is used. The concept of indirect discrimination is, however, broader than unjustiﬁable like treatment. It also includes where two groups are treated differently on grounds that are not prohibited, but where the differential treatment unjustiﬁably leads to disproportionate disadvantage for one group compared with the other and that disadvantage is linked to a prohibited ground. In the USA the terms disparate impact discrimination and adverse impact discrimination are used. In Canada the term adverse effect discrimination is used. Catherine Barnard and Bob Hepple, “Substantive Equality,” in Cambridge Law Journal 59, no. 3 (2000): 562–585, 570.

The Concept of Discrimination

29

The principle of non-discrimination runs like a red thread through international human rights treaties. It is one of the cornerstones of such treaties as the UN International Covenant on Civil and Political Rights (CCPR), the UN International Convention on the Elimination of all Forms of Racial Discrimination (ICERD) and the UN International Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and the European Convention on Human Rights (ECHR). Of these treaties, only ICERD and CEDAW deﬁne the key concept of discrimination. Article 1 of ICERD deﬁnes racial discrimination as: [A]ny distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other ﬁeld of public life.

Article 1 of CEDAW deﬁnes discrimination against women as: any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other ﬁeld.

It is apparent from these deﬁnitions that the important sub-concepts of direct and indirect discrimination are not deﬁned in the treaties. Although the treaty enforcement bodies of all the four abovementioned treaties have taken the position that the non-discrimination provisions of the respective treaties prohibit the notions of both direct and indirect discrimination, the concepts have, with one exception, never been deﬁned by the treaty enforcement bodies. The exception mentioned is that the treaty enforcement body for CEDAW adopted a general recommendation in 2004 which deﬁned indirect discrimination in a footnote. See section 2.3.h for details. Three European Union directives deﬁne the concepts of direct and indirect discrimination to be implemented by its member states. The Equal Treatment Directive18 (76/207/EEC as amended by 2002/73/EC) concerns sex discrimination, the Race Directive19 (2000/43/EC) concerns racial or ethnic discrimination, and the Employment Directive20 (2000/78/EC) concerns discrimination on grounds of religion or belief, disability, age and sexual orientation. All three directives include deﬁnitions which are formulated along the following model:

18

19

20

Council Directive “On the implementation of the Principle of Equal Treatment for Men and Women as regards Access to Employment, Vocational Training and Promotion, and Working Conditions” was adopted on 9 February 1976. Council Directive “Implementing the Principle of Equal Treatment Between Persons Irrespective of Racial or Ethnic Origin” was adopted on June 29, 2000. Council Directive “Establishing a General Framework for Equal Treatment in Employment and Occupation” was adopted on November 27, 2000. The Employment Directive is also known as the Framework Directive.

30

Chapter 2 The principle of equal treatment shall mean that there shall be no direct or indirect discrimination . . . Direct discrimination shall be taken to occur where one person is treated less favorably than another is, has been or would be treated in a comparable situation [on grounds of a protected characteristic] Indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons [characterized by a protected ground] at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justiﬁed by a legitimate aim and the means of achieving that aim are appropriate and necessary.21 (emphases added)

All twenty-ﬁve EU countries are obligated to implement these directives into their national law. Non-European Union member states which prohibit both direct and indirect discrimination include, among others, the USA, Canada, Norway,22 Australia, South Africa and New Zealand.23 The precise contents of the concepts of direct and indirect discrimination vary in the different jurisdictions. They may even vary within one speciﬁc jurisdiction, depending on the discriminatory ground involved. However, the basic framework of proof of discrimination in the various antidiscrimination laws of these countries is as follows: In order for an employment practice to be discriminatory, the difference in treatment or effect suffered by the complainant must: (1) be carried out by a respondent cognizable under the law: for example, an employer, employment agency, labor organization; (2) be linked directly or indirectly to a protected characteristic cognizable under the law: for example, race, sex, religion, national or ethnic origin, sexual orientation, disability; and (3) relate to an issue cognizable under the law: for example, hiring, promotion, termination of employment, terms or conditions of employment, salary, membership in a labor organization or professional society.24

In addition to this outer framework of proof of discrimination, there also appear to be certain characteristics common to most jurisdictions which are useful in deﬁning discrimination.

21

22

23

24

Article 2 in all three directives. In the Employment Directive the deﬁnition of indirect discrimination differs somewhat with respect to disability discrimination. Pursuant to the European Economic Area agreement between the European Union and the EFTA countries, Norway is obligated to implement the Equal Treatment Directive, but not the Race Directive and the Employment Directive. The concept of indirect discrimination (Canada: adverse effect discrimination) (USA: disparate effect discrimination) was originally developed judicially rather than through legislation in the USA, Canada and New Zealand. See the following cases: USA (Griggs v. Duke Power Company, 401 U.S. 424 (1971); Canada (Ontario v. Simpson-Sears [1985] 2 S.C.R. 536, better known as the “O’Malley” case); New Zealand (The Proceedings Commissioner v. Air New Zealand (1989) EOC 92–258). See Barbara Lindemann and Paul Grossman, Employment Discrimination Law, vol. 1, 3d ed. (Washington, D.C: The Bureau of National Affairs, 1996), 4–5.

The Concept of Discrimination

31

(1) A ﬁnding of discrimination involves comparison. One must compare persons (or groups) and compare the treatment received in order to know: (a) whether the persons (or groups) compared are in the same situation or relevantly different, (b) whether the persons (or groups) have been treated differently or treated alike, (c) whether the treatment has led to an adverse effect on one person (or group) as compared to another. (2) A ﬁnding of discrimination entails a ﬁnding of disadvantage. Disadvantage is indeed the starting out point of all antidiscrimination legislation. Antidiscrimination legislation is largely adopted because of the recognition that certain groups unjustiﬁably suffer from social, economic, political and cultural disadvantage stemming from prejudice and stereotypes as well as neutral institutional practices and norms tailored for the dominant majority. The prohibition against discrimination forbids differential treatment25 (i.e., less favorable) in certain circumstances, while in other circumstances it forbids similar treatment. How then should the complainant have been treated in order to have complied with the principle of non-discrimination? Should the complainant have received treatment similar to or different from the comparator (i.e., the reference person or group)? The answer to these questions is largely decided by an assessment of the circumstances of the complainant and the context of the disadvantage suffered in such circumstances. This point was poignantly made by the Canadian Supreme Court in R. v. Turpin: In determining whether there is discrimination on grounds relating to the personal characteristics of the individual or group, it is important to look not only at the impugned legislation which has created a distinction that violates the right to equality but also to the larger social, political and legal context. . . . [I]t is only by examining the larger context that a court can determine whether differential treatment results in inequality or whether, contrariwise, it would be identical treatment which would in the particular context result in inequality or foster disadvantage.26

(3) Additionally, a ﬁnding of discrimination involves the absence of a justiﬁcation (or exception) permitting the difference in treatment or effect suffered by the complainant (despite the causal link between the difference in treatment or effect and the protected ground in the antidiscrimination legislation). (4) The vast majority of jurisdictions do not require a showing of discriminatory intent in the proof of discrimination, neither for direct nor indirect discrimination. These jurisdictions include all 25 member states of the European Union, Canada, Norway, Australia, New Zealand and South Africa.27 The USA is the major exception to this 25 26 27

Disadvantage is sometimes inferred from differential treatment. [1989] 1 S.C.R. 1296, 1331–1332. See for example the following judgments: Canada: Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd [1985] 2 SCR 536 and Andrews v. Law Society of British Columbia [1989] 1 S.C.R. 143, 174; Great Britain and Northern Ireland: James v. Eastleigh Borough Council, [1990] IRLR 288 and Nagarajan v. London Regional Transport [1999] 4 All ER 65; [1999] IRLR 572, 574–575; Australia: Waters v. Public Transport Corporation (1991) 173 CLR 349, 359. For EU: Dekker v. Stichting vormingscentrum Voor Jonge Volwassen Plus [1991] ECR I-3941, para 22; Draehmpaehl v. Urania Immobilienservice

32

Chapter 2 rule, requiring discriminatory motive or intent in the proof of disparate treatment discrimination (direct discrimination). This proof of discriminatory intent is, however, often inferred from differential treatment as well as from statistics. See section 2.4 for a discussion of this.

As will be seen in later sections of this chapter, these common characteristics of the concept of discrimination in antidiscrimination laws are also to be found in the concept of discrimination in international human rights treaties (for example, ICERD, CEDAW, CCPR and ECHR), as well as, in the three EU directives concerning non-discrimination. In summary, a ﬁnding of discrimination involves four essential elements:28 (1) an individual or group is in comparison, treated or affected differently than the comparator, (2) the difference is disadvantageous to the individual or group, (3) the difference in treatment or effect is causally linked to a characteristic of the individual or group protected by antidiscrimination legislation, and (4) there is no exception or justiﬁcation permitting the difference in treatment or effect.

In light of this, and having in mind a healthy respect for the limitations of generalizing where different state jurisdictions are involved, this thesis shall use the following generic deﬁnitions of direct and indirect discrimination: Direct discrimination is when a person is unjustiﬁably treated less favorably than another in comparable circumstances,29 and such treatment is done on grounds protected by antidiscrimination legislation. Indirect discrimination is when persons in relevantly different situations are treated on the basis of factors other than prohibited characteristics (i.e., treated in a facially neutral way), yet this results in unjustiﬁable, disadvantageous and differential consequences (for a speciﬁc group) causally linked to a prohibited characteristic. Both deﬁnitions presume that there is no lawful exception permitting the treatment in question.

28

29

ohG, C-180/95, [1997] ECR I-2195, para 16–22. See also other sources of law supporting this proposition: For Norway, see Ot. Prp. Nr. 33 (1974–75) 28 and Gudrun Holgersen, Likestillingsloven (Oslo: Universitetsforlaget, 1984), 39–40. For Sweden, see Regeringens proposition 1997/98: 177, 22 and Anna Christensen, “Structural Aspects of AntiDiscriminatory Legislation and Processes of Normative Change,” in Legal Perspectives on Equal Treatment and Non-Discrimination, edited by A. Numhauser-Henning (The Hague: Kluwer Law International, 2001). This presumes an issue (e.g., wages or career development) and a respondent (e.g., employer or labor union) falling within the scope of the prohibition against discrimination. The term comparable circumstances in the generic deﬁnition of direct discrimination presupposes legal relevancy as a guide in the determination of when two cases are comparable or different. Two cases are never absolutely identical; one person may have blue eyes while the other has brown eyes. Although eye color may be relevant regarding the choice of eye makeup, it will not be relevant regarding the selection of which employees should undergo career development training. The deﬁnition thus seeks to determine whether the circumstances of two cases are relevantly comparable so as to deserve the same treatment.

The Concept of Discrimination

33

2.2. Direct Discrimination In a typical direct discrimination case the court or enforcement agency is concerned with the following three questions: (1) Whether the complainant has been treated less favorably than others who are in comparable circumstances as the complainant (i.e., differential treatment)?30 (2) Whether there is a causal connection between that less favorable treatment and a statutorily-protected characteristic31 (for example, sex, ethnicity, disability etc.)? (3) Whether there is an exception or justiﬁcation which permits the less favorable treatment?32

a. Comparable Circumstances The prohibition against direct discrimination says that “like cases shall be treated alike”. Or as stated by Anna Christensen: Direct discrimination is present if the allocator of resources does not apply the norm pertaining to the reference group to members of the protected group, too, irrespective of whether his failure to do so is due to malice, prejudice or statistical discrimination.33

But when are two cases similar enough to require like treatment? Or to use Anna Christensen’s words: When are the situations of the members of the protected group and the reference group so similar that they deserve similar treatment (i.e., the application of the same norm)? Or to put the question in a third way: When are the differences in two cases so material (or relevant) that one is not obligated to treat the cases similarly? Two people (and their circumstances) are both similar and different in an unlimited number of ways.34 As a result one must consciously select the criteria to use in assessing relevant differences or similarities. The selection process is one of moral and political choice, not logic. There is no ‘natural’ ordering of human interrelationships that can be determined empirically, though there is ordering that affects, and is affected by, social structures, language and culture.

30

31

32

33

34

The USA’s concept of disparate treatment discrimination (direct discrimination) differs, however, in that proof of disparate treatment requires proof of improper motive or intention. The statutorily protected characteristic will usually be a characteristic of the complainant, but may sometimes be a characteristic of someone with whom the complainant is associated. Although the EU deﬁnition of direct discrimination in the Race Directive does not contain a generic justiﬁcation defense, art. 4 of the directive does include a limited exception for justifying less favorable treatment on grounds of race when the treatment is a result of a genuine and determining occupational requirement. (See section 2.2.c for a discussion of justiﬁcation.) Anna Christensen, “Structural Aspects of Anti-Discriminatory Legislation and Processes of Normative Change,” in Legal Perspectives on Equal Treatment and Non-Discrimination, edited by A. Numhauser-Henning (The Hague: Kluwer Law International, 2001), 42. William Black and Lynn Smith, “The Equality Rights,” in The Canadian Charter of Rights and Freedoms, 3d ed., edited by Gérald-A. Beaudoin and Errol Mendes (Ottawa: Carswell, 1986), 14–7.

34

Chapter 2 .... Our history suggests that some criteria are consistent with our societal values and others are not.35

b. Causal Link to Statutorily-Protected Characteristics The differential treatment suffered by the complainant must be causally linked or connected to a ground (usually a characteristic of the complainant)36 protected by antidiscrimination legislation, for example race, sex, disability etc. Discriminatory practices affect people by reason of their being members of a group; the personal characteristics protected by antidiscrimination law go towards deﬁning that group membership. In determining whether such a causal link exists, some courts have found it helpful to apply a test known as the “but for” test. The test asks whether the complainant would have received the treatment complained of, but for the statutorily-protected characteristic of the complainant, i.e., but for the sex, race etc of the complainant.37 If the answer to this question is “no”, then the complainant’s treatment has been caused by the statutorilyprohibited ground (race, sex etc.). The “but for” test is, however, not appropriate for use in all cases, because it gives the impression that race, sex etc. must be the only reason for the less favorable treatment. The test is thus not helpful in cases where there are several competing reasons for the less favorable treatment, some lawful and some unlawful. In such cases, courts have stated that the race, sex etc. need not be the sole cause of the less favorable treatment or even the main cause; it is sufﬁcient if it is a substantial and effective cause.38 c. Justiﬁcation Defenses and Exceptions All antidiscrimination laws include some exceptions whereby certain justiﬁable acts will not be considered to be discrimination. These justiﬁcation defenses may be either statutory-based or developed by courts through case practice. There are ordinarily three types of litigation strategies available to an employer in a direct discrimination case. He may: (1) deny the primary facts presented by the complainant, and present evidence that the treatment received by the complainant was non-discriminatory;

35 36

37 38

Ibid., 14–7. Many antidiscrimination laws also prohibit discrimination against a complainant who is associated in some way with the person with the statutorily-protected characteristic. For example, it would be discriminatory for an employer to deny career opportunities to a female employee because her husband is disabled and the employer fears that this will inhibit her ability to carry out her job. R v. Birmingham City Council [1989] AC 1155; [1989] IRLR 173. O’Neill v. Governors of St Thomas More Upper School [1996] IRLR 372, 375 and Nagarajan v. London Regional Transport [1999] 4 All ER 65; [1999] IRLR 572, 575. See also Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), 258.

The Concept of Discrimination

35

(2) prove that the treatment received by the complainant was justiﬁed under the bona ﬁde occupational qualiﬁcation (BFOQ) exception; (3) prove that the case falls within some other statutory exception.39 This ﬁrst strategy is not really a justiﬁcation defense and thus falls outside of the scope of this discussion. Most states have justiﬁcation defenses of differing scopes for direct discrimination and indirect discrimination respectively. Justiﬁcation defenses or exceptions in connection with direct discrimination are usually relatively narrow in scope. This is understandable, particularly given the assumption that the complainant has established both differential treatment and a causal link to a statutorily-protected characteristic.40 The fact that this gives rise to suspicion is understandable, given the purpose of the antidiscrimination law. Justiﬁcation defenses with respect to direct discrimination are usually formed as a statutory exception to the non-discrimination prohibition, but it can also be developed by case law. Justiﬁcation defenses in connection with indirect discrimination are on the other hand broader and more general in scope. In international human rights instruments, such as the UN Covenant on Civil and Political Rights (CCPR), the European Convention on Human Rights (ECHR) and the UN Convention on the Elimination of all Forms of Racial Discrimination (ICERD), the treaty enforcement bodies apply the same general justiﬁcation defense in both cases of direct discrimination and indirect discrimination. (See sections 2.3.g and 2.3.h.) Although most national antidiscrimination laws have not adopted this common approach to justiﬁcation, Canada recently adopted such an approach for both direct and indirect discrimination (see section 2.3.c). Moreover, the Norwegian Law Commission for a Law against Ethnic Discrimination proposed in its 2002 report a common approach to justiﬁcation in § 3 of its Draft Law.41 In April 2005 the Norwegian Parliament adopted this law. Section 4, paragraph 5 of the newly adopted law contains a common justiﬁcation defense to allegations of both direct and indirect discrimination.42 Litigation strategy numbers 2 and 3 are known as afﬁrmative defenses. An afﬁrmative defense presumes, at least hypothetically, that the standard applied or treatment received by the complainant was admittedly based on a statutorily-protected characteristic. In order to better understand this meaning of afﬁrmative defense, it would ﬁrst be helpful to re-state what arguments the complainant invariably makes to the court or enforcement agency and what counter-arguments are typically made by the respondent. In a typical direct discrimination case the complainant argues: (1) That he or she has been treated less favorably than others who are in comparable circumstances as the complainant (i.e., differential treatment);

39 40

41 42

See Béatrice Vizkelety, Proving Discrimination in Canada (Toronto: Carswell, 1987), 194. Harold Lewis and Elizabeth Norman, Employment Discrimination Law and Practice (St. Paul: West Group, 2001), 124. Rettslig vern mot etnisk diskriminering, NOU 2002: 12, 370. Beslutning i Odelsting nr. 67 (2004–2005).

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Chapter 2 (2) That there is a causal connection between that less favorable treatment and a statutorilyprotected characteristic (for example, sex, ethnicity, disability etc.); (3) That there is no exception or justiﬁcation which permits the less favorable treatment.

Typical counter-arguments made by an employer (respondent) will be: (1) The complainant did not receive the treatment complained of (for example, a complainant alleges that he was not allowed to have Saturdays off so as to observe his religious Sabbath and the employer responds that he was so permitted with the exception of two Saturdays in December which were impossible to restructure); (2) The complainant and the comparator are not in comparable situations, i.e., the situations of the two are materially different; (3) The complainant was not treated differently from the comparator; (4) There is no causal link between the treatment given the complainant (whether differential or not) and any statutorily-protected characteristic (for example, sex, ethnicity, disability etc.); (5) Even if differential treatment linked to a forbidden personal characteristic is established, the actions of the employer were justiﬁed or exempted from the non-discrimination prohibition.

The ﬁrst four counter-arguments of the employer are negations of primary facts alleged by the complainant. The ﬁfth counter-argument, a justiﬁcation defense, states that even if the alleged primary facts were true, the employer still has not committed an act of discrimination because his actions are permitted by law. The term justiﬁcation defense is used in this thesis in the sense of an afﬁrmative defense, i.e., a new set of facts or argument of law which operates to defeat the complainant’s claim even if the facts supporting that claim are true.43 Justiﬁcation in this sense is any lawful permission (or exception) of an action that would otherwise have been deemed (unlawful) discrimination. This justiﬁcation presumes that the difference in treatment or effect (when compared with others)44 suffered by the complainant is, at least hypothetically, admittedly linked to an alleged characteristic. As stated earlier, states usually have rather narrow justiﬁcation defenses in connection with direct discrimination. Examples of these kinds of justiﬁcation are: (1) Limited statutory exceptions to the material scope of the non-discrimination prohibition. For example, some jurisdictions may exempt pensions from the prohibition against sex discrimination with respect to the terms of employment. (2) An exception for the use of special temporary measures (positive action/afﬁrmative action) to prevent or compensate for discrimination or to promote equality of 43

44

See the deﬁnition of afﬁrmative defense in West’s Encyclopedia of American Law, 2d edition, vol. 1 (St. Paul: West Publishing Company, 1998), 119. With respect to the justiﬁcation defense in connection with indirect discrimination, one must presume (at least hypothetically) that the complainant has succeeded in establishing: (1) adverse effect (when compared with others) upon the alleged group in which the complainant is a member and (2) a causal link between the adverse effect and the statutorilyprotected characteristic.

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opportunity. (Judicial decisions help to draw the borders between acceptable and unacceptable special temporary measures.) (3) A statutory exception for selection criteria based on a bona ﬁde occupational qualiﬁcation (BFOQ)45 necessary to perform the job. In EU law this concept is known as a genuine and determining occupational requirement (GDOR). This is illustrated by Article 4 of the Race Directive: Notwithstanding [the prohibition against discrimination] . . ., Member States may provide that a difference of treatment which is based on a characteristic related to racial or ethnic origin shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate. (emphasis added)

The BFOQ defense in Title VII of the Civil Rights Act 1964 (USA) is worded as follows: Notwithstanding any other provision of this title . . . it shall not be an unlawful employment practice for an employer to hire and employ employees . . . on the basis of religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona ﬁde occupational qualiﬁcation reasonably necessary to the normal operation of that particular business or enterprise.46

Despite the differences in wording, both the European Court of Justice and the US Supreme Court have interpreted these employer defenses in a more or less similar way. Even though the language of the BFOQ does not expressly indicate it, the US Supreme Court stated in the Johnson Controls case that in order to qualify as a BFOQ, a job qualiﬁcation must relate to the employee’s ability to safely and effectively perform the essential job duties, and there must be a high correlation between the job qualiﬁcation and the ability to perform the particular job.47 The USA justiﬁcation defense does differ from EU law, however, in that the former does not apply to race; only to religion, sex and national origin. The EU genuine and determining occupational requirement may, however, be based on race, sex, religion and belief, disability, sexual orientation or age. This kind of justiﬁcation defense (the BFOQ defense) is recognized in most jurisdictions with antidiscrimination laws. The following examples are rather typical: (a) The nature of the job requires a particular sex for reasons of physiology48 (picture shoot for advertisement for breast cancer examinations) or for reasons of authenticity (dramatic performances). 45

46 47 48

Many countries have different names for this same concept. Australia and United Kingdom: Genuine occupational qualiﬁcation; USA: Bona ﬁde occupational qualiﬁcation. In Canada the concepts bona ﬁde occupational qualiﬁcation (BFOQ) and bona ﬁde occupational requirement (BFOR) are used today in a different sense. See section 2.3.c. 42 U.S.C. § 2000e-2(e). International Union, UAW v. Johnson Controls 499 U.S. 187 (1991), 202–203. This would not include physical strength.

38

Chapter 2 (b) The nature of the job requires a particular sex to preserve decency or privacy (attendant for a public women’s toilet). (c) The nature of the job requires a particular sex because of work involving physical contact in a private home (nursing care). (d) The nature of the job requires a particular ethnicity for reasons of authenticity (an Asian restaurant seeking Asian waiters/waitresses).

d. Critique of the Concept of Direct Discrimination As earlier indicated the ﬁrst antidiscrimination laws were modeled on a prohibition against direct discrimination; they required that like cases should be treated alike. Given that this is also the popular conception of discrimination, one might ask why this conception is so attractive. First, it has the appearance of being simple to apply, almost mechanical in its application of the law to the facts of the case. This appearance is quite deceptive, hiding much of the underlying values which determine the outcome of cases. Secondly, it has proved to be effective in addressing extreme and overt forms of discrimination where discriminatory intent and gross prejudice are clearly apparent or poorly disguised. Thirdly, it makes a clear statement that the treatment of persons shall be deemed arbitrary and unacceptable if based on statutorily-protected characteristics.49 Fourthly, it is easy to view the concept of direct discrimination or formal equality as a mere extension of the well-established principle of equality before the law, adopted in the constitutions of the USA and Europe over the last two hundred years.50 It is easy to view formal equality as merely an extension of these well-established principles. On the other hand, the legal literature on discrimination is replete with criticism regarding the inadequacy of a sole concept of direct discrimination (formal equality) in addressing discrimination and inequality. In her book Discrimination Law, Sandra Fredman describes several of the main elements of this criticism:51 (1) The concept of direct discrimination requires that the complainant ﬁnd a comparator who is in a similar (comparable) situation. (2) The concept of direct discrimination forces the complainant to be like the comparator, thus putting a premium on assimilation rather than diversity. If the complainant differs from the dominant norm, then he/she has no claim to equality and may thus be legitimately excluded. (3) The concept of direct discrimination is empty as a normative concept, containing no minimum content of fairness or justice. (4) The concept of direct discrimination is of little use where it is difﬁcult to establish the parameters of the treatment given (i.e., the norm applied) to the comparator.

49

50 51

Marguerite Bolger and Cliona Kimber, Sex Discrimination Law (Dublin: Sweet & Maxwell, 2000), 4. Ibid., 4. Sandra Fredman, Discrimination Law (Oxford: Oxford University Press, 2002), 7–11.

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Finding a comparator One difﬁculty which arises with the concept of direct discrimination is the need for the complainant to point out a comparator. The comparator must be someone who: (a) is in comparable circumstances as the complainant, (b) is treated more favorably than the complainant, and (c) has a different statutorily-protected characteristic, such as sex, religion, age, ethnicity etc. than the complainant. This is necessary so as to argue that the complainant was treated less favorably on the grounds of a characteristic protected by antidiscrimination law. Experience shows that it is difﬁcult to ﬁnd a comparator in cases of termination of employment and harassment where the factual circumstances may be unique.52 In the ﬁeld of sex discrimination the prime example of this difﬁculty is the woman who is discriminated against because of pregnancy. No comparator exists in such a case. Moreover, complainants in cases involving job segregation are unlikely to ﬁnd comparators. For example, in workplaces where only persons of one ethnicity or sex work in the lowest jobs and receive the lowest earnings while all the managers and supervisors are of a different ethnicity or sex, then it will not be possible for complainants in the lowest positions to ﬁnd a comparator of a different ethnicity or sex in comparable circumstances as themselves.53 Assimilation: Forcing the complainant to be like the comparator In most cases the comparator will be a person belonging to the dominant group (i.e., the dominant ethnicity, sex, religion etc). The concept of direct discrimination forces the complainant to assimilate to the attributes of the comparator in order to show that both are in comparable circumstances. The greater the differences between the complainant and comparator, the greater the likelihood that the two will be found not to be in comparable circumstances. If one differs from the comparator in a way deemed relevant, then one has no claim to equality and may thus be legitimately excluded.54 The road to equality goes only through assimilation. The concept of direct discrimination does not encompass a woman’s demand for equality for part-time workers with full-time workers. She must become a full-time worker to achieve equality. Nor does the concept encompass an immigrant’s demand for equal recognition of his work experience from abroad. He must have work experience from the country of immigration to achieve equality.

52

53

54

See for example Pearce v. Governors of Mayﬁeld School [2001] IRLR 669. The complainant was a teacher who suffered harassment by students because she was lesbian. The complainant alleged that the school had not adequately protected her. The tribunal found that to prove direct discrimination, the complainant had to establish that she was less favorably treated than a male teacher comparator who was harassed for being homosexual. The EU directives have addressed the comparator problem by making it possible for the complainant to point out a hypothetical comparator. See the wording of the deﬁnition of direct discrimination in the Race Directive: “[D]irect discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation. . . .” (emphasis added). Petra Foubert, The Legal Protection of the Pregnant Worker in the European Community (The Hague: Kluwer Law International, 2002), 22.

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Chapter 2

Furthermore, the concept of direct discrimination is not merely indifferent to diversity, it can be used as an instrument for perpetuating inequality. For example, when an employer treats all employees alike by requiring them to wear a uniform without exceptions for religious headwear, then this perpetuates the exclusion of those ethnic minority women and men who because of their religion wear headscarves, turbans and yarmulkes. A concept of discrimination that merely treats all like cases alike is therefore a concept that can indeed perpetuate inequalities because such a concept does not take into account differences that in fact occur in the real world. No minimum content of fairness The notion that “like cases shall be treated alike” is merely a relative principle. Sandra Fredman explains: It requires only that two similarly situated individuals be treated alike. This means that there is no difference in principle between treating two such people equally badly, and treating them equally well. There is no substantive underpinning. For example, it has been held that if an employer harasses both men and women, then there is no discrimination on grounds of sex because they are both treated equally badly. . . . Even more problematically . . . a claim of equal treatment can just as easily be met by removing a beneﬁt from the relatively privileged group, and equalizing the two parties at the lower point (leveling down), as by extending the beneﬁt to the relatively underprivileged individual, and equalizing the parties at a high point (leveling up). In a famous US case, a city which was required to open its ‘whites only’ swimming pools to blacks chose instead to close down all its swimming pools.55

The point was made particularly clear in a city where many whites had swimming pools in their backyards or access to private swimming pools, while blacks had neither. If inclusion, integration and equal participation are the aims, then the concept of direct discrimination is insufﬁcient to bring this about. When ambiguous norms are applied to the comparator Sometimes the norm applied to the comparator (i.e., the basis of the treatment given the comparator) is not in doubt, for example where all the employees in a particular job position shall be given a salary increase. In such cases it is not difﬁcult for the complainant to show that he/she has received less favorable treatment. However, if the norm applied to the comparator is ambiguous or unable to be established, then the complainant may ﬁnd it almost impossible to prove less favorable treatment. For if one does not know why person A was hired rather than person B, or why person C was promoted rather than person D, then one cannot know whether the act constitutes less favorable treatment.56 If one cannot establish what norm was applied (i.e., the treatment given) to the com-

55 56

Sandra Fredman, Discrimination Law (Oxford: Oxford University Press, 2002), 8. Anna Christensen, “Structural Aspects of Anti-Discriminatory Legislation and Processes of Normative Change,” in Legal Perspectives on Equal Treatment and Non-Discrimination, edited by A. Numhauser-Henning (The Hague: Kluwer Law International, 2001), 38.

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parator, then one cannot know whether a similarity or difference in those compared is relevant or irrelevant to the norm (the treatment). Employment selection criteria are often informal, unwritten, ambiguous, discretionary and non-transparent. It is almost impossible for a potential complainant to know whether the employer has consistently applied the same criteria, for example, in all interviews, or when evaluating references. This is further complicated by the fact that a prohibition against direct discrimination only prohibits an employer from using selection criteria on the basis of protected characteristics. An employer in the private sector is free in all other respects to choose to hire a person on whatever basis he/she desires, for example friendship, family relations or a host of other seemingly irrational reasons. Although there may be a presumption that the employer is interested in choosing the best qualiﬁed person for the job, he/she is not obligated to do so. This fact makes proof of discrimination a difﬁcult balancing act, because the usual way for a complainant to show discrimination is to prove that he/she was the best qualiﬁed for the job, but that the job was given to another.

2.3. Indirect Discrimination a. Introduction The fundamental idea behind the concept of indirect discrimination – i.e., the notion that general rules may sometimes lead to some persons suffering an unjustiﬁable unfairness, is not new. All legal systems have some mechanisms for doing what the AngloAmerican legal tradition calls equity, i.e., the correction of unfairness that sometimes results from the application of general rules to individual situations.57 In the AngloAmerican tradition the notion of equity goes back to the 13th Century. However, that which is relatively new is the placement of this idea in a non-discrimination or equality context. In 1935 the Permanent Court of International Justice adopted in essence the notion of indirect discrimination58 when it held in the Minority Schools in Albania case59 that differential treatment was necessary in order to attain equality in fact. The Albanian Government had argued that its law abolishing private schools applied to all – both to the majority and minority populations. The Court found however that the law, which prohibited private schools where minority religious instruction could be taught, violated the requirement of equality in fact found in the Albanian Government’s Treaty Declaration to the League of Nations. Despite this early enlightenment on the concept of discrimination, it would pass another 36 years before the notion of indirect

57

58 59

See R. Neil Snyder, “Natural Law and Equity,” in Equity in the World’s Legal Systems: A Comparative Study, edited by Ralph Newman (Brussels: Établissements Emile Bruylant, 1973), 40. There are at least three other deﬁnitions of the term equity. They should not be confused with this sense of the term. The Court did not however use the term indirect discrimination. Permanent Court of International Justice, Series A./B., No. 64, Advisory Opinion of 6 April 1935, 19.

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discrimination once again emerged on the scene in the US Supreme Court decision of Griggs v. Duke Power Company.60 This thesis uses the following generic deﬁnition of indirect discrimination: When persons in relevantly different situations are treated on the basis of factors other than prohibited characteristics (i.e., treated in a facially neutral way), yet this results in unjustiﬁable, disadvantageous and differential consequences (for a speciﬁc group) causally linked to a prohibited characteristic. Intuitively, this concept is not a difﬁcult one. A classic illustration is a requirement that all police ofﬁcers be of a certain height or weight (based on an average for men), thus indirectly discriminating against women (who are not as tall and as heavy as the average man). Employers often use selection criteria and other employment practices that unintentionally (and even unknowingly) disadvantage non-traditional workers such as women, ethnic minorities, religious minorities and persons with disabilities.61 The concept of indirect discrimination could potentially have an enormous impact on the policies and practices of the workplace. The concept is useful in helping to challenge the assumption that policies affect everyone in the same way. It is important, however, to be aware that a challenge on grounds of indirect discrimination is often a challenge to a rule or practice that (at least until challenged) is viewed as self-evident and has been accepted as part of the norm structure in society.62 The rule or practice seems fair because it applies to everyone, but when applied, it acts as a barrier to persons of a particular group. At the same time, changes in society have usually prompted some (or many) to question the fairness of the rule or practice. Ina Sjerps explains this whittling away of the acceptance of the fairness of prevailing norms: Why did women start to question the distinction between full-timers and part-timers as an indirect form of sex discrimination in court? Why not the distinction between secretaries and managers? In both cases, women are under-represented in the jobs with the better employment conditions . . . and over-represented in jobs with the lesser conditions. . . . The answer seems to be that the inequalities between full-timers and part-timers (doing the same work) were not (any longer) considered justiﬁed, whereas those between secretaries and managers (not doing the same work) still are. . . . People implicitly agree that some inequalities are justiﬁed without further investigation. Changes in society lead to changes in the way we categorise and judge and to which differences in treatment of . . . people are considered socially, morally, economically and eventually also legally acceptable. .... Indirect discrimination cases are generally cases where there is not yet any widespread agreement in society, as to whether unequal treatment is acceptable or not; where a group of people no longer accept unequal treatment, but many others ﬁnd it acceptable. Those are

60 61

62

401 US 424 (1971). Rosemary Hunter, Indirect Discrimination in the Workplace (Sydney: The Federation Press, 1992), xxii. Anna Christensen, “Structural Aspects of Anti-Discriminatory Legislation and Processes of Normative Change,” in Legal Perspectives on Equal Treatment and Non-Discrimination, edited by Ann Numhauser-Henning (The Hague: Kluwer Law International, 2001), 52.

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the cases where the legal battle is being fought most fervently, in accordance with the social and political ﬁght.63 (emphases added)

It is precisely because of this lack of widespread agreement, that many courts ﬁnd it difﬁcult to use the concept of indirect discrimination to its full potential. b. USA The legal construction of indirect discrimination was adopted by the US Supreme Court in the decision Griggs v. Duke Power Company.64 Section 703 (a) of Title VII of the Civil Rights Act 1964 states that it is unlawful for an employer: (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

Although the Civil Rights Act 1964 (Title VII) had no explicit language forbidding the like treatment of materially different cases, the Supreme Court interpreted the Act’s prohibition of discrimination to include the prohibition of a neutral practice that had a discriminatory consequence.65 In Griggs the defendant employer, who had had a past history of segregation, introduced a practice whereby all employees (except for those in the lowest paying jobs) had to have a high school diploma and to have passed two general aptitude tests. There was no showing of a racial purpose or an invidious intent behind the requirements; however, only 12% of the black males in North Carolina had a high school diploma, compared to 34% of white males. Furthermore, a study had shown that while 58% of whites passed the aptitude tests, only 6% of blacks did so. Neither the high school diploma nor the passing of the tests were shown to bear any relationship to performance of the jobs for which they were used. The Court stated: The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identiﬁable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in

63

64 65

Ina Sjerps, “Effects and Justiﬁcations: Or How to Establish a Prima Facie Case of Indirect Sex Discrimination” in Non-Discrimination Law: Comparative Perspectives, edited by Titia Loenen and Peter Rodrigues (The Hague: Kluwer Law International, 1999), 240–241. 401 US 424 (1971). The Griggs principle was later codiﬁed in the Civil Rights Act 1991. See the Civil Rights Act 1964 as amended at 42 USC sec. 2000e–2(K).

44

Chapter 2 terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices.66 .... The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.67 (emphases added) .... [G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability. .... Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation. More than that, Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question.68 (emphases added)

The US Supreme Court did not derive the legal construction of adverse impact discrimination from any speciﬁc provision of the law, but rather extended the law’s application through a broad interpretation of the remedial objective of the law.69 Adverse impact discrimination requires proof of adverse impact upon a protected group. This involves a comparison of different groups, and this is typically demonstrated by way of a statistical presentation. Litigation of this type of discrimination has most often involved class actions. Once the complainant has made a prima facie case of discrimination, showing that the challenged practice or selection criteria has a substantial adverse impact on a protected group, the burden of proof shifts to the respondent (employer) to show that the practice or criteria is both: (1) related to job performance and (2) consistent with business necessity. If the employer fails to meet either of these two criteria, then the complainant will prevail. The Supreme Court elaborated further on the proof of adverse impact discrimination several years later in Albemarle Paper Co. V. Moody,70 another case involving the use of tests. The Court ﬁrst clariﬁed that the burden of proof shifted to the employer once the complainant made out a prima facie case of discrimination, i.e., that the policy or practice affected racial minorities signiﬁcantly different than others in the pool of applicants.71 Thereafter the Court pointed out that even if the employer could show that the

66 67 68 69

70 71

401 US 424 (1971) at 430. Ibid., 431. Ibid., 432. Rosemary Hunter, Indirect Discrimination in the Workplace (Sydney: The Federation Press, 1992), 17. 422 U.S. 405 (1975). Ibid., 425. Today, many courts, both in the USA and Canada, apply the “four-ﬁfths rule” of the Uniform Guidelines on Employee Selection Procedures in determining whether the complainant has made a showing of signiﬁcant difference or adverse impact. The rule states that there is adverse impact if a selection rate for any race, sex etc. is less than four-ﬁfths 4/5ths

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practice was job-related, the complainant could still succeed if appropriate alternatives were not adopted: If an employer does then meet the burden of proving that its [practices or criteria] are ‘job related,’ it remains open to the complaining party to show that other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer’s legitimate interest. . . .72

As is apparent from Albemarle the existence of less discriminatory alternatives plays a signiﬁcant role in the assessment of whether the adverse impact is justiﬁable. When a violation is found the remedy granted will usually involve, among other things, change of the infringing employment practice or policy.73 Albemarle required that the complainant make a prima facie showing of signiﬁcant adverse impact. The most usual way in which this is done is to show that the disparity is unlikely to have occurred at random. Courts generally ﬁnd adverse impact where the disparity is statistically signiﬁcant. Tests of statistical signiﬁcance determine the probability of obtaining the observed disparity (or a greater disparity) by chance. The 0.05 probability level (or below) is accepted by many courts as sufﬁcient to rule out chance.74

The adverse impact (indirect discrimination) legal construction has also been applied to sex discrimination,75 to national origin discrimination,76 and to disability discrimination,77 but not to religious discrimination. It is important to note that the adverse impact legal construction has been limited to the ﬁeld of federal employment discrimination law, which prohibits discrimination carried out by employers having at least 15 employees. It has not been applied more generally in connection with enforcement of the equal protection clause of the Constitution’s 14th amendment.78

72 73

74

75 76 77 78

(or 80%) of the rate for the group with the highest rate. Equal Employment Opportunity Commission, Uniform Guidelines on Employee Selection Procedures (1978), 41 C.F.R. § 60–3.4 (D). See Simon Taggar, “A Comparative Look at the Impact on Human Resources Management of Employment Equity Legislation,” in Employment Equity and Afﬁrmative Action: An International Comparison, edited by Harish Jain, Peter Sloane, and Frank Horwitz (Armonk: M.E. Sharpe, 2003), 80. Ibid., 425. Michael Selmi, “Indirect Discrimination: A Perspective From the United States” in NonDiscrimination Law: Comparative Perspectives, edited by Titia Loenen and Peter Rodrigues (The Hague: Kluwer Law International, 1999), 219. Barbara Lindemann and Paul Grossman, Employment Discrimination Law, vol. 1, 3d ed. (Washington, D.C: The Bureau of National Affairs, 1996), 90–91. Dothard v. Rawlinson , 433 U.S. 321 (1977). Beavers v. Iron Workers Local Union 1, 701 F.2d 601 (7th Cir. 1982). Americans with Disabilities Act, Title I, Sec. 102 (b). See Washington v. Davis: “A rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justiﬁcation, if in practice it beneﬁts or burdens one race more than another would be far-reaching and would raise serious questions about, and perhaps invalidate,

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In the 1989 case of Wards Cove Packing Co., v. Atonio79 the Supreme Court relaxed the employer’s justiﬁcation defense in indirect discrimination cases as well as the employer’s burden of proof (in rebutting a prima facie case). At the same time, it made more difﬁcult the complainant’s ability to prove disparate group impact. The case involved an Alaskan cannery with job segregated workforces. The cannery jobs involved unskilled work and were ﬁlled predominantly by Filipinos and Alaskan Natives, while the non-cannery jobs involved skilled work and were ﬁlled predominantly by white workers. The cannery operated only during the summer months and all workers were transported to the remote sites except for the Alaskan Natives who live near the cannery. The case marked a signiﬁcant backtracking from the principles of Griggs and Albemarle, making it very difﬁcult for complainants to prove adverse impact discrimination. The Court’s holding did this in four ways: (1) The Court relaxed the burden of proof which was to shift to the employer upon the complainant’s making out a prima facie case. Only the burden of going forward with the evidence was to shift – not the burden of persuasion. (2) The Court required a practice-by-practice proof of causation of the disparate impact. This meant that the complainant had to isolate and identify the speciﬁc employment practice causing the disparate impact. (3) The Court weakened the business necessity standard of Griggs, saying that the employer’s practice was justiﬁable if it: “serves, in a signiﬁcant way, the legitimate employment goals of the employer. . . . The touchstone of this inquiry is a reasoned review of the employer’s justiﬁcation for his use of the challenged practice.”80 (emphasis added) (4) The Court said that the complainant could not use an internal comparison of the two sets of workforces, but rather had to use labor availability statistics in order to show disparate group impact. The Wards Cove case signaled a serious attack on the usefulness and effectiveness of the concept of indirect discrimination. However, Congress overturned most of these aspects of Wards Cove in the Civil Rights Act 1991, codifying the Griggs test of business necessity and job relatedness, as well as the employer’s heavier burden of proof.81 The Civil Rights Act 1991 did, however, codify in part the holding requiring that a complainant identify the speciﬁc employment practice causing the disparate group impact. The Act, however, added that if the complainant could demonstrate that the elements of the employer’s decisionmaking process are not capable of separation for analysis, the decisionmaking process could be analyzed as one employment practice.

79 80 81

a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more afﬂuent white.” 426 US 229 (1976) at 248. 490 U.S. 642 (1989). Ibid., 659. See Title VII of the Civil Rights Act 1964 as amended by the 1991 Act, 42 U.S.C. Sec 2000e– 2 (k)(1)(A).

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c. Canada – From Bifurcated Analysis to Uniﬁed Approach The Canadian federal and provincial antidiscrimination laws do not generally deﬁne the concept of discrimination. During the 1970’s the special discrimination tribunals in the provinces (known as Boards of Inquiry) extended the various provincial antidiscrimination laws so as to include the discriminatory effects of neutral rules and practices.82 Like in the USA, this was done through a broad interpretation of the remedial purposes of the antidiscrimination laws. But it was not until 1985 that the Canadian Supreme Court adopted the legal construction of adverse effect discrimination on the basis of this same broad purposive approach to interpreting antidiscrimination provisions. In the case Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd 83 (better known as the O’Malley case) the complainant was a Seventh-Day Adventist. A tenet of this religious faith forbids work on the Sabbath from Friday sundown to sundown Saturday. The complainant’s employer (a department store) required its sales employees to work on Saturdays, and as a result the complainant lost her fulltime position. The employer made no attempt to accommodate the complainant’s needs. The complainant alleged religious discrimination under section 4(1)(g) of the Ontario Human Rights Code. The section states: No person shall . . . discriminate against any employee with regard to any term or condition of employment, because of the race, creed, colour, age, sex, marital status, nationality, ancestry or place of origin of such person or employee.

In O’Malley the Canadian Supreme Court (like the US Supreme Court in Griggs), gave a broad interpretation of the antidiscrimination provision of the Ontario Human Rights Code, judicially extending the concept of discrimination to also include neutral rules and practices having adverse effects on individuals and groups: The accepted rules of construction are ﬂexible enough to enable the Court to recognize in the construction of a human rights code the special nature and purpose of the enactment . . . and give to it an interpretation which will advance its broad purposes. Legislation of this type is of a special nature, not quite constitutional but certainly more than the ordinary – and it is for the Courts to seek out its purpose and give it effect. The Code aims at the removal of discrimination. This is to state the obvious. Its main approach, however, is not to punish the discriminator, but rather to provide relief for the victims of discrimination. It is the result or the effect of the action complained of which is signiﬁcant.84

The Court also deﬁned adverse effect discrimination as follows: [Adverse effect discrimination] arises where an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all

82 83 84

Rosemary Hunter, op. cit., 17–18. [1985] 2 SCR 536. Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd [1985] 2 SCR 536, para 12.

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Chapter 2 employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force. . . . . [I] am of the opinion that this Court may consider adverse effect discrimination . . . a contradiction of the terms of the Code.85 (emphases added) [Upon a prima facie showing of adverse effect discrimination] the employer is not required to justify it but rather to show that he has taken such reasonable steps toward accommodation of the employee’s position as are open to him without undue hardship. It seems evident to me that in this kind of case the onus should again rest on the employer. . . .86 (emphasis added)

It should be noted that the Canadian concept of adverse effect discrimination includes both when the adverse effect only affects one individual as well as when it affects a group. This contrasts with the USA adverse impact concept which only recognizes adverse effects upon a group.87 The Canadian Supreme Court found that in the light of a prima facie showing of adverse effect upon the complainant, the employer was obligated to prove that he had taken reasonable steps to accommodate the complainant, short of undue hardship. There was however no duty on the employer to justify the employment practice or policy. The focus was on individual accommodation. The Court further found that where there was adverse effect discrimination, the offending rule or practice would not necessarily be struck down.88 The employer was merely obligated to accommodate the complainant. This latter aspect of the judgment was later modiﬁed in 1999 by the Supreme Court in British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U.89 (better known as the Meiorin decision). The Meiorin decision involved an employer’s use of an aerobics test to determine whether a person could work as a forest ﬁreﬁghter. The complainant was a woman who had worked successfully as a ﬁreﬁghter for three years, but was terminated after having failed to pass the aerobics test when it was later introduced. The complainant proved a prima facie case of adverse effect discrimination by showing that the test adversely affected women as a group. The burden of proof then shifted to the employer. The employer was however unable to establish that the test was necessary in order to properly perform the duties of a ﬁreﬁghter. The test was not job related. The employer was therefore in violation of the prohibition against sex discrimination. As stated above, prior to Meiorin the remedy for the complainant would have been an individual accommodation rather than the striking down of the employment practice. Nor would the employer have had to justify the employment policy or practice.

85 86 87

88 89

Ibid., para 18. Ibid., para 28. An exception to this is the Americans with Disabilities Act which uses a concept of adverse impact which includes a showing of adverse impact upon an individual. See Barbara Lindemann and Paul Grossman, Employment Discrimination Law, vol. 1, 3d ed. (Washington D.C.: The Bureau of National Affairs, 1996), 334. Ibid., para 23. [1999] 3 S.C.R. 3.

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In light of these observations, the Meiorin court questioned the conventional bifurcated analysis of discrimination cases. According to the conventional analysis, one ﬁrst decided whether the alleged discrimination involved direct discrimination or adverse effect discrimination, and thereafter on the basis of this initial classiﬁcation as to the method of discrimination, different legal results regarding both employer defenses and legal remedies would ﬂow automatically. Where the complainant made out a prima facie showing of discrimination, the burden of proof would shift to the employer in both direct discrimination cases as well as adverse effect discrimination cases.90 However, under the conventional analysis the legal differences between the two methods of discrimination were as follows: In a direct discrimination case the employer could only justify his practice (i.e., rebut the prima facie case) by showing that the practice was a bona ﬁde occupation requirement (BFOR). This meant that the employer had to demonstrate that: (1) the practice was imposed honestly and in good faith and (2) the practice was reasonably necessary to the safe and efﬁcient performance of the work and did not place an unreasonable burden on those to whom it applied.91 This second requirement meant that the employer had to demonstrate that there was no reasonable alternative and that the practice was proportional to the end being sought.92 If the employer was unsuccessful in justifying the practice, the practice was struck down (deemed invalid). In an adverse effect discrimination case the bona ﬁde occupational requirement (BFOR) did not apply. The employer defended himself against an allegation of adverse effect discrimination (i.e., rebutted the prima facie case) by merely showing: (1) that there was a rational connection between the job and particular practice, and (2) that he could not accommodate the claimant further without incurring undue hardship.93 This defense had a much lower threshold than the bona ﬁde occupational requirement (BFOR). If the employer was unsuccessful in this defense, the employer had to make an individual accommodation for the complainant. But the employment practice remained intact. Tamar Witelson describes the complainant’s dilemma as follows: [T]he complainant was forced to make a strategic decision between framing the complaint as direct discrimination and forcing the respondent to meet a tougher defence, or framing the complaint as adverse effect discrimination to pursue an opportunity for more full accommodation, but at the same time giving the respondent an easier defence to meet. Thus the old dichotomized human rights jurisprudence encouraged the remedial tail to wag the factual dog, where discrimination was classiﬁed for strategic rather than substantive reasons.94

The Meiorin court repudiated this conventional analysis and adopted a new uniﬁed model of discrimination analysis. The court acknowledged that the conventional

90 91 92 93 94

Ibid., para 19. Ibid., paras 20–21. Ibid., para 38. Ibid., para 22. Tamar Witelson, “From Here to Equality: Meiorin, TD Bank, and the Problems with Human Rights Law,” in Queens’s Law Journal, 25 (1999–2000) 347–385, 368.

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analysis had been helpful in the interpretation of the early antidiscrimination statutes and had indeed represented a signiﬁcant step forward in that it recognized for the ﬁrst time the harm of adverse effect discrimination.95 The court, however, concluded that there were compelling reasons for repudiating the conventional analysis. Among the reasons given were two which are of particular interest for this thesis: (1) the artiﬁciality of the distinction between direct discrimination and adverse effect discrimination, and (2) the distinction’s legitimizing of systemic discrimination. Regarding the artiﬁciality of the distinction the court stated: The distinction between a standard that is discriminatory on its face and a neutral standard that is discriminatory in its effect is difﬁcult to justify, simply because there are few cases that can be so neatly characterized. For example, a rule requiring all workers to appear at work on Fridays or face dismissal may plausibly be characterized as either directly discriminatory (because it means that no workers whose religious beliefs preclude working on Fridays may be employed there) or as a neutral rule that merely has an adverse effect on a few individuals (those same workers whose religious beliefs prevent them from working on Fridays). . . . . Given the vague boundaries of the categories, an adjudicator may unconsciously tend to classify the impugned standard in a way that ﬁts the remedy he or she is contemplating, be that striking down the standard itself or requiring only that the claimant’s differences be accommodated. If so, form triumphs over substance and the broad purpose of the human rights statutes is left unfulﬁlled. Not only is the distinction between direct and indirect discrimination malleable, it is also unrealistic: a modern employer with a discriminatory intention would rarely frame the rule in directly discriminatory terms when the same effect – or an even broader effect – could be easily realized by couching it in neutral language . . . . [T]his more subtle type of discrimination, which rises in the aggregate to the level of systemic discrimination, is now much more prevalent than the cruder brand of openly direct discrimination. . . . The bifurcated analysis [conventional analysis] gives employers with a discriminatory intention and the forethought to draft the rule in neutral language an undeserved cloak of legitimacy.”96

Regarding the conventional analysis’ legitimizing of systemic discrimination, the court stated: Under the conventional analysis, if a standard is classiﬁed as being ‘neutral’ at the threshold stage of the inquiry, its legitimacy is never questioned. The focus shifts to whether the individual claimant can be accommodated, and the formal standard itself always remains intact. The conventional analysis thus shifts attention away from the substantive norms underlying the standard, to how ‘different’ individuals can ﬁt into the ‘mainstream,’ represented by the standard. Although the practical result of the conventional analysis may be that individual claimants are accommodated and the particular discriminatory effect they experience may be alleviated, the larger import of the analysis cannot be ignored. It bars courts and tribunals from assessing the legitimacy of the standard itself.

95 96

Ibid., para 25. Ibid., paras 27–29.

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.... This case, where Ms. Meiorin seeks to keep her position in a male-dominated occupation, is a good example of how the conventional analysis shields systemic discrimination from scrutiny. . . . [T]he practical result of the conventional analysis is that the complex web of seemingly neutral, systemic barriers to traditionally male-dominated occupations remains beyond the direct reach of the law. . . . [T]he ediﬁce of systemic discrimination receives the law’s approval. This cannot be right.”97 (emphasis added)

The Meiorin decision’s new uniﬁed model of discrimination analysis: (1) avoids the threshold distinction between direct discrimination and adverse effect discrimination, (2) integrates the concept of accommodation within the BFOR justiﬁcation defense, and (3) provides a uniﬁed remedy which can either entail striking down or changing the employment practice or providing an individual accommodation for the complainant. The court proposed the following three-step test for determining whether a standard, shown to be prima facie discriminatory, is a BFOR. The employer may justify the standard by establishing on the balance of probabilities: (1) that the employer adopted the standard for a purpose rationally connected to the performance of the job; (2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulﬁllment of that legitimate work-related purpose; and (3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.98

Elaborating on the application of this test, the Meiorin court said that the ﬁrst step is to identify the general purpose of the standard and to determine whether it is rationally connected to the tasks required of the employee. Here the focus is not on the validity of the particular standard at issue, but rather on the validity of its more general purpose. Although not essential to a ﬁnding of discrimination, step two (the subjective element of good faith) is one basis on which the standard may be struck down. In step three the analysis shifts from the general purpose of the standard to the particular standard itself. In showing that the standard is reasonably necessary to accomplish its legitimate workrelated purpose, the employer must establish: (1) that it has assessed and properly rejected reasonable alternatives to the standard, and (2) that it cannot accommodate the claimant and others adversely affected by the standard without experiencing undue hardship.99 The court set out a series of questions to help determine whether there exist reasonable alternatives to the standard: (a) Has the employer investigated alternative approaches that do not have a discriminatory effect, such as individual testing against a more individually sensitive standard? 97 98 99

Ibid., paras 40–42. Ibid., para 54. Ibid., paras 59–62.

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Chapter 2 (b) If alternative standards were investigated and found to be capable of fulﬁlling the employer’s purpose, why were they not implemented? (c) Is it necessary to have all employees meet the single standard for the employer to accomplish its legitimate purpose or could standards reﬂective of group or individual differences and capabilities be established? (d) Is there a way to do the job that is less discriminatory while still accomplishing the employer’s legitimate purpose? (e) Is the standard properly designed to ensure that the desired qualiﬁcation is met without placing an undue burden on those to whom the standard applies? (f) Have other parties who are obliged to assist in the search for possible accommodation fulﬁlled their roles?”100

Regarding the employer’s duty to accommodate, the court stated that some of the relevant factors in assessing undue hardship are: “the ﬁnancial cost of the possible method of accommodation, relative interchangeability of the workforce and facilities, and the prospect of substantial interference with the rights of other employees.”101 The Meiorin decision is unique in several ways: (1) Treating direct and adverse effect discrimination in the same way, the decision did away with legal inconsistencies which had plagued case law development over a 15 year period. This was a major achievement for Canadian antidiscrimination law, but it does not necessarily do away with direct and adverse effect discrimination as separate concepts. The categories no longer decide on the legal defenses or legal remedies, but that does not mean that they are not important for antidiscrimination law. The distinct recognition of adverse effect discrimination (indirect discrimination) has entailed a signiﬁcant advancement of the work for equality, regardless of whether there may sometimes be overlap between the two categories.102 (2) The decision incorporates the duty to reasonably accommodate into the justiﬁcation defense both for direct and adverse effect discrimination. At the same time the decision recognizes the inadequacy of individual accommodation in addressing systemic discrimination. The decision sets up both institutional change and individual accommodation as complementary approaches. (3) The post-Meiorin BFOR is no longer a defense speciﬁcally relating to the need for a particular kind of employee so as to safely and effectively perform the essential job duties.103 The post-Meiorin BFOR is no longer like the BFOQ104 of the USA nor the GDOR105 of the EU. Although different in content regarding the actual test 100 101 102

103

104 105

Ibid., para 65. Ibid., para 63. See Colleen Sheppard, “Of Forest Fires and Systemic Discrimination: A Review of British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U.,” McGill Law Journal 46 (2001): 533–569 at 541–542. This change in the character of the BFOR defense has taken place because after the Meiorin decision, it must now serve both as a justiﬁcation defense in direct discrimination and adverse effect discrimination cases. Bona ﬁde occupational qualiﬁcation. Genuine and determining occupational requirement.

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applied, the Canadian BFOR is more like the general justiﬁcation of the European Court of Human Rights, used to justify both direct and indirect discrimination. As a result the Canadian BFOR is a much broader justiﬁcation defense than the more limited exceptions of EU’s GDOR and USA’s BFOQ. d. European Union There was a signiﬁcant advance in the harmonization of the concept of discrimination in year 2000 when the European Union adopted the Race Directive and Employment Directive, requiring all 25 member states to prohibit indirect discrimination. Article 2 of the Race Directive deﬁnes indirect discrimination as: where an apparently neutral provision, criterion or practice would put persons [characterized by a protected ground] at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justiﬁed by a legitimate aim and the means of achieving that aim are appropriate and necessary. (emphasis added)

There is a comparable deﬁnition of indirect discrimination in the Employment Directive, and in 2002 the Equal Treatment Directive (concerning sex discrimination) was amended so as to use the same deﬁnition of indirect discrimination as that used in the Race Directive and Employment Directive. The 2002 amendment was signiﬁcant because prior to the amendment, sex discrimination cases involving indirect discrimination were governed by the Burden of Proof Directive,106 whose deﬁnition of indirect discrimination107 was more difﬁcult to satisfy. Article 2 of the Burden of Proof Directive deﬁned indirect discrimination as: where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex unless that provision, criterion or practice is appropriate and necessary and can be justiﬁed by objective factors unrelated to sex. (emphasis added )

The deﬁnition in the Burden of Proof Directive was based on the case law developed by the European Court of Justice in such sex discrimination cases as Bilka-Kaufhaus GmbH v. Weber Von Hartz108 and Rinner-Kuhn v. FWW Spezial-Gebaudereinigung GmbH.109 These cases involved equal pay claims under article 141 of the Treaty Establishing the European Community. However the ECJ has applied the equal pay case law principles of indirect discrimination also in equal treatment cases.110 These cases,

106

107 108 109 110

Council Directive 97/80/EC of 15 December 1997 on the Burden of Proof in Cases of Discrimination Based on Sex. See Article 2 of Council Directive 97/80/EC of 15 December 1997. Case 170/84 [1986] ECR 1607. Case 171/88 [1989] ECR 2743. See Petra Kirshammer-Hack v. Nurhan Sidal, Case C-189/91 [1993] ECR I-6185, para 22. See also Lynn Roseberry, The Limits of Employment Discrimination Law in the United States and European Community (Copenhagen: DJØF Publishing, 1999), 95–96.

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as well as other cases111 decided after the adoption of the Burden of Proof Directive, required proof of a substantially higher proportion of men or women affected by the neutral policy or practice, in order to establish indirect discrimination. This proof has invariably involved the use of statistics, and this has led to the increased complexity of the judicial proceedings. Some of the issues to be dealt with are:112 (1) uncertainty with respect to the validity and statistical signiﬁcance of the statistical material presented, (2) choice of the appropriate pool from which to draw the statistics, (3) the correct proportions that should be compared, (4) the weight to be accorded the different statistical conclusions, and (5) the accounting for important non-discriminatory factors. Moreover, proof of indirect discrimination pursuant to the standard in the Burden of Proof Directive was particularly difﬁcult when statistics were not available. In contrast with this, the ECJ has developed a different line of case law principles involving indirect discrimination in the context of discrimination on grounds of nationality (i.e., discrimination of nationals of other EU member states). This development is perhaps best illustrated by the case O’Flynn v. Adjudication Ofﬁcer113 where the court stated the following regarding proof of adverse effect: [U]nless objectively justiﬁed and proportionate to its aim, a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant workers more than national workers and if there is a consequent risk that it will place the former at a particular disadvantage. It is not necessary to ﬁnd that the provision in question does in practice affect a substantially higher proportion of migrant workers. It is sufﬁcient that it is liable to have such an effect.114 (emphases added)

Here, the case-law development speciﬁcally rejects any requirement of statistical proof, as well as, any requirement that the disadvantage must already have taken place – the risk of particular disadvantage may be sufﬁcient to prove indirect discrimination.115 The deﬁnition of indirect discrimination in the Race Directive, Employment Directive and the Equal Treatment Directive (after the 2002 amendment) are all based on the principles of indirect discrimination developed in this line of cases. This is conﬁrmed by the Explanatory Memorandum to the Employment Directive which states: The deﬁnition of indirect discrimination . . . is inspired by the case-law of the European Court of Justice in cases involving the free movement of workers.

111

112

113 114 115

See R v. Secretary of State ex parte Seymour-Smith and Perez, Case C-167/97 [1999] ECR I-623 and Jämställdhetsombudsmannen v. Örebro läns landsting, Case 326/98 [2000] ECR I-2189. See Catherine Barnard and Bob Hepple, “Substantive Equality,” in Cambridge Law Journal, 59, no. 3 (2000). See also See Barbara Lindemann and Paul Grossman, Employment Discrimination Law, vol. 2, 3d ed. (Washington, D.C.: The Bureau of National Affairs, 1996) chapter 39. Case C-237/94 [1996] ECR I-02617. Ibid., paras 20–21. See Commission v. Belgium, Case C-278/94 [1996] ECR I-4307.

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According to this deﬁnition, an apparently neutral provision, criterion or practice will be regarded as indirectly discriminatory if it is intrinsically liable to adversely affect . . . persons on the grounds referred in Article 1. The ‘liability test’ may be proven on the basis of statistical evidence or by any other means that demonstrate that a provision would be intrinsically disadvantageous for the . . . persons concerned.”116 (emphases added)

The current deﬁnition of indirect discrimination in the three directives (and presumably in the implemented legislation in the member states) should give enforcement authorities and complainants greater ﬂexibility concerning the proof of disparate group impact. However, the effectiveness of the concept of indirect discrimination in removing barriers to equality in the workplace is perhaps more closely related to how enforcement authorities apply in practice the justiﬁcation defense. The last part of the deﬁnition of indirect discrimination in all three EU Directives is worded: unless that provision, criterion or practice is objectively justiﬁed by a legitimate aim and the means of achieving that aim are appropriate and necessary.117

This justiﬁcation defense was originally adopted by the ECJ in Bilka-Kaufhaus GmbH v. Weber Von Hartz.118 In Bilka the complainant was a part-time worker. The employer had an employment policy that provided pensions only to full-time employees. The complainant argued that the neutral pension policy was contrary to the principle of equal pay for men and women under Article 119 (now Article 141) of the EEC Treaty. She argued that the policy placed women workers at a disadvantage, because women were more likely than men to take part-time work so as to be able to care for family and children. The employer argued that there were objectively justiﬁed economic reasons for excluding part-time workers from the pension scheme. Part-time workers, it was claimed, generally refuse to work in the late afternoon and on Saturdays. As a result the employer sought to discourage part-time work and to make full-time work as attractive as possible. The court held ﬁrst that Article 119 is violated if the pension policy, excluding parttime workers, affected a far greater number of women than men, unless the exclusion was based on objectively justiﬁed factors unrelated to sex. Implicit in this holding is the notion that the burden of proof shall shift to the employer upon the complainant’s making out a prima facie case of disparate group impact causally linked to the statutorilyprohibited ground of sex.119

116 117

118 119

COM (1999) 565, 25 November 1999 at 8. Article 2 in all three directives. The deﬁnition of indirect discrimination with respect to disability discrimination differs from the other grounds of discrimination. Case 170/84 [1986] ECR 1607. See also Case 109/88 Handels-og Kontorfunktionaerernes Forbund i Danmark v. Dansk Arbejdsgiverforening, acting on behalf of Danfoss [1989] ECR 3199. The principle that the burden of proof should shift to the employer upon the complainant’s making out a prima facie case, was later codiﬁed in Article 4 of the Burden of Proof Directive in 1997, in Article 8 of

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Chapter 2 Thereafter the court set out the objective justiﬁcation test in this way: If the national court ﬁnds that the measures chosen by [the employer] correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued and are necessary to that end, the fact that the measures affect a far greater number of women than men is not sufﬁcient to show that they constitute an infringement of Article 119.120 (emphases added)

Thus, a valid justiﬁcation defense for a policy or practice producing disparate group impact on a statutorily-protected group must fulﬁll three requirements. The policy or practice must: (1) correspond to a real need121 on the part of the employer, (2) be appropriate to achieving the objective pursued, and (3) be necessary to achieving that objective. Bilka continues to be the leading case regarding the justiﬁcation defense in connection with indirect discrimination; later cases always refer to the objective justiﬁcation test of Bilka. Yet, this relatively strict standard of Bilka122 must be applied in practice. The real signiﬁcance of this justiﬁcation defense for equality in employment is in the way the test is applied in individual fact situations. Requirements (2) and (3) of Bilka express a test of proportionality between the objective pursued and the means used. This balancing of interests inherent in the justiﬁcation test pits competing interests (such as market forces and business efﬁciency) directly against equality concerns. As Sandra Fredman points out: The strength of the equality principle as manifested in indirect discrimination is thus dependent on the relative weights given to equality versus other competing interests.123 (emphases added)

There is no clear trend in the case law. How the court allocates this weight changes with time, place and circumstance – indeed it involves the making of value judgments, whether expressed or unexpressed. This necessarily means that persons may and will differ in opinion on the balancing of the competing interests. In all but the easiest of

120 121

122

123

the Race Directive in 2000 and in Article 10 of the Employment Directive in 2000. See also Jenifer Ross, “The Burden of Proving Discrimination,” International Journal of Discrimination and the Law, 4 (2000): 95–117, 95–96. Case 170/84 [1986] ECR 1607, para 36. The requirement of real need was subsequently replaced both in case law and in the Race, Employment and Equal Treatment Directives by a requirement of a legitimate aim. Although the language of Bilka indicates a strict standard for the employer to meet, the case law of the ECJ shows that more lenient standards have sometimes been applied. See for example Nolte v. Landesversicherungsanstalt Hannover, Case C-317/93 and Regina v. Secretary of State for Employment, ex parte Nicole Seymour-Smith and Laura Perez, Case C-167/97. Sandra Fredman, Discrimination Law (Oxford: Oxford University Press, 2002), 112.

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cases, a lack of widespread agreement may indeed inﬂuence the court’s willingness to interfere with the status quo of market forces, long-established routines and wellestablished assumptions. Moreover, one may expect a certain amount of reluctance on the part of national courts to hold that an alternative (non-discriminating) employment policy would sufﬁce for the employer’s needs. It would in essence entail the court fashioning employment policies, and courts are very reluctant to embark upon the restructuring of an employer’s business practices.124 Furthermore, it remains to be seen how the ECJ and national courts will apply this objective justiﬁcation test in the relatively new (since 2000) context of discrimination on grounds of race, religion, disability, sexual orientation and age. e. Selected Statutory Deﬁnitions of Indirect Discrimination: Great Britain, Northern Ireland and Australia The fact that the legal constructions of adverse impact discrimination (USA) and adverse effect discrimination (Canada) were created through judicial interpretation, has given a certain amount of freedom regarding the practical application of the concepts. On the other hand other countries, for example Great Britain, Northern Ireland and Australia have adopted very technical statutory deﬁnitions of indirect discrimination, which have often proved to hinder a ﬂexible and effective application of the concept. Courts in those countries have, in contrast to the development in Canada and the USA, given very restrictive interpretations to such statutory provisions. Shortly after the Griggs decision the legal construction known as adverse impact discrimination in the USA was later introduced in Great Britain’s Sex Discrimination Act 1975. It was also adopted in the Race Relations Act 1976 (RRA). Although the acts did not actually use the term indirect discrimination, in legal theory the legal construction became known as indirect discrimination. The legal construction (i.e., indirect discrimination) is described in section 1(1) of the RRA as follows: A person discriminates against another in any circumstances relevant for the purposes of any provision of [the RRA 1976] if . . . he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but – (i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and (ii) which he cannot show to be justiﬁable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and (iii) which is to the detriment of that other because he cannot comply with it.” (emphases added)

An almost identically worded statutory deﬁnition is used in section 3 of the Northern Ireland Race Relations Order 1997. Moreover, the British statutory deﬁnition has been used as a model in Australia’s state and federal antidiscrimination laws. Although not

124

Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) 661.

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identical, the statutory deﬁnitions of indirect discrimination used in Australian state and federal antidiscrimination laws are close enough to the British model that the courts have been faced with the same kinds of interpretative problems as those experienced by British and Northern Ireland courts.125 Given this similarity, criticism of the statutory deﬁnition of indirect discrimination in the Race Relations Act 1976 is largely generalizable to the statutory deﬁnitions used in Northern Ireland and Australia as well. First, from a pedagogical perspective the statutory deﬁnition of indirect discrimination fails miserably. The complexity of the statutory deﬁnition is almost mind boggling. This must be characterized as a serious ﬂaw, since the vast majority of employers would not be able to understand this deﬁnition from a plain reading of the law. Secondly, the deﬁnition speaks of requirements or conditions which have an unjustiﬁable disproportionate effect. This has led courts to restrictively interpret the prohibition against indirect discrimination such that it excludes employment policies and practices which do not function as absolute requirements or conditions. For example in Perera v. Civil Service Commission (No 2)126 the complainant was not hired because the employer applied selection criteria including, among other things, English language ﬂuency, work experience in the UK and age – all of which worked to the complainant’s disadvantage. Although these selection criteria clearly had a disproportionate impact on ethnic minorities, the court did not entertain the question of justiﬁcation. The court found that the criteria used were not absolute bars to hire and thus could not be characterized as either a requirement or condition. Given this, the employer’s practice fell outside of the scope of the prohibition against indirect discrimination.127 Likewise in Meer v. Tower Hamlets LBC128 the court found that the employer’s preference for employees with local knowledge was not an absolute bar to hiring and thus not a requirement or condition within the meaning of the act. Use of selection criteria in hiring and promotions will often not serve as absolute bars if not satisﬁed; however, they may nonetheless have a signiﬁcant impact upon the employment decision. If such selection criteria have an unjustiﬁable disproportionate impact upon protected groups, then such groups may in fact be systematically disadvantaged without any redress under such a restricted concept of indirect discrimination. Thirdly, the statutory deﬁnition requires that the complainant not be able to comply with the requirement or condition. It is not sufﬁcient that the complainant be disadvantaged by the requirement or condition. Fourthly, even if indirect discrimination is successfully proved by the complainant, in Great Britain and Australia it is not possible to order a remedy which in general legally binds the employer to change the employment practice or policy so as to prohibit future discrimination. The ordinary remedy granted is compensation to the victim. However, compensation can only be granted in an indirect racial discrimination case in

125

126 127

128

Rosemary Hunter, Indirect Discrimination in the Workplace (Sydney: The Federation Press, 1992), 25. [1983] IRLR 166. Camilla Palmer et al., Discrimination Law Handbook (London: Legal Action Group, 2002), 169. [1988] IRLR 399.

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Great Britain and Northern Ireland if the complainant successfully proves a discriminatory intent on the part of the employer.129 In Australia a grant of compensation is not dependent upon proof of discriminatory intent. Fifthly, the statutory deﬁnition requires that the complainant show that a considerably smaller proportion of the group (to which the complainant is a member) can comply with the requirement or condition. This has often been interpreted so as to require statistical evidence. Where statistical evidence is not available, this requirement has operated as a hindrance to an effective prohibition of indirect discrimination. Such technical readings of the statutory deﬁnition and limitations regarding available remedies are a serious hindrance to the removal of hidden barriers to equality in employment.130 Rosemary Hunter sums up the limitations of the British statutory deﬁnition of indirect discrimination: [T]he scheme of the British legislation means that adjudicators are tied to the statutory language. They may interpret it narrowly or broadly, but they do not have the same scope positively to develop or reﬁne the law as their North American or New Zealand counterparts. If the concept of indirect discrimination embodied in the legislation appears to be inadequate to deal with some of the hidden barriers faced by women or particular racial groups, the law’s coverage can only be extended through the political rather than the judicial process.131

This original approach to the statutory deﬁnition of indirect discrimination in Great Britain and Northern Ireland has recently been modiﬁed for cases falling within the scope and competence of the EU Race Directive132 and Employment Directive.133 Between 2001–2003 Great Britain and Northern Ireland amended their antidiscrimination laws in order to comply with the EU Race Directive and Employment Directive. These amendments were made by way of secondary legislation (regulations) rather than through primary legislation (i.e., taking a bill through parliament). The old regime was not abolished; rather a new regime was adopted on top of it to apply to the areas governed by the two EU directives. This means that in each antidiscrimination law there are presently, for example, two deﬁnitions of indirect discrimination – one governing areas of European Community competence addressed in the directives and the other governing areas outside the scope of the directives but within the scope of the antidiscrimination law. The starting point is that the old regime applies unless the legal issues fall

129

130

131 132 133

Race Relations Act section 57 (3); Race Relations (Northern Ireland) Order 1997 section 54 (3). In 2001 section 65 of the British Sex Discrimination Act was amended such that compensation for indirect discrimination may be awarded without proof of discriminatory intent. See Statutory Instrument 2001 No. 2660 The Sex Discrimination (Indirect Discrimination and Burden of Proof ) Regulations 2001. Rosemary Hunter, Indirect Discrimination in the Workplace (Sydney: The Federation Press, 1992), 246; Christopher McCrudden, “Institutional Discrimination,” Oxford Journal of Legal Studies 2, no. 3 (1982): 367, 303–367. Rosemary Hunter, op. cit., 22. 2000/43/EC. 2000/78/EC.

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within the scope of the EU Race Directive or Employment Directive. The governments recognize that these inconsistencies are problematic and have promised to rectify this in the future. The original approach in the UK Sex Discrimination Act had already been modiﬁed earlier in order to comply with the EU Burden of Proof Directive.134 Under the new approach the statutory deﬁnition of indirect discrimination focuses on a neutral provision, criterion or practice which would put persons with a statutorily-protected characteristic at a particular disadvantage.135 The new approach therefore avoids much of the controversy and criticism surrounding the deﬁnition’s earlier focus on requirements or conditions. Furthermore, the new approach has moved away from the complainant having to show a considerably smaller proportion of the protected group who could comply with the requirement or condition. Instead the term particular disadvantage is used so as to permit a showing of adverse effect without the need to produce statistical evidence.136 In Great Britain and Northern Ireland a justiﬁcation defense is built into the statutory concept of indirect discrimination.137 In interpreting this justiﬁcation defense the courts have expressly adopted the justiﬁcation test of the ECJ decision in Bilka-Kaufhaus GmbH v. Weber von Hartz138 when assessing the occurrence of indirect discrimination. This is so with respect to discrimination cases under the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Equal Pay Act 1970.139 This has been conﬁrmed in the cases Hampson v. Department of Education and Science,140 Rainey v. Greater Glasgow Health Board141 and Briggs v. North Eastern Education and Library Board (Northern Ireland Court of Appeal).142 The cases indicate that when assessing the 134 135

136

137

138 139

140 141 142

1998/52/EC. The new approach to indirect discrimination has been implemented in Great Britain via the following regulations: The Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001 (Statutory Instrument 2001 No. 2660); The Race Relations Act 1976 (Amendment) Regulations 2003 (Statutory Instrument 2003 No. 1626; The Employment Equality (Religion or Belief) Regulations 2003 (Statutory Instrument 2003 No. 1660; The Employment Equality (Sexual Orientation) Regulations 2003 (Statutory Instrument 2003 No. 1661; The Disability Discrimination Act 1995 (Amendment) Regulations 2003 (Statutory Instrument 2003 No. 1673). The parallel regulations for Northern Ireland are: Statutory Rules 2001 No. 282; 2003 No. 341; 2003 No. 520; 2003 No. 497; 2004 No. 55. The new regime has already been carried out by way of implementation regulations for discrimination on grounds of race, religion and sexual orientation. These regulations use the term particular disadvantage in the deﬁnition of indirect discrimination. The same change is scheduled to occur in 2005 with respect to the implementation regulations for discrimination on grounds of sex. See for example section 1 of the Race Relations Act 1976, section 1 of the Sex Discrimination Act 1975 and section 3 of the Race Relations (Northern Ireland) Order 1997. Case 170/84. Camilla Palmer et al., Discrimination Law Handbook (London: Legal Action Group, 2002), 200. [1989] IRLR 69, paras 33–37. [1987] IRLR 26, paras 17–21. [1990] IRLR 181, para 44.

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employer’s justiﬁcation of an alleged indirect discrimination, the court shall apply an objective test, balancing the discriminatory effect against the reasonable needs of the employer. Furthermore, the Court of Appeal in Allonby v. Accrington and Rossendale College143 explained in greater detail the requirement of proportionality in the assessment of justiﬁcation. The court stated that once a disproportionate impact on a protected group is established, the court must carry out a critical evaluation of whether the employer’s reasons demonstrate a real need to take the action in question. This evaluation shall include consideration of whether there are reasonable alternatives to achieving the aim in question. If the employer can demonstrate a real need, the court shall consider the seriousness of the disparate impact on the complainant and weigh it against the employer’s need to take the action in question.144 The recent amendments by regulation to comply with the EU Race Directive and Employment Directive (i.e., the new approach) have also ramiﬁcations for the justiﬁcation defense. This basically means that for cases which fall within the scope and competence of the EU Race and Employment Directives, the justiﬁcation defense would require the employer to show that the employment provision, criterion or practice is a proportionate means of achieving a legitimate aim. This was in essence the test of Bilka in which UK court practice was already considered to be in compliance with. The Australian equivalent to the justiﬁcation defense in indirect discrimination cases, is the test of reasonableness. According to Secretary, Department of Foreign Affairs and Trade v. Styles145 and Waters v. Public Transport Corporation,146 the Australian courts view the test of reasonableness as less demanding than one of necessity, but more demanding than a test of convenience. The test is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favor of the requirement or condition on the other. All the circumstances of the case must be taken into account. It is also necessary to consider whether performance or completion of the activity or transaction might reasonably have been achieved without imposing so discriminatory a requirement or condition. Effectiveness, efﬁciency and convenience in performing the activity and the cost of not imposing the discriminatory requirement are all relevant factors in considering what is reasonable.147 f. Norway The two primary pieces of antidiscrimination legislation in Norway are the Act on Gender Equality 1978 and Act on Working Environment 1977. The former prohibits discrimination on grounds of sex, whereas the latter prohibits employment discrimination

143 144

145 146 147

[2001] IRLR 364. Ibid., paras 28–29. See Camilla Palmer et al., Discrimination Law Handbook (London: Legal Action Group, 2002), 202. (1989) 23 FCR 251, para 51. (1991) 173 CLR 349. See also Commonwealth Bank of Australia v. Human Rights and Equal Opportunity Commission and Another, 80 FCR 78, 84.

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on grounds of sex, religion, belief, color, national origin, ethnic origin, political opinion, sexual orientation, disability, age and membership in a trade union. Although the Act on Gender Equality has from its inception prohibited direct and indirect discrimination, there was no statutory deﬁnition of indirect discrimination (or direct discrimination) until an amendment was adopted in 2002. Although the Act on Working Environment 1977 was amended in 1998 to prohibit direct and indirect discrimination, among other things, on grounds of ethnic origin, it was not until 2004 that the act adopted a statutory deﬁnition of indirect discrimination (and direct discrimination). The statutory deﬁnitions of direct and indirect discrimination in both of these acts are presumed to be in conformance with the EU Race Directive, Employment Directive and Equal Treatment Directive. Section 54C of the Act on Working Environment deﬁnes indirect discrimination as: any apparently neutral provision, criterion, practice, act or omission that in fact has the effect of placing a person in a worse position compared with others [on grounds of a protected characteristic], unless the purpose is objective and the means selected to achieve the purpose are appropriate and necessary. (my translation)

Section 3 of the Act on Gender Equality deﬁnes indirect discrimination as: any apparently gender-neutral action that in fact has the effect of placing one of the sexes in a worse position than the other. In certain cases, however, [such action] is permitted if the action has an objective purpose that is independent of gender, and the means that is chosen is suitable, necessary and is not a disproportionate intervention in relation to the said purpose.” (Gender Ombud’s translation)

It is signiﬁcant to note that in both deﬁnitions the justiﬁcation defenses available to respondent employers are almost word for word the same as the justiﬁcation defenses in the EU Race Directive and Equal Treatment Directive respectively. In one other signiﬁcant respect the Act on Working Environment and Act on Gender Equality are in accordance with the EU Directives. Both acts contain a shared burden of proof which shifts from the complainant to the respondent upon the complainant’s proof of a prima facie case of discrimination.148 The non-discrimination provisions of the Act on Working Environment 1977 are enforced by the courts and given the relative recent adoption of the legal protection against ethnic discrimination in employment (1998),149 there is no case law concerning 148

149

See section 54I of the Act on Working Environment and section 16 of the Act on Gender Equality. Although the amendment in 1998 introduced a prohibition against direct and indirect ethnic discrimination in employment, the shared burden of proof and the obligation for the employer to give job applicants information on the person hired was not adopted until 2001. In light of these inadequacies prior to 2001, many complainants were reluctant to initiate a court case. This is quite understandable, particularly in Norway, where the losing party risks having to pay the winning party his/her attorney’s fees.

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indirect ethnic discrimination pursuant to the Act on Working Environment. There is very little in the travaux préparatoires to the amendment which adopted the statutory deﬁnition of indirect discrimination in 2004; however, the travaux préparatoires to section 55A, which provided legal protection against indirect ethnic discrimination prior to the 2004 amendment, is more enlightening. One of the few concrete examples mentioned in the travaux préparatoires is the example of job applicants who use religious headscarves. The travaux préparatoires states clearly that in the majority of cases it would be unjustiﬁable to refuse to hire a person because the person used a religious headscarf, since religious headscarves could easily be combined with uniforms.150 Security is, however, mentioned as a justiﬁable reason to refuse to hire a person who uses a religious headscarf. Each case would of course have to be assessed on the basis of the individual facts. On the other hand the Act on Gender Equality is enforced by the Gender Ombud with an appeal to the Board of Appeals for Gender Equality. An appeal from the Board of Appeals for Gender Equality lies with the ordinary courts. The complainant may also choose to initiate a legal action directly in court; however, very few complainants choose to do this. Furthermore, there are very few appeals to the courts from the Board of Appeals for Gender Equality. As a result there is very little court practice concerning the Act on Gender Equality and even less concerning the concept of indirect discrimination. There is however the administrative agency practice of the Board of Appeals which can shed light on the concept of indirect discrimination. For example, in contrast with British case law, the Board of Appeals for Gender Equality, upon a ﬁnding of indirect discrimination, may provide a remedy which in general legally binds the employer to change the infringing practice or policy so as to prohibit future discrimination. This was done for example in the Braathens case.151 Braathens, an airline company, is governed by certain ﬂight security rules regarding the working hours for pilots and cabin attendants. The purpose of these rules is to ensure a well-rested crew. The rules limit an individual’s working schedule according to a point system where points are given for each ﬂight hour, landing, crossing of time zones etc. Within a 7 day period pilots and cabin attendants cannot carry out service entailing a burden of more than 270 points. For cabin attendants in part-time positions, the maximum of 270 points also applies to them just as with full-time cabin attendants. However, for certain pilots in part-time positions the maximum limit of 270 points is reduced in accordance with the reduction in work, e.g., 60%, 80% position etc. The Board of Appeals found that the two different arrangements for maximum point burdens had a disproportionate impact on women. Of the part-time pilots, 39 were men and 4 were women, whereas, of the part-time cabin attendants, 4 were men and 281 were women. Having found disproportionate impact, the burden of proof shifted to the employer to show that the practice had an objective purpose that was independent of gender, and the means that was chosen was suitable, necessary and was not a disproportionate

150 151

Ot. prp. nr. 67 (1996–97), 47. Klagenemnda for likestilling case 3/2003 of 21 March 2003.

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intervention in relation to the purpose. The employer conﬁrmed that the difference had nothing to do with the different tasks performed by pilots and cabin attendants, but rather that the arrangements for part-time pilots and part-time cabin attendants were governed by two different collective agreements. The employer furthermore argued that it would be economically disadvantageous for the employer to reduce the maximum point burdens for part-time cabin attendants. The Board of Appeals found that the employer’s argument was not a sufﬁcient reason for keeping the discriminatory practice. The employer was ordered to bring its discriminatory practice into compliance with the Act on Gender Equality. The Gender Ombud (on 2 occasions)152 and the Board of Appeals (on 1 occasion)153 have held that an employer’s policy on the use of employee uniforms cannot be applied in such a way as to exclude women who use religious headscarves. Both the Ombud and the Board have found that a uniform requirement that does not permit the use of religious headscarves is indirect sex discrimination. Exceptions may be made for reasons of security. One case involved room maids working in a hotel and the other case involved a worker at a furniture store. Neither of the cases involved security or hygiene risks in connection with use of the headscarf. As stated earlier, the Norwegian Parliament adopted a new law against ethnic and religious discrimination in April 2005. It has not yet come into force. Given that its adoption was so close to the delivery date of this thesis, this thesis does not contain an account of it. However, I can state that within the ﬁeld of employment and occupation, the law’s concept of indirect discrimination is presumed to be in accordance with the EU Race Directive and Employment Directive.154 g. European Convention on Human Rights There is no explicit language prohibiting indirect discrimination in the European Convention on Human Rights (ECHR). The non-discrimination provision in Article 14 of the convention states: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

The development of the judicial concept of indirect discrimination has seemingly been a difﬁcult one for the European Court of Human Rights (ECtHR). The court was severely criticized155 for its refusal to consider indirect discrimination in the case of Abdulaziz, Cabales v. United Kingdom.156 152

153 154 155

156

See the case of A-Møbler decided on 9 January 2004 (140/2003/470) and the case of Radisson SAS Plaza Hotel decided on 6 March 2001. See the case of Radisson SAS Plaza Hotel decided on 29 August 2001 (case 8/2001). See Beslutning i Odelsting nr. 67 (2004–2005). Oddn´y Arnardóttir, Equality and Non-Discrimination under the European Convention on Human Rights (The Hague: Martinus Nijhoff Publishers, 2003), 77. (1985) 7 EHRR 471 (Judgment of 28 May 1985, Series A, No. 94).

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The case involved allegations of both direct sex discrimination and indirect racial discrimination. The complainants were non-citizens with permanent residence in the United Kingdom. They were married and sought to have their foreign-resident husbands join them in the UK. UK immigration rules refused to permit family reuniﬁcation of the husbands. On the other hand, the immigration rules did allow foreign-resident wives to join resident husbands. Furthermore, the immigration rules, though not distinguishing directly on grounds of race, had a disproportionate indirect effect on would-be immigrants from the New Commonwealth and Pakistan, and as a result affected at the time fewer white people than others. The court concluded that the applicants had been victims of discrimination on the ground of sex, in violation of Article 14.157 However, the court refused to embark upon an adverse impact analysis, merely stating that there was “no distinction on the ground of race”.158 In limiting its analysis only to distinctions on the ground of race, the court in essence refused to consider facially neutral rules having adverse effects on groups characterized by race. The European Court of Human Rights (ECtHR), in the case of Thlimmenos v. Greece in the year 2000, made clear for the ﬁrst time that Art. 14 (the non-discrimination provision) of the ECHR also includes a prohibition against an unjustiﬁed failure to treat relevantly different cases differently, i.e., indirect discrimination. The applicant, a Jehovah Witness, refused to enlist in the army because of his belief, and was as a result convicted of a felony. Subsequently he was denied an appointment as an accountant on grounds of the felony conviction. The court found that the applicant’s claim fell within the scope of Art. 9 (the right to freedom of religion), but found it unnecessary to decide the Art. 9 question. Regarding the Art. 14 claim, the court stated: The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justiﬁcation. . . . However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justiﬁcation fail to treat differently persons whose situations are signiﬁcantly different.159

The court found that Greece’s general rule excluding all convicted felons from the accounting profession had no objective and reasonable justiﬁcation for not treating persons refusing military service on religious grounds differently from other convicted felons. Although the European Convention on Human Rights has no express provision on the justiﬁcation of discrimination, the European Court of Human Rights (ECtHR) has in its practice consistently applied a general justiﬁcation defense (objective and reasonable test) for direct discrimination. In the year 2000 the court also applied the same test in Thlimmenos, its ﬁrst case on indirect discrimination. In the 1968 Belgian

157 158 159

Ibid., para 83. Ibid., para 85. Thlimmenos v. Greece, RJD 2000–IV, 263 (Judgment of 6 April 2000), para 44.

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Linguistic case160 (direct language discrimination) the court had set out its test for when less favorable treatment is justiﬁable (and thus not deemed discrimination). [T]he principle of equality of treatment is violated if the distinction has no objective and reasonable justiﬁcation. The existence of such a justiﬁcation must be assessed in relation to the aim and effects of the measure under consideration, regard being had to the principles which normally prevail in democratic societies. A difference of treatment in the exercise of a right laid down in the Convention must not only pursue a legitimate aim: Article 14 is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised.161 (emphasis added)

Thus, less favorable treatment linked to a forbidden ground constitutes discrimination unless there is an objective and reasonable justiﬁcation for such treatment. In order for the difference in treatment to be objective and reasonable: (1) it must have a legitimate aim and (2) there must exist a reasonable relationship of proportionality between the means employed and the aim pursued.

When considering whether the justiﬁcation is objective and reasonable the court will assess both the aim and effects of the measures, in other words, there will be a balancing of interests in light of the principles normally prevailing in democratic societies. The court also stated that it would grant a certain amount of discretion (i.e., a margin of appreciation) to states in the application of the objective and reasonable test: [The Court] cannot assume the role of the competent national authorities, for it would thereby lose sight of the subsidiary nature of the international machinery of collective enforcement established by the Convention. The national authorities remain free to choose the measures which they consider appropriate in those matters which are governed by the Convention. Review by the Court concerns only the conformity of these measures with the requirements of the Convention.162

The ECtHR applied this same test of justiﬁcation in the indirect discrimination case of Thlimmenos v. Greece.163 The Thlimmenos case is a good illustration of how the test is applied in practice. The court reasoned: The next question to be addressed is whether Article 14 of the Convention has been complied with. According to its case-law, the Court will have to examine whether the failure to treat the applicant differently from other persons convicted of a felony pursued a legitimate

160

161 162 163

Case relating to certain aspects of the laws on the use of languages in education in Belgium, 23 July 1968, Series A (better known as the Belgian Linguistic Case). Ibid., para 10. Ibid., para 10. Thlimmenos v. Greece, RJD 2000–IV, 263 (Judgment of 6 April 2000).

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aim. If it did the Court will have to examine whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be realized. . . . The Court considers that, as a matter of principle, States have a legitimate interest to exclude some offenders from the profession of chartered accountant. However, the Court also considers that, unlike other convictions for serious criminal offences, a conviction for refusing on religious or philosophical grounds to wear the military uniform cannot imply any dishonesty or moral turpitude likely to undermine the offender’s ability to exercise this profession. Excluding the applicant on the ground that he was an unﬁt person was not, therefore, justiﬁed. The Court takes note of the Government’s argument that persons who refuse to serve their country must be appropriately punished. However, it also notes that the applicant did serve a prison sentence for his refusal to wear the military uniform. In these circumstances, the Court considers that imposing a further sanction on the applicant was disproportionate. It follows that the applicant’s exclusion from the profession of chartered accountant did not pursue a legitimate aim. As a result, the Court ﬁnds that there existed no objective and reasonable justiﬁcation for not treating the applicant differently from other persons convicted of a felony.”164

Thus, the court found that unlike other convictions for serious criminal offences, a conviction for refusing on religious grounds to join military service cannot imply any dishonesty or moral turpitude likely to undermine the offender’s ability to exercise the accounting profession. h. Selected United Nations Human Rights Instruments International Covenant on Civil and Political Rights (CCPR) The International Covenant on Civil and Political Rights (CCPR) prohibits discrimination in several articles, among them Articles 2, 3 and 26.165 However, the Covenant does not deﬁne discrimination. In General Comment 18 the Human Rights Committee, the treaty enforcement body, deﬁnes discrimination as follows: [T]he term ‘discrimination’ . . . should be understood to imply any distinction . . . based on any ground . . . which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.166 (emphases added)

In a recent decision rendered in 2003, Althammer v. Austria,167 the Human Rights Committee has made its clearest statement up to now on whether the CCPR prohibits indirect discrimination. In Althammer the complainants alleged that although the 164 165

166 167

Ibid., para 46–47. Article 26 states: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” General Comment 18, para 7. CCPR/C/78/D/998/2001, decided 22 September 2003.

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impugned regulation was objective on its face, it had a discriminatory effect, disproportionately affecting retired employees compared with active employees. The Committee found no violation of Article 26 in the Althammer case, but the Committee recognized indirect discrimination as a prohibited form of discrimination under the CCPR: The Committee recalls that a violation of article 26 can also result from the discriminatory effect of a rule or measure that is neutral at face value or without intent to discriminate. However, such indirect discrimination can only be said to be based on the grounds enumerated in Article 26 of the Covenant if the detrimental effects of a rule or decision exclusively or disproportionately affect persons having a particular race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, rules or decisions with such an impact do not amount to discrimination if they are based on objective and reasonable grounds.168

This position is also supported by the Committee having found admissible an earlier case, Singh Bhinder v. Canada,169 involving an allegation of indirect discrimination (facially neutral rule on use of safety headgear at work adversely affecting Sikhs). The Committee did not, however, ﬁnd any violation of the Covenant.170 Both Althammer and Singh Bhinder also illustrate that the objective and reasonable test, which the Committee has consistently applied in direct discrimination cases, shall also be applied in cases of indirect discrimination. The test was ﬁrst developed in the case law of the Committee and subsequently reﬂected in General Comment 18: [T]he Committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.171 (emphasis added)

The ultimate question of whether a differentiation is reasonable and objective can only be decided on a case-by-case basis in light of all the relevant factors. In other words, there is an inevitable balancing of interests that must be undertaken by the Human Rights Committee. The case Gueye et al. v. France172 (a direct discrimination case) exempliﬁes the Committee’s application of the reasonable and objective test. In Gueye et al. v. France the complainants were retired soldiers of Senegalese nationality who had served in the French Army prior to the independence of Senegal in 1960. Upon independence the complainants had become Senegalese nationals. Until the enactment of a new law in 1974 retired members of the French Army were treated equally with respect to army pensions, whether French or Senegalese. The new law 168 169 170

171 172

Ibid., para 10.2. CCPR/C/37/D/208/1986, decided 28 November 1989. See Sarah Joseph, Jenny Schultz and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Material, and Commentary, 2nd edition (Oxford: Oxford University Press, 2004), 696. General Comment 18, para 13. CCPR/35/D/196/1985, decided 6 April 1989.

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treated retired soldiers unequally on the basis of whether they were French citizen or Senegalese citizen. The complainants alleged that the act of 1974 was racially discriminatory. The Committee found no discrimination based on race, but rather found that the 1974 act involved discrimination based on nationality. Although nationality is not an enunciated ground of discrimination prohibited by the explicit wording of Article 26, the Committee found that nationality fell within the category or other status, thereby prohibiting such differential treatment if not reasonable and objective. In applying the reasonable and objective test, the Committee stated: In determining whether the treatment of the authors is based on reasonable and objective criteria, the Committee notes that it was not the question of nationality which determined the granting of pensions to the authors but the services rendered by them in the past. They had served in the French Armed Forces under the same conditions as French citizens; for 14 years subsequent to the independence of Senegal they were treated in the same way as their French counterparts for the purpose of pension rights, although their nationality was not French but Senegalese. A subsequent change in nationality cannot by itself be considered as a sufﬁcient justiﬁcation for different treatment, since the basis for the grant of the pension was the same service which both they and the soldiers who remained French had provided. Nor can differences in the economic, ﬁnancial and social conditions as between France and Senegal be invoked as a legitimate justiﬁcation. If one compared the case of retired soldiers of Senegalese nationality living in Senegal with that of retired soldiers of French nationality in Senegal, it would appear that they enjoy the same economic and social conditions. Yet, their treatment for the purpose of pension entitlements would differ. Finally, the fact that the State party claims that it can no longer carry out checks of identity and family situation, so as to prevent abuses in the administration of pension schemes cannot justify a difference in treatment. In the Committee’s opinion, mere administrative inconvenience or the possibility of some abuse of pension rights cannot be invoked to justify unequal treatment. The Committee concludes that the difference in treatment of the authors is not based on reasonable and objective criteria and constitutes discrimination prohibited by the Covenant.173 (emphases added)

International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) deﬁnes racial discrimination in Article 1 as: [A]ny distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other ﬁeld of public life.” (emphasis added)

The Committee on the Elimination of Racial Discrimination (CERD) has stated, both in concluding observations174 and in General Recommendation XIV, that indirect 173 174

Ibid., para 9.5. See Michael Banton, International Action Against Racial Discrimination (Oxford: Clarendon

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discrimination is also prohibited by the Convention. Furthermore, the Committee shall also apply a test of reasonableness (legitimacy) when considering whether treatment received by the complainant is discriminatory. General Recommendation XIV states: A distinction is contrary to the Convention if it has either the purpose or the effect of impairing particular rights and freedoms. This is conﬁrmed by the obligation placed upon States parties by article 2, paragraph 1 (c), to nullify any law or practice which has the effect of creating or perpetuating racial discrimination.175

And, The Committee observes that a differentiation of treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and purposes of the Convention, are legitimate. . . . In seeking to determine whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustiﬁable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin.176 (emphases added)

As previously shown, this unjustiﬁable disparate impact (adverse impact) is the hallmark of the concept of indirect discrimination. Unfortunately there is no case law on the concept of indirect discrimination. Nor are there any cases where the Committee outlines a comprehensive and well-reasoned application of the test of reasonableness (legitimacy). Unfortunately, scholars often interpret the inclusion of the words purpose or effect in Article 1 in such a way that purpose is said to refer to direct discrimination and effect is said to refer to indirect discrimination.177 It is the imprecision with respect to the latter conclusion that I have difﬁculty with. I submit that the term effect must be interpreted so as to refer to both direct and indirect discrimination. The concept of direct discrimination includes both intended as well as unintended differential treatment that is unjustiﬁable. In the latter case the differential treatment does not have the purpose of disadvantaging members of the protected group, but it does have the effect of doing so. The decisions, Simunek v. Czech Republic178 and Adam v. Czech Republic,179 of the Human Rights Committee are examples of this. Both cases involved direct discrimination on grounds of nationality. The law in question differentiated speciﬁcally on

175 176 177

178 179

Press, 1996), 192. See also Pia Justesen, Lighedskravet for etniske minoriteter på arbejdsmarkedet: Et menneskeretligt perspektiv (Copenhagen: Jurist- og Økonomforbundets Forlag, 2000), 209. General Recommendation XIV, para 1. General Recommendation XIV, para 2. See for example Michael Banton, International Action Against Racial Discrimination (Oxford: Clarendon Press, 1996), 66: “To comply with the Convention a state has to enact laws prohibiting both actions with a discriminatory purpose (direct discrimination) and actions with a discriminatory effect (indirect discrimination).” Communication No. 516/1992 of 31 July 1995. Communication No. 586/1994 of 25 July 1996.

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grounds of nationality. In other words, it was not facially neutral. In both cases the Committee found that the nationality-speciﬁc law disadvantaged the complainants unjustiﬁably. The Committee made no ﬁnding of discriminatory intent in either case, but rather found that the effect of the differential treatment was discriminatory.180 These cases suggest that the word effect in treaty body deﬁnitions of discrimination should not be viewed as an inherent proxy for the sole concept of indirect discrimination, but rather as a reference to both direct discrimination and indirect discrimination. This reasoning is just as applicable with respect to the expression effect or purpose in the deﬁnition of discrimination against women in Article 1 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). See below. International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Article 1 of the International Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) deﬁnes discrimination against women as: any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other ﬁeld. (emphasis added)

The Committee on the Elimination of Discrimination against Women has interpreted Article 1 to mean that indirect discrimination is prohibited under the Convention. In 2004 the Committee adopted General Recommendation 25 which not only states this explicitly, 181 but also deﬁnes indirect discrimination in footnote 1 of the Recommendation: Indirect discrimination against women may occur when laws, policies and programmes are based on seemingly gender-neutral criteria which in their actual effect have a detrimental impact on women. Gender-neutral laws, policies and programmes unintentionally may perpetuate the consequences of past discrimination. They may be inadvertently modeled on male lifestyles and thus fail to take into account aspects of women’s life experiences which may differ from those of men. These differences may exist because of stereotypical expectations, attitudes and behaviour directed towards women which are based on the biological differences between women and men. They may also exist because of the generally existing subordination of women by men.

180 181

See para 11.7–11.8 in the Simunek decision and para 12.7–12.8 in the Adam decision. See para 7 which reads in part: “States parties’ obligation is to ensure that there is no direct or indirect discrimination against women in their laws and that women are protected against discrimination – committed by public authorities, the judiciary, organizations, enterprises or private individuals – in the public as well as the private spheres by competent tribunals as well as sanctions and other remedies.”

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At the present time there is no case law from the Committee concerning non-discrimination. The Optional Protocol to CEDAW, permitting the receipt by the Committee of individual complaints, went into effect on 22 December 2000.

2.4. Discriminatory Intent and Discriminatory Effect The majority of jurisdictions today, with the exception of the USA, do not require a showing of discriminatory intent in the proof of discrimination, neither for direct nor indirect discrimination. Indirect discrimination by deﬁnition involves neutral rules or practices and thus there has always been an acceptance that proof of indirect discrimination does not require a showing of discriminatory intent. The prohibition of direct discrimination in many antidiscrimination laws follow a similar model or pattern: The law prohibits speciﬁed treatment based on, because of or on grounds of race, sex, disability or some similar characteristic. These words are interpreted to require a causal link or connection between the difference in treatment or effect suffered by the complainant and a statutorily-protected characteristic. Although the plain meaning of these words do not require a showing of discriminatory intent, early antidiscrimination laws were almost always interpreted so as to require proof of discriminatory intent, thus requiring an inquiry into the employer’s mental processes.182 The shift away from this requirement of discriminatory intent in the law of discrimination has been a gradual result of a great deal of scholarly criticism, the experience of courts and enforcement agencies and an awareness that signiﬁcant aspects of discrimination were not being addressed as a result of the requirement. That criticism has for the large part focused on the following three concerns: (1) The difﬁculty in proving discriminatory intent. One aspect of this is the difﬁculty of mustering evidence about the subjective mental processes of the alleged discriminator. A second aspect concerns the relative ease of cloaking one’s real motives behind a façade of lawful explanations. Béatrice Vizkelety describes the difﬁculty of proving discriminatory intent prior to the O’Malley decision when the Canadian Supreme Court announced that discriminatory intent was not required in the proof of discrimination: As elsewhere, early interpretations of anti-discrimination legislation in Canada unanimously saw intent as an essential component of the deﬁnition of discrimination, a sine qua non element of proof. However, the task of uncovering and directly exposing the respondent’s discriminatory intent caused insuperable difﬁculties. Indeed, the focus on the mental process as the primary means of proving discrimination hardly posed a threat to the ill-intentioned violator of human rights legislation. Not only could he conceal his state of mind and discriminatory intent but he could also, with a minimum degree of astuteness, fabricate a ‘legal motive’ to explain his acts and then create the circumstances to support his explanation.183

182 183

United States Postal Serv. Bd. Of Governors v. Aikens, 460 US 711, 716 (1983). Béatrice Vizkelety, Proving Discrimination in Canada (Toronto: Carswell, 1987), 37.

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A statement by the 7th Circuit Court of Appeals (USA) in Riordan v. Kempiners is even more stark in its portrayal of the complainant’s difﬁculty in proving discriminatory intent, particularly in cases involving employment decisions where discretion is almost always involved: Proof of [discriminatory intent] is always difﬁcult. Defendants of even minimal sophistication will neither admit discriminatory animus nor leave a paper trail demonstrating it: and because most employment decisions involve an element of discretion, alternative hypotheses (including that of simple mistake) will always be possible and often plausible. Only the very best workers are completely satisfactory, and they are not likely to be discriminated against – the cost of discrimination is too great. The law tries to protect average and even below-average workers against being treated more harshly than would be the case if they were of a different race, sex, religion, or national origin, but it has difﬁculty achieving this goal because it is so easy to concoct a plausible reason for not hiring, or ﬁring, or failing to promote, or denying a pay raise to, a worker who is not superlative.184

(2) The recognition that intentional discrimination is simply not the fundamental problem that needs addressing.185 Although overt and volitional manifestations of prejudice continue to occur, a growing number of social science and legal scholars point out that the most prevalent and embedded forms of discrimination today derive from subtle and non-conscious bias which is so much a part of our culture and history that one is not even aware of it.186 Charles Lawrence, one of the foremost legal critics of the requirement of discriminatory intent, explains this in the context of racial discrimination in the USA: Traditional notions of intent do not reﬂect the fact that decisions about racial matters are inﬂuenced in large part by factors that can be characterized as neither intentional – in the sense that certain outcomes are self-consciously sought – nor unintentional – in the sense that the outcomes are random, fortuitous, and uninﬂuenced by the decisionmaker’s beliefs, desires, and wishes.

184 185

186

831 F.2d 690 (7th Cir. 1987), 697–698. Titia Loenen, “Indirect Discrimination: Oscillating Between Containment and Revolution” in Non-Discrimination Law: Comparative Perspectives, edited by Titia Loenen and Peter Rodrigues (The Hague: Kluwer Law International, 1999), 201. See Linda Krieger, “The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity,” Stanford Law Review 47 (1994–1995): 1161–1248. See also John Dovidio and Samuel Gaertner, “Prejudice, Discrimination, and Racism: Historical Trends and Contemporary Approaches” in Prejudice, Discrimination, and Racism, edited by John Dovidio and Samuel Gaertner (Orlando: Academic Press, 1986); Susan Fiske, “Stereotyping, Prejudice and Discrimination” in Handbook of Social Pychology, edited by Daniel Gilbert, Susan Fiske and Gardner Lindzey (New York: McGraw-Hill, 1998); Barbara Reskin, “The Proximate Causes of Employment Discrimination,” Contemporary Sociology 29, No. 2 (2000): 319–328; Charles Lawrence, “The Id, the Ego, and Equal Protection Reckoning with Unconscious Racism” in Critical Race Theory: The Key Writings that Formed the Movement, edited by Kimberlé Crenshaw, Neil Gotanda et. al. (New York: The New Press, 1995); Susan Sturm, “Second Generation Employment Discrimination: A Structural Approach,” Columbia Law Review 101 (2001): 458–56.

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Chapter 2 Americans share a common historical and cultural heritage in which racism has played and still plays a dominant role. Because of this shared experience, we also inevitably share many ideas, attitudes, and beliefs that attach signiﬁcance to an individual’s race and induce negative feelings and opinions about nonwhites. . . . At the same time, most of us are unaware of our racism. We do not recognize the ways in which our cultural experience has inﬂuenced our beliefs about race or the occasions on which those beliefs affect our actions. In other words, a large part of the behavior that produces racial discrimination is inﬂuenced by unconscious racial motivation. There are two explanations for the unconscious nature of our racially discriminatory beliefs and ideas. . . . While our historical experience has made racism an integral part of our culture, our society has more recently embraced an ideal that rejects racism as immoral. When an individual experiences conﬂict between racist ideas and the societal ethic that condemns those ideas, the mind excludes his racism from consciousness. Second, the theory of cognitive psychology states that the culture – including, for example, the media and an individual’s parents, peers, and authority ﬁgures – transmits certain beliefs and preferences. Because these beliefs are so much a part of the culture, they are not experienced as explicit lessons. Instead, they seem part of the individual’s rational ordering of her perceptions of the world. The individual is unaware, for example, that the ubiquitous presence of a cultural stereotype has inﬂuenced her perception that blacks are lazy or unintelligent. Because racism is so deeply ingrained in our culture, it is likely to be transmitted by tacit understandings: Even if a child is not told that blacks are inferior, he learns that lesson by observing the behavior of others. These tacit understandings, because they have never been articulated, are less likely to be experienced at a conscious level. In short, requiring proof of conscious or intentional motivation . . . ignores much of what we understand about how the human mind works. It also disregards both the irrationality of racism and the profound effect that the history of American race relations has had on the individual and collective unconscious.”187 (emphases added)

(3) The injury to equality exists irrespective of the decisionmakers’motives and should thus be addressed. The requirement of discriminatory intent seeks to localize a morally blameworthy perpetrator, yet as the Canadian Supreme Court points out, the focus of antidiscrimination law should not be on the punishment of the perpetrator, but rather on the consequences of conduct: The Code aims at the removal of discrimination. This is to state the obvious. Its main approach, however, is not to punish the discriminator, but rather to provide relief for the victims of discrimination. It is the result or the effect of the action complained of which is signiﬁcant. . . . [I]f its effect is to impose on one person or group of persons obligations, penalties, or restrictive conditions not imposed on other members of the community, it is discriminatory.188 (emphasis added)

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Charles Lawrence, “The Id, the Ego, and Equal Protection Reckoning with Unconscious Racism” in Critical Race Theory: The Key Writings that Formed the Movement, edited by Kimberlé Crenshaw, Neil Gotanda et al. (New York: The New Press, 1995), 237–238. Ontario v. Simpson-Sears [1985] 2 S.C.R. 536, para 12 (better known as the “O’Malley” case).

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It is furthermore argued that the intent requirement’s focus on individualized fault and moral blameworthiness distorts our perceptions about the causes of discrimination and leads us to think about discrimination in a way that legitimates it:189 By insisting that a blameworthy perpetrator be found before the existence of racial discrimination can be acknowledged, the Court creates an imaginary world where discrimination does not exist unless it was consciously intended. And by acting as if this imaginary world was real and insisting that we participate in this fantasy, the Court and the law it promulgates subtly shape our perceptions of society. . . . . If there is no discrimination, there is no need for a remedy; if blacks are being treated fairly yet remain at the bottom of the socioeconomic ladder, only their own inferiority can explain their subordinate position.

Through the years, courts and enforcement agencies have sought to ease the complainant’s burden of proving discriminatory intent in three ways: (1) by accepting circumstantial evidence in light of the absence of direct evidence as to the perpetrator’s state of mind; (2) by shifting the burden of proof to the respondent to explain the reasons for his/her actions; (3) by viewing differential treatment as signiﬁcant evidence from which one may infer discriminatory intent.190 Simultaneously, there occurred a gradual shift of antidiscrimination law away from any requirement of discriminatory intent in the proof of discrimination. Despite some lingering disagreement found on occasion in legal theory, it is clear today that most countries, other than the USA, do not in non-criminal provisions require discriminatory intent or motive in the proof of discrimination, neither for direct nor indirect discrimination.191

189 190

191

Charles Lawrence, op. cit., 239. Béatrice Vizkelety, Proving Discrimination in Canada (Toronto: Carswell, 1987), 38. See also the US case Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978), 577: “A prima facie case . . . raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors. . . . And we are willing to presume this largely because we know from our experience that more often than not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting. Thus, when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer’s actions, it is more likely than not the employer, whom we generally assume acts only with some reason, based his decision on an impermissible consideration such as race.” (italics in original). See also International Broth. of Teamsters v. US, 431 U.S. 324, 335–336 at note 15. In the USA a violation of the prohibition against disparate treatment (direct discrimination) under the Civil Rights Act 1964 requires proof of improper motive. It is suggested by some scholars that the USA proof of discriminatory intent is merely proof of the connection between the differential treatment and race (ethnicity). See for example Robert Sedler, “The Role of ‘Intent’ in Discrimination Analysis.” in Non-Discrimination Law: Comparative Perspectives, edited by Titia Loenen and Peter Rodrigues (The Hague: Kluwer Law International, 1999), 100. The author describes the speciﬁc method of proving discriminatory intent under the Civil Rights Act 1964: The method involves, inter alia, a prima facie showing of intent to discriminate by the claimant and a shifting of the burden of justiﬁcation to the employer. This is a much lower threshold than proof of discriminatory intent under the equal

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In the European Union discriminatory intent is not required in proof of discrimination in the Race Directive, Employment Directive or Equal Treatment Directive. Indeed in the Dekker192 and Draehmpaehl193 cases the European Court of Justice interpreted the Equal Treatment Directive in such a way that a requirement of discriminatory intent in the proof of discrimination would have been incompatible with the Directive.194 In Canada, Great Britain, Northern Ireland and Australia the highest courts have rendered decisions speciﬁcally stating that discriminatory intent is not required in the proof of discrimination. See for example the following judgments: Canada: Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd [1985] 2 SCR 536 and Andrews v. Law Society of British Columbia [1989] 1 S.C.R. 143, 174; Great Britain and Northern Ireland: James v. Eastleigh Borough Council, [1990] IRLR 288 and Nagarajan v. London Regional Transport [1999] 4 All ER 65; [1999] IRLR 572; Australia: Waters v. Public Transport Corporation (1991) 173 CLR 349, 359. In Norway and Sweden the travaux préparatoires to the Gender Equality Act and the Act (1999: 130) on Measures against Ethnic Discrimination in Working Life respectively, indicate that proof of discriminatory intent is not required.195 Furthermore, the Norwegian and Swedish acts have never been interpreted so as to require proof of discriminatory intent.196 Moreover, there is no requirement of discriminatory intent in the proof of discrimination in CCPR, ECHR, ICERD, CEDAW or the ILO Convention No. 111 on Discrimination. The latter three conventions all deﬁne discrimination such that the prohibition also includes acts which have discriminatory effect. General Comment 18 of the Human Rights Committee (the treaty body enforcement authority for CCPR) also deﬁnes discrimination so as to include acts having discriminatory effect. Concerning the ECHR, it has never been interpreted so as to require proof of discriminatory intent.197

192 193 194 195

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protection clause of the Constitution. See also Geoffrey Bindman, “Proof and Evidence of Discrimination.” In Discrimination: The Limits of Law, edited by Bob Hepple and Erika Szyszczak (London: Mansell, 1992), 51. Dekker v. Stichting vormingscentrum Voor Jonge Volwassen Plus [1991] ECR I-3941, para 22. Draehmpaehl v. Urania Immobilienservice ohG, C-180/95, [1997] ECR I-2195, para 16–22. See Evelyn Ellis, EC Sex Equality Law, 2nd edition (Oxford: Clarendon Press, 1998), 115–117. For Norway, see Ot. Prp. Nr. 33 (1974–75) 28. For Sweden, see Regeringens proposition 1997/98: 177, 22. See Gudrun Holgersen, Likestillingsloven (Oslo: Universitetsforlaget, 1984), 39–40 and Anna Christensen, “Structural Aspects of Anti-Discriminatory Legislation and Processes of Normative Change,” in Legal Perspectives on Equal Treatment and Non-Discrimination, edited by Ann Numhauser-Henning (The Hague: Kluwer Law International, 2001), 42. Despite this clear position in Norway, it is somewhat of a curiosity that in the travaux préparatoires to an amendment to the Act in 2002, the document describes direct discrimination as the kind of case where: “[T]he discriminatory motive of the conduct [is] decisive. . . .” (emphases added) Ot. Prp. nr. 77 (2000–2001) 28. Although this statement is considered by authorities to be a minor slip, this is perhaps an illustration of how easy it is to automatically view discrimination in terms of morally blameworthy motive and how difﬁcult it is for both scholars and lay people to fully understand the concept of discrimination. See Oddn´y Arnardóttir, Equality and Non-Discrimination under the European Convention on Human Rights (The Hague: Martinus Nijhoff Publishers, 2003), 73.

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Except for the USA’s requirement of discriminatory intent in disparate treatment cases, one may thus conclude that discriminatory intent is not an essential element in the concept of discrimination.

2.5. Ethnic Discrimination a. Introduction This thesis has considered at length the concept of discrimination, i.e., unjustiﬁable difference in treatment or effect causally linked to (on grounds of ) a statutorily-prohibited characteristic. One of the more difﬁcult aspects of proving discrimination is establishing the causal link. But in this section we are not concerned with such questions as: Was the employer’s act done on grounds of “x”?198 Is the disproportionate group impact of the employer’s policy linked to “x”? In this section of the thesis, we are concerned with the question: What is meant by “x”? The UK case of Mandla v. Lee199 is a good example of this. In Mandla the court found that the respondent school’s uniform policy had a disproportionate group impact on Sikhs who were not allowed to wear turbans. The court also found that the rule was unjustiﬁable. The main question for the court was whether Sikhs were a group deﬁned by reference to ethnic origin, where ethnic origin was the prohibited ground. Both parties had agreed that Sikhs were not a group deﬁned by race, color or national origin; Sikhs are not distinguishable from many other groups on any of these bases.200 The content or meaning of the statutorily-prohibited characteristic (except perhaps for cases of disability discrimination) is not a frequent issue in the litigation of discrimination cases.201 In contrast to the intense, intellectual discussions in social science discourses of the terms race, color, national origin, ethnic origin and descent, most people have a rather day-to-day or practical relationship to them, and do not experience their lack of clearly deﬁned borders as problematic. Because these terms have a great deal of overlap, the need to draw precise boundaries for each one becomes even less pressing where several of the terms are explicitly listed as statutorily-prohibited grounds. This is often the case. On occasion, however, the legal issue does center on the meaning of these terms, thus, this section attempts to clarify the meaning of the prohibited characteristics of ethnic or racial discrimination. Ethnic discrimination (or racial discrimination) is discrimination on grounds of race, color, national origin, ethnic origin or descent. These ﬁve grounds are those used in

198 199 200 201

The statutorily-prohibited ground is represented by “x”. [1983] IRLR 209. Ibid., 210. See for example Walter Tarnopolsky and William Pentney, Discrimination and the Law, vol. 1, (Toronto: Carswell, 2001), 5–13: “Apart from these isolated instances, it appears that [Canadian] human rights tribunals have neither chosen, nor been forced by the arguments of the parties to complaints, to decide whether human beings – i.e., particular complainants – belong to a particular race or have a particular skin colour.”

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Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).202 ICERD is ratiﬁed by 170 countries. Race, color and national origin are, among others, prohibited grounds of discrimination in both the Covenant of Civil and Political Rights (CCPR) and the European Convention on Human Rights (ECHR). ILO Convention (No. 111) concerning Discrimination in Respect of Employment and Occupation lists race, color and national extraction as prohibited grounds. The EU Race Directive prohibits discrimination on grounds of racial or ethnic origin. The terms race, color, ethnic origin and national origin are also the most usual terms used in national antidiscrimination laws which seek to prohibit ethnic or racial discrimination.203 b. Race and Ethnic Origin Courts have generally interpreted the prohibited ground of race in antidiscrimination laws in its popular sense rather than as a term of scientiﬁc art.204 In King-Ansell v. Police205 the New Zealand Court of Appeal refused to apply a biological test of race, stating: The ultimate genetic ancestry of any New Zealander is not susceptible to legal proof. Race is clearly used in its popular meaning. So are the other words. The real test is whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of their colour or their racial, national or ethnic origins. That must be based on a belief shared by members of the group.206

A US court also refused to embark upon a search for a technical meaning of race in United States v. Falgler County School District.207 After ﬁnding that a local education

202

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204

205 206 207

Article 1 of the Convention on the Elimination of All Forms of Racial Discrimination uses the term racial discrimination. See for example USA’s Title VII of the Civil Rights Act 1964 (race, color and national origin), Great Britain’s Race Relations Act 1976 (racial grounds, i.e., color, race, nationality, ethnic origin and national origin), Norway’s Act on Working Environment 1977 (national origin and ethnic origin), the Canadian Human Rights Act 1985 (race, color, national origin and ethnic origin), Sweden’s Act on Measures against Ethnic Discrimination in Working Life (ethnic background, i.e., race, color, national origin and ethnic origin) and Australia’s Racial Discrimination Act 1975 (race, color, descent, national origin, ethnic origin). For a long list of countries having prohibitions against discrimination on grounds of race, color, ethnic origin and/or national origin, see International Labour Ofﬁce, Equality in Employment and Occupation: General Survey of the Reports on the Discrimination (Employment and Occupation) Convention (No. 111) and Recommendation (No. 111), 1958 (Geneva: International Labour Ofﬁce, 1988) (Report III of the International Labour Conference, 75th Session 1988), 27–35. Human Rights and Equal Opportunity Commission, Federal Discrimination Law 2004 (Sydney, 2004) 5. See also Ealing London Borough Council v. Race Relations Board [1979] AC 342, 362. [1979] 2 N.Z.L.R. 531. Ibid., 542. 457 F.2d 1402 (1972).

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authority was operating a dual school system for blacks and whites, a district court ordered the immediate implementation of a unitary school system. The local education authority appealed against the order, claiming that it did not know what the term “race” or “ethnic origin” contemplated, and that it could not implement the order because it contained no deﬁnition of the term “Negro.” The Court of Appeals rejected the appeal, stating: [T]he record indicates that in the past the School District has apparently had no difﬁculty in identifying Negroes for the purpose of segregating them. For desegregation they can be identiﬁed with similar ease.208

In the Canadian case of Dhaliwal v. B.C. Timber Ltd.209 the defendant employer argued that the alleged discrimination did not fall within the scope of the law’s prohibition of racial discrimination, because the complainant, who was of East Indian origin, was classiﬁed by scientists as a Caucasian, and thus of the same race as the defendant. The tribunal rejected this argument, stating that the term race had to be interpreted in light of the social conditions which gave rise to it. It also found that the term race, in its ordinary meaning, referred to a group of persons connected by common descent or origin or a group forming (or perceived to be forming) a distinct ethnic stock. For the purposes of the antidiscrimination law, the court found that East Indians are regarded as a group sufﬁciently well-deﬁned to constitute a race.210 Thus, discrimination against a person because of his being East Indian is also racial discrimination. In support of its decision in Dhaliwal, the tribunal referred to the American Supreme Court decision in U.S. v. Bhagat Singh Thind 211 from 1923. The case involved an applicant’s eligibility for US citizenship. The legal issue in the case was whether a “high-caste Hindu, of full Indian blood, born in Amritsar, Punjab, India” was a “white person” within the meaning of an act on naturalization. If the applicant were white, he was eligible for citizenship; if not, he was not eligible. Although the applicant argued that he was scientiﬁcally classiﬁed as a member of the Caucasian race, the court chose to apply the popular sense of the phrase “white persons”, which in the opinion of the Court did not include a person from East India. In the words of the Court: It may be true that the blond Scandinavian and the brown Hindu have a common ancestor in the dim reaches of antiquity, but the average man knows perfectly well that there are unmistakable and profound differences between them today. . . . The question of determination is not, therefore, whether by the speculative processes of ethnological reasoning we may present a probability to the scientiﬁc mind that they have the same origin, but whether we can satisfy the common understanding that they are now the same or sufﬁciently the same to justify the interpreters of a statute – written in the words of common speech, for common understanding, by unscientiﬁc men – in classifying them together in the statutory category as white persons.212

208 209 210 211 212

Ibid., 1403. (1983) 4 C.H.R.R. D/1520 (B.C. Bd. Inq.) See paras 13316–13326. 261 U.S. 204 (1923). Ibid., 209–210.

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All ﬁve terms – race, color, national origin, ethnic origin and descent – share a core where descent (ancestry) and culture are signiﬁcant, yet these terms have notable differences at the periphery.213 Courts have generally interpreted ethnic origin as a broader concept than race. Mandla v. Lee is a good illustration of this. In the UK case of Mandla v. Lee214 the respondent school refused entry to the complainant, who was a Sikh student, stating that the wearing of a turban would violate the school uniform policy. The House of Lords found that the uniform rule had an unjustiﬁable disproportionate group impact on Sikhs. The main issue, however, for the House of Lords was whether Sikhs constituted a group deﬁned by reference to ethnic origin. Article 1 of the Race Relations Act 1976 forbids discrimination on racial grounds. Furthermore, it forbids requirements and conditions which have an unjustiﬁable disproportionate impact on a racial group. According to Article 3 racial grounds means: “colour, race, nationality or ethnic or national origins,” and racial group means “a group of persons deﬁned by reference to colour, race, nationality or ethnic or national origins. . . .” The lower court (Court of Appeal) had found against the complainant, stating that the word ethnic involved essentially a racial concept and because Sikhs were not a group deﬁned by reference to race, nor were they a group deﬁned by reference to ethnic origin. The House of Lords reversed the lower court, stating that the term ethnic is used in an appreciably wider sense than racial. In order for a group to constitute an ethnic group, it must regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics. Some of those characteristics are essential while others are not. The court described these characteristics in the following way: The conditions which appear . . . to be essential are these: – (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive: (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. In addition to those two essential characteristics the following characteristics are, in my opinion, relevant; (3) either a common geographical origin, or descent from a small number of common ancestors: (4) a common language, not necessarily peculiar to the group; (5) a common literature peculiar to the group; (6) a common religion different from that of neighbouring groups or from the general community surrounding it; (7) being a minority or being an oppressed or a dominant group within a larger community, for example a conquered people . . . and their conquerors might both be ethnic groups.

Upon applying these characteristics, the House of Lords found that Sikhs were a group deﬁned by ethnic origin and thus the respondent school had violated the Act’s prohibition against discrimination. It is clear from the decision in Mandla that the court found the term ethnic origin to be broader than race. This ﬁnding is broadly supported by courts in other jurisdictions as well.215 213 214 215

Steven Fenton, Ethnicity (Cambridge: Polity Press, 2003), 13. [1983] IRLR 209. For Canada, see Walter Tarnopolsky and William Pentney, Discrimination and the Law, vol. 1, (Toronto: Carswell, 2001), 527–533.

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For the purposes of the Race Relations Act 1976, British courts have found Jews216 and Gypsies217 to be ethnic groups, but Muslims218 and Rastafarians219 have not been regarded as ethnic groups. These decisions accord well with modern day social science literature on ethnicity. See for example, Steve Fenton’s starting point for a discussion on ethnicity: [E]thnicity is about ‘descent and culture’ and . . . ethnic groups can be thought of as ‘descent and culture communities’. . . . Now that is just a start and it should be taken as that: a starting point and not a deﬁnition. A further step or two would be to say that ethnicity refers to the social construction of descent and culture, the social mobilization of descent and culture, and the meanings and implications of classiﬁcation systems built around them. People or peoples do not just possess culture or share ancestry; they elaborate these into the idea of a community founded upon these attributes. Indeed it is entirely possible for people to elaborate an idea of community despite the fact that claims to sharing descent and culture are decidedly questionable. (italics in original)220

Ethnicity – the characteristics or qualities of an ethnic group – is, however, a complex concept. Many books have been written on the topic and there are many diverging theories as to the content of ethnicity. I will not attempt to discuss the theoretical underpinnings of ethnicity. Space does not permit this; nor am I competent to do so. Nor is it necessary for the purposes of this thesis. For this thesis, it is only necessary that the reader get an understanding of how courts, tribunals and international treaty bodies have legally construed the prohibited grounds of race, color, national origin, ethnic origin and descent. An interesting case which contrasts with the House of Lords’ ﬁnding in Mandla that ethnic origin is broader than race, is the USA case Saint Francis College v. AlKhazraji.221 The case is at the same time a signiﬁcant commentary upon the changes as to the meaning of race over time. In Saint Francis College the complainant, who was originally from Iraq, worked as a professor at the defendant university. Upon being denied tenure, the complainant ﬁled a claim of discrimination based on 42 U.S.C. § 1981, arguing that he had been discriminated against on the basis of his Arabian ancestry. Section 1981 had been enacted in 1866 as a post-civil war Reconstruction initiative. The section remained dormant, however, until being reawakened in the 1960’s.222 Although § 1981 does not speciﬁcally use the word “race,” the Supreme Court has

216 217 218

219 220 221 222

Seide v. Gillette Industrial Ltd. [1980] IRLR 427. CRE v. Dutton [1989] IRLR 8. See a reference to the unreported case Nyazi v. Rymans Ltd,EAT/6/8 (available on LEXIS) in Camilla Palmer et al., Discrimination Law Handbook (London: Legal Action Group, 2002), 39: “[T]ribunals have refused to accept Muslims as a distinct ethnic group because of the religion’s geographical spread.” Dawkins v. Departement of the Environment [1993] IRLR 284. Steven Fenton, op. cit., 3–4. 481 U.S. 604 (1987). Harold Lewis and Elizabeth Norman, Employment Discrimination Law and Practice (St. Paul: West Group, 2001), 325.

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interpreted it to prohibit racial discrimination in the making of contracts. The defendant university argued, however, that the complainant was a Caucasian since Arabs are classiﬁed as Caucasian; thus, there could be no violation of § 1981. The issue for the court was thus whether the complainant alleged racial discrimination within the meaning of § 1981. The Supreme Court found that it was not until the 20th century that one began to refer to the Caucasian, Mongolian and Negro races. Prior to that, the term race was used in the sense of “descendants of a common ancestor; a family, tribe, people or nation, believed or presumed to belong to the same stock.”223 The Supreme Court further found that encyclopedias of the 19th century described race in terms of ethnic groups, and examples of such races were Finns, Gypsies, Basques, Hebrews, Swedes, Norwegians, Germans, Italians, Arabs etc. Also the legislative history (travaux préparatoires) to § 1981 shows that the debates were full of references to the Scandinavian races, and other races such as Jews, Germans, Mexicans and Gypsies.224 In light of these ﬁndings the Supreme Court held that § 1981 was intended to provide protection against discrimination to classes of persons identiﬁable because of their ancestry or ethnic characteristics, and such discrimination is racial discrimination within the meaning of § 1981.225 With respect to employment discrimination, American courts have generally avoided having to draw such distinctions between groups deﬁned by ethnic origin, race and national origin, since the Civil Rights Act 1964 (Title VII) prohibits discrimination on all three grounds.226 Most of the cases that have addressed the meaning of race under Title VII have focused on the issue whether whites were also protected under the antidiscrimination law. This has been answered in the afﬁrmative.227 c. National Origin Discrimination on grounds of national origin can be difﬁcult to apply in practice because employers don’t usually refer explicitly to a person’s country of origin.228 Citizenship may be used as a pretext; language and foreign accent may also be used as a pretext. However, these issues are more concerned with the link or connection to the prohibited ground. For example, one must answer the question: Was the person treated differently because of a language problem or was it because of the person’s national origin? Whereas, this section is only concerned with answering the question: What is meant by national origin?

223 224 225

226

227 228

481 U.S. 604 (1987) 611. Ibid., 611–612. Ibid., 613. The Supreme Court decided a similar case in the same way with respect to a Jewish complainant in Shaare Teﬁla Congregation v. Cobb, 481 U.S. 604 (1987). Stephen Shulman and Charles Abernathy, The Law of Equal EmploymentOpportunity (Boston: Warren, Gorham & Lamont, 1990), 3–34–3–35. McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976). Harold Lewis and Elizabeth Norman, Employment Discrimination Law and Practice (St. Paul: West Group, 2001), 45.

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The Equal Employment Opportunity Commission, which enforces the USA Civil Rights Act 1964 (Title VII) deﬁnes national origin discrimination in its Guidelines on Discrimination Because of National Origin:229 The Commission deﬁnes national origin discrimination broadly as including, but not limited to, the denial of equal employment opportunity because of an individual’s, or his or her ancestor’s, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group.

In line with this deﬁnition, a British tribunal found in Northern Joint Police Board v. Power 230 that discrimination against an English policeman because he was not Scottish, was cognizable under the Race Relations Act 1976 as discrimination on grounds of national origin. The court found that the term national origin required identiﬁable historical and geographical elements which revealed at some point in time, present or past, the existence of a nation. Because England and Scotland were at one time separate nations, an Englishman and a Scotsman have different national origins. There is however no requirement that the nation, from which one’s ancestors came continues to be in existence. Thus, discrimination on grounds of a person being Cajun or Gypsy would also be discrimination on grounds of national origin.231 It may be helpful to understand the meaning of national origin by also considering what it isn’t. Court decisions in UK, USA, Canada and Australia regularly distinguish between national origin and citizenship. Furthermore, they distinguish between national origin and nationality when nationality is used in the sense of citizenship.232 This position is supported by the fact that the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) speciﬁcally excludes a state party’s laws concerning nationality and citizenship from its deﬁnition of discrimination.233 The term national origin is, thus, not construed to protect against discrimination on grounds of citizenship.234 Espinoza v. Farah Mfg. Co.235 is a good example of this. The case involved the interpretation of the expression national origin in the USA Civil Rights Act 1964 (Title VII). The complainant was a resident alien living in Texas. She was both a Mexican citizen and of Mexican origin. She applied for a job at the defendant employer’s premises and was refused work because of the employer’s long-standing policy only to hire US

229 230 231 232

233 234

235

29 C.F.R. § 1606.1. [1997] IRLR 610. See Pejic v. Hughes Helicopters, Inc., 840 F.2d 667 (9th Cir., 1988). USA: Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973); Australia: Australian Medical Council v. Wilson (1996) 68 FCR 46; UK: Ealing London Borough Council v. Race Relations Board [1979] AC 342; Canada: Re Immigration Act and Hanna (1957), 21 W.W.R. 400. See Article 1 (3). However, it may be unlawful to have citizenship requirements that have the purpose (i.e., they are disguised as citizenship requirements) or the unjustiﬁable effect (i.e., indirect discrimination) of discrimination on the basis of national origin. 414 U.S. 86 (1973).

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citizens. The Supreme Court found that Title VII’s prohibition against national origin did not provide protection to claimants arguing discrimination on grounds of citizenship. The Court did agree that if the citizenship policy were in fact a pretext to disguise what was in fact discrimination on grounds of national origin, then it would be unlawful. As the Court stated: “Certainly [Title VII] prohibits discrimination on the basis of citizenship whenever it has the purpose or effect of discriminating on the basis of national origin.”236 (emphasis added) The Court found, however, no facts to support this. Indeed, 97% of the employees performing the job for which the complainant applied were in fact persons of Mexican origin having US citizenship. Thus, there was no indication that the citizenship policy of the employer had the purpose or effect of discriminating against persons of Mexican origin. d. Color Color is very often taken to mean the same as race. However, several courts have interpreted color to have an additional component. In Walker v. Secretary of Treasury, I.R.S.237 the USA district court found that a discrimination complaint by a light-skin black person against a dark-skin black person, alleging differential treatment on grounds of skin color, was cognizable under the Civil Rights Act 1964 (Title VII). Although this case involved intra-racial discrimination, one can also imagine that color may be signiﬁcant in the context of inter-racial discrimination. For example: where a white employer unjustiﬁably gives the promotion to a light-skinned black over a more qualiﬁed dark-skinned black. Not only can color mean something more than race, race can also have no relationship to color. In other words, there may also be circumstances of racial discrimination where color has no signiﬁcance. The historic 1896 US case of Plessy v. Ferguson,238 conﬁrmed that a person whose skin was white (and whom all would believe to be white), but whose ancestors were known to be black, could lawfully be classiﬁed as black and lawfully subjected to racial discrimination. The plaintiff, Plessy, was of mixed descent in the proportion of 7/8ths Caucasian and 1/8th African blood. In the words of the Court: “[T]he mixture of colored blood was not discernible in him. . . .”239 (emphasis added) He bought a train ticket and sat in the carriage reserved for white passengers. Thereafter, he was arrested for having criminally violated a Louisiana segregation law which provided for separate railway carriages for whites and blacks. In one of its most infamous decisions, the US Supreme Court upheld the constitutionality of the segregation law and ushered in the era of separate but equal where blacks were lawfully discriminated against under the pretension that the separate facilities for blacks were equal to those of whites. In the Plessy case, color had no signiﬁcance in the plaintiff’s being classiﬁed racially as black. It was Plessy’s ancestry (or descent) which was the determinative factor.

236 237 238 239

Ibid., 92. 713 F.Supp. 403 (N.D.Ga., 1989). 163 U.S. 537 (1896). Ibid., 538.

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In the vast majority of situations, however, race and color overlap each other in meaning. e. Descent During the drafting of the deﬁnition of racial discrimination in the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the prohibited ground of descent was added at the request of India. According to Egon Schwelb, who has researched the travaux préparatoires to the Convention, there is no indication in the record of what the term was meant to add beyond the other prohibited grounds of national origin and ethnic origin. Schwelb suggests, however, that the term descent should include the notion of caste.240 I have found no cases dealing exclusively with the prohibited ground of descent. This is not surprising given that most of the national antidiscrimination laws and international human rights treaties do not include descent as a prohibited ground. It is not difﬁcult to imagine, however, that the term descent could provide an addition component of protection that the other terms do not provide. Schwelb has already suggested that discrimination on grounds of a person’s caste would likely be covered by the term descent. For example: Descent as a prohibited ground could likely provide protection against discrimination in Japan on grounds of a person being Burakumin. Burakumin are not considered to be a group, deﬁned by ethnic origin, race, national origin or color. Yet, they have traditionally been discriminated solely on grounds of their descent from an ancestry who performed a profession that was perceived to be ritually unclean – namely the slaughter and skinning of animals.241 History has shown that there are always new varieties of discrimination to surface. Discrimination on grounds of genetic features is an example of a relatively recent form. In the future the prohibited ground of descent may play a more signiﬁcant role, particularly in connection with protection against this type of discrimination.

2.6. Conclusion Over the last 30 years the legal concept of discrimination has changed dramatically, yet the popular notion of what discrimination means has not kept pace. Although many people view discrimination as an intentional act of prejudice, discrimination may involve either an unjustiﬁable differential treatment or an unjustiﬁable like treatment – and discrimination may entail intended, unintended or even non-conscious acts resulting in differential treatment and effect. It is the concept of indirect discrimination that many have particular difﬁculty in understanding. 240

241

Egon Schwelb, “The International Convention on the Elimination of All Forms of Racial Discrimination,” International and Comparative Law Quarterly 15 (1966): 996–1059 at 1003, footnote 43. See Lill Scherdin, “The Creation of ’Strangers’ and Punishment in Japan,” Social Justice: A Journal of Crime, Conﬂict and World Order 21 (1994): 204–236; and Frank Upham, Law and Social Change in Postwar Japan (Cambridge, Mass: Harvard University Press, 1987).

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(1) The concept of indirect discrimination has become an accepted part of the concept of discrimination. All 25 EU member states are now obligated to prohibit indirect discrimination with respect to racial and ethnic discrimination, sex discrimination, religious discrimination, age discrimination and discrimination on grounds of sexual orientation. The same applies to disability discrimination if the member state does not impose on employers an obligation of reasonable accommodation. Moreover, countries such as the USA, Canada, Norway, New Zealand and Australia have well-developed prohibitions against indirect discrimination. Also on the international level, treaty enforcement bodies of various human rights instruments, such as the ECHR, CCPR, ICERD and CEDAW have recognized, in case practice, concluding observations and general recommendations and comments, that indirect discrimination is prohibited under those conventions. (2) The concept of indirect discrimination has been developed to a much greater degree in national antidiscrimination laws than in the international human rights instruments. The treaty enforcement bodies have for example not elaborated on such questions as how disproportionate impact is to be established, whether the burden of proof should shift to the state upon a showing of prima facie indirect discrimination. Nor have they elaborated on the crucial question of what an appropriate remedy is, given proof of a violation – whether an individual accommodation is sufﬁcient or whether a change in practice is required. (3) The Canadian indirect discrimination (adverse effect discrimination) cases prior to the Meiorin decision show that the concept of indirect discrimination can potentially be just as formalistic as the concept of direct discrimination. It all depends upon how a prohibition against indirect discrimination is carried out in practice. The sole remedy for adverse effect discrimination prior to Meiorin was an individualistic accommodation by the employer. Moreover, the complainant only needed to show a disproportionate effect on him/her as an individual in order to make a prima facie showing of adverse effect discrimination. Thereafter, the employer was not required to justify the employment policy or practice causing the disadvantage, but rather only had to show that the complainant had either been accommodated or could not be accommodated without undue hardship. This was a far cry from any notion of substantive equality. (4) There are differences among the states regarding the various grounds of discrimination where the concept of indirect discrimination is applied: In the USA the concept of indirect discrimination does not apply to religious discrimination; in the UK it does not apply to disability discrimination. There are differences with respect to the obligations of the employer as well as the requirement of proof: In Canada the concept includes an obligation to make reasonable accommodation up to the point of undue inﬂuence. In all jurisdictions except Canada the complainant must show a disproportionate impact upon a group; in Canada it is sufﬁcient to show a disproportionate impact upon the individual. In Canada, USA, Great Britain and Northern Ireland (post EU implementation regulations) and in other EU member states, the burden of proof (burden of persuasion and production) shifts to the employer upon

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the complainant’s showing a prima facie case of indirect discrimination. On the other hand this burden of proof does not shift in Australia. There are also differences with respect to how proven indirect discrimination should be remedied. In Great Britain and Australia one can only tailor a remedy to eliminate the negative effect on the speciﬁc complainant. The remedy may not be tailored generally to prevent further discriminatory acts. Only courts in the USA, Canada and Northern Ireland (with respect to religious discrimination) are permitted, upon a ﬁnding of signiﬁcant discrimination, to order the implementation of an afﬁrmative action program. (5) With respect to the justiﬁcation defense, Canada, USA, UK, EU, Australia and the treaty enforcement bodies have rather similar defenses, even though the wording may differ. In order to justify the adverse impact an employer must show that the employment practice is: job-related and dictated by business necessity (USA), proportionate to a legitimate aim (EU & UK), reasonable (Australia), objective and reasonable, i.e., proportionate to a legitimate aim (ECHR), reasonable and objective (CCPR). All of these tests involve a balancing of competing interests, for example market forces contra equality concerns. It is inevitable that in an individual case, there will be differences of opinion regarding the balancing of these interests. Yet, the weight allocated to these various interests will determine the effectiveness and usefulness of the concept of indirect discrimination. In those jurisdictions which permit enforcement orders to change an employment policy or practice found in violation of the prohibition against indirect discrimination, this concept can have far reaching consequences. Richard Whittle describes how group beneﬁts can be derived from a typical indirect discrimination case: Traditionally, a claim of indirect discrimination on grounds such as race and sex has been made by an individual, or a group of individuals, that have been able to identify themselves through the existence of shared characteristics with the protected ground of discrimination. By pointing to an adverse impact on persons coming within that ground generally (usually through a showing of statistical evidence) they are then able to demonstrate their own particular disadvantage and, if successful, have the infringing provision, criterion or practice removed. Thus, whilst a claim of indirect discrimination may have been made by just one individual, the beneﬁts of a successful challenge in this regard (that is, the removal of the provision, criterion or practice) would normally apply to all persons sharing the same (protected) characteristics and therefore beneﬁt the ‘group’ as a whole.242 (emphasis added)

The concept of indirect discrimination permits one to focus on the institutional and organizational structures of the workplace so as to perceive how neutral norms convert difference into disadvantage.243 It challenges the assumption that policies affect everyone

242

243

Richard Whittle, “The Framework Directive for Equal Treatment in Employment and Occupation: An Analysis from a Disability Rights Perspective” in European Law Review, 27 (2002): 303–326, 308. Marguerite Bolger and Cliona Kimber, Sex Discrimination Law (Dublin: Sweet & Maxwell, 2000), 17.

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in the same way. The prevailing norm is in most cases the norm of the dominant group, for example: (1) Workplaces which only permit leave to be taken on Christian holidays; (2) Job announcements which require the perfect command of the national language (both written and spoken) in order to perform manual jobs; (3) Job announcements which require the completion of national military service for jobs where military service has no relevance; (4) Employer selection criteria which automatically exclude or severely discount educational qualiﬁcations or work experience obtained outside the country.

If the focus is on the individual complainant, it becomes easy to characterize the complainant as someone who simply is unable to ﬁt the norm. The disadvantage then appears aberrant, rather than part of a pattern of exclusion.244 The concept of indirect discrimination permits one to view the exclusion as a group-exclusion. A prohibition against direct discrimination requires that the prevailing norm be applied to both the complainant and the comparator (the reference group), but does not question the prevailing norm. A prohibition against indirect discrimination can permit the court or enforcement agency to scrutinize the content of the prevailing norm being applied.245 Herein lies the unique potential in addressing indirect discrimination. First, courts and enforcement agencies can reach structural inequalities that otherwise would be permitted to continue under a direct discrimination analysis. Secondly, the remedy fashioned in a direct discrimination case is individualistic in nature and does not extend to others (i.e., non-claimants) who might also be victims of discrimination. On the other hand, the remedy fashioned in indirect discrimination cases can be group oriented in practice. When the prevailing norm is successfully challenged and remedied, this remedy is (at least in theory) also to the beneﬁt of other members of the disadvantaged group. The Griggs decision is a good illustration of the potential of the concept of indirect discrimination. Let us consider the speciﬁc effects of the legal process on the defendant, Duke Power Company. The passage of the Civil Rights Act 1964 did not lead to any black workers being hired, promoted or transferred into desirable departments. Once the complaint was ﬁled with the Equal Employment Opportunity Commission, one black worker with a high school diploma was promoted. After suit was ﬁled with the district court the remaining two blacks with high school diplomas were promoted. As a result of these promotions, the district court held that its concept of discrimination (requiring evil-motive) had not been proved. The court of appeals applied a differential treatment (direct discrimination) concept of discrimination and ordered priority for promotion of the six black workers without high school diplomas hired before 1955. [Prior to 1955 white workers did not have to have a high school diploma to work in the more desirable departments.] The Supreme Court’s application of the adverse impact concept of dis-

244

245

Rosemary Hunter, Indirect Discrimination in the Workplace (Sydney: The Federation Press, 1992), 251. Ibid., 54.

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crimination, on the other hand, extended priority of promotion to all of the remaining black employees, and struck down the high school and test requirements as applied to minority applicants.246 This is a dramatic illustration of the potential of the concept of indirect discrimination. The limits of the concept of indirect discrimination in achieving equality in employment are to be found in the practical application of the concept, as well as in the more general limitations of complaint-based approaches. These limitations are discussed at length in chapter 4. The restrictive interpretations of highly technical statutory-based concepts of indirect discrimination have already been pointed out as a particular hindrance to an effective application of the concept. The problem has been minimized to some degree with respect to Great Britain and Northern Ireland after their introduction of new regulations in order to comply with the EU Race Directive and Employment Directive. Australia, which modeled its antidiscrimination laws on those of Great Britain prior to the EU directives, will most likely continue to struggle with litigation about such things as whether an employment practice is an absolute requirement or condition and the burden of proof. In addition, complainants may experience difﬁculty in proving disproportionate group impact. This is a particular problem concerning indirect ethnic discrimination, because many states do not gather statistics on the ethnicity or race of persons in the labor market. Moreover, many employers will not have such statistics as well. There may furthermore be uncertainty as to which groups (or sub-groups) should be compared with one another in order to show disproportionate impact. For example, should a complainant, alleging indirect ethnic discrimination, be required to show a disproportionate impact upon persons having the same particular ethnic identity or upon all immigrants taken as a group. The key to the effectiveness of the concept of indirect discrimination, however, is signiﬁcantly linked with the court’s application of the employer’s justiﬁcation defense. The tests applied in the various jurisdictions are ﬂexible and involve the making of value judgments. In this regard they may also be subject to shifts in political and social climate. The more difﬁcult it is to perceive group harm, the easier it is for a court to view the disadvantage as isolated and special, and to empathize with management’s need to run a business. There is potentially a signiﬁcant structural weakness in challenging everyday, accepted workplace norms by way of complaints alleging indirect discrimination. Deeply ingrained in any lawsuit is the idea that the thing complained against is abnormal or wrong. However, to paraphrase Nicola Lacey, it is not at all certain that enforcement authorities are psychologically ready to take that qualitative leap to ﬁnding proscriptive illegality in that which is descriptively normal policies of the workplace. The signiﬁcance of this for equality is crucial, for in far too many workplaces one will ﬁnd that systemic discrimination is the norm.247 246

247

Alfred Blumrosen, “Strangers in Paradise: Griggs v. Duke Power Co. and the Concept of Employment Discrimination,” in Michigan Law Review, 71 (1972–1973) 59–110, 80–81. Nicola Lacey, “From Inidividual to Group?” in Discrimination: The Limits of Law, edited by Bob Hepple and Erika Szyszczak (London: Mansell, 1992), 103.

Chapter 3 Systemic Discrimination in Employment 3.1. Systemic Discrimination in General The term systemic discrimination is an elastic concept in the way it has been used in legal and social science literature. Sometimes it has been used to refer to systemic intentional discrimination such as in the expression systemic disparate treatment discrimination.1 An archetypical example of this was the formal, overt and explicit segregationist practices prevalent in the South (USA) until the 1970’s. The term systemic discrimination has also been used to refer to unintentional discrimination which occurs through the normal operation of facially-neutral policies and practices which are subtle in the way they discriminate.2 Other terms used as synonyms for systemic discrimination have been structural discrimination,3 institutional discrimination and

1

2 3

See Charles Sullivan et al., Employment Discrimination: Law and Practice, 3rd ed., vol. 1 (New York: Aspen Publishers, 2002), § 3.01; and Harold Lewis and Elizabeth Norman, Employment Discrimination Law and Practice (St. Paul, Minnesota: West Group, 2001), § 3.20. Nan Weiner, Employment Equity: Making It Work (Toronto: Butterworths, 1993), 2. See Leon Mayhew, Law and Equal Opportunity: A Study of the Massachusetts Commission Against Discrimination (Cambridge: Harvard U Press, 1968), 67–72.

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institutional racism.4 The latter two terms appear to be used more frequently than systemic discrimination, except in Canada, where the term systemic discrimination has been given primacy, among other things, through its use in the decisions of the Canadian Supreme Court in discrimination cases. In the United Kingdom the term institutional racism has been used quite extensively, also in the media, in connection with the ofﬁcial inquiry into the death of Stephen Lawrence. In the report on the inquiry (known as the MacPherson Report) institutional racism was deﬁned as: The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people.5

Although the deﬁnition arose out of a case involving an inquiry into institutional racism in the Metropolitan Police Service, the public discussion around institutional racism in general has had effects far beyond those conﬁnes, also prompting wide-range efforts and new legislation to address systemic discrimination in employment. An understanding of the canteen culture in the workplace, as explained in the MacPherson report, is also crucial to understand how organizational culture plays a signiﬁcant role in systemic discrimination. What is new and different about the Macpherson Report is the acknowledgement of a canteen culture that emphasizes ﬁtting in with what are predominantly White, male-dominated

4

5

The term institutional racism is not new. In 1967 Stokely Carmichael and Charles Hamilton stated that it originated “in the operation of established and respected forces in the society. It relies on the active and pervasive operation of anti-black attitudes and practices. A sense of superior group position prevails: whites are ‘better’ than blacks and therefore blacks should be subordinated to whites. This is a racist attitude and it permeates society on both the individual and institutional level, covertly or overtly.” Stokely Carmichael and Charles Hamilton, Black Power: the Politics of Liberation in America, (Penguin Books, 1967) 20–21. In 1969 the term was deﬁned by Harold Baron to be a situation where “Maintenance of the basic racial controls is . . . less dependent upon speciﬁc discriminatory decisions. . . . [B]ehavior has become so well institutionalized that the individual generally does not have to exercise a choice to operate in a racist manner. The rules and procedures of the large organizations have already prestructured the choice. The individual only has to conform to the operating norms of the organization and the institution will do the discriminating for him.” (emphasis in original) See Harold Baron, “The Web of Urban Racism” in Institutional Racism in America, edited by Louis Knowles and Kenneth Prewitt (Englewood Cliffs: Prentice-Hall, 1969), 142–143. See also Carol Agocs, “Systemic Discrimination in Employment: Mapping the Issue and the Policy Responses,” in Workplace Equality: International Perspectives on Legislation, Policy and Practice, edited by Carol Agocs (The Hague: Kluwer Law International, 2002), 2. William MacPherson, Report of an Inquiry by Sir William MacPherson of Cluny (The Stephen Lawrence Inquiry) (London: The Stationery Ofﬁce, CM 4262–I, 1999), para 6.34.

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cultures. This culturally loaded backdrop, which exists in many organizations, is manifested in jokes, conversation, attitudes and actions of individuals throughout organizations. It is thought to be a major deterrent to ethnic minorities who wish to work in areas that are traditionally dominated by a white workforce. It also reinforces the ethnic boundaries that exist within speciﬁc labour markets, so that speciﬁc sectors of a labour market, or indeed speciﬁc shifts, come to be seen as populated exclusively by ethnic minority workers as they may selfselect these types of work in order to avoid precisely the sort of low-level racism that Macpherson calls ‘canteen culture’.6

Although the canteen culture in the Metropolitan Police Service (according to the MacPherson Report) seems to have been particularly severe and deliberate in its exclusion of ethnic minorities, even milder versions of it can contribute signiﬁcantly, even if unintended or non-conscious, to the exclusion of ethnic minorities. As we shall see, the degree of subjectivity in the selection process greatly inﬂuences the likelihood that the forces of the status quo will continue to operate, and thereby replicate the homogeneous constituency. My use of the term systemic discrimination is limited to the context of employment discrimination.7 I do not intend to debate the pros and cons of using the term systemic discrimination as opposed to some other term. Furthermore, I see no beneﬁt or purpose in drawing precise or exact boundaries between systemic discrimination and non-systemic discrimination. As we shall see, the concept of systemic discrimination in employment is not in competition with the concepts of direct and indirect discrimination. Systemic discrimination is indeed comprised of direct and indirect discrimination. For my purposes, I intend to use the term merely as a bridge-concept, i.e., as a short form of referring to a particular kind of discrimination which usually (but not always) has certain characteristics. These characteristics make this kind of discrimination particularly difﬁcult to address by way of complaint-based approaches to antidiscrimination.

3.2. The Nature of Systemic Discrimination in an Employment Context a. Introduction Systemic discrimination often differs from the common perception of discrimination.8 Most people conceive of discrimination, and particularly ethnic discrimination, as being intentional or overt; this is indeed the most graphic type of discrimination: The doorman blatantly refusing blacks entry into a nightclub while whites are welcomed. The camping place with signs saying “No gypsies allowed.” The employer who

6

7

8

John Carter, Ethnicity, Exclusion and the Workplace (Palgrave Macmillan, New York, 2003), 161. The term second-generation employment discrimination has also been used. See Susan Sturm, “Second Generation Employment Discrimination: A Structural Approach,” Columbia Law Review 101 (2001): 458–561. Nan Weiner, Employment Equity: Making It Work (Toronto: Butterworths, 1993), 1.

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instructs the temporary agency not to send Pakistani workers. The senior doctor at a hospital that refuses to provide pain-reduction treatment for an Arab man, explaining in a letter to the patient’s primary physician that cultural minorities receive little beneﬁt from the treatment and that that is frustrating for hospital personnel. These are the types of discrimination that make headlines in newspapers. Intentional, blatant prejudice is thus the characteristic which most people identify with ethnic discrimination. Most people view such acts of discrimination as exceptional or isolated incidents, i.e., they are aberrant in nature and not at all the norm. Such kinds of discrimination carry with them in most societies a heavy social stamp of moral blameworthiness. Systemic discrimination in an employment context, on the other hand, has most often a very different set of characteristics. Compared with the 1960’s and 1970’s, one is less likely today to ﬁnd employers with formal policies blatantly designed to promote intentional or deliberate discrimination. Although less frequent, this form of discrimination may still be found. Such cases are clear examples of discrimination built into the system of the workplace. This thesis is not really about this form of systemic discrimination. It is no longer as signiﬁcant a problem for ethnic minorities in employment today. Given its explicit expression of discrimination in formal policies, this type is perhaps the easiest kind of discrimination to prove in complaint-based approaches. Ethnic minorities today face two major types of systemic discrimination in employment. First, individual acts of direct discrimination (whether intentional, unintended or based on non-conscious bias and stereotypes) which form a pattern which reﬂects an organizational culture9 or administrative structure which condones or tolerates such acts – or even simply permits such acts to go undetected and as a result to ﬂourish. A second form of systemic discrimination in employment is the many neutral policies and practices of the workplace which result in disproportionate impact on subordinated groups and cannot be justiﬁed. This is in essence the deﬁnition of indirect discrimination. Policies and practices may be formal or informal, written or unwritten – they may concern the entire organization or only relate to a small work unit.10 Continuing policies and recurring practices will always be viewed as systemic. I do not envision, however, that all indirect discrimination is necessarily systemic in nature. An isolated act of indirect discrimination is not the norm, but it may be conceivable. In my view, organizational policies and practices must at least establish a pattern of organizational behavior (whether that behavior is active or passive) in order for it to rise to the level of being systemic.11 9

10 11

Carol Agocs deﬁnes organizational culture as “[O]rganizational behaviours surrounding communications, informal inter-personal interaction and socializing, decision-making practices, expressions of values and attitudes, and norms about behaviour. The culture of the workplace inﬂuences the degree to which racial or ethnic minorities, aboriginal people, persons with disabilities and women are accepted, included, valued and rewarded as equal participants in work activities, information networks, and informal social situations involving co-workers.” Carol Agocs, “Systemic Discrimination in Employment: Mapping the Issue and the Policy Responses,” in Workplace Equality: International Perspectives on Legislation, Policy and Practice, edited by Carol Agocs (The Hague: Kluwer Law International, 2002), 9. Ibid., 8. See Carol Agocs’ deﬁnition of systemic discrimination in section 3.3.

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Common to systemic discrimination in employment is the link to the workplace’s administrative structures or organizational culture, which produces, contributes to or permits unjustiﬁable differential treatment, unjustiﬁable disproportionate impact or a hostile or poisonous work environment. One may question why this thesis does not have direct discrimination and particularly indirect discrimination as its primary focus, given that systemic discrimination in employment is comprised of these two kinds of discrimination. First, this thesis is about the employer’s obligation and capability to design administrative structures and inﬂuence organizational culture so as to reduce discrimination. The link to administrative structures and organizational culture makes it natural for the thesis to have systemic discrimination in employment as its central focus. Secondly, the concepts direct and indirect discrimination are inevitably connected to a micro-level, complaint-based perspective and approach which limits their ability to address discrimination linked to administrative structures and organizational culture. For example, the key indicator of indirect discrimination is disproportionate group-impact. Once this is established, one assesses the impugned neutral rule or practice (the alleged barrier to equality) to determine whether it is justiﬁable. Whereas the key indicator of systemic discrimination in employment is underrepresentation, i.e., disproportionately lower group-representation in occupational groups (or the workforce at large) than expected considering the composition of the relevant available labor supply pool.12 Underrepresentation13 is most often due to a host of different barriers to equality which requires assessment and review. Thus, the concept of systemic discrimination entails an ongoing, macro-level, organization-wide perspective and approach, while the concept of indirect discrimination entails a one-off, micro-level, case-speciﬁc perspective and approach. In 1984 Judge Rosalie Silberman Abella, author of the Canadian Royal Commission Report Equality in Employment, described systemic discrimination as: [P]atterns of discrimination that have two basic antecedents: a disparately negative impact that ﬂows from the structure of systems designed for a homogeneous constituency; and a disparately negative impact that ﬂows from practices based on stereotypical characteristics ascribed to an individual because of the characteristics ascribed to the group of which he or she is a member.

12

13

J. Helen Beck, Jeffrey Reitz and Nan Weiner, “Addressing Systemic Racial Discrimination in Employment: The Health Canada Case and Implications of Legislative Change,” Canadian Public Policy vol. xxviii, no. 3 (2002): 373–394, 379. In employment discrimination the term underrepresentation refers to the gap between the internal representation and the external representation of the members of a particular group (for example, ethnic minorities). One compares the actual representation of protected group members in the employer’s entire workforce or in a particular occupational group (internal representation) with the representation that would normally be expected in the labor pool from which the employer can reasonably be expected to recruit, taking into account qualiﬁcations, eligibility, and geographic location (external representation). “Availability” is another term for external representation.

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Chapter 3 The former usually results in systems primarily designed for white able-bodied males; the latter usually results in practices based on white able-bodied males’ perceptions of everyone else14

The two antecedents do not operate in isolation of each other; they are indeed linked. The administrative structure that permits stereotyping and bias to ﬂourish such that members of protected groups are unjustiﬁably disadvantaged, is an administrative structure embodying systemic discrimination. Omissions and failure to act are relevant determinants of discrimination. In the Royal Commission’s report Judge Abella focused on systemic discrimination with respect to four groups: (1) women, (2) aboriginal peoples, (3) persons with disabilities and (4) members of visible minorities. Although the types of discrimination faced by these groups may vary, experience has proved that an understanding of the nature of systemic discrimination with respect to the one group is an invaluable aid to understanding systemic discrimination with respect to other groups. In the following I will therefore draw frequently from the experiences from other grounds of discrimination to explain the nature of systemic discrimination with respect to ethnic minorities. As stated earlier, my focus is solely on systemic discrimination in an employment context. b. Action Travail des Femmes v. Canadian National Railway In the seminal case of Action Travail des Femmes v. Canadian National Railway15 Justice Dickson of the Supreme Court of Canada deﬁned systemic discrimination as follows: [S]ystemic discrimination in an employment context is discrimination that results from the simple operation of established procedures of recruitment, hiring and promotion, none of which is necessarily designed to promote discrimination. The discrimination is then reinforced by the very exclusion of the disadvantaged group because the exclusion fosters the belief, both within and outside the group, that the exclusion is the result of ‘natural’ forces, for example, that women ‘just can’t do the job’. . . .16

Justice Dickson’s deﬁnition focuses on: (1) the administrative structure of the workplace, more speciﬁcally, the procedures of recruitment, hiring and promotion (which produce disadvantage for non-dominant groups), and (2) the signiﬁcance of the mere absence of members of the non-dominant group in entrenching stereotypes and bias and thus reinforcing their exclusion. In focusing on the latter, Justice Dickson recognized the importance of numbers as a counterforce in the deterrence of systemic discrimination. Although Justice Dickson’s deﬁnition of systemic discrimination appears to be

14

15 16

Rosalie Silberman Abella, Equality in Employment: A Royal Commission Report (Ottawa: Minister of Supply and Services Canada, 1984), 9–10. [1987] 1 S.C.R. 1147. Action Travail des Femmes v. Canadian National Railway [1987] 1 S.C.R. 1147, para 36.

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similar to the concept of indirect discrimination, even a cursory look at the facts of the case show that the evidence of discrimination presented was predominantly examples of direct discrimination rather than indirect discrimination. The facts of the case were the following: The organization Action Travail des Femmes brought a complaint under the Canadian Human Rights Act alleging grounds to believe that Canadian National Railway in the St. Lawrence Region pursued a policy or practice that deprived or tended to deprive women of employment opportunities. The ﬁndings of fact by the Human Rights Tribunal were not disputed later in the appeal to the Canadian Supreme Court. The Tribunal heard testimony from 50 witnesses in the course of 33 days of hearing. The Tribunal found, among other things, evidence that: (1) Women applicants were channeled into dead-end secretarial positions, while men were guided toward clerical positions which could lead to higher level positions and middle management positions. (2) In job bidding situations, women were frequently strongly discouraged from bidding on traditional men’s jobs. (3) Women applicants were required to perform tests that men were not required to perform, such as lifting a brake-shoe with one hand. (4) Male supervisors and employees held negative and stereotypical attitudes about women and their ability to perform the job. (5) There were incidents of women being made the butt of jokes by male colleagues and being frozen out of social relations on the job. (6) There were incidents of women being subjected to sexual harassment. (7) There was a vast statistical underrepresentation of women in the blue-collar workforce of Canadian National Railway in the St. Lawrence region compared with the percentage of women in blue-collar, traditionally-male jobs in Canada (i.e., 0.7% compared with 13%). (8) There was a lack of executive management commitment to hiring women. (9) The company’s recruitment program was set up in such a way that it only came in contact with potential male candidates. (10) Blue-collar job hiring was done by the area foreman rather than by the personnel ofﬁce, and there was evidence that the foremen were typically unreceptive to female candidates. (11) Applicants were required to have qualiﬁcations which were irrelevant to the position applied for, for example a requirement of welding experience for a position as coach cleaner. (Statistically, women have far less experience in welding than men.)

Of the types of evidence listed above, only nos. 7, 8, 9, and 11 may be said to be evidence of indirect discrimination. The remainder are evidence of direct discrimination. As discussed in the previous chapter the concept of direct discrimination may consist of either intentional discriminatory acts as well as unintentional or non-conscious acts of discrimination. It is perhaps in this light that Justice Dickson later points out in the opinion that systemic discrimination [I]s compounded by the attitudes of managers and co-workers who accept stereotyped visions of the skills and ‘proper role’ of the affected group, visions which lead to the ﬁrmly

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Chapter 3 held conviction that members of that group are incapable of doing a particular job, even when that conclusion is objectively false.17

What Justice Dickson does not explicitly say is that it was such attitudes and stereotypical beliefs which lead to individuals being subjected to unfavorable treatment based on sex, i.e., direct discrimination. But he clearly points out that such individual attitudes and stereotypes are part of the systemic nature of the discrimination. In response to the discrimination found, the Human Rights Tribunal ordered Canadian National Railway to implement a temporary program of preferential hiring whereby at least a quota of one of every four positions had to be ﬁlled by a woman until the objective of 13% representation of women in non-traditional positions was achieved. The Tribunal also ordered certain permanent measures, such as the discontinuation of the use of certain irrelevant tests and qualiﬁcation requirements for job positions. The Canadian Supreme Court afﬁrmed the order of the Human Rights Tribunal. In the words of the Supreme Court, the objective of the court-ordered employment equity program was three-fold: First, by countering the cumulative effects of systemic discrimination, such a program renders further discrimination pointless. To the extent that some intentional discrimination may be present, for example in the case of a foreman who controls hiring and who simply does not want women in the unit a mandatory employment equity scheme places women in the unit despite the discriminatory intent of the foreman. His battle is lost. Secondly, by placing members of the group that had previously been excluded into the heart of the work place and by allowing them to prove ability on the job, the employment equity scheme addresses the attitudinal problems of stereotyping. For example, if women are seen to be doing the job of ‘brakeman’ or heavy cleaner or signaler at Canadian National. . . . [i]t will become more and more difﬁcult to ascribe characteristics to an individual by reference to the stereotypical characteristics ascribed to all women. Thirdly, an employment equity program helps to create what has been termed a ‘critical mass’ of the previously excluded group in the work place. This ‘critical mass’ has important effects. The presence of a signiﬁcant number of individuals from the target group eliminates the problems of ‘tokenism’; it is no longer the case that one or two women, for example, will be seen to ‘represent’ all women. . . . The ‘critical mass’ also effectively remedies systemic inequities in the process of hiring. . . . If increasing numbers of women apply for non-traditional jobs, the desire to work in blue collar occupations will be less stigmatized. Personnel ofﬁces will be forced to treat women’s applicants for non-traditional jobs more seriously. In other words, once a ‘critical mass’ of the previously excluded group has been created in the work force, there is a signiﬁcant chance for the continuing self-correction of the system.18

The remedy imposed by Justice Dickson thus sought: (1) A transformation of administrative structure. The order mandated the discontinuation of the practice of using irrelevant tests and qualiﬁcation requirements that were not job-related.

17 18

Ibid at para 42. Action Travail des Femmes v. Canadian National Railway [1987] 1 S.C.R. 1147, para 43–46.

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(2) A signiﬁcant increase in numbers of women in the workforce. This increase in numbers was important in several respects. It would help to bring about a change in the attitudinal problem of sex stereotyping. It would be more difﬁcult to uphold traditional sex stereotyping when men saw that women could perform the traditionally male bluecollar worker jobs. Furthermore, the increased numbers would create a critical mass which would avoid the problem of tokenism – where few numbers of women would be viewed as representing all women. Finally, the increase in numbers would help to make the system self-correcting. Although Justice Dickson does not explicitly say it, this selfcorrection could take place for example by women becoming supervisors, sitting on selection committees, etc. (3) A transformation of organizational culture as the attitudinal problems of sex stereotyping dissipates (as explained in number 2 above). The court-ordered employment equity program focused on bringing about an organizational change regarding three factors: (1) administrative structure (employment systems), (2) the numerical representation and distribution of the underrepresented group, and (3) organizational culture. We shall see later that these same three factors are the focus of government regimes imposing statutory-based proactive obligations and contract-based proactive obligations. There are, however, major differences. For example, the regulatory-based programs imposing proactive obligations do not entail preferential hiring or quotas. These differences are discussed later in sections 4.5.c and 6.2. See also section 3.3. There are very few broad-pattern systemic discrimination cases of this type that have been litigated. One of the reasons is the great amount of effort required to litigate cases of this type.19 They involve large numbers of witnesses, economic resources and a comprehensive and detailed understanding of the inner-workings of the employer’s organizational structure, culture and practice. Systemic discrimination need not be so broad-patterned as this, but such cases help to illustrate the many different kinds of disadvantage that amount to barriers to equality in employment. c. National Capital Alliance on Race Relations (NCARR) v. Health Canada I will describe in detail another Canadian case involving broad-pattern systemic discrimination. In National Capital Alliance on Race Relations (NCARR) v. Health Canada,20 the non-proﬁt organization, NCARR, brought a complaint before the Canadian Human Rights Tribunal, alleging that Health Canada discriminated against visible minorities by establishing employment policies and practices that deprived visible minorities of employment opportunities in management and senior professional jobs on the basis of race. NCARR alleged that this was indicated by a signiﬁcant underrepresentation of visible minority employees in senior management positions. The complaint also focused on two feeder groups to the senior management positions.

19

20

Promoting Equality: A New Vision 2000, (Ottawa: The Canadian Human Rights Act Review Panel, 2000), 16. National Capital Alliance on Race Relations (NCARR) v. Health Canada, 28 C.H.R.R. D/179 (Decision of the Canadian Human Rights Tribunal) Canadian Human Rights Tribunal Website: http://www.chrt-tcdp.gc.ca/search/view_html.asp?doid=235&lg=_e&isruling=0

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(Feeder groups are senior level positions in some occupational groups from which the employer may reasonably be expected to recruit and promote employees into the senior management positions.) One of the feeder groups, (A&FS) also had a signiﬁcant underrepresentation of visible minorities, while the other feeder group (S&P) had a relatively high concentration of visible minorities, but the visible minority employees appeared to be “bottlenecked” in that feeder group, i.e., not progressing into senior management. In addition to having found that the statistical evidence conﬁrmed NCARR’s allegations in the complaint, the Tribunal also found persuasive evidence of adverse treatment in many areas of stafﬁng (initial hires and promotion) and career development. This latter evidence, together with expert testimony of a human resources consultant and the statistical evidence, helped the Tribunal to pinpoint the discriminatory barriers in stafﬁng practices and stafﬁng development systems which adversely affected the hiring and promotion of visible minorities in Health Canada. In other words, the Tribunal was able to identify the barriers to equality which led to the underrepresentation of visible minorities in Health Canada. Those barriers were as follows: (1) A common theme in the evidence was that visible minorities in Health Canada lacked the necessary managerial experience to move into senior management positions. Although the necessary managerial experience could be obtained through acting positions and although acting positions constituted a very large part of the total stafﬁng actions in Health Canada, acting appointments were often made without any competition and on an informal basis. As a result, potentially qualiﬁed persons were not considered for appointment.21 In the testimony of the expert witness, the less formal the process: (a) the less likely that job qualiﬁcations would be set out in advance, (b) the less likely job qualiﬁcations would be assessed in a standard manner for all candidates, and (c) the less likely the process would allow for the recognition of qualiﬁcations in candidates who are different from those who typically perform the job. The more the number of acting positions, the more the likelihood that the selection would be more informal. The more informal, the more likely unintended bias can affect the selection process. The testimony of several of the witnesses illustrated how bias or perceived unfair treatment did affect the selection process. The Tribunal found that visible minorities proportionately were given less acting positions than whites. The Tribunal further found that where acting appointments were challenged, the subsequent selection processes for the permanent positions were also affected by unintended bias. The result was that persons initially appointed in the acting positions were usually subsequently conﬁrmed in the permanent positions. (2) Visible minorities received less encouragement from their managers than whites. A pre-conﬂict survey of managers in Health Canada sought to examine how they had found out about management opportunities and training. The survey found that visible minorities were at a disadvantage with respect to how they found out about acting positions and management related training. Whites were more often informed of such opportunities and asked to apply by their managers, whereas visible minorities had had

21

National Capital Alliance on Race Relations (NCARR) v. Health Canada (Decision of the Canadian Human Rights Tribunal) at 27.

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to be more proactive and self-reliant in ﬁnding out about opportunities for acting positions and management related training. The expert witness testiﬁed that there is always some uncertainty about a person’s ability to succeed at the next level and people watch for signals from their managers or from their organization that if they bid for a higher level job, that they will be given fair consideration. These signals can also be in the form of encouragement to take management training programs. The Tribunal found that visible minorities having received less encouragement from their managers, resulted in whites getting more of the experience and training necessary for promotion into senior management positions. (3) Visible minorities were viewed by senior management as culturally different and thus not considered suitable for managerial positions. The Tribunal found persuasive a memorandum of a meeting where comments made by certain senior management members were quite probative. One such comment: The cultural differences are minimized when we are only looking for the scientiﬁc approach. However, when we start looking for the ‘soft skills’ such as communicating, inﬂuencing, negotiating . . . quite often their cultural heritage has not emphasized these areas and they are at a disadvantage.22

Another comment: Abilities to interact with a number of stakeholders, such as industry as well as internally with peers, subordinates and superiors are important. As well we do business in the North American way – ‘consensus reaching model’ which to some cultures is very foreign.23

There were other comments made on other occasions, such as the time an Indian-born minority was told that the “good brainy guys had to come from the U.K., [not from India].”24 Another example was the senior manager who told the same Indian-born minority of the corruption he had experienced while in India, and then denying the minority the opportunity to sit on a selection board because one of the applicants was from India. The expert witness testiﬁed that such stereotypical attitudes set up a us/them dichotomy where only one style of management could be successful and only one set of people could manage the appropriate way, and that did not include visible minorities. (4) Senior management positions were ﬁlled by recruiting from feeder groups which had few or no visible minorities. One of the feeder groups, the S&P feeder group, contained three sets of occupational groups: One had no visible minorities. Senior management was recruited from this group. A second occupational group had a fairly high representation of visible minorities, but no visible minorities were recruited from this group. A third occupational group had a very high representation of visible minorities, but there was very low recruitment of members into the senior management from this

22 23 24

Ibid., 25. Ibid. Ibid.

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group. The Tribunal found that the barrier of ghettoization was taking place in Health Canada, i.e., that visible minorities were clustered or concentrated in staff jobs or highly technical or professional jobs from which they did not proceed into management positions. (5) The Tribunal found that there was a signiﬁcant difference in the relative participation of whites and visible minorities in hiring and promotion decisions. The difference was even greater for those visible minorities who were more senior and had more qualiﬁcations. This suggested that management, whose responsibility it was to appoint members of the selection board, chose members for reasons that had little to do with their level of education, experience or responsibility. In light of the Tribunal’s ﬁndings of such discriminatory barriers, the Tribunal ordered Health Canada to carry out an afﬁrmative action plan with, among other things, ﬁxed quotas over a ﬁve year period in order to reach at least 80% of what would be proportional representation of visible minorities in senior management and the A&FS feeder group. d. Summary of Mechanisms of Systemic Discrimination in the Action Travail des Femmes and National Capital Alliance Cases These two broad-pattern systemic discrimination cases, National Capital Alliance on Race Relations (NCARR) v. Health Canada and Action Travail des Femmes v. Canadian National Railway, help us visualize how systemic discrimination in employment occurs. The two cases show that it occurs through such mechanisms as: • The channeling of members of protected groups into segregated job categories on the basis of stereotyping • The application of differential selection criteria • Exclusion from social relations • Harassment • The absence of management commitment to gender and ethnic equality • Recruitment policies which lead to a signiﬁcant disproportion of members of protected groups in the pool of candidates • The use of job qualiﬁcations that are not related to the job • The use of informal process (i.e., without competition) in appointing persons to acting positions which could give necessary managerial experience, thus permitting unintended bias to affect the selection process • Practices which lead to members of subordinated groups receiving less access to information and encouragement concerning management opportunities and training • Stereotypical assumptions about cultural ﬁt of members of non-dominant groups • Recruitment to senior management from feeder groups that themselves have an underrepresentation of members of subordinated groups • Selection committees with an underrepresentation of participants from subordinated groups

The exclusionary mechanisms in these two cases were multiple and varied, yet there seems no limit to the kinds of employment mechanisms which produce systemic discrimination. I shall therefore present a variety of cases and examples which are intended

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to help us understand how group advantage and disadvantage is embedded in the administrative structure and organizational culture of the workplace. I do not present the following cases as a full account or description of the status of the law, but rather as a tool to help visualize the characteristics of systemic discrimination in employment and consequently to indicate what is necessary to respond to such discrimination. e. Harassment and Hostile Work Environment (Poisonous Work Environment) It is primarily the administrative structure and organizational culture which is responsible for and determinative of the atmosphere in which an employee must work. When an employee is forced to work in a hostile or poisonous work atmosphere,25 this amounts to systemic discrimination when management knows, or ought to know, of the condition but permits it to continue.26 The case McKinnon v. Ontario (Ministry of Correctional Services)27 is an example of how racial harassment, discrimination and acts of reprisals are permitted to ﬂourish as a result of the failure of management to act. Moreover, it attests to the all-to-often occurrence that the hostile work environment will be exacerbated once a formal discrimination complaint is ﬁled. The post-McKinnon history also reveals the tenacity of an organizational culture gone awry and the difﬁculty in changing it. The plaintiff, Michael McKinnon (a Native American), worked as a corrections ofﬁcer at a detention centre in Toronto. Until the time of his complaint, his performance appraisals were clearly positive, being ranked as “very good to excellent” in every category of assessment. A number of correctional ofﬁcers, including supervisors, regularly called McKinnon such names as “McInjun”, “Big Canoe”, “Chief ”, “Tomahawk”, “Running Bear” and “Wagon Burner” He was teased about having “pow-wows”. His wife, Shaw-McKinnon, (who was also a corrections ofﬁcer) was referred to as “SquawMcKinnon”. A group of ofﬁcers once dressed themselves in Indian headdress and imitated native war cries when McKinnon entered the room. McKinnon’s complaints to management about the harassment did not result in any action. After having ﬁled a complaint with the Ontario Human Rights Commission, McKinnon was subjected to acts of reprisal from both co-workers and supervisors. McKinnon was “punished” by being removed to an isolated posting after having made a common mistake; no other ofﬁcer

25

26

27

The term hostile work environment is used in the USA, while the term poisonous work environment is used in Canada. See Ghosh v. Domglas Inc. (1992) 17 C.H.R.R. D/216 at para 76. In Wall v. Embro (1995) 27 C.H.R.R. D/44 the Board of Inquiry suggested the following considerations in determining whether an employer had responded appropriately to charges of harassment: (1) the promptness of employer’s response, (2) the extent to which the employer in general was addressing harassment as a problem and providing appropriate resources to combat it, (3) whether the complaint was taken seriously, (4) whether there was an adequate complaint mechanism in place, (5) whether the employer provided a healthy work environment, and (6) whether the employer communicated its actions and decisions regularly to the complainant. (1998) 32 C.H.R.R. D/1.

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had been reassigned after having made the same mistake. McKinnon and his wife later applied for entry-level management positions. There were 13 positions available and 22 applicants. Neither of them was successful and the persons responsible for the hiring decisions refused to provide the McKinnons with information about the scoring process. There was evidence to the effect that the examinations had been tampered with and at some point in time the entire six-inch ﬁle on the promotion competition simply disappeared. Furthermore, the superintendent of the detention centre had indicated his opposition to the McKinnons receiving any promotion as long as the complaint of discrimination stood. The Board of Inquiry found that both McKinnon and his wife, Shaw-McKinnon, had been denied the promotions which they merited. There was also evidence of several other incidents where co-workers and supervisors brought about or seized upon circumstances which were calculated to bring McKinnon into disrepute and subject him to adverse disciplinary reaction. None of these acts of reprisal were adequately investigated or addressed by management. The Ontario Board of Inquiry found that McKinnon had been subjected to racial harassment, racial discrimination and acts of reprisal for having ﬁled his discrimination complaint. The Board described the poisoned workplace environment as follows: The conduct of which the complainant complains initially took the form of racist name-calling that persisted in a climate that was redolent with racist behaviour, particularly towards black employees and inmates – which was a matter of considerable concern to the complainant as well, as is made plain by his many documented efforts to have such conduct redressed both internally and through the intervention of outside agencies. . . . Such namecalling was followed by acts of direct and indirect reprisal against him for having complained about it. And of course the failure of its managers to take appropriate and timely measures to deal with the conduct complained of constituted an infringement by the Ministry of the complainant’s right to equal treatment . . . in that the employer permitted a ‘poisoned workplace environment’ to exist as a condition of employment affecting the complainant differently from others. (emphasis added)28

The Board found that the employer’s actions and inactions contributed to the poisoned work environment in the following ways:29 (1) the sporadic efforts by management to address the poisoned work environment were inadequate and often begrudged, (2) McKinnon’s requests for action were viewed with suspicion, and either ignored or mishandled or met with undue delay, (3) the employer failed to seriously investigate McKinnon’s complaints and to take measures to remedy the harassment (4) the management participated in retaliatory actions against McKinnon as a result of his complaint to the Ontario Human Rights Commission.

28 29

Ibid., para 294. Ibid., para 301.

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The Board found all of the four named defendants liable for violations of the Ontario Human Rights Code, one co-worker, two supervisors and the superintendent of the detention center. In addition, it found the Ministry of Correctional Services liable – both directly and under an employer liability theory. The remedies ordered by the Board were in the form of compensation to McKinnon, the promotion of both McKinnon and his wife to the deserved rank, the relocation of one of the defendants to a different institutional facility and an order obligating the Ministry to adopt a human rights training program. The Board’s order was to be read at parade for 5 consecutive days. The events occurring after the 1998 decision of the Board of Inquiry were to show that McKinnon’s problems were to continue. In a new 181 page decision of the Ontario Board of Inquiry in 2002, (McKinnon v. Ontario (Ministry of Correctional Services (No. 7)30 the Board issued a set of new orders to deal with the continued poisonous work environment at the detention center. According to the Board’s decision of 2002, the 1998 orders of the Board were not implemented in good faith by the Ministry and the poisonous work environment continued unabated. There were hostile responses from co-workers as a result of the 1998 orders, among other things, the destruction of McKinnon’s locker.31 When the Board’s orders were read at parade for 5 consecutive days, it was done without explanation or context, and in a manner that in fact increased resentment against McKinnon. McKinnon was excluded by co-workers as a result of his complaint, and many frivolous complaints and grievances were ﬁled against him. The training program which was ordered in the 1998 order was not carried out within the time frame. When it was carried out, it was revealed that the training was not designed to deal with racial harassment and the trainers had not received information about the ﬁndings of the Board nor about the poisonous work environment at the detention center. Many managers did not attend the training and junior managers interpreted this as a sign of lack of support. The Board found that the employer had failed to stop the harassment of McKinnon. When McKinnon complained to management about the continued harassment, he was met with refusals, delays, incompetence, bias and unjustiﬁed ﬁndings against him. The Board found that the handling of his complaints was in itself a reprisal and a further infringement of his rights. The Board issued new orders imposing a comprehensive Ministry-wide training program (i.e., not merely for the Toronto detention center). It also required that performance appraisal forms (Ministry-wide) be revised such that performance evaluations also include the management’s responsibility for compliance with the Board’s orders. The Board further ordered: (1) that investigations and mediation of all harassment complaints arising at the Toronto detention center be conducted by persons outside of the Ministry, (2) that a Compliance Committee (with members to be approved by the parties) be established at the detention center to monitor compliance with the Board’s orders, and that the superintendent report monthly to the Committee until the orders are fully implemented, (3) that the Ministry shall, at its own expense, have short summaries

30 31

(2002) 45 C.H.R.R. D/61. Veena Verma and Maggie Wente, op. cit., 17.

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of the Board’s decisions of 1998 and 2002 prepared and approved by the parties and the Board, and that these summaries shall be sent with explanatory letter to all employees of the Ministry, (4) that McKinnon and his wife, Shaw McKinnon, be granted paid leaves of absence until the Compliance Committee indicates that the orders have been fully complied with. The orders imposed by the Board in 2002 must be said to be extraordinary for harassment cases. The fact that several of the orders imposed were Ministry-wide obligations, shows how difﬁcult it is to change the poisonous work environment of a local unit without the active support of the higher chain of command. Furthermore, the revision of performance evaluations to include management’s responsibility for compliance with the Board’s orders shows the signiﬁcance of management accountability in addressing systemic discrimination in employment (see section 9.3.d ). The appeals by the Ministry have been denied, both by the Divisional Court32 and the Court of Appeal for Ontario.33 f. Use of Recruitment Methods that Perpetuate Underrepresentation In a national survey of 4,078 employers in 1987,34 Braddock and McPartland found that the most frequent methods of recruitment used by employers were informal methods that rely upon social networks of information: (1) unsolicited “walk-in” applications and (2) word-of-mouth, i.e., informal referrals from current employees. The study concluded that the segregated social networks of ethnic groups meant that ethnic minorities did not have equal access to the most important employer recruitment channels that create the pool of candidates for job openings. A similar ﬁnding of the adverse effects of informal recruitment methods on ethnic minorities was made in a formal investigation of Massey Ferguson Perkins, Ltd. by the Commission for Racial Equality (UK) in 1982. The investigation revealed that none of the jobs ﬁlled in 1977, 1978 and 1979 had been advertised. All of the vacancies were ﬁlled by applicants who had applied by letter. Successful applicants had written more than once, or had written when they knew that speciﬁc vacancies existed. The applicants had heard about the vacancies from friends or relatives who worked for the company. Furthermore, they had been given advice about what they should say in the application letter, among other things, the mentioning of the speciﬁc job position one was seeking. Asian applicants who had unsuccessfully sought work were less likely to have applied by letter; they were less conﬁdent about doing so. The Asian applicants were also less aware that they had to apply for jobs by letter. The Commission made recommendations to the company for widening its pool of applicants, including such things as: (1) ensuring that vacancies are known and available to potential applicants of all races by using job centers and press advertisements, (2) providing guidance to applicants about the

32 33 34

See Ontario v. McKinnon, Westlaw: 2003 Carswell Ont 6167 (decided 23 December 2003). See Ontario v. McKinnon, (decided 14 December 2004) (docket: C41678). Jomills Braddock and James McPartland, “How Minorities Continue to Be Excluded from Equal Employment Opportunities: Research on Labor Market and Institutional Barriers,” Journal of Social Issues 43, no. 1 (1987): 5–39, 7 and 12.

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information required by using application forms with instructions, (3) ceasing to rely on any method of recruitment when it is known to give advantage to applicants with access to appropriate information through existing employees of the company. These recommendations were later accepted by the company.35 g. Selection Criteria: Employment Tests That Are Not Job-Related One of the most litigated aspects of employment discrimination law the last three decades has been the use of employment tests by an employer to help in the selection process. Two USA Supreme Court decisions: Griggs v. Duke Power Company36 and Albemarle Paper Company v. Moody37developed and further developed respectively the concept of job relatedness, i.e., the showing that any given requirement has a manifest relationship to the employment in question. In Griggs the defendant employer, who had had a past history of segregation, introduced a practice whereby all employees (except for those in the lowest paying jobs) had to have a high school diploma and to have passed two general aptitude tests. There was no showing of a racial purpose or an invidious intent behind the requirements; however, only 12% of the black males in North Carolina had a high school diploma, compared to 34% of white males. Furthermore, a study had shown that while 58% of whites passed the aptitude tests, only 6% of blacks did so. Neither the high school diploma nor the passing of the tests were shown to bear any relationship to performance of the jobs for which they were used. The Court stated: The facts of this case demonstrate the inadequacy of broad and general testing devices as well as the inﬁrmity of using diplomas or degrees as ﬁxed measures of capability.38 Nothing in the Act precludes the use of testing or measuring procedures; obviously they are useful. What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance. . . . What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract.39 (emphasis added)

Like the employer in Griggs, the employer in Albemarle used tests purporting to measure general verbal facility. The employer had had a past history of segregation, but had not operated with segregated lines of promotion after the passage of the Civil Rights Act of 1964. Use of the tests had an adverse effect on the selection of blacks for promotion. Incumbent white employees, already in the preferred job groups, were not however required to take the tests. A study carried out by the employer revealed though that a number of whites in high ranking positions who had subsequently taken the tests, had not passed.

35

36 37 38 39

Commission for Racial Equality, Massey Ferguson Perkins Ltd: Report of a Formal Investigation (London, 1982), 22–23. 401 U.S. 424 (1971). 422 U.S. 405 (1975). 401 U.S. 424 (1971) at 433. 401 U.S. 424 (1971) at 436.

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In Albemarle the Court went a step further than Griggs by stating that an employer’s validation of a particular test as job related must be carried out by a methodology recognized by professional standards. Both Griggs and Albemarle gave great deference to the Equal Employment Opportunity Commission’s Guidelines on Employment Testing Procedures issued in 1966. The tests used in Albemarle were found to have signiﬁcant methodological deﬁciencies and were therefore declared by the Court not to be job related. The Guidelines on Employment Testing Procedures were modiﬁed in 1978 and are now called the Uniform Guidelines on Employee Selection Procedures. These uniform guidelines are widely used, also in other jurisdictions, such as by Canadian courts, and it remains one of the leading professional standards for the validation of employment tests and the judging of fairness in selection procedures.40 Today psychometric testing is used more and more often in connection with employers’ decisions as to hiring, promotions and career development. Psychometric tests have been criticized for being both culturally biased and for measuring skills that are not jobrelated. The use of such tests received much media attention in the United Kingdom in 1991 as a result of allegations of indirect discrimination by eight train guards against British Rail for the use of such tests. The evidence showed that Asian applicants were adversely affected by the use of such tests. The cases were settled prior to hearing by the employment tribunal. British Rail accepted that its selection procedures had adversely affected applicants of Asian origin.41 h. Unguided Subjective Criteria, Unstructured Interviews and Differential Questioning The interview process is highly subjective and thus susceptible to the inﬂuence of stereotypes and bias.42 As a result, the policies and practices that the employer has in place regarding the interview process play a signiﬁcant role as to whether the interview process works fairly for all applicants. It is of course understandable and reasonable that an employer may use some subjective criteria to help make hiring decisions; however, the use and application of subjective criteria needs to be accompanied with appropriate safeguards in order to ensure that they do not operate as barriers to equality. In Green v. USX Corp.43 a US court of appeals found the defendant employer’s lack of safeguards to be determinative in a ﬁnding of discrimination in the interview process. The ﬁnding of discrimination concerned a period of several years during which over 4000 persons were hired. The case involved a class action against a large industrial manufacturer of steel. The stated job requirements for the unskilled positions were minimal: 40

41

42

43

Simon Taggar, “A Comparative Look at the Impact on Human Resources Management of Employment Equity Legislation,” in Employment Equity and Afﬁrmative Action: An International Comparison, edited by Harish Jain, Peter Sloane, and Frank Horwitz (Armonk: M.E. Sharpe, 2003), 80. United Kingdom Cabinet Ofﬁce, Ethnic Minorities and the Labour Market: Interim Analytical Report (London: 2002), 126. Richard Arvey, “Unfair Discrimination in the Employment Interview: Legal and Psychological Aspects,” Psychological Bulletin 86, no. 4 (1979): 736–765, 742. 843 F.2d 1511 (3rd Cir, 1988).

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The applicants had to be at least 18 years of age, had to pass a physical examination and had to be sufﬁciently literate to read safety signs. The jobs were advertised with the statement that “no experience was necessary” and any training or instruction necessary to the performance of the jobs was to be provided by the employer after hire. Witnesses for the employer testiﬁed that there was always a mix of approximately 20–30% ethnic minority applicants in the “ready category” from which candidates were called into interview. The class of complainants successfully made a prima facie showing that the interview process resulted in a signiﬁcant disproportionate shortfall of blacks being hired compared with whites. There were two sets of interviews, one carried out by an employee from the personnel department and the other by the foreman of the work unit. The foreman had the authority to automatically reject or accept the applicant after interview. Interviewers were using an amalgam of about 20 different criteria, including such criteria as attitude, initiative, personality, ability to take directions, alertness, intelligence, ability to communicate, etc. None of the interviewers were given any training as to what the different criteria meant or how to implement them uniformly, even though many of them are vague and subject to differing interpretations. Nor did the employer have any minimum education or work experience requirements for the interviewers. The court found that these criteria were applied by interviewers in a totally subjective fashion, consisting of the gut reaction of the interviewer to the applicant. Regarding the few hiring criteria that were susceptible to objective measurement, such as education and work experience, the employer had no uniform system in place for assessing one applicant’s qualiﬁcations vis-à-vis another’s. The only formal safeguard in the interview process was an employer rule that required records of the interviews to be kept and that required each decision to reject an applicant to be accompanied by a reason for the decision; however, this was largely ignored by interviewers and the interview records which included notes of information gathered during the interviews had been destroyed. The court found the interview process to be discriminatory. Central to the court’s conclusion were the ﬁndings of statistical disparity between the proportions of blacks and whites hired, the unguided subjective criteria used in the interviews, the lack of training of interviewers, and the lack of any system of review to determine whether its subjective hiring criteria were being fairly and non-discriminatorily applied to all candidates.44 The court also emphasized: (1) that none of the hiring criteria that the employer used were ever validated so as to ascertain whether they were job-related and (2) that the employer had failed to keep interview records.45 The court in Green v. USX Corp. clearly placed the responsibility on the employer to develop policies and practices which provide proper guidance for interviewers and which ensure the transparency of the interview process through the keeping of interview records. Although the employer had argued that its interviewers were looking for the best qualiﬁed candidate, the court found that the unguided and untrained interviewers were basically deciding on gut reactions and that those gut reactions were uncontestably leading to a signiﬁcant disproportional shortfall of blacks being hired. 44 45

Ibid., 1517. Ibid., 1527.

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The Green case was perhaps unique in its minimal requirements as to job qualiﬁcations. This gave even greater room to the unguided subjectivity of the interviewer. Furthermore, the testimony of the witness as to a ready supply of ethnic minorities being called into interview meant that the complainants could easily locate the source of the discrimination to the interview process. Complainants would ﬁnd it far more difﬁcult to succeed in proving discrimination in the interview process in a different set of circumstances. The case illustrates that without the collection of statistical data on the ethnicity/race of job applicants, the systemic discrimination occurring in the interview process at the employer’s workplace would have remain hidden. In contrast to formal job qualiﬁcations, the assessment of the personal qualities of job applicants often involves subjectivity. One example of personal quality often looked for in the interview is that which is called organizational ﬁt. The term refers to how similar or dis-similar candidates are to the existing employees in the work unit, and presumably a predictor of how well they will work together.46 Studies have shown that this assessment is often based on stereotypes and this inevitably inﬂuences the interviewer’s perception of who is best qualiﬁed for the job. This use of negative group images rather than individualized assessment in the selection process is referred to as statistical discrimination.47 Consistent ﬁndings of studies show, however, that “structuring the interview increases its reliability and validity”.48 Unstructured interviews are interviews conducted in an individual-oriented manner with random questions. Structured interviews are systematically constructed so as to ensure the use of consistent rules and format for each candidate and focus on requirements as to skills and competences for a particular job. One form of structured interview is the situational interview where candidates are asked how they would behave in a given job situation. Another form is the patterned behavioral description interview where candidates are asked to recall an incident in their past similar to a situation described, and then asked how the candidate behaved on that occasion.49 Whatever form

46

47

48 49

Nan Weiner, Employment Equity: Making It Work (Toronto: Butterworths, 1993), 218. “Often, people unconsciously associate images or pictures with particular occupations. The common image of a nurse differs from the image of a police ofﬁcer; the image of an engineer differs from a librarian. Generally, there is a strong association between many occupations and gender. Sometimes images associated with certain occupations have an ethnic component. None of these images are likely to incorporate someone with a disability. Such images can be a powerful inﬂuence. If someone being interviewed does not ‘look like’ the type of person who typically does this job, the interviewer may judge the candidate’s answers differently from someone who ﬁts the image.” Ibid., 216. See for example Braddock and McPartland who found statistical discrimination to be a signiﬁcant problem for blacks who had not completed a college degree. Jomills Braddock and James McPartland, “How Minorities Continue to Be Excluded from Equal Employment Opportunities: Research on Labor Market and Institutional Barriers,” Journal of Social Issues 43, no. 1 (1987): 5–39, 15–17. See an article by Edmund Phelps for an explanation of statistical discrimination based in economic theory: Edmund Phelps, “The Statistical Theory of Racism and Sexism,” The American Economic Review, 62, no. 4 (1972): 659–661. Ibid., 227. Singer, M., Fairness in Personnel Selection: An Organizational Justice Perspective (Aldershot: Avebury, 1993), 24–25.

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used, the structuring of interviews is one way to incorporate greater objectivity into the interview process, as it gives all candidates the same opportunity to show their qualiﬁcations for the job. A case from the Norwegian Centre for Combating Ethnic Discrimination illustrates differential questioning that can take place when structured interviews are not used. It further illustrates how interview questions which reveal the stereotypical views of the interviewer can affect the performance of the candidate during the interview. Layla (a ﬁctitious name), who is Muslim and of Asian/British origin, applied for the position of project leader at a university. The role of the project leader was to increase the recruitment of ethnic minority students to the university. She was one of several candidates that were called into interview. There were four interviewers, but the questions were largely asked by one person – the lead interviewer. Although § 55A of the Norwegian Act on Working Environment50 prohibited the asking of questions about religious belief, the ﬁrst question Layla was asked was: What is your religion? Layla was totally surprised and unprepared for the question, but she said that she was Muslim. Thereafter, she was asked about her eating habits. The lead interviewer stated that there had been an employee at the university who irritated Muslim students by pointing out that the meat they ate was not halal meat. She then asked Layla how she would react in such a situation. Commenting later on Layla’s British background, the lead interviewer stated that in Norway we are concerned with integration, while in Britain they are concerned with assimilation. Stated almost as a declaration, the lead interviewer said that there were two types of ethnic minorities: the well-integrated type that has relations with Norwegians and the other type that keeps to their own. Such questions and comments caused Layla to lose both her self-conﬁdence and her interest in the job. Her answers to later questions, although more job-related, were affected by her loss of self-conﬁdence. Layla did not get the job. Layla sought legal assistance at the Centre for Combating Ethnic Discrimination. Layla’s experience was given media coverage. In an interview with the media, the person who did get the job, also of Asian origin, stated that he had not been asked any questions about his religious background or eating habits. The Centre ﬁled a complaint on Layla’s behalf with the Parliamentary Ombudsman for Public Administration. In his opinion51 the Ombudsman stated that the university had violated the Act on Working Environment by asking Layla about her religion. In the university’s statement to the Ombudsman, the university admitted that the asking of such questions during the interview was a “slip-up” and that the university would go through its routines for interviewing so as to ensure that this mistake did not happen again. i. Unclear Selection Criteria In U.S. v. City of Chicago,52 the US Seventh Circuit Court of Appeals found that the Chicago Police Department had used discriminatory selection procedures in both its employment test and its background investigation of candidates. All applicants who had

50

51 52

Section 55A has subsequently been replaced by a new chapter XA on equal treatment in employment, however the speciﬁc prohibition remains the same in content. Case 2003/2100. 549 F.2d 415 (1977).

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passed the test were subjected to a background investigation which was found to have an adverse impact on blacks and Hispanic applicants. The department disqualiﬁed applicants who evidenced “bad character, dissolute habits or immoral conduct.” There were no written regulations, standards or guidelines for the carrying out of the background investigation, and at trial the administrative chief of the department’s investigation section was unable to deﬁne the criteria for “bad character, dissolute habits and immoral conduct”. The evidence showed that department’s background investigation inquired into the applicant’s social status, ﬁnancial condition, arrest and driving records, military, employment and educational background, and the arrest record of his/her family members. However, there was no evidence as to what speciﬁc negative information in these areas would trigger disqualiﬁcation.53 The court held: Job-relatedness can only be determined where the criteria for selection are clearly identiﬁed. Here, the vagueness of the governing criteria and the defendants’ failure to offer any articulable standards to guide the application of these criteria make it impossible to determine whether the background investigation actually served to select applicants according to real differences in job-related qualiﬁcations.54

Unclear selection criteria lead to a lack of transparency in the selection process. In such a case it is difﬁcult to assess in the aftermath (also for judges) whether or not all candidates have been treated equally. Non-transparent selection criteria permit stereotypes and bias to inﬂuence the selection process without them being detected. j. Stereotyping in Performance Appraisals and Allocation of Work Assignments The Price Waterhouse v. Hopkins55 case is a good example of how a culture of stereotyping combined with subjectivity in evaluation can result in systemic discrimination. Ann Hopkins was a senior manager in the national accounting ﬁrm of Price Waterhouse when she was proposed as a candidate for partnership by her local ofﬁce. Once Hopkins’s name was submitted for partnership candidacy, the entire nationwide group of partners was, according to procedure, invited to comment upon the candidacy. Based on the comments of the partners, the Admissions Committee recommended to the Policy Board that the candidate be placed on hold. The Policy Board followed the recommendation of the Admissions Committee and decided to place Hopkins on hold for reconsideration the following year. The decisions of the Admissions Committee and the Policy Board are not controlled by ﬁxed guidelines, and there is no limit to the number of candidates that can become partners in a year. At the time Ann Hopkins was proposed as a candidate for partnership, there were 662 partners nationwide, of which 7 were women. Of the 88 proposed candidates for partner, Ann Hopkins was the only woman. Forty-seven of these candidates were accepted for partnership, 21 were rejected and 20, including Hopkins, were put on hold for recon-

53 54 55

549 F.2d 415 (1977) at 432. Ibid. 490 U.S. 228 (1989).

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sideration the following year. Thirteen of the 32 partners who had commented on Hopkins supported her bid for partnership, 8 recommended that she be denied partnership. Two of the partners in Hopkins’ ofﬁce later withdrew their support for her before the time for reconsideration came. Upon being told that she would not be proposed and reconsidered the following year, Hopkins resigned. In the joint statement of the partners in Hopkins’ ofﬁce who had proposed her candidacy Hopkins was praised for having secured a $25 million contract with the Department of State after two years of effort. The District Court found that “[n]one of the other partnership candidates at Price Waterhouse that year had a comparable record in terms of successfully securing major contracts for the partnership.”56 The District Court also found that Hopkins was held in high esteem by clients, was a hard worker, extremely competent and that she demanded much from her multidisciplinary staff. According to some of the comments of the partners, Hopkins had problems with interpersonal skills and was at times perceived to be abrasive, overly aggressive and impatient with staff. There were however clear signs that some of the partners reacted negatively to Hopkins’ personality because she was a woman. The comments of several partners described her as “macho” and “overcompensating for being a woman”. One partner advised her to take “a course at charm school”. There were also other gender-based comments, but the coup de grace, as the court describes it, occurred when the partner who was to explain the Policy Board’s decision advised that Hopkins could improve her chances for partnership if she would “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”57 There was expert testimony at trial that the partnership selection process at Price Waterhouse was likely inﬂuenced by sex stereotyping. This was based not only on the sex-based comments, but also on extremely harsh criticism from partners that had had very little contact with Hopkins. According to the expert, Hopkins’ uniqueness (as the only woman in the pool of candidates) and the subjectivity of the evaluations made it likely that sharply critical remarks such as these were the product of sex stereotyping. . . .58

There was also evidence that in previous years, other female candidates for partnership had also been evaluated in sex-based terms. The District Court concluded that “[c]andidates were viewed favorably if partners believed they maintained their [femininity].”59 The District Court found that some of the partners’ remarks stemmed from impermissible stereotyping and that Price Waterhouse had done nothing to disavow reliance on such comments. The court concluded that Price Waterhouse had discriminated against Hopkins on the ground of sex by consciously giving credence and effect to partner’s comments that resulted from sex stereotyping.

56 57 58 59

Ibid., 234. Ibid., 235. Ibid., 236. Ibid.

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The Court of Appeals afﬁrmed the conclusion of the District Court, but held that the employer should have been given an opportunity to escape liability by showing that it would have made the same decision in the absence of the discrimination. The Supreme Court decision found that the law condemned also employment decisions based on a mixture of legitimate and illegitimate considerations, but also found that an employer could escape liability by showing that it would have made the same decision in the absence of the discrimination. The case was remanded for further proceedings. This latter aspect of the case was overturned by the Civil Rights Act 1991 which took away the ability of an employer to escape liability by showing that he/she would have made the same decision in the absence of the discrimination.60 Regarding the legal relevance of sex stereotyping the Supreme Court stated: [A]n employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.61 [W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group. . . . An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not. Title VII [Civil Rights Act 1964] lifts women out of this bind.62 [It does not] require expertise in psychology to know that, if an employee’s ﬂawed ‘interpersonal skills’ can be corrected by a soft-hued suit or a new shade of lipstick, perhaps it is the employee’s sex and not her interpersonal skills that has drawn the criticism.63

Of great signiﬁcance to the Supreme Court’s conclusion was the fact that Price Waterhouse had in no way disclaimed reliance on the sex-linked evaluations. The lower courts found that sex stereotyping “was permitted to play a part” in the evaluation of Hopkins as a candidate for partnership,64 and the Supreme Court agreed with this conclusion. Thus, the Supreme Court placed the burden on the employer to develop the policies and practices necessary to ensure that the sex-stereotyped comments of partners received by the Admissions Committee would not be allowed to inﬂuence the decisions of the Admissions Committee and Policy Board. Susan Sturm provides a more subtle example of how organizational culture translates into exclusion for some and inclusion for others, disadvantage for some and advantage for others. The example also shows that it is often the combination of several factors that contribute to systemic discrimination – in this case systemic discrimination in promotions. In the example the discrimination results as a result of three factors: (1) organizational culture inﬂuenced by gender stereotypes and bias, (2) informal decision-making as to work assignment, exposure to clients, training and mentoring and (3) the failure to collect information so as to track and assess the fairness of career development 60

61 62 63 64

See § 703 (m) of Title VII of the Civil Rights Act 1964 as amended by the Civil Rights Act 1991. 490 U.S. 228 (1989) at 250. Ibid., 251. Ibid., 256. Ibid., 255.

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processes. Sturm’s example draws on the research of Elizabeth Chambliss which examined patterns of advancement in law ﬁrms and their impact on women and ethnic minorities.65 Consider a large law ﬁrm in which complaints have surfaced about a series of issues involving gender. Almost half of the ﬁrm’s associates are women, but the representation of women drops off precipitously at the senior associate/junior partner level. The ﬁrm’s senior management is almost entirely male. Several ﬁrm departments, such as tax and mergers and acquisitions, have particularly low numbers of women. Lawyers at this ﬁrm ‘work around the clock’ and frequently collaborate on large and complex cases. For many lawyers, the law ﬁrm functions as both their professional and social community. Decisionmaking about personnel issues is largely subjective and discretionary, with little systemic assessment of its efﬁcacy or fairness. Advancement depends upon informal decisions about assignment of cases, access to training, and exposure to signiﬁcant clients. Mentoring of new lawyers, which is also crucial to professional success, blurs the line between personal and professional interaction. A group of women have questioned recent decisions denying women promotion to partnership, the ﬁrm’s general failure to retain and promote women despite comparable entry credentials, and a series of individual incidents that triggered complaints of sexual harassment and gender bias. In part because the ﬁrm aggressively recruits women at the entry level and fails to track patterns in work assignment and promotion, the ﬁrm’s management has been largely unaware of any problem until these complaints arose. The complaints involved a range of issues: differences in patterns of work assignment and training opportunities among men and women; tolerance of a sexualized work environment by partners who are otherwise signiﬁcant ‘rainmakers’; routine comments by male lawyers, particularly in the predominantly male departments, on the appearance, sexuality, and competence of women; harsh assessments of women’s capacities and work styles based on gender stereotypes; avoidance of work-related contact with women by members of particular departments; and hyper-scrutiny of women’s performance by some, and the invisibility of women’s contributions to others. These complaints coincide with a concern about low morale and productivity among diverse work teams. Upon examination, the ﬁrm discovers dramatic differences in the retention and promotion rates of men and women in the ﬁrm.66 (emphases added)

3.3. Deﬁnition and Characteristics of Systemic Discrimination in Employment – And Thoughts on a Proper Response Carol Agocs deﬁnes systemic discrimination as the: patterns of behaviour that are part of the social and administrative structures of the workplace, and that create or perpetuate a position of relative disadvantage for some groups, and privilege for other groups, or for individuals on account of their group identity.67 65

66

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Elizabeth Chambliss, “Organizational Determinants of Law Firm Integration,” American University Law Review 46 (1997): 669, 670–78, 724–742. Susan Sturm, “Second Generation Employment Discrimination: A Structural Approach,” Columbia Law Review 101 (2001): 458–561, 469–470. Carol Agocs, “Systemic Discrimination in Employment: Mapping the Issue and the Policy

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I would add one word to this deﬁnition and use it as my working deﬁnition of systemic discrimination in employment. I would add the word “unjustiﬁably” so as to indicate that the barriers to equality that are being created or perpetuated cannot be justiﬁed.68 Thus, my working deﬁnition of systemic discrimination in employment is: patterns of behaviour that are part of the social and administrative structures of the workplace, and that unjustiﬁably create or perpetuate a position of relative disadvantage for some groups, and privilege for other groups, or for individuals on account of their group identity.69 This deﬁnition has clear advantages over Justice Dickson’s deﬁnition. It includes both acts of direct and indirect discrimination and the expression social and administrative structures, captures both organizational policies and practices as well as organizational culture. Furthermore, the focus is not simply on the disadvantages resulting for subordinated groups, but also on the advantages resulting for dominant groups. I agree with Agocs’ deﬁnition, but with a small qualiﬁcation. I do not envision it to be exhaustive nor to be intended to draw bright-line borders between systemic and non-systemic discrimination.70 It is a tool to help us understand that the focus is not on the individual’s discriminatory behavior, but rather on the link between individual behavior and administrative structure and organizational culture, i.e. how administrative structure and organizational culture both produce, contribute to or permit unjustiﬁable differential treatment, unjustiﬁable disproportionate impact and hostile or poisonous work environments: [O]rganisational behaviours embedded in policies, practices and organisational culture persist as individuals come and go. These institutionalised patterns shape the behaviour of individuals who enter the organisation through processes of socialisation as well as formal and

68

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70

Responses,” in Workplace Equality: International Perspectives on Legislation, Policy and Practice, edited by Carol Agocs (The Hague: Kluwer Law International, 2002), 2. In 1979 Rodolfo Alvarez had proposed a somewhat similar deﬁnition of institutional discrimination: “Institutional discrimination is a set of social processes through which organizational decision making, either implicitly or explicitly, results in a clearly identiﬁable population receiving fewer psychic, social, or material rewards per quantitative and/or qualitative unit of performance than a clearly identiﬁable comparison population within the same organizational constraints.” (italics in original) Rodolfo Alvarez, “Institutional Discrimination in Organizations and their Environments” in Discrimination in Organizations, edited by Rodolfo Alvarez and Kenneth Lutterman (San Francisco: Jossey-Bass Publishers, 1979), 2. Unjustiﬁable treatment or impact is the hallmark of the concept of discrimination and it is my submission that systemic discrimination in employment is comprised of direct and indirect discrimination. This deﬁnition is taken almost verbatim from Carol Agocs’ deﬁnition. I have only added the word “unjustiﬁably” to her deﬁnition. See Carol Agocs, “Systemic Discrimination in Employment, op. cit., 2. I do not suggest that Carol Agocs views this deﬁnition as either exhaustive or intended to draw bright-line borders. It is at least clear that she does not view the deﬁnition as exhaustive, since she elaborates in depth on the concept of systemic discrimination immediately after having stated the deﬁnition.

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informal rewards and sanctions that serve to reinforce and perpetuate patterns of discrimination, even if this effect is not intended. In the words of Iris Marion Young, ‘the conscious actions of many individuals daily contribute to maintaining and reproducing oppression, but those people are usually simply doing their jobs or living their lives, and do not understand themselves as agents of oppression. . . .’71

It would be impossible to have a deﬁnition of this type with bright-line borders. Systemic discrimination is often complex, subtle, imperceptible and multivariate. There will always be a certain amount of discretion or judgment in determining whether the links to administrative structures and organizational culture, or the lack thereof, are strong enough to view the discrimination as systemic. In addition, a determination that the discrimination is linked to the lack of an appropriate administrative structure (for example, performance appraisals which lack guidance, restraints or accountability) will always entail that alternative workable administrative structures can help to reduce or eliminate the discrimination. This is where human resources management studies and research can play a signiﬁcant role, as well as, the experience of established regimes for regulatory-based proactive obligations, court-ordered afﬁrmative action programs and voluntary afﬁrmative action programs. Such determinations do not lend themselves to bright-line borders. I do not envision Agocs’ deﬁnition as exhaustive because the signiﬁcant role of the numerical representation and distribution of members of protected groups, is not quite captured by it. Agocs clearly realizes the signiﬁcance of numbers as reﬂected in her greater explanation of the concept of systemic discrimination immediately following the deﬁnition. Agocs adds that an understanding of systemic discrimination requires that one look to three organizational characteristics: “employment systems, organizational culture and numerical representation and distribution.”72 We saw earlier how these three factors were the focus of the court-ordered employment equity program in the case Action Travail des Femmes v. Canadian National Railway (see section 3.2.b). Employment systems is a collective term used to refer to the organisational policies and practices governing the human resource management of an organization, for example, policies and practices concerning recruitment, hiring, training, career development, promotion, compensation, retention, termination, work assignment, performance appraisal, job analysis,73 access to networks and mentoring etc.74 Employment systems

71 72 73

74

Carol Agocs, op. cit., 3. Ibid., 7. Job analysis is the process of collecting information about jobs. “The job analysis is used to determine job speciﬁcations (list of skills and experiences that a person should possess in order to perform the job adequately) and job descriptions (lists of tasks, duties, and responsibilities). Job speciﬁcations form the basis of the recruitment and selection process. They help determine the appropriate recruitment methods and selection tools.” Simon Taggar, “A Comparative Look at the Impact on Human Resources Management of Employment Equity Legislation,” in Employment Equity and Afﬁrmative Action: An International Comparison, edited by Harish Jain, Peter Sloane, and Frank Horwitz (Armonk: M. E. Sharpe, 2003), 79. Carol Agocs, op. cit., 8.

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form a large chunk of the administrative structure of the workplace. It is in these policies and practices that one ﬁnds both: (1) mechanisms that produce, contribute to or permit employment discrimination, and (2) mechanisms that help to reduce or eliminate employment discrimination. Organizational culture. The full participation of non-dominant groups in the workplace entails that the formal and informal social behavior, communication, assessments and interpersonal relationships they meet in co-workers and supervisors, as individuals or groups, be inclusive, accepting and rewarding.75 Exclusion, marginalization, stereotyping, stigmatization and the manifestation of ingroup cultural arrogance in these relations are the hallmarks of an unhealthy organizational culture. They are direct links to barriers to equality in the workplace experienced by subordinated groups. Numerical representation and distribution is of course signiﬁcant because an underrepresentation76 of members of protected groups is a good indication of the presence of barriers to equality in employment. The same is true for underrepresentation in the various occupational job classiﬁcations, both vertically and horizontally. Underrepresentation signals that an employer should examine its employment systems so as to ﬁnd out whether and where such barriers exist.77 In addition, numerical representation and distribution are also important because the presence of a critical mass of members of subordinated groups serve as a countervailing force and deterrence to discrimination. Human resources management studies have repeatedly shown the connection between the presence of members of subordinated groups in the workplace and the degree of employment discrimination.78 These three organizational characteristics do not operate in exclusive spheres; they inﬂuence each other. Employment systems with proper restraints and accountability,

75 76

77 78

Ibid., 9. Underrepresentation is widely recognized, both in law and in judicial decisions, as an indicator of the existence of barriers to equality in employment. See for example 41 C.F.R. § 60–2.01 which states: “A central premise underlying afﬁrmative action is that, absent discrimination, over time a contractor’s workforce, generally, will reﬂect the gender, racial and ethnic proﬁle of the labor pools from which the contractor recruits and selects.” See also the US Supreme Court decision International Broth. of Teamsters v. US, 431 U.S. 324 at 340, note 20. Carol Agocs, op. cit., 10. See the studies by Kanter and Blau referred to in Barbara Reskin, “The Determinants and Consequences of Workplace Sex and Race Composition,” Annual Review of Sociology 25 (1999): 335–361, 345: “Belonging to a numerical minority (under 15%) heightens a group’s visibility, thereby subjecting it to stereotyping by the majority group. The majority’s perceptual distortions can adversely affect the minority’s performance. The greater the minority’s representation, however, the more likely the majority is to perceive them realistically and to interact with them without focusing on group differences.” See also Barbara Reskin’s description of the contact hypothesis which assumes that “ingroup members’ interdependence with outgroup members encourages the former to notice counterstereotypic information about the latter and thus to form more individuated and accurate impressions.” Barbara Reskin, “The Proximate Causes of Employment Discrimination,” Contemporary Sociology, 29, no. 2 (2000): 319–328, 324.

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inﬂuence the culture of the organization. A known unhealthy organizational culture will clearly affect the numbers of members in subordinated groups who choose to be a part of that organization. The numerical representation of subordinated group members affects organizational culture and employment systems. In the following I seek to extract the essential characteristics of systemic discrimination in employment. This extraction has been informed by: (1) Agocs’ deﬁnition of systemic discrimination in employment and the elaborated roles of employment systems, organizational culture and numerical representation and distribution, and (2) the case illustrations, examples and human resources management studies and literature. I do not suggest that all of these characteristics are present in every case of systemic discrimination in employment, but they do appear to be common enough such that they help explain why complaint-based models are inadequate in addressing systemic discrimination in employment. Furthermore, the characteristics of systemic discrimination in employment help to explain why other more proactive approaches to antidiscrimination can prove more successful in combating systemic discrimination. Although the speciﬁc kinds of barriers to equality do indeed differ depending upon the ground for discrimination, for example, sex, disability, ethnicity, etc., the following characteristics of systemic discrimination in employment appear to be common for several of the grounds for discrimination: (1) Systemic discrimination in employment is linked to the administrative structures or organizational culture of the workplace, and is thus not an exceptional, aberrant, isolated or individualized incident. Similarly, systemic discrimination in employment must be viewed as a continuing phenomenon. Administrative structures and organizational culture are often long-standing, deeply rooted in historical and societal traditions, values and attitudes.79 They are not easy to change. Systemic discrimination in employment is, however, not only linked to administrative structures and organizational culture that themselves actively produce or contribute to discrimination, but also to those that passively and unjustiﬁably permit discrimination to go undetected or to ﬂourish unhindered. Because systemic discrimination in employment is linked in these ways to the administrative structures and organizational culture of the employer, a proper response to systemic discrimination is thus change in organizational policy, practice and culture. Because it is a continuing phenomenon, a proper response to systemic discrimination requires an ongoing problem-solving approach and an ongoing learning process.80 A

79

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Public Service Alliance of Canada v. Canada Department of National Defence, (1996) 27 C.H.R.R. D/488 at para 14–16. There will more than likely be various possibilities to choose from when changing employment systems so as to reduce or eliminate discrimination; some will be more effective than others; some will be more burdensome than others; some will be more workable than others. Some will require a reasonable period of time to be phased-in.

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proper response is thus very much dependent upon the good-will, resources and expertise of the organization itself to bring about organizational change that does not adversely affect protected groups. Changes in long-standing, deeply-rooted organizational policy, practice and culture can have signiﬁcant impact on employees. A broadening of opportunities for members of subordinated groups often lead members of the dominant group to perceive their own opportunities as threatened.81 Others may simply not understand the need for changes. A proper response to systemic discrimination requires management commitment at all levels (top, middle and front-line management) and an open communication between management and employees, both “top-down” and “bottom-up”. (2) Systemic discrimination in employment is often subtle and difﬁcult to perceive. Its imperceptibility is characteristic of many of the ideal typical situations of systemic discrimination. The advantages and disadvantages hidden in “neutral”, long-standing, deeply-rooted policies and practices are difﬁcult to perceive. Selection criteria for hiring and promotion are, for example, often subjective, discretionary and diffuse. The same is true regarding criteria for selecting an employee for career development opportunities. A candidate from the same dominant group as the decisionmaker (i.e., the same ethnic, social, cultural or religious background) may be more favorably considered, because the decisionmaker feels more comfortable with him/her. This feeling of greater comfort (or in some cases lesser comfort) is also easily translatable into more neutral explanations regarding the personal qualities of the candidate. In light of this subjectivity, diffusion and lack of transparency, it is often difﬁcult to perceive discrimination in one-off situations (for example, in single, isolated decisions on hiring or promotion). The same could be said for other evaluative processes, such as performance appraisals, selection with respect to work assignment and layoffs. When viewed in isolation such cases appear to reasonable persons to be justiﬁable and legitimate. “A reasonable person could justiﬁably have chosen the one candidate or the other.” Discrimination of this kind may only be perceivable over time and after many similar decisions are made, such that a pattern of exclusion emerges. Actors (including victims) who do not have access to the whole picture will therefore not perceive the discrimination. A proper response to systemic discrimination requires the collection and analysis of the information and data necessary to make visible the underrepresentation of members of protected groups in the workforce in general and in occupational groups. Information and data should also be collected and analyzed so as to reveal the speciﬁc barriers to equality. A proper response requires an ongoing collection and monitoring of this information and data and an ongoing review of progress.

81

A survey of Chief Executive Ofﬁcers and focus group research conducted by the Federal Glass Ceiling Commission found that white male managers resisted the inclusion of ethnic minorities and women into management positions: “Many middle- and upper-level white male managers view the inclusion of minorities and women in management as a direct threat to their own chances for advancement.” See Federal Glass Ceiling Commission, Good for Business: Making Full Use of the Nation’s Human Capital (The Environmental Scan: A Fact-Finding Report of the Federal Glass Ceiling Commission) (Washington, D.C., 1995), 31.

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(3) Systemic discrimination is often unintended discrimination; it is characterized in large part by non-conscious discrimination82 rather than conscious or deliberate acts of discrimination. Non-conscious stereotypes, generalizations, bias and cultural arrogance play a signiﬁcant role in evaluative processes and interpersonal relations. Human resources management studies are consistent in conﬁrming this.83 However, this is not adequately acknowledged or understood by employers, nor do employers take this into consideration when formulating employment systems and other administrative structures. Evaluative processes that do not contain adequate guidance, restraints, transparency and accountability often leave undue latitude for the exercise of judgment inﬂuenced by stereotypes and bias. This is for example reﬂected in the use of unprofessional selection policies and practices, but may also be reﬂected in unprofessional policies and practices regarding performance appraisals and the allocation of work assignments. Selection policies and practices make up a large part of employment systems, touching on hiring, promotion, development, training and even retention (for example in cases of downsizing). In cases of systemic discrimination in employment one often ﬁnds the use of: (a) selection criteria which are not job related, for example non-validated tests (b) informal selection methods, such as informal appointments of persons in acting positions, (c) inconsistent application of selection criteria, such as the use of unstructured interviews which often result in differential questioning, (d) unclear selection criteria, which easily lead to inconsistent application and the inﬂuence of

82

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Linda Krieger describes how our knowledge of intergroup bias has developed from viewing prejudice as a motivational process to stereotyping and bias as a cognitive process. In the mid1970’s social psychologists left behind the idea that intergroup bias was motivational in origin. Social cognition theory was adopted as a better way of explaining intergroup bias. The theory made three claims: (1) Stereotyping involves cognitive mechanisms that all people (not just prejudiced ones) use to carry out normal cognitive function. (2) Stereotypes lead to bias in intergroup judgment and decisionmaking. They function as “person prototypes” which bias, in predictable ways, the perception, interpretation, encoding, retention, and recall of information about other people. This bias occurs long before the moment of decision, occurring as the decisionmaker receives relevant data and interprets, encodes, stores and retrieves it from memory. (3) Stereotypes which function as “person prototypes” operate beyond the reach of the self-awareness of the decisionmaker. Linda Krieger, “The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity,” Stanford Law Review 47 (1994–1995): 1161–1248, 1187–1188. See also Susan Fiske, “Stereotyping, Prejudice and Discrimination” in Handbook of Social Pychology, edited by D. T. Gilbert, S. T. Fiske and G. Lindzey (New York: McGraw-Hill, 1998), 357–411 and Barbara Reskin, “The Proximate Causes of Employment Discrimination,” Contemporary Sociology 29, No. 2 (2000): 319–328. See John Dovidio and Samuel Gaertner, “Prejudice, Discrimination, and Racism: Historical Trends and Contemporary Approaches” in Prejudice, Discrimination, and Racism, edited by John Dovidio and Samuel Gaertner (Orlando: Academic Press, 1986), 1–34; Susan Fiske, “Stereotyping, Prejudice and Discrimination” in Handbook of Social Pychology, edited by D. T. Gilbert, S. T. Fiske and G. Lindzey (New York: McGraw-Hill, 1998), 357–411; Barbara Reskin, “The Proximate Causes of Employment Discrimination,” Contemporary Sociology 29, No. 2 (2000): 319–328.

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personal bias. A proper response to systemic discrimination requires that employers, managers, decisionmakers, interviewers and other “gatekeepers” undergo training so as to understand the role that non-conscious stereotyping and bias can play in evaluative processes and interpersonal relations. In recognizing this, employers would understand better the need to build preventive mechanisms into employment systems. A proper response entails the incorporation of transparency and accountability into evaluative processes, the issuance of proper guidance concerning the exercise of discretion, and the use of adequate restraints so as to deter the inﬂuence of stereotypes and bias in the evaluation process. (4) A chief indicator of systemic discrimination in an employment context is the statistical underrepresentation of protected groups84 in the employer’s workforce as a whole or in the distribution in particular occupational groups. An underrepresentation in the workplace and in occupational job categories – and in particular the absence of a critical mass – has an adverse effect on organizational culture. The mere absence of members of the subordinated group reinforces ingroup stereotypes that members of the outgroup simply are not qualiﬁed for the job. Furthermore, underrepresentation and the lack of a critical mass inhibit the self-correcting forces that come with the presence of members of the subordinated group. A proper response to systemic discrimination demands that an employer (upon a showing of underrepresentation) carry out an employment systems review in order to determine whether and where there exist discriminatory barriers adversely affecting the hiring, promotions, career development and retention of members of protected groups. The review should of course, among other things, include the consultation of members of subordinated groups. (5) The underrepresentation of protected groups in the employer’s workforce is often perpetuated by the employer’s choice of which external or internal pool of labor to approach for inviting applicants or candidates for hiring, promotion, development or training. These choices as to where to go (e.g., what schools to visit), how to invite (e.g., what newspapers to advertise in) etc. may often have been established at a time when the labor pool was not as heterogeneous as today. Employers often retort that “no members of protected groups applied” as a justiﬁcation for underrepresentation in their workforce. It is a signiﬁcant barrier to equality when an employer recruits solely in places where there are few or no members of protected groups. A proper response to systemic discrimination requires that an employer (upon a showing of underrepresentation) carry out targeted recruitment (outreach)85 so as to provide a pool of candidates which is representative of the availability of members of the subordinated group in the labor market. 84

85

The term “protected groups” is used to refer to those groups or group members which are intended to beneﬁt from antidiscrimination legislation and/or employment equity legislation. The intention of such legislation is, among others, to broaden the opportunity of groups that are disadvantaged in the workplace. Such groups may include, among others, women, racial or ethnic minorities, religious minorities, disabled persons, homosexuals etc. Outreach is efforts used to increase the recruitment pool of applicants from underrepresented groups. This may for example involve recruiting at schools or universities with large numbers of ethnic minorities or placing announcements in media known to be read by large numbers of ethnic minorities.

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(6) Cases of harassment and poisonous work environment illustrate well the particular complexity of some mechanisms of systemic discrimination. The complexity results in part from the fact that multiple individual acts, which in themselves may appear insigniﬁcant or benign, may cumulatively produce harm for which the employer is responsible.86 These acts may be carried out over a lengthy period of time and may even have been carried out by different actors or even anonymous actors. Because harassment is heavily context-related and often involves emotionally-charged interpersonal interactivity, it presents a major challenge to employers. A proper response to systemic discrimination requires the employer to establish proper mechanisms to ensure that allegations of harassment and poisonous work environment will be taken seriously, investigated thoroughly and effectively remedied, if established. This must be done in a climate that protects the complainant from reprisals. It is the employer’s responsibility to ensure that the culture of the workplace does not permit or tolerate harassment. This is done by building in incentives and disincentives, rewards and punishments into the policies and practices at the workplace. (7) Because much of this kind of discrimination is non-conscious or unintended, the heavy social stamp of moral blameworthiness is largely absent in systemic discrimination. This, combined with the fact that systemic discrimination is often subtle, difﬁcult to perceive, sometimes without individual victims, and often a result of neutral policies and practices which may have been followed for a long time – all these things entail that any allegation or complaint of discrimination of this type will often be looked upon by management and fellow employees as unreasonable and disloyal. Rather than use the opportunity to examine and identify barriers to equality, experience often shows that the victim (accuser) becomes viewed as the disruptive element in a previously “harmonious” work environment. Resources instead get put into defending the system and ﬁghting against the “illegitimate” allegation of discrimination – workplaces take on a circle-the-wagons mentality of defense. Such a climate is not a particularly good one for trying to bring about change in organizational practice, policy and culture. A proper response to systemic discrimination requires the establishment of internal arrangements for dealing with discrimination complaints in a serious way without the complainant being subjected to reprisals. (8) Many members of protected groups experience that channels to informationsharing, career advice and support are not as open for them, as for members of the dominant group. A proper response to systemic discrimination requires that employers actively promote the social and professional inclusion of members of subordinated groups at the workplace. Employers may establish, encourage and reward internal mentoring and networking initiatives to enhance the social and professional network of members of protected groups. “Access to informal, ‘invisible’ networks within an organization and across one’s profession [is] indispensable for career advancement.”87

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Susan Sturm, “Second Generation Employment Discrimination: A Structural Approach,” Columbia Law Review 101 (2001): 458–561, 469. Ann-Marie Rizzo and Carmen Mendez, The Integration of Women in Management: A Guide for Human Resources and Management Development Specialists (New York: Quorum Books, 1990), 193.

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Mentoring involves a mentor-protégé relationship designed to broaden the protégé’s experiences, give him/her good career advice and opportunities to demonstrate talents. Networking involves the voluntary association of colleagues to support and guide one another, to share information and resources and to encourage the organization to become more welcoming to members of non-dominant groups. (10) Sometimes there is no clearly identiﬁable individual victim and no clearly identiﬁable perpetrator. This means, among other things, that it is difﬁcult to respond to such discrimination in the form of individual complaints. A proper response to systemic discrimination does not depend upon the existence of individual complaints, nor on the identiﬁcation of victims or perpetrators.

3.4. Conclusion In this chapter I have deﬁned the concept systemic discrimination in employment – not for the sake of abstract theoretical or logical classiﬁcation, but for the far more pragmatic purpose of helping to make visible modern-day mechanisms at the workplace which function as barriers to equality in employment. Common to all systemic discrimination in employment is the link between the discrimination and the administrative structure or organizational culture of the workplace. An administrative structure or organizational culture that tolerates discrimination or permits it to go undetected, and as a result to ﬂourish, is as much a cause of the resulting barriers to equality as a structure or culture that actively produces and contributes to discrimination. Through the use of case illustrations, examples and human resources management studies, I extract the characteristics of systemic discrimination in employment, which help to explain: (a) how the administrative structure and organizational culture of the workplace form barriers to equality, (b) why these barriers are not recognized or acknowledged, and (c) what a proper response to systemic discrimination should be. The designation of discrimination as systemic does not, however, bring about any direct legal consequences – nor do I propose any such regime – at least not a regime within the sphere of complaint-based (or adjudicatory) approaches to antidiscrimination. As will soon be apparent from the next chapter, I view the traditional complaint-based model of antidiscrimination – the adjudicatory approach – to be inherently inadequate to deal adequately with systemic discrimination. The consequences which I envision ought to ﬂow from our understanding of the concept of systemic discrimination in employment, is more indirect in nature and ﬂows from the concept’s usefulness as a tool. Given the characteristics of systemic discrimination in employment, the concept ultimately helps us understand better what a proper response to systemic discrimination in employment should be. The consequences of our understanding should thus be reﬂected in a legal approach to antidiscrimination which incorporates this proper response.

Chapter 4 The Limits of Complaint-Based Approaches in Addressing Systemic Discrimination in Employment 4.1. Introduction Discrimination in employment persists despite the efforts of many states to eliminate it.1 International human rights treaties have called upon states to provide effective judicial remedies to victims of discrimination. Victims of discrimination must have the right to pursue their claims legally and to receive just satisfaction. States have responded by enacting antidiscrimination laws. Traditional antidiscrimination laws have primarily

1

See for example United Kingdom Cabinet Ofﬁce, Ethnic Minorities and the Labour Market: Interim Analytical Report (London: 2002), 128: “Racial harassment and racial discrimination, often of a more complex and covert nature, persist today despite the enactment of existing antidiscrimination legislation and measures. Early expectations have not been met in that sense but equally importantly discrimination and harassment have taken new forms that have been much more difﬁcult to address.”

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been concerned with ﬁghting discrimination in employment on a micro-level. The mechanism for identifying and remedying discrimination has been founded upon a complaint-based model of antidiscrimination law. In other words, the focus has been on adjudicating a legal conﬂict in which an alleged victim of discrimination (or its representative) brings a complaint against an alleged perpetrator for a discrete incident (or incidents) of discrimination. Such legal action may be processed either through the system of courts or before an administrative agency set up to adjudicate the conﬂict. This complaint-based model of antidiscrimination law has been successful in eliminating many of the most extreme and overt forms of discrimination. For example, the USA Civil Rights Act of 1964 (Title VII) played a signiﬁcant role in helping to break down oppressive forms of segregation in employment. Although one is less likely these days to experience this kind of extreme and overt discrimination in employment, a more covert form of discrimination has appeared. It has always existed, but received little attention when the more extreme forms were also present. Furthermore, our understanding of the concept of discrimination has changed over time – both in law and in social science. We now understand better the role of facially-neutral rules and unconscious behavior in causing serious and unjustiﬁable disadvantaging impact upon members of particular groups, such as ethnic minorities, religious minorities, women, disabled persons etc. We now understand better the particular complexities of systemic discrimination in employment. All of the jurisdictions examined appear to have insurmountable difﬁculties in addressing this type of discrimination through a complaintbased system. I submit that the complaint-based model of antidiscrimination, standing alone, is an inherently inadequate mechanism for responding to systemic discrimination in employment. I base that position on the reasons elaborated in this chapter. My criticism of complaint-based models is by no means meant to imply that such models should be abolished. On the contrary, they are needed for they have played, and will continue to play, a signiﬁcant role in addressing discrimination. First, it is crucial that victims have a legal mechanism for individually seeking redress. Secondly, complaint-based models have been quite successful in addressing overt discrimination. Thirdly, complaint-based models have also occasionally been successful in revealing the nature of more covert forms of discrimination – even systemic discrimination in employment. The crux of my criticism is that complaint-based models are not adequate standing alone. In later chapters of this thesis I explain in depth how regulatory-based models of antidiscrimination (such as contract-based proactive obligation regimes and statutory-based proactive obligation regimes) may be used more successfully to address systemic discrimination in employment. I submit that this regulatory-model of antidiscrimination should complement the complaint-based model of antidiscrimination so as to provide for an effective response to systemic discrimination. But ﬁrst I will turn to the limits of the complaint-based model of antidiscrimination. It is well-recognized in the legal literature that there are serious difﬁculties in achieving equality in employment by means of complaint-based approaches to antidiscrimination law.2 The great majority of this criticism has focused on problems generated from

2

See for example Jonathon Hunyor, “Skin-deep: Proof and Inferences of Racial Discrimination

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the substantive and procedural workings of the various antidiscrimination laws. Examples are: (1) the difﬁculties in meeting the burden of proof if it does not shift to the employer, (2) the limited scope for allowing preferential treatment in the promotion of equality, and (3) the balancing of interests in the application of the justiﬁcation defense. In chapter 2 we have seen the weaknesses of addressing discrimination under the familiar notion that likes should be treated alike, i.e., direct discrimination. We have also seen that the work against discrimination has been strengthened by the addition of the concept of indirect discrimination, which requires adjudicating authorities to focus more on substantive equality as opposed to formal equality (see section 2.3). This was a signiﬁcant recognition – that even apparently neutral rules or practices, given groupbased differences, may operate as barriers to equality. At the same time we have seen that the concept of indirect discrimination has had a particularly difﬁcult development in certain jurisdictions, largely as a result of overly complicated statutory deﬁnitions and very restrictive interpretations. My criticism of the complaint-based model as an inherently inadequate mechanism for responding to systemic discrimination in employment, however, applies regardless of the substantive content of the concept of discrimination adopted by the particular jurisdiction. The limitations I describe below go to the heart of complaint-based approaches as a legal technique, rather than to the particular difﬁculties jurisdictions may encounter in their substantive conceptualization of discrimination. Thus, I will not focus on the practice of substantive rules concerning such things as the employer’s justiﬁcation defense or the complainant’s establishment of disproportionate groupimpact etc. Furthermore, as my thesis speciﬁcally addresses the shortcomings of complaintbased models in responding to systemic discrimination in employment, I will not focus on certain weaknesses of complaint-based processes in general. Examples of such

in Employment,” Sydney Law Review 25 (2003): 535–554; Alan Freeman, “Antidiscrimination Law: A Critical Review” in The Politics of Law: A Progressive Critique, edited by David Kairys (New York: Pantheon Books, 1982); Alan Freeman, “Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine” in Anti-Discrimination Law, edited by Christopher McCrudden (Aldershot: Dartmouth, 1991); D. Marvin Jones, “The Death of the Employer: Image, Text, and Title VII,” Vanderbilt Law Review 45: (1992): 349–395; Kristin Bumiller, “Victims in the Shadow of the Law: A Critique of the Model of Legal Protection” in Foundations of Employment Discrimination Law, edited by John Donohue III (New York: Foundation Press, 1997); Shelagh Day, “Impediments to Achieving Equality” in Equality and Judicial Neutrality, edited by Sheilah Martin and Kathleen Mahoney (Toronto: Carswell, 1987); Alice Leonard, Judging Inequality: The Effectiveness of the Industrial Tribunal System in Sex Discrimination and Equal Pay Cases (London: The Cobden Trust, 1987); Bob Hepple, “The Judicial Process in Claims for Equal Pay and Equal Treatment in the United Kingdom” in Women, Employment and European Equality Law, edited by Christopher McCrudden (London: Eclipse Publications, 1987); Béatrice Vizkelety, Proving Discrimination in Canada (Toronto: Carswell, 1987).

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weaknesses are (a) lengthy delay in proceedings, (b) inadequate assistance to and representation of victims of discrimination, (c) inadequate knowledge of antidiscrimination law among judges and lawyers.3 Although these do indeed have some bearing on the effectiveness of antidiscrimination laws and thus indirectly on the effectiveness of eliminating systemic discrimination in employment, I have chosen to limit my examination to those limitations which appear to explain in a more direct way why systemic discrimination in employment in particular is difﬁcult to address. Even if such general limitations were to be totally eliminated, one would come no closer to eliminating systemic discrimination in employment because of the more speciﬁc limitations of complaint-based approaches explained below. I submit that there are four broad-based reasons for the inadequacy of the complaintbased model in responding to systemic discrimination in employment: (1) Complaint-based models fail to capture discrimination that does not result in a formal complaint. (2) Complaint-based models tend to individualize discrimination, separate and apart from discrimination as a social and historical phenomenon. This limits their ability to identify barriers to equality in employment. (3) The difﬁculties in proving discrimination in complaint-based models are often insurmountable. (4) Complaint-based models cannot bring about organizational transformation, which is the key to successfully addressing systemic discrimination in employment.

4.2. The Failure to Capture Discrimination that Does Not Result in a Formal Complaint There is an underlying assumption in complaint-based models that victims of discrimination will recognize their injuries and invoke legal protection by way of complaint.4 Since most antidiscrimination laws rely primarily on victims to identify violations, report them to public authorities, and participate in enforcement proceedings, these laws tacitly assume that such behavior is reasonably unproblematic. In other words, because protective laws place responsibility on the victim to perceive and report violations, they assume that those in the protected class can and will accept these burdens.5

3

4

5

See Christopher McCrudden, “The Effectiveness of European Equality Law: National Mechanisms for Enforcing Gender Equality Law in the Light of European Requirements,” Oxford Journal of Legal Studies 13 (1993): 331, 320–367. Kristin Bumiller, “Victims in the Shadow of the Law: A Critique of the Model of Legal Protection” in Foundations of Employment Discrimination Law, edited by John Donohue III (New York: Foundation Press, 1997), 272; Shelagh Day, “Impediments to Achieving Equality” in Equality and Judicial Neutrality, edited by Sheilah Martin and Kathleen Mahoney (Toronto: Carswell, 1987), 403. Shelagh Day, op. cit., 422.

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An American study of 560 discrimination claims6 casts serious doubt on the assumption that victims of subjectively experienced discrimination will invoke legal protection by way of complaint. Half of the victims of discrimination in the study did not communicate their entitlement to the party responsible for the perceived harm. Two-thirds of those who did communicate their entitlement, did nothing further to pursue the matter. Only a very small percentage achieved successful resolution of their claims. The study showed that in comparison with other civil disputes, such as contract disputes and landlord-tenant disputes, discrimination grievances had a signiﬁcantly lower rate of complainants who ﬁled formal complaints. “The size of the gap is indicative of the more problematic relationship between victims and the law in discrimination cases compared to other civil cases.”7 Bumiller’s study took as its point of departure these 560 discrimination claims, but she went further by conducting in-depth interviews with 18 of the respondents, examining the choices they made in light of their perceived social constraints and their vision of protective law. Bumiller provides three main explanations for why people who perceive themselves to be victims of discrimination, do not pursue their entitlements by way of complaint-based remedies. First, the asymmetrical relationship between the perpetrator and the victim (employer-employee) in terms of power, drives the conﬂict to self-destructive or explosive reactions. Victims of discrimination in such asymmetrical power relations, respond to perceived violations of their dignity with intense anger, and given the unacceptability of anger in such settings, victims confront their emotions by exercising control. “There are no minor infractions within normal ranges of behavior; there is only rebellion and submission.”8 The vast majority of victims choose to submit. Secondly, the victims of discrimination are often guided by an ethic of survival that encourages self-sacriﬁce rather than complaint. The main measure of success for those who experience discrimination is basically survival. Victims often protect themselves from the hardships of discrimination by relying on a private honor. This ethic of survival means that that which is dreaded most is the status of “being a victim of discrimination”, a role that seizes and marks its possessor.9 Avoidance of the victim role is central to both survival and self-honor. Thirdly, the potential for legal remedies is diminished because many victims fear that legal intervention would worsen their situation.10 The prospect of legal intervention heightens a sense of powerlessness and produces a fear of loss of control. Many victims fear, for example, that behavior and loyalties may change when allies are asked to participate in legal proceedings. Victims often choose not to exercise their rights to redress discriminatory behavior for fear of retaliation. Despite attempts to protect complainants

6

7 8 9 10

See Kristin Bumiller, op. cit. The data for the Bumiller study was from a larger household survey of 5000 households designed to measure the incidence of civil disputes. Ibid. Shelagh Day, op. cit., 429 and 438. Ibid., 430–431. Ibid., 436 and 438.

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from retaliation in complaint-based models, many victims ﬁnd their workplace radically altered for the worse after having lodged a complaint of discrimination against their employer or fellow employees. Bumiller concludes as follows: The hostile image of the law held by [victims] considering legal recourse is a harsh reality compared to the spirit of protective law that promises to give purpose and justice to its beneﬁciaries’ lives. . . . The invocation of antidiscrimination law does not enable the victim to overcome power differentials in situations where she or he is pitted against the more powerful opponent. The bonds of victimhood are reinforced rather than broken by the intervention of legal discourse. .... The inaction of discrimination victims is problematic from the vantage point of the ideology of legal protection. From the social reality of the victim, however, we ﬁnd that ‘survival is a form of resistance.’ In this study, the majority of these individuals view protest as contrary to their well-being and livelihood. The situation creates a paradox of irrationality, in which people engaged in discrimination conﬂicts believe they are better off if they decide not to pursue their interest.11

The Bumiller study is a damning exposé of the effectiveness of the legal protection provided by complaint-based models, questioning the very core of their underlying assumptions – that victims will indeed ﬁle formal complaints when they encounter discrimination. Although only 56% of the 560 discrimination cases concerned employment discrimination, there is no reason to believe that the ﬁndings have any less signiﬁcance for employment discrimination, and in particular systemic discrimination in employment.12 A survey13 carried out by the Norwegian Centre for Combating Ethnic Discrimination and an NGO14 in year 2000 suggests that even if a victim of ethnic discrimination seeks legal assistance, it may be that the lawyer will choose to form the legal action under some alternative theory rather than as an allegation of ethnic discrimination. In a survey of 248 lawyers on ethnic minorities and the courts, one of the questions put to the lawyers was the following: If you had an alternative argument, would you avoid arguing your case on a claim of ethnic discrimination, assuming the discrimination element is of legal relevance?

11 12

13

14

Ibid., 439. For an interesting article on the denial of personal discrimination, see Faye Crosby, Ann Pufall et al., “The Denial of Personal Disadvantage Among You, Me, and All the Other Ostriches” in Gender and Thought: Psychological Perspectives, edited by Mary Crawford and Margaret Gentry (New York: Springer-Verlag, 1989). Senter mot etnisk diskriminering and Organisasjon mot offentlig diskriminering, Norge – en rettsstat for alle? En rapport om holdninger til minoriteter i det norske rettsvesen ( Oslo: 2000). Organisasjon mot offentlig diskriminering (Organization Against Public Discrimination).

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20% of the lawyers said that they would refuse to argue their case on a claim of ethnic discrimination.15 When asked “why?”, some of the answers given were as follows: “Arguments of that type appear ﬁctitious.” “Because I fear that it would be considered negative by the judge.” “Because the court would ﬁnd it problematic to ﬁnd for my client if it would mean branding the opposing party or witness as a racist.” “Because judges don’t like this kind of evidence.” “The court always believes that there is no discrimination. Ethnic elements are therefore deemed to be irrelevant.” “It is always a provocation to make such a claim, and one can just as well get the court against you. Comes off as a cheap trick.”16

These answers are of course the subjective opinions of the lawyers and one may certainly question whether they are representative. These subjective opinions may not at all coincide with the reality in the Norwegian courts; however, that is not the point. The signiﬁcance of the answer given by 20% of the lawyers is that a sizeable number of lawyers feel the need to avoid making a legal claim of ethnic discrimination. If possible, these lawyers would transform the legal claim of ethnic discrimination into some other type of legal complaint. As mentioned, the prohibition against ethnic discrimination in employment is relatively new in Norway. The answers given could reﬂect a combination of things: (1) a realistic view of the difﬁculty of proving ethnic discrimination, (2) a lack of competence among lawyers regarding a relatively new antidiscrimination provision, (3) a feeling that courts react negatively to claims of ethnic discrimination. Regardless of the basis for the answers given by the 20%, the likely result of a visit to these lawyers may very well be that acts perceived to be discrimination will not materialize into a formal complaint of discrimination. Given the particular characteristics of systemic discrimination in employment (see section 3.3), there are additional explanations for why incidents of discrimination will not materialize in formal complaints in courts and enforcement agencies. First, many victims of systemic discrimination, particularly in the case of selection decisions (hiring, promotion, training and retention)17 may not even be aware that they have been victims of discrimination. “Individuals are often not in a position to identify patterns of discrimination in systems. They only know what has happened to them; they do not know that similar discrimination has affected others.”18 The inability of many individual victims to perceive patterns and trends which cumulatively reveal discriminatory behavior or effect means that this kind of discrimination will essentially not materialize into a complaint.

15 16 17

18

45% of the lawyers answered “Don’t know.” Senter mot etnisk diskriminering, op. cit., 21–23. Retention refers to the decision as to which employees are be to laid off and which are to be retained as a result of reorganization, down-sizing, cutbacks etc. Shelagh Day, op. cit., 404.

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Secondly, in many cases there may be no clear identiﬁable victim to bring a complaint, despite discrimination.19 For example, there may be no identiﬁable victim to come forward when an employer uses a word-of-mouth recruitment method which unjustiﬁably and disproportionately impacts upon ethnic minorities. Thirdly, the discrimination-avoidance techniques of ethnic minorities themselves often result in the absence of an incident of discrimination which can be legally pursued. This is known as the chill factor. The assumption of ethnic minorities, based on past experiences of discrimination, that there is no point in applying for jobs at a particular ﬁrm, result in an applicant pool of only ethnic majority persons.20 Mary Coussey describes the operation of the chill factor revealed in a formal investigation carried out by the Commission for Racial Equality (United Kingdom) against the automobile company Massey Ferguson. The company ﬁlled job positions with applicants sending in unsolicited letters requesting work, a system which favored applicants with a network or link within the company. Inside knowledge as to when vacancies were to be ﬁlled meant that the inside link or network was the key to an applicant being chosen. Ethnic minorities had no such network in the company. The investigation found that ethnic minorities had a tendency to call at the gate, but had no conﬁdence that their letters of application would be successful. The investigation further found that it was well known in the ethnic minority communities in Coventry, the site of the plant, that it was a waste of time to apply for a job if you were black or Asian.21 The investigation showed that if the company’s reputation is bad enough, no ethnic minorities will apply for positions. The operation of the chill factor can mean that certain employers with the greatest barriers to equality in employment will end up with the fewest complaints of discrimination. Fourthly, there is often a lack of incentive for a victim of discrimination to start a legal action. Difﬁculties in proving discrimination (see section 4.4) combined with the risk in some jurisdictions of having to pay the opposing party’s attorney’s fees if unsuccessful, provides very little incentive for a victim to start a legal action. Some antidiscrimination laws provide even less incentive for starting a legal action. For example, until 2002 the Norwegian Working Environment Act gave no right to economic compensation to victims suffering from discrimination under the Act. The victim could only

19

20

21

See for example Justice Hugessen’s opinion in the Federal Court of Appeal’s decision of Canadian National Railway Company v. Action Travail des Femmes where he stated that cases of systemic discrimination by their very nature are such that individual victims are not always readily identiﬁable. (1985) 6 C.H.R.R. D/2908, para 23682. Somewhat similar to this is the irony of the individual adversary process – that it is often those who take the ﬁrst faltering steps towards addressing discrimination (thereby raising expectations) that are the most likely to be sued for discrimination, rather than those ﬁrms who do nothing. Bob Hepple, “Have Twenty-ﬁve Years of the Race Relations Acts in Britain Been a Failure?” in Discrimination: The Limits of Law, edited by Bob Hepple and Erika Szyszczak (London: Mansell, 1992), 21. Mary Coussey, “The Effectiveness of Strategic Enforcement of the Race Relations Act 1976” in Discrimination: The Limits of Law, edited by Bob Hepple and Erika Szyszczak (London: Mansell, 1992), 39.

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recover compensation in tort if one could prove that the discriminator’s action was negligent or intentional. However, no court had ever granted such compensation in tort for discrimination, despite having found unlawful discrimination in a number of cases.22

4.3. The Individualization of Discrimination in Complaint-Based Approaches Complaint-based approaches have traditionally viewed discrimination as aberrant, isolated acts carried out by irrational and prejudiced perpetrators. “Prejudice, an attitude, causes discrimination, a behavior. . . . Discrimination . . . is the intentional, behavioral manifestation of prejudice.”23 This ﬁt well with the post-World War II individualized, pathologizing of prejudice in social psychology. In this view categorization, over-generalization and simpliﬁcation turn into damaging prejudice only when new knowledge does not lead to revision and change. In this view it is only those with defective personality structures who are prejudiced.24 One can easily see the impact of this search for defective personality structure on the development of the concept of discrimination. This inﬂuence still holds strong, particularly in the case of the USA where proof of discriminatory intent is still required to prove direct discrimination (USA: disparate treatment discrimination). This results in a search for a blameworthy perpetrator where fault is the central focus. However, this search for a blameworthy perpetrator may also be seen in jurisdictions that do not require proof of discriminatory intent, for example, in the reluctance of enforcement authorities to draw appropriate inferences of discrimination from circumstantial evidence when a party or witness appears honest, despite obvious inconsistencies in the testimony (see section 4.4). Moreover, in Norway a victim, who has succeeded in proving ethnic discrimination, will not be awarded compensation for economic losses suffered unless the perpetrator can be shown to be at fault.25 This also eliminates compensation

22

23

24

25

There are no court cases where a plaintiff has successfully proved ethnic discrimination under the Norwegian Working Environment Act. The prohibition against ethnic discrimination is relatively new and there have been very few court cases. However, the Act on Gender Equality, prohibiting sex discrimination, has existed for more than 20 years. In that time no court has ever granted compensation in tort to a victim of sex discrimination, despite a number of cases where the court has found that the plaintiffs were victims of sex discrimination in violation of the Act. The requirement of proof of fault or intention has been insurmountable. In year 2002 the Act on Gender Equality was amended so as to permit the granting of compensation upon proof of discrimination, i.e., one need no longer prove fault. See the brief historical description of social psychologists’ inﬂuence on our legal understanding of the nature and causes of discrimination: Linda Krieger, “The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity,” Stanford Law Review 47 (1994–1995): 1161–1248, 1174–1177. Michael Pickering, Stereotyping: The Politics of Representation (New York: Palgrave, 2001), 26. See the Working Environment Act § 54 J. Compensation for non-pecuniary losses may on the other hand be awarded without a showing of fault. In the Act on Gender Equality a victim may be awarded compensation for economic loss even though the perpetrator is not shown to be at fault. See § 17.

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for economic losses in cases of indirect discrimination which by deﬁnition involves neutral practices and policies. An interesting example of how the equivalence of discrimination with morally blameworthy acts continues to haunt the development of discrimination law (despite no requirement of discriminatory intent) is a comment by the President of the European Court of Human Rights, Luzius Wildhaber, explaining why the court in general does not decide article 14 issues (non-discrimination issues) if another breach of the European Convention on Human Rights is found. Despite that the court does not require discriminatory intent in the proof of discrimination, he explained in part: The Court’s prudence in this area may also be explained by the fact that, according to the traditional notion of discrimination, a ﬁnding of discrimination will often be understood as attributing a degree of discreditable motivation to the authorities concerned, an allegation which may be and usually is difﬁcult to substantiate, particularly at international level.26

The individualization of the perpetrator is problematic in two ways. First, it does not recognize the role of the unconscious in discriminatory behavior – the role of historical, social and cultural baggage in inﬂuencing our beliefs and actions.27 “Discrimination recurs because individual employers merely replicate the cultural assumptions they internalize.”28 Stereotypes and cultural assumptions rarely show themselves as discrete discriminatory acts; rather they emerge under the guise of non-transparent policies and practices such as informal selection process, old-boy networks, selective channels for information-sharing and subjective assumptions as to “cultural ﬁt”. One will ﬁnd very little evidence of self-conscious discriminatory behavior or action in persons who have internalized today’s cultural morality which holds that discrimination – such as sex discrimination, ethnic discrimination etc. – is wrong.29 Social and cultural inﬂuences order our perceptions of the world and appear rational and natural to us; they inﬂuence our feelings of comfort and discomfort – and consequently our choices – without us being aware of it. It is precisely in such circumstances that one may honestly and credibly deny being inﬂuenced by such irrational personal characteristics as race and sex. Yet, as one court so aptly put it: “[A] witness may be credible, honest and mistaken and never more so than when his evidence concerns things of which he himself may not be conscious.”30 26

27 28

29

30

Luzius Wildhaber, “Protection against Discrimination under the European Convention on Human Rights – A Second-Class Guarantee?” Baltic Yearbook of International Law, 2 (2002): 71–82, 73. See section 2.4 for references. D. Marvin Jones, “The Death of the Employer: Image, Text, and Title VII,” Vanderbilt Law Review 45: (1992): 349–395, 369. Charles Lawrence, “The Id, the Ego, and Equal Protection Reckoning with Unconscious Racism” in Critical Race Theory: The Key Writings that Formed the Movement, edited by Kimberlé Crenshaw, Neil Gotanda et al. (New York: The New Press, 1995), 241. See also King v. Great Britain-China Centre [1991] IRLR 513, 518: “Few employers will be prepared to admit such discrimination even to themselves.” Anya v. University of Oxford [2001] EWCA Civ 405, no. 25.

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Secondly, the individualization of perpetrators in complaint-based approaches undercuts the perspective of discrimination as a social phenomenon where society-at-large is responsible for its perpetuation. It creates innocent bystanders who view discrimination as a problem in other institutions, other departments, other sectors of the market. As long as one has not been identiﬁed as a perpetrator of discrimination, then all must be functioning as it should. It legitimizes the workplace of the unidentiﬁed “perpetrator” as an equal opportunity employer. One need not redress discrimination where no perpetrator of discrimination has been identiﬁed; the absence of a perpetrator is equivalent to the absence of discrimination. So long as the focus of complaint-based models centers on the search for a perpetrator, a villain, a blameworthy employer without credibility or honest appearance, then the underlying cause of systemic discrimination – an institutional framework of policies, practices and culture with embedded advantages for some and disadvantages for others – will not change. This is aptly described by Alan Freeman: Discrimination becomes the actions of individuals, the atomistic behavior of persons and institutions who have been abstracted out of actual society as part of a quest for villains. It is a notion of racial discrimination as something that is caused by individuals, or individual institutions, producing discrete results that can be identiﬁed as discrimination and thereafter neutralized. The emphasis is negative – on the behavior of the perpetrator and not the life situation of the victim. It seeks to identify and catalogue perpetrators, to make sure that one has ascribed the correct evils to the correct perpetrator. The perpetrator perspective, which is the principal model of contemporary antidiscrimination law, assumes that apart from the misguided conduct of particular actors the rest of our society is working. . . .” A corollary of this . . . notion is that those who . . . are not labeled perpetrators have every reason to believe in their own innocence and their separation from the problem. If one is not a perpetrator, one must just be an innocent societal bystander.”31

Discrimination is a social phenomenon which demands a cultural, historical and social context in order to be understood. Group stigma and group stereotypes cannot be created by one employer’s unfair treatment. Actions and practices which on the individual level would otherwise appear simply to be unfair treatment, take on connotations of group-inferiority and group-stigma because of their social and historical context.32 In this sense discrimination goes beyond unfair treatment; for discrimination also involves group-disadvantaging practices, i.e., practices which aggravate or perpetuate the subordinate position of disadvantaged groups.33 It is precisely because states recognize that the harm discrimination represents has consequences beyond the individual victim and the individual case that states have been impelled to prohibit it. This harm

31

32

33

Alan Freeman, “Antidiscrimination Law: A Critical Review” in The Politics of Law. A Progressive Critique, edited by D. Kairys (New York: Pantheon Books, 1982), 98–99. D. Marvin Jones, “The Death of the Employer: Image, Text, and Title VII,” Vanderbilt Law Review 45: (1992): 349–395, 375. Owen Fiss, “Groups and the Equal Protection Clause” in Anti-Discrimination Law, edited by Christopher McCrudden (Aldershot: Dartmouth, 1991), 107.

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is manifested in the actual conditions of disadvantaged groups as a perpetual member of an underclass.34 These conditions are well known in employment discrimination – disproportionate unemployment, under-employment, harassment, inequitable pay, glass ceilings blocking career advancement, unfair discharge etc. All antidiscrimination laws have as their purpose and objective the elimination of these harmful group-disadvantaging practices and the conditions associated with them. Yet, the process of accomplishing this goal in complaint-based models has been to focus on discrimination as a discrete event or events largely separated from their social, historical and cultural context. In search of this incident of discrimination, complaint-based models seek to identify a blameworthy perpetrator, an innocent victim and factual events leading to the discriminatory treatment, in the ﬁrm belief that they can be retrospectively investigated and revealed in much the same way as a murder or an assault. The analytical tool for this exercise is not the social phenomena of discrimination nor the conditions associated with them, rather it is the tool of comparison, the comparison of the complainant with comparator in search of unjustiﬁable differential treatment. The critical question is whether the analytic tool of comparison is adequate in diagnosing barriers to equality in employment. In employment selection (hiring, promoting, career development and retention) this tool of comparison is a particularly blunt one for investigating and revealing discrimination. It is only in extreme cases that it could be of any use. First, in most cases selection criteria will always be formulated in such a way as to give the employer a degree of discretion in selection. Secondly, the use of inappropriate selection criteria is notoriously easy to translate into a legitimate explanation. Thirdly, selection criteria are often not only discretionary, but may also be value-laden. Employment selection is most often based on the applicant’s education, work experience and personal qualities. It is in particular this category of personal qualities which readily provides the employer with a justiﬁcation and an apt legal defense. Qualities often looked for in interviews, such as motivation, ability to express oneself, showing initiative, independence or cooperativeness, are extremely subjective. These are not dichotomous concepts. You don’t either have them or not have them. One has initiative and independence to varying degrees. Like the determination of the degree of language ﬂuency necessary for the job or the degree of language ﬂuency possessed by the applicant, such decisions are discretionary. People will differ as to the degree of both their importance and the applicant’s possession of such qualities. These assessments are difﬁcult to judge in the aftermath and even more difﬁcult to reveal as masking inappropriate inﬂuences. An applicant from the same social, cultural or religious background may be more favorably considered, because the decision-maker feels more comfortable with him/her. This feeling of greater comfort (or in some cases lesser comfort) is also easily translatable into a more neutral explanation regarding the personal qualities of the applicant.

34

Alan Freeman, “Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine” in Anti-Discrimination Law, edited by Christopher McCrudden (Aldershot: Dartmouth, 1991), 286.

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Although discrimination of this type is difﬁcult to identify, an unconscious avoidance of anyone who is “not like me” is just as unlawful as a conscious decision to exclude. They are both based on stereotypes and generalizations which assume that members of a group share common characteristics.35 Because of the non-transparency or limited transparency of the hiring process, it is difﬁcult for adjudicators to identify these barriers. The analytical tool of comparison can hardly reveal this type of discrimination, and yet this type of exclusion remains a signiﬁcant barrier to equality. At the same time the chronic underrepresentation of disadvantaged groups in an employer’s workforce appears to be an irrelevant fact – not discrimination – because it is not associated with a discrete incident of differential treatment.36 In sum, the individualization of discrimination as a discrete incident, separate and apart from discrimination as a social phenomenon, means that much systemic discrimination in employment simply does not get expressed as a legal wrong. The introduction of the concept of indirect discrimination does, however, go beyond this limited analytical tool of comparison as a means of identifying discrimination. The prima facie case of discrimination – and thus the adjudicator’s particular scrutiny – is not triggered by classiﬁcation, but rather by adverse group-impact.37 Although the addition of the concept of indirect discrimination is unquestionably an improvement upon the mere formal equality of direct discrimination, there are also inherent limits and weaknesses in the way that complaint-based models seek to reveal and address indirect discrimination as a phenomenon. In an employment selection case, for example, the complainant will have alleged that the employer has used facially-neutral criteria which have produced adverse group-impact. After presentation of the evidence, the adjudicator must make ﬁndings as to the speciﬁc criteria actually used by the employer and the nature of any adverse group-impact produced by them. If adverse group-impact is established, then the adjudicator must examine the ﬁt between the criteria used and the purpose of the criteria. That purpose will usually be to ﬁnd the candidate most qualiﬁed to perform the job. Another way of saying this is to ask whether the criteria are job-related. If the criteria are job-related, then a further inquiry is needed to determine whether the criteria are justiﬁable despite their adverse group-impact. But if adverse group-impact is the problem and concern – that which triggers scrutiny, why should one be limited to addressing this problem only by focusing on the use of one or more selection criteria and inquiring as to their job-relatedness? Why conﬁne oneself to examining and redressing adverse group-impact through the lens of selection criteria or other discrete policies or practices? Why only those policies and practices speciﬁcally complained about? The connection between adverse group-impact and a

35

36

37

Bob Hepple, Mary Coussey and Tufyal Choudhury, Equality: A New Framework (Oxford: Hart Publishing, 2000), 15. D. Marvin Jones, “The Death of the Employer: Image, Text, and Title VII,” Vanderbilt Law Review, 45 (1992): 349–395, 383. Owen Fiss, “Groups and the Equal Protection Clause” in Anti-Discrimination Law, edited by Christopher McCrudden (Aldershot: Dartmouth, 1991), 96.

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speciﬁc policy or practice is often obscure – also for the victims. This is a very restricted method of addressing adverse group-impact. In the words of Owen Fiss: The concern with the result reveals to me that what is ultimately at issue is the welfare of certain disadvantaged groups, not just the use of a criterion, and if that is at issue, there is no reason why the judicial intervention on behalf of that group should be limited to an inquiry as to the degree of ﬁt between a criterion and a purpose.38

In this regard, group claims (class actions and representative actions) are just as restrictive. The number of complainants and/or victims increases, but the restrictive mechanism for identifying systemic discrimination is still present. Group claims do, admittedly, represent a greater possibility of identifying systemic discrimination. Most class actions in the USA allege indirect discrimination (USA: adverse impact discrimination).39 In doing this, these cases will go beyond the limited analytical tool of comparison of complainant and comparator. The real problem of group claims, however, lay not so much with their inability to identify systemic discrimination in employment. This may indeed be possible in some cases, as is illustrated by some of the cases that I present in the chapter on systemic discrimination. The problem with group claims lay in the limited breadth of that identiﬁcation and with their inability at the remedial stage to bring about organizational transformation (see section 4.5).

4.4. The Difﬁculties in Proving Discrimination in Complaint-Based Approaches The particular difﬁculty for complainants of proving discrimination has been widely recognized both in legal literature as well as judicial decisions.40 Jenifer Ross describes the many hurdles to cross for a person in Great Britain who believes oneself to be subjected to discrimination. First, the person must recognize what is happening, i.e., must come to a determination that he or she is being discriminated against. Secondly, the person must realize that there is a legal remedy. Thirdly, the person must obtain legal advice and be convinced that the legal process will help his or her situation. Fourthly, the person must ﬁnd ﬁnancial support for going further with the case. Fifthly, the person must obtain assistance in preparing the formal complaint, ﬁlling out the statutory question-

38 39

40

Ibid. Barbara Lindemann and Paul Grossman, Employment Discrimination Law, vol. 1, 3d ed. (Washington, D.C: The Bureau of National Affairs, 1996), 82. Laurence Lustgarten, Legal Control of Racial Discrimination (London: Macmillan Press, 1980), 204–224; Alice Leonard, Judging Inequality: The Effectiveness of the Industrial Tribunal System in Sex Discrimination and Equal Pay Cases (London: The Cobden Trust, 1987); Bob Hepple, “The Judicial Process in Claims for Equal Pay and Equal Treatment in the United Kingdom” in Women, Employment and European Equality Law, edited by Christopher McCrudden (London: Eclipse Publications, 1987), 156; Béatrice Vizkelety, Proving Discrimination in Canada (Toronto: Carswell, 1987).

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naire to be sent to the employer, trying to settle the claim, trying to ﬁnd people willing to act as witnesses, and trying to obtain other evidence. “[A]ll of these would deter all but the most determined (or desperate) complainer. Then there is the hearing.”41 I submit that there is an additional signiﬁcant reason for the particular difﬁculties in proving discrimination, and in particular ethnic discrimination: The reluctance of adjudicators to draw appropriate inferences of discrimination (particularly ethnic discrimination) from circumstantial evidence. Discrimination today is rarely overt. The moral blame connected with a person found to be a discriminator has led to far more subtle forms of discrimination. It is no longer socially acceptable to openly display prejudicial behavior. Antidiscrimination laws have also made it costly for employers to discriminate overtly. Modern research shows, furthermore, that many people are not even conscious of their prejudice and stereotypical assumptions. Complainants in cases involving employment selection decisions can expect even greater difﬁculties in proving discrimination. Knowledge of what took place in the decision-making process in cases of hiring, promotion and career development is for the most part exclusively in the hands of the employer. Often there is no written account of the decision-making process, and the only witnesses to it are usually persons who themselves participate in the decision and thus are equally liable for it. Witnesses may also fail to come forth because they fear retaliation from an employer or superior to whom they are dependent. Moreover, the subjective element in employment selection permits employers easily to clothe discriminatory acts with cloaks of legitimacy. What really happened in the decision-making process is not easy for an adjudicator to determine. It is not easy to reveal the inappropriateness of employer explanations such as: (1) the applicant lacked the necessary experience for the job, (2) the interview seemed to indicate that the successful candidate would work better with others (3) compared with the successful candidate, the applicant appeared to be less assertive, to have less initiative or to be less inclined to take difﬁcult decisions.42 As a result, most discrimination cases in general, and particularly in employment, do not involve the presentation of direct evidence of discrimination, but rather the drawing of inferences from primary facts (i.e., circumstantial evidence) concerning events that may have taken place prior to, simultaneous with or after the alleged act of discrimination. From what kinds of circumstantial evidence might courts infer discrimination? The following are some examples:43

41

42 43

Jenifer Ross, “The Burden of Proving Discrimination,” International Journal of Discrimination and the Law, 4 (2000): 95–117, 95–96. Béatrice Vizkelety, Proving Discrimination in Canada (Toronto: Carswell, 1987), 140. The examples are taken from judicial decisions referred to in Béatrice Vizkelety, Proving Discrimination in Canada (Toronto: Carswell, 1987), 140–166 and Kent Spriggs, Representing Plaintiffs in Title VII Actions, vol. 1 (New York: Wiley Law Publications, 1994), 52–59.

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(1) Prejudiced attitudes and statements, for example racial slurs and derogatory statements; (2) Similar fact evidence (for example in sexual harassment cases); (3) Job interviews which are shown to dwell upon an applicant’s nationality, race, religion etc; (4) Change in job qualiﬁcations required in the middle of the selection process to favor a candidate desired; (5) Evidence that an employer’s articulated reason for selection is unworthy of credence; (6) Departure from rules of law or the employer’s own personnel policies; (7) Excessive subjectivity in evaluations and interviews; and (8) Failure to explain an act when an explanation is called for. The use of statistics in class-action discrimination cases may also help the court or enforcement agency in the drawing of inferences of discrimination. Statistics showing an underrepresentation of protected groups in the composition of the employer’s workforce may help to show that the employer has engaged in a pattern or standard practice of discrimination. However, many countries, including Norway, do not register or monitor the ethnicity (or race) of applicants and employees. One would therefore lack statistics that might be helpful in the proof of ethnic discrimination. The decision in Anya v. University of Oxford presents a vivid description of both the process of drawing inferences and the challenges to courts and enforcement agencies in doing so: The applicant faces special difﬁculties in a case of alleged institutional discrimination which, if it exists, may be inadvertent and unintentional. The tribunal must consider the direct oral and documentary evidence available. . . . It must also consider what inferences may be drawn from all the primary facts. Those primary facts may include not only the acts which form the subject-matter of the complaint, but also other acts alleged by the applicant to constitute evidence pointing to a racial ground for the alleged discriminatory act or decision. It is this aspect of the evidence in race relations cases that seems to cause the greatest difﬁculties. Circumstantial evidence presents a serious practical problem for the tribunal of fact. How can it be kept within reasonable limits?. . . . The temptation for the complainant and his advisers . . . is to introduce into the case as many items as possible as material from which the industrial tribunal might make an inference that ‘racial grounds’ are established. The respondent has to respond to the introduction of those items. He may dispute some of them as factually incorrect. He may seek to introduce other evidence to negative any possible inference of racial grounds. . . . The result of this exercise is that the parties and their advisers may confuse each other (and the tribunal) as to what the tribunal really has to decide; as to what is directly relevant to the decision which it has to make and as to what is only marginally relevant or background.44 (emphasis added)

We see from this description that the drawing of inferences of discrimination is not a simple, straightforward process; the process is ﬁlled with procedural and evidentiary challenges. 44

Anya v. University of Oxford [2001] EWCA Civ 405, no. 9.

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Experience suggests that courts are particularly reluctant to draw inferences of ethnic discrimination.45 A 1995–1996 comparison of British discrimination claims on grounds of sex and race decided by tribunals on the merits, revealed that complainants in sex discrimination claims had a 38% success rate while complainants in racial discrimination claims had a 19% success rate. A comparison of Scottish discrimination claims over a 22 year period revealed approximately the same rates of success.46 After having examined alternative explanations for the signiﬁcant difference in success rates, the author of the study concluded that the difference could only be explained by the difference in the courts’ willingness to infer discrimination in cases of sex discrimination and racial discrimination. A line of cases from Australia may help to explain why this is so. Starting with Briginshaw v. Briginshaw,47 which was not a discrimination case, the cases stand for the proposition that courts in certain circumstances should require evidence of a higher probative value and should not lightly draw inferences. Factors which determine whether evidence of a higher probative value should be required are: (1) the seriousness of the allegation made, (2) the inherent unlikelihood of an alleged occurrence and (3) the gravity of the consequences ﬂowing from the court’s ﬁnding. Later cases, involving allegations of racial discrimination, have found such allegations to be of such seriousness that they require evidence of a higher probative value.48 This has made it particularly difﬁcult for complainants to succeed in convincing courts to draw inferences of racial discrimination. In Department of Health v. Arumugam49 the complainant, who was of Southern Indian origin, complained of racial discrimination in the selection process for the permanent position of Psychiatrist Superintendent of a hospital, i.e., the chief medical administrator of the hospital. In commenting on the seriousness of the allegation of racial discrimination the court adopted the rule in Briginshaw and stated: It is, of course, a serious allegation that two prominent and highly qualiﬁed medical men, in government positions of trust and responsibility, and engaged in the task of selecting the best man for a very important job . . . deliberately rejected the best man and appointed a person known to them to be a far less suitable man, and did that substantially, if not entirely, on the ground that the better qualiﬁed professional man belonged to a particular race of human beings. Of course, it may nevertheless happen. . . . But it is not lightly to be inferred.50

According to Arumugam, an allegation of racial discrimination is a serious allegation as envisioned in the rule of Briginshaw. The tone of the court’s pronouncement suggests, 45

46

47 48

49 50

See Jonathon Hunyor, “Skin-deep: Proof and Inferences of Racial Discrimination in Employment,” Sydney Law Review 25 (2003): 535–554, 539. See Jenifer Ross, “The Burden of Proving Discrimination,” International Journal of Discrimination and the Law, 4 (2000): 95–117, 96–97. Briginshaw v. Briginshaw (1938) 60 CLR 336. See for example Department of Health v. Arumugam [1998] VR 319; Sharma v. Legal Aid (Qld) [2002] FCAFC 196; Dutt v. Central Coast Area Health Service [2003] NSWADTAP 3. [1998] VR 319. Ibid., 331.

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moreover, that the court is not far away from viewing the occurrence as almost inherently unlikely (the second factor in Briginshaw). It also suggests that the prominent stature of the defendants and the damage to their reputations upon a ﬁnding of racial discrimination (the third factor in Briginshaw), should require that evidence of a higher probative value be demanded. At ﬁrst instance the Equal Opportunity Board (the Board) had found that the complainant, who had been Acting Psychiatrist Superintendent for six months prior to the selection decision, had been discriminated against on grounds of race. The Board found the following: (1) The complainant was clearly better qualiﬁed, and substantially better qualiﬁed for the relevant position, than was the successful candidate. (2) At interview the complainant was perceived by the selection panel to be less articulate and less aggressive than the successful candidate. (3) Two of the selection panel members, the most senior medical experts, had made up their minds before the interview that the complainant should not get the job. (4) The perceived superiority of the successful candidate by the 5-member panel was not based on individual impartial judgments, but was inﬂuenced by the two senior members who had already made up their minds. (5) The conclusion of the panel that the complainant was less articulate and less aggressive than the successful candidate, was in fact wrong. (6) For these reasons the panel was obligated to give a clear and speciﬁc explanation for not appointing the person who was clearly the better man. The explanation offered by the panel – that the complainant was less articulate and aggressive – did not satisfy this requirement. It was both erroneous and dishonestly proffered by the two members who had already made up their minds.51 In light of these ﬁndings the Board drew an inference of racial discrimination and ruled in favor of the complainant. In reversing the decision of the Board, the Supreme Court for the State of Victoria stated that as a matter of law the primary facts did not indicate that the panel members were called upon to give a clear and speciﬁc explanation. Given the requirement of evidence of a higher probative value, the court drew no inference of discrimination from the primary facts. Thus no explanation from the panel members was required. The court stated that however incorrect the selection panel may have been regarding the articulation and aggressive character of the complainant, this was the innocent and honest reason for the panel’s decision. At one point the Supreme Court embarked upon a long argumentation to show the theoretical possibility that the panel’s explanation that the complainant was less articulate and aggressive may in reality have been the panel’s dislike of the complainant’s managerial style. The court then recounted a great deal of testimony about signiﬁcant improvement in the communications between staff and management during the complainant’s period as Acting Psychiatrist Superintendent. Several witnesses had testiﬁed

51

[1998] VR 319; 1987 VIC LEXIS 413 at [*16–17].

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to a better workplace milieu and greater enthusiasm among staff as a result of being consulted more by management. The Supreme Court then used these testimonial plaudits as ammunition against the complainant by suggesting that this sort of consensus politics was probably the type of management that the selection panel did not want. The court stated that whether others would see this management style as an advantage or disadvantage is not the point; the question is whether the panel members may have seen this as a defect. This argumentation by the Supreme Court was, however, merely speculation since there was no evidence presented that the panel members disliked the complainant’s managerial style. To paraphrase the court in Anya v. University of Oxford:52 Whether such an explanation exists will depend not on a theoretical possibility that the panel members disliked the complainant’s managerial style, but on evidence that they did.53 The Supreme Court characterized the Board’s inference of discrimination in the following way: “The unspoken inference by the Board seems to be that the two psychiatrist members were so motivated by, or possessed of, racist antagonism against appointing the complainant that they used their position of inﬂuence (without any reference to race or hint of racism) to persuade the innocent three members of the correctness of the . . . perceptions [that the complainant was less articulate and aggressive than the successful candidate]. . . .There is, in my opinion, no evidence that the two psychiatrists did these things. . . . If the unspoken inference was of unconscious racism and unconscious . . . inﬂuence, then [that would] leave the majority of the panel still acting innocently and honestly (albeit mistakenly) . . .”54 (emphases added) “[T]here was, in my opinion, no evidence upon which the Board could ﬁnd that either of [the two senior selection panel members] was a racist, or had racist beliefs. . . .”55 (emphasis added)

The Supreme Court’s opinion suggests that it was looking for a dishonest perpetrator. Even more signiﬁcantly, it suggests that the court was looking for a racist perpetrator. When it did not ﬁnd evidence of dishonesty or racism, then it was not willing to draw any inferences of discrimination. The signiﬁcance of Arumugam is this: The decision stands for the proposition that courts shall not draw inferences of racial discrimination without the submission of evidence of a higher probative value than usual. This is related to the court’s perception of

52 53

54 55

Anya v. University of Oxford [2001] EWCA Civ 405, no 14. The problem of courts, without evidence, inventing (and accepting as proved) lawful explanations for an employer’s selection choice, is not an isolated incident. Jenifer Ross discusses two British cases overturned on appeal as a result of just such speculation by the court as to the defendant’s reasons for his behavior. See Kaur and Bakshi v. Falkirk District Concil (EAT/116/95) and Yousaf v. The Robb Estate Agency (A421/95) discussed in Jenifer Ross, “The Burden of Proving Discrimination,” International Journal of Discrimination and the Law, 4 (2000): 95–117, 99. [1998] VR 319; 1987 VIC LEXIS 413 at [*23]. Ibid., at [*36].

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the seriousness of the allegation of racial discrimination against an employer. The decision also shows the relationship between the drawing of inferences of discrimination and the search for a dishonest or racist perpetrator. When courts do not ﬁnd evidence of dishonesty or racism, they are reluctant to draw inferences of discrimination against the employer. The holdings in Briginshaw and Arumugam with respect to the drawing of inferences have been subsequently approved and applied in Sharma v. Legal Aid (Qld)56 and Dutt v. Central Coast Area Health Service.57 Although this line of cases comes out of an Australian legal context, there is no reason to believe that one cannot ﬁnd the same kinds of factors operating in other countries with respect to the drawing of inferences of ethnic discrimination – whether or not those other countries articulate them as such. A UK Employment Appeal Tribunal decision, Khanna v. Ministry of Defence,58 may also help to shed some light on this matter. The complainant, who was born in India, had been employed as senior photographer with the defendant for 15 years. He had made 22 unsuccessful applications for promotion to the next grade, principal photographer. His commanding ofﬁcer had repeatedly recommended him strongly and on several occasions had even diplomatically questioned why he was not being promoted. When the position of principal photographer became available in the complainant’s unit, the complainant took over the running of the section temporarily. In the subsequent process of ﬁlling the permanent post the complainant was ranked third and the successful candidate was a person far less qualiﬁed than the complainant. Although the job description was advertised as involving work with still photography, cine and high-speed cine, video recording and production of slides, the successful candidate had no experience with cine, high-speed cine or video work. There was also evidence presented that a satisfactory ofﬁcer acting temporarily in a position is usually (but not always) appointed to the permanent post unless there is a good reason for bringing someone else in from outside. The complainant ﬁled a complaint of racial discrimination. At ﬁrst instance the Industrial Tribunal (now Employment Tribunal) preliminarily concluded that there was an unavoidable inference of racial discrimination: The Tribunal does ﬁnd that the choice of the promotion board was a most surprising one and therefore apparently an unreasonable one. After all, the work done in the position was clearly described in the advertisement. [Complainant] could do all of it, and [the successful candidate] could do only a small part of it. It is perfectly true that [the successful candidate] could no doubt pick up the necessary skills in time, but it seems to the Tribunal that the man who had the skill already and who had actually carried out the job successfully and was the sitting tenant was such an obvious choice that there is an unavoidable inference. The obvious candidate was coloured and the successful candidate was white. The inference is that there was racial discrimination.59 (emphasis added)

56 57 58 59

[2002] FCAFC 196. [2003] NSWADTAP 3. [1981] IRLR 331. Ibid., 332.

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Upon making this preliminary conclusion the Industrial Tribunal stated that the evidential burden had shifted to the employer. Quite surprisingly the Tribunal thereupon made a ﬁnal conclusion that the employer had met this burden. The Tribunal’s explanation was that the members of the promotion board, who had retired from senior positions, appeared to be honest witnesses and they had given sworn evidence that race was not a factor in their decision. In explaining the great difference in qualiﬁcations between the complainant and the successful candidate, the Tribunal referred to testimony of the promotion board members that they were looking for a long term potential rather than the man who could immediately carry out all the functions. The Tribunal further stated that one of the promotion board members had had a close acquaintanceship with the successful candidate in the past and he was perhaps predisposed, possibly unconsciously, in this candidate’s favor. Such a thing was stated to be undesirable but not racial. The Tribunal concluded that it found itself left in doubt (and apparently undecided) and that given that the burden of proof rests with the complainant, the Tribunal must ﬁnd for the employer. On appeal the Employment Appeal Tribunal criticized the Industrial Tribunal for having left its ultimate decision to turn on the burden of proof. Having ﬁrst found an unavoidable inference of discrimination in the absence of a satisfactory explanation, the Tribunal failed in its task by not having explicitly stated whether it accepted the evidence of the board members generally and in particular their evidence that they were not motivated by racial discrimination. The case was therefore remitted to the Industrial Tribunal for further deliberations. The signiﬁcance of Khanna is that it too shows rather clearly just how reluctant courts are to drawing inferences of discrimination. The Industrial Tribunal was particularly focused on the honest appearance of the board members and of their sworn statements that race played no part in their decision. If an honest appearance or a sworn statement is judged to be a clear and speciﬁc explanation which successfully rebuts an unavoidable inference of discrimination, then there is very little hope for discrimination complainants successfully convincing courts to draw inferences of discrimination. Unfortunately this also shows the level of competence of many courts and tribunals when it comes to understanding how discrimination actually occurs. Although Khanna may be an extreme case, these cases and other cases do indicate that there is in general a clear relationship between the perceived credibility of the parties and their witnesses when giving evidence and the willingness to draw inferences of discrimination.60 The more credible the employer is perceived to be, the more willing the adjudicator is to accept his explanation and the less likely one is willing to draw inferences of discrimination. The perceived credibility of the complainant has a comparable effect. In this regard, it is instructive that a UK study of 215 employment discrimination decisions61 of the industrial tribunals62 from 1980–82 indicated the tendency of the tribunals to uncritically accept the credibility of employers, thereby according

60 61 62

Ibid. The decisions analyzed were cases involving claims of sex discrimination and equal pay. Industrial tribunals are the predecessors to the UK employment tribunals of today.

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undue deference to the employers’ inadequate explanations – not on the basis of evidence, but on the basis of personal reactions to the manner in which the employers gave testimony: [O]ne of the more striking characteristics of the 215 full decisions reviewed was the frequency with which the tribunals based ﬁndings of non-discrimination on vague and generalised explanations from respondents, ignoring noted inconsistencies and even accepting as proof of non-discrimination, evidence which was irrelevant to the issues presented. The decisions often rely heavily upon general impressions of the honesty or sincerity of respondents and their witnesses, rather than upon an analysis of the evidence.”63 “In the . . . decisions . . . the tribunals referred to credibility in 67% of the sex discrimination cases and in 39% of the equal pay cases. .... Half of the tribunal decisions which included ﬁndings on credibility made them without explanation. Though there had been a conﬂict in the evidence, they merely state ‘we accept that . . .’, ‘we are satisﬁed that . . .’. Over one-third of all the cases which made ﬁndings on credibility explained their decisions not with respect to other evidence in the case, but simply on the basis of personal reactions to the witness, or to the manner in which they gave their testimony, with statements such as: We formed a most favourable impression of Mr [X] – we accept that on making any recommendations he was inﬂuenced solely by the suitability of a candidate for reasons in no way inﬂuenced by the candidate’s sex or marital status.”64 (emphases added)

At the same time it is disturbing to ﬁnd accounts in the legal literature indicating the relative ease in which the credibility of the complainant is called into question: The employer’s response to most claims of discrimination generally consists of denial of the complainant’s statement of the facts, presentation of his own version, and/or assertion that a better qualiﬁed person was found for the job. The key question for the tribunal then becomes one of credibility. Usually the evidence is sharply conﬂicting, with neither side obviously engaged in fabrication. The witnesses normally are interested parties – the complainant and those who dealt with him: disinterested observers do not exist. In these circumstances relatively minor inconsistencies in the complainant’s story have weighed heavily against a ﬁnding of discrimination, as credibility is translated into a ﬁne balance of probabilities.65 (emphasis added)

How may one explain this imbalance in the assessment of credibility? Some legal scholars suggest that there is a hierarchy of credibility at work.66 This concept was formulated

63

64 65

66

Alice Leonard, Judging Inequality: The Effectiveness of the Industrial Tribunal System in Sex Discrimination and Equal Pay Cases (London: The Cobden Trust, 1987), 38–39. Ibid., 47–48. Laurence Lustgarten, Legal Control of Racial Discrimination (London: Macmillan Press, 1980), 207. See also Béatrice Vizkelety, Proving Discrimination in Canada (Toronto: Carswell, 1987), 26–27; Margaret Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (Melbourne: Oxford University Press, 1990), 181. Rosemary Hunter, Indirect Discrimination in the Workplace (Sydney: The Federation Press,

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by Howard Becker67 to describe the social tendency that deﬁnitions of reality projected by people in positions of authority are accepted in preference to those of their subordinates. Thus, for example, the employer’s description of events is more credible than an employee’s, the doctor’s more believable than a patient’s, the police ofﬁcer’s more believable than an accused’s. “[T]he employer is perceived as someone who thinks and speaks in terms of a whole workforce, whereas the employee is perceived merely as a grudge-bearing individual.”68 In any organization, no matter what the rest of the organization chart shows, the arrows indicating the ﬂow of information point up, thus demonstrating (at least formally) that those at the top have access to a more complete picture of what is going on than anyone else. Members of lower groups will have incomplete information, and their view of reality will be partial and distorted in consequence. Therefore, from the point of view of a well socialized participant in the system, any tale told by those at the top intrinsically deserves to be regarded as the most credible account obtainable of the organizations’ workings.69

The hierarchy of credibility is a formidable barrier for any complainant. Given the particular characteristics of systemic discrimination in employment – subtle and unintended discrimination often involving subjective criteria and a long-standing and accepted organizational practice or policy – it is understandable that complainants in such cases have great difﬁculties in overcoming the credibility gap. Anya v. University of Oxford is a good illustration of: (1) the failure of a lower court to analyze appropriately the circumstantial evidence of discrimination, and (2) how the hierarchy of credibility inﬂuences the reluctance to draw inferences of discrimination. The facts of the case were as follows: The complainant, a black Nigerian with permanent residence in the UK, applied for a post-doctoral research assistant position. He was shortlisted, together with a white applicant, but was rejected after an interview conducted by a panel of three. One of the panel members, the supervisor of the complainant, had already formed the opinion that the complainant was not suitable for the position. The supervisor told this to one of the other panel members (the department administrator who was not a scientist) and it is alleged by the complainant that the department administrator subsequently notiﬁed him of the coming opportunity in terms markedly less encouraging than those in which the white applicant was notiﬁed of it. The complainant alleged that his supervisor had a preconceived hostility towards him which was racially motivated. The industrial tribunal found that there were deﬁciencies in the way the university’s equal opportunities and recruitment procedures had been carried out in the selection process. First, no person speciﬁcation had been drawn up until minutes before the interview. The person speciﬁcation is a list of skills, experiences and personal qualities that

67 68 69

1992), 228; Jeanne Gregory, Sex, Race and the Law: Legislating for Equality (London: Sage Publications, 1987), 83. Howard Becker, “Whose Side Are We On,” Social Problems 14 (1967): 239–247. Rosemary Hunter, op. cit. Howard Becker, op. cit., 241.

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the successful candidate should possess in order to perform the job adequately. It is an important aid to ensure that candidates are considered on an equal basis and without criteria which have an unjustiﬁable discriminatory effect. Secondly, no references of the candidates had been contacted. The tribunal drew however no conclusions or inferences regarding these deﬁciencies. The complainant, who had a doctorate in metallurgy, came to Oxford on a two-year project as a post-doctoral research assistant and achieved considerable success with the project. As his project came to an end, a new post-doctoral research assistant post was advertised. The tribunal found that the two shortlisted candidates were fully qualiﬁed regarding education and experience and that the choice between the two candidates was understandably expected to be a close one. Despite inconsistencies in the testimony of the supervisor, the industrial tribunal accepted the supervisor’s explanation that his reasons for not choosing the complainant had to do entirely with a genuine assessment of his scientiﬁc strengths and weaknesses, and had nothing to do with his race. The Employment Appeal Tribunal dismissed the appeal of the complainant. The Court of Appeal, however, allowed the complainant’s appeal and remitted the case for rehearing by a new tribunal. In doing so it ﬁrst warned courts against the tendency to treat allegations of other incidents (i.e., the circumstantial evidence presented) as if they were themselves the subject of a complaint, and then it provided an extraordinary insight into the nature and complexity of drawing inferences of discrimination in employment selection: “It was not . . . necessary for the tribunal to ask itself, in relation to each such incident or item, whether it was itself explicable on ‘racial grounds’ or on other grounds. That is a misapprehension about the nature and purpose of evidentiary facts. The function of the tribunal is to ﬁnd the primary facts from which they will be asked to [draw] inferences and then for the tribunal to look at the totality of those facts (including the respondent’s explanations) in order to see whether it is legitimate to infer that the acts or decisions complained of . . . were on ‘racial grounds’. The fragmented approach adopted by the tribunal in this case would inevitably have the effect of diminishing any eloquence that the cumulative effect of the primary facts might have on the issue of racial grounds.70 (emphases added) “The present case is a textbook example of a race discrimination claim. It makes it possible to see with some clarity how the principles established by authority ought to work out in practice. Here we have a shortlist of two candidates, one black, one white, both by deﬁnition qualiﬁed by training and experience for a specialised post. . . . What [guiding precedents] tell tribunals and courts to look for, in order to give effect to the [antidiscrimination legislation] are indicators from a time before or after the particular decision which may demonstrate that an ostensibly fair-minded decision was, or equally was not, affected by racial bias.”71 (emphases added) “[Complainant’s] case was that the evidence showed two critical things. One was a preconceived hostility to him: this depended on matters of fact which it was for the industrial tribunal to ascertain or refute on the evidence placed before them. The other was a racial bias

70 71

Anya v. University of Oxford [2001] EWCA Civ 405, no. 9. Anya v. University of Oxford [2001] EWCA Civ 405, no. 11.

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against him evinced by such hostility: this was a matter of inference for the industrial tribunal if and in so far as it found the hostility established. Experience shows that the relationship between the two may be subtle. . . . [S]uch hostility may justify an inference of racial bias if there is nothing else to explain it: whether there is such an explanation as the industrial tribunal posit here will depend not on a theoretical possibility that the employer behaves equally badly to employees of all races, but on evidence that he does.”72 (emphasis added, italics in original) “[The tribunal] tabulated ﬁve prior events put in evidence by [complainant] as evidence of hostility on the part of [supervisor]. . . . They were . . . that [supervisor] had not given [complainant] adequate research guidance; had not given him the opportunity he gave others to co-propose research projects; had discouraged or blocked him from publishing research papers; had not given him the opportunity to present his work at scientiﬁc conferences; and had allocated him no research students, in contrast to other [post-doctoral research assistants]. . . . On none of these issues, from ﬁrst to last, did the industrial tribunal record any conclusion as to where the truth lay and what, if anything, it indicated in terms of racial bias.”73 (emphasis added) “The industrial tribunal . . . have started at the far end of the process of reasoning and have never returned to base. Having concluded that [supervisor] was essentially truthful (we do not know whether or not they thought the same of [complainant]), they have abandoned the remainder of the inquiry. They make no ﬁndings about the substance, much less the signiﬁcance, of the inconsistencies which they have noted in [supervisor’s] evidence; . . . no ﬁndings as to whether the [complainant] had, as he contended, been repeatedly sidelined by [supervisor] in the course of his research work; no ﬁnding about the signiﬁcance of the differences in the way [complainant] and [the white applicant] were treated; and no indication of the signiﬁcance, if any, of the interview panel’s departures from university policy or good practice. Nor, therefore, have they been in a position to decide whether any hostility they might have found was in any signiﬁcant degree racially motivated.”74 “The choice between these two comparably well qualiﬁed candidates depended entirely on how the panel viewed their personal and professional qualities. Such a judgment is notoriously capable of being inﬂuenced, often not consciously, by idiosyncratic factors, especially where proper equal opportunity procedures have not been followed. If these are to any signiﬁcant extent racial factors, it will in general be only from the surrounding circumstances and the previous history, not from the act of discrimination itself, that they will emerge.”75 (emphasis added) “It is precisely because a witness who by himself comes across as essentially truthful may be shown by documentary evidence or by inconsistency to be less reliable than he seems that the totality of the evidence in a case like this has to be evaluated; and there was in this case no useful way of approaching the totality except through its parts. If . . . the industrial tribunal had accepted to any signiﬁcant extent [complainant’s] evidence that [supervisor] had not given him the academic and professional support that he was entitled to . . ., they would have had to ask why this was so. In answering that question they might or might not have derived help from the conversations that [supervisor] had had with [department administrator] about [complainant] and the differing terms in which [department administrator]

72 73 74 75

Ibid., no. 14. Ibid., no. 15. Ibid., no. 19. Ibid., no. 21.

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The Employment Appeal Tribunal in Badewa v. Circle Thirty Three Housing Trust Ltd.,78 like the court in Anya, also warned tribunals, when assessing the explanation of employers in racial discrimination cases, about the adequacy of using the usual judicial tool of deciding where the truth lies by reference to the manner and demeanor of the witnesses. Regardless of these warnings, it is perhaps inevitable that adjudicators will be inﬂuenced by the hierarchy of credibility and will therefore accord greater weight to the explanation of employers than to complainants. Although I have not found the Australian principle of Briginshaw/Arumugam79 explicitly adopted in any of the other jurisdictions examined in the thesis, the signiﬁcant difference between the rates of success of sex and racial discrimination cases decided on the merits, suggests that there may be a greater reluctance on the part of courts to drawing inferences of racial discrimination. Jenifer Ross suggests several reasons for why this may be so: (1) Many cases of sex discrimination are ﬁltered through objective factors, such as pregnancy, maternity leave and part-time work. This makes it easier to identify. (2) There does not appear to be the same degree of stigma attached to being identiﬁed as a perpetrator of sex stereotyping as compared with race stereotyping. Some sex stereotyping, although recognized as unlawful, may even be viewed as outmoded paternalism and particularly with respect to older men and women, as products of their (disappearing) generation. In many cases courts will not feel that it is branding the employer by ﬁnding the employer in violation of sex discrimination. This of course does not apply to a ﬁnding of sexual harassment, which is viewed as very stigmatizing. (3) Because sex discrimination is in many cases more easily identiﬁed, it may also

76 77 78 79

Ibid., no. 23. Ibid., no. 25. EAT/332/95. This is the principle that courts shall not draw inferences of racial discrimination without the submission of evidence of a higher probative value than usual.

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be easier to recognize sex stereotyping in less explicit examples. On the other hand it is perhaps difﬁcult for adjudicators of the racial majority to understand the complexity of racial discrimination, especially in its subtle and unconscious forms. This may lead adjudicators to look for a simpler version of intentional, deliberate discrimination, and as a result to set the test for racial discrimination too high. In this way adjudicators seek a more overt form of discrimination than is demanded by the law and as a result hesitate to brand the employer as a racist.80 I have much sympathy for Ross’ reasoning. In chapter 2, I began explaining the concept of discrimination by saying that the popular conception of discrimination in society is that it is, among other things, an intentional, deliberate mistreatment of a person because of personal characteristics. Although this does not coincide with the legal conception of discrimination, adjudicators are not uninﬂuenced by this popular conception. In the eyes of society a ﬁnding of racial discrimination will be viewed as equivalent to pronouncing the employer to be an intentional racist. He is in effect being branded. In light of this, it would not be unlikely to ﬁnd that adjudicators are reluctant to infer racial discrimination without a ﬁnding of the employer’s dishonesty, the employer’s racist attitudes or some other evidence of a higher probative value than usual.

4.5. Complaint-Based Approaches Cannot Bring about Organizational Transformation a. Introduction Organizational transformation is the key to successfully addressing systemic discrimination. However, complaint-based approaches to antidiscrimination function in essence as dispute resolution systems rather than as active transformational mechanisms.81 They are reactive rather than proactive. They do not focus on employment systems as such, but rather on the retrospective unraveling of the discrete incident of discrimination – and only if a complaint is ﬁled. Most employment discrimination complaints only involve a single issue at a single workplace.82 In the words of one enforcement agency ofﬁcial in Canada: “Signiﬁcant progress toward equality has not been, and will not be, made through taking the same kinds of individual claims over and over again.”83 Complaint-based approaches have indeed played an important role in developing the law of discrimination. The development of the concept of indirect discrimination is a clear example of that. However, even the concept of indirect discrimination is limited in its focus on one or more speciﬁc policies or practices causing disparate impact.

80

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83

See Jenifer Ross, “The Burden of Proving Discrimination,” International Journal of Discrimination and the Law, 4 (2000): 95–117, 108–111. Shelagh Day, “Impediments to Achieving Equality” in Equality and Judicial Neutrality, edited by Sheilah Martin and Kathleen Mahoney (Toronto: Carswell, 1987), 403. R. Brian Howe and David Johnson, Restraining Equality: Human Rights Commissions in Canada (Toronto: University of Toronto Press, 2000), 125. Ibid.

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One must not underestimate the impact that precedent can have on the behavior of employers generally. The large monetary sums given to victims of sexual harassment in the USA have undoubtedly helped to spark the use of preventive actions designed to address harassment. However, precedent can only have an impact when employers in general view the problem as relevant to their workplace. It was shown in chapter 3 that one of the characteristics of systemic discrimination in employment is that it is difﬁcult to perceive. Most employers therefore do not perceive that they have a problem. This seriously limits the role that precedent can play in eliminating systemic discrimination. Many cases I describe in this thesis to help visualize systemic discrimination are of course cases which were generated through complaint-based processes. In some of them the complainants even won their cases. One may then ask: Why is this not an adequate response to systemic discrimination? The answer is largely to be found in the remedies available to courts upon a ﬁnding of discrimination. b. Traditional Remedies in Complaint-Based Approaches are Not Transformative States vary widely in the kinds of remedies available in discrimination cases; however, in general the most prevalent remedy appears to be an award of ﬁnancial compensation.84 Compensation may be awarded under such headings as loss of earnings (both past and future), injury to feelings, expenses incurred, aggravated damages and punitive (exemplary) damages. In addition, remedies may consist of an order or recommendation to refrain from discriminating against the complainant, or to take speciﬁed action to obviate the adverse effect on the complainant, or to come into compliance with antidiscrimination law. Injunctions may also be issued to enjoin an employer from further violations of antidiscrimination law. However, in some states, for example Great Britain and Australia, a recommendation or order of this type may only be tailored speciﬁcally to eliminate the negative effect on the complainant, and may not be used generally to prevent further discriminatory acts.85 Examples of orders made (not necessarily available in all states) are: (1) reinstatement of the complainant with or without seniority where unlawfully dismissed, (2) ordering that the complainant be hired, promoted or transferred to the position unlawfully denied or to the ﬁrst available position, (3) provision of training to the complainant, and (4) ordering an apology by the employer to the complainant. Common to all of these remedies is their limited ability to transform the employment systems (i.e., organisational policies and practices governing human resources management), which is the key to addressing systemic discrimination in employment. These remedies are for the most part restricted to making whole the individual complainant or for redressing the situation of the individual complainant.

84

85

Camilla Palmer et. al., Discrimination Law Handbook (London: Legal Action Group, 2002), 1015; Chris Ronalds, Discrimination Law and Practice (Sydney: The Federation Press, 1998), 195. The term damages is also used to refer to compensation. Camilla Palmer, op. cit., 1033; Rosemary Hunter, Indirect Discrimination in the Workplace (Sydney: The Federation Press, 1992), 267.

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In some jurisdictions, such as Great Britain and Northern Ireland, the remedy in indirect discrimination cases is somewhat deceiving. It appears to give the disadvantaged group a remedy because the trigger of the adjudicator’s scrutiny is disparate groupimpact. However, legally the remedy of the Employment Tribunal (Northern Ireland: Industrial Tribunal) is only to the individual in the form of compensation or a recommendation of individual accommodation. If the employer unreasonably fails to comply with the recommendation, the Employment Tribunal may increase the award of compensation or make an award if one was not previously made.86 “There is no power to make a recommendation generally to prevent further discriminatory acts.”87 Although many employers will remove the discriminatory barrier in order to avoid future legal proceedings, his legal requirement is only to compensate the individual victim who brought the legal action.88 Even in jurisdictions with more ﬂexible remedies for indirect discrimination,89 these will be limited to addressing the speciﬁc policy or practice found to be in violation of the law – and most often limited to a single workplace. There is also another problem worth considering. Although the concept of indirect discrimination focuses the adjudicator’s attention on disparate group-impact caused by a speciﬁc policy or practice, it does not necessarily mean that the broader issue of underrepresentation of a particular group in the workplace shall actually get addressed in the process. This was for example the case in the Meiorin decision (see section 2.3.c). The court did not address the broader question of whether women were underrepresented in the workplace. Although the removal of the unlawful policy in Meiorin is to be applauded, the complaint-based model left undiagnosed and unchanged the other barriers to equality resulting in underrepresentation. Moreover, proof of indirect discrimination does not necessarily mean that a court is able to fashion an appropriate remedy in all cases. The concept does not itself provide a standard for how the practice or policy should be altered.90 In some cases it may be easy for a court to determine this. However, in more complicated cases, for example, where there are many alternatives involving various degrees of economic costs, then it may be more appropriate for a regulatory body, in cooperation with the employer, to fashion a new practice or rule.

86

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88 89

90

Camilla Palmer et al., Discrimination Law Handbook (London: Legal Action Group, 2002), 1033. Ibid. In Northern Ireland the remedies are more ﬂexible regarding discrimination on grounds of religion and political opinion. In those kinds of cases an employment equity program may be ordered. Sandra Fredman, Discrimination Law (Oxford: Oxford University Press, 2002), 115. As a general rule, court orders in the USA enjoining the use of discriminatory selection criteria (and requiring changes in selection criteria) have been granted in class action cases. “In nonclass action cases, the courts have generally tailored the relief for the individual discriminatee.” Robert Belton, Remedies in Employment Discrimination Law (New York: Wiley Law Publications, 1992), 276. Titia Loenen, “Rethinking Sex Equality as a Human Right,” Netherlands Quarterly of Human Rights 12 (1994): 253–270, 266.

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Although these traditional remedies for discrimination are not active transformational mechanisms, it is likely that a well-publicized award against an employer for punitive damages in the millions of dollars for discriminatory practices, may indeed spark the implementation of changes within the affected institution, as well as in other institutions. The USA appears to be the only jurisdiction granting large awards of punitive (exemplary) damages in discrimination cases.91 For example, of all the awards of compensation made in federal discrimination cases in Australia under the Racial Discrimination Act, Sex Discrimination Act and Disability Discrimination Act from year 2000–2004, there was only one award of punitive damages and it was in the modest sum of $7,500.92 An award of punitive damages in Great Britain and Northern Ireland is very unlikely since such damages are not expressly authorized by the antidiscrimination laws.93 In Walter Tarnopolsky’s comprehensive treatise on discrimination law in Canada94 he catalogues a list of federal and provincial discrimination cases where an award of compensation was granted. Several of them involved an award of exemplary damages with the largest award being in the sum of $5,000. Norway and Sweden do not award punitive damages for violations of antidiscrimination laws. Prior to 1991 a complainant in the USA could only be awarded punitive damages for racial discrimination claims made pursuant to an old post-Civil War law, the Civil Rights Act of 1866 (42 USC § 1981 & 1983) which lay dormant until the 1960’s. However, the Civil Rights Act of 1991 introduced the possibility of an award of punitive damages in discrimination claims pursuant to the Civil Rights Act of 1964 (Title VII). Although the Civil Rights Act of 1991 set maximum amounts of punitive damages awards ($300, 000 for an employer with over 500 employees), the old Civil Rights Act of 1866 (§ 1981) continues to permit unlimited punitive damages. The vast majority of employment discrimination claims in the USA are made under the Civil Rights Act of 1964 (as modiﬁed by the Act of 1991). Few complainants will risk a law suit solely on the basis of the old Civil Rights Act of 1866 when one can have the Equal Employment Opportunity Commission (EEOC) carry out investigation and settlement efforts under the Civil Rights Act of 1964 without cost. However once efforts under the 1964 Act have failed

91

92

93

94

Under § 53(3) of the Canadian Human Rights Act there is a maximum of $20,000 for an award of damages for engaging in a discriminatory practice willfully and recklessly. See Human Rights and Equal Opportunity Commission, Federal Discrimination Law 2004 (Sydney: Common Wealth of Australia, 2004), 156–172. Camilla Palmer et al., Discrimination Law Handbook (London: Legal Action Group, 2002), 1027; Fair Employment Commission for Northern Ireland, Fair Employment Case Law: Religious and Political Discrimination in Employment, 4th edition (Belfast: 2000), 47. Northern Ireland does, however, authorize punitive damages in one particular situation. When a court has recommended that an employer implement an afﬁrmative action program to remedy discrimination on grounds of religion or political opinion, and the employer unreasonably fails to do so, then the court may order punitive damages for a sum up to £40,000. See § 39 (8)(b) of The Fair Employment and Treatment (Northern Ireland) Order 1998, No. 3162 (N.I.21). Walter Tarnopolsky and William Pentney, Discrimination and the Law, vol. 2, (Toronto: Carswell, 2001) 15–163 – 15–167.

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and litigation has been initiated, then it is quite usual for an allegation of discrimination under the 1866 Act to be tacked on. Of the jurisdictions examined, only the USA95 and Canada96 appear to authorize enforcement authorities to order the implementation of an employment equity (afﬁrmative action) program. An order of employment equity is also authorized in Northern Ireland to remedy discrimination on grounds of religion and political opinion.97 However, court-ordered employment equity programs also appear to be an inadequate response to systemic discrimination in employment. c. The Remedy of Court-Ordered Employment Equity Programs is an Inadequate Response to Systemic Discrimination in Employment Earlier I referred to several cases where complainants successfully won their cases, having proved systemic discrimination. In some of them, an employment equity program (afﬁrmative action program) involving preferential hiring/promoting was ordered by the court. Why is this not adequate to address systemic discrimination in employment? As noted before, broad-pattern systemic discrimination cases are extremely rare, and it is even rarer that the complainant actually succeeds and that the court orders the implementation of an employment equity program rather than a one-off remedy such as compensation. The amount of resources and energies required to prepare such cases and carry them through several levels of appeals, are formidable. The example of Canada is illustrative. A study carried out on the ﬁnancial, social, legal and policy pressures experienced by federal and provincial human rights commissions98 in Canada revealed the following: Although the commissions were convinced of the value of systemic investigations, ﬁscal restraints had forced them to re-evaluate their support for systemic initiatives and to question whether scarce resources may be better invested in traditional, individual investigation:99 The critical factor here is held to be the amount of time, effort, and funding required to assess and demonstrate systemic discrimination. Such investigations are far more complicated than ‘routine’ cases of individual discrimination, in that systemic investigations require timebased longitudinal studies of employment . . . practice affecting entire classes of people.100

95 96 97

98

99

100

See § 706 (g)(1) of Title VII of the Civil Rights Act 1964. See § 53(2)(a) of the Canadian Human Rights Act. See § 39 (1)(d) of The Fair Employment and Treatment (Northern Ireland) Order 1998, No. 3162 (N.I.21). Although these commissions are referred to in Canada as human rights commissions, they are in reality antidiscrimination enforcement agencies which investigate, and provide legal assistance to victims of, discrimination. They have no mandate for working with violations of other types of human rights. R. Brian Howe and David Johnson, Restraining Equality: Human Rights Commissions in Canada (Toronto: University of Toronto Press, 2000), 126. Ibid.

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The lack of resources is clearly a serious hinder to investigations of systemic discrimination and this means that there will always be very few such broad-pattern cases being adjudicated through complaint-based models. However, the answer to this question – Why court-ordered employment equity is not adequate to address systemic discrimination in employment? – is to be found somewhere else. The answer lies in the relative degree of organizational transformation that takes place via an adversarial process (through court-ordered employment equity programs) and in contrast via regulatory-based proactive obligation regimes such as contract compliance. As will be seen in chapters 7 and 8, the obligations under the latter programs are pervasive – involving potentially an assessment of the entire structure of policies and practices in the organization in order to identify and eliminate barriers to equality. The obligations are not limited to the problem areas about which the complainant has complained. The goal of the proactive obligation regimes is the elimination of organization-wide barriers to equality; the elimination of underrepresentation of protected groups is a byproduct of this – albeit a very signiﬁcant by-product. Court-ordered programs, particularly those whose major focus is preferential hiring and promoting, may eliminate underrepresentation in speciﬁc areas addressed in the adjudication while leaving other areas unaddressed. Moreover, the elimination of underrepresentation in itself does not necessarily mean that one has eliminated the causes of the underrepresentation, i.e., the barriers to equality. One may also legitimately question whether courts are less equipped than regulatory agencies to monitor and enforce such detailed and prolonged processes as the transformation of an organization’s employment systems and culture. In year 2000 an independent panel review of the Canadian Human Rights Act concluded that two of the three broad-pattern systemic discrimination decisions ordering employment equity programs, had not been effectively monitored and enforced.101 Although many American courts have taken up the task of monitoring court-ordered afﬁrmative action programs (with varying degrees of success), in many legal cultures, for example Great Britain, this would be an unthinkable task for the courts.102 In British Columbia (Public Service Employee Relations Commission) vs. B.C.G.E.U. (better known as the Meiorin decision)103 the Canadian Supreme Court opinion may help to explain the inadequacy of complaint-based models in addressing systemic discrimination. The Meiorin decision involved an employer’s use of an aerobics test to determine whether a person could work as a forest ﬁreﬁghter. The complainant was a woman

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The Canadian Human Rights Act Review Panel, Promoting Equality: A New Vision 2000, (Ottawa: 2000), 17. The two cases are: Action Travail des Femmes v. Canadian National Railway [1987] 1 S.C.R. 1147 and Gauthier v. Canada (1989), 10 C.H.R.R. D/6014 (Canadian Human Rights Tribunal). Patrick Atiyah and Robert Summers, Form and Substance in Anglo-American Law: A Comparative Study of Legal Reasoning, Legal Theory and Legal Institutions (Oxford: Clarendon Press, 1987), 152–153. [1999] 3 S.C.R. 3.

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who had worked successfully as a ﬁreﬁghter for three years, but was terminated after having failed to pass the test when it was subsequently introduced. The complainant proved a prima facie case of discrimination by showing that the test adversely affected women. The burden of proof then shifted to the employer. The employer was however unable to establish that the test was necessary in order to properly perform the duties of a ﬁreﬁghter. The test was not job-related. The employer was therefore in violation of the prohibition against sex discrimination. In the decision the court criticized the type of accommodation that seeks to solve systemic discrimination by assimilating persons into a mainstream without transforming the organizational practices and policies. Although the court’s criticism does not refer to the weaknesses of complaint-based systems as such, the parallel we may draw is quite clear. “The difﬁculty with this paradigm is that it does not challenge the imbalances of power, or the discourses of dominance, such as racism, able-bodyism and sexism, which result in a society being designed well for some and not for others. It allows those who consider themselves ‘normal’ to continue to construct institutions and relations in their image, as long as others, when they challenge this construction are ‘accommodated.’ Accommodation, conceived this way, appears to be rooted in the formal model of equality. As formula, different treatment for ‘different’ people is merely the ﬂip side of like treatment for likes. Accommodation does not go to the heart of the equality question, to the goal of transformation, to an examination of the way institutions and relations must be changed in order to make them available, accessible, meaningful and rewarding for the many diverse groups of which our society is composed. Accommodation seems to mean that we do not change procedures or services; we simply ‘accommodate’ those who do not quite ﬁt. We make some concessions to those who are ‘different,’ rather than abandoning the idea of ‘normal’ and working for genuine inclusiveness.” (emphasis added)104

I dare say that this position by the Canadian Supreme Court is quite exceptional – viewing the goal of institutional transformation as being at the heart of equality. Yet even with this judicial activist point of departure, the Meiorin decision still only involved one very speciﬁc transformation – the use of one test as a job qualiﬁcation for one speciﬁc job type. All of the other practices and policies of the entire organization were left untouched. Complaint-based processes are simply too speciﬁc and discrete to implement the broad-based and pervasive organizational transformation envisioned in regulatory-based employment equity obligations. d. Complaint-Based Approaches Breed Hostility which is Counter-Productive to Organizational Transformation One other factor should be mentioned: The climate of goodwill on the part of the employer will be absent where complaint-based processes are used. Although complaint-based approaches are based in civil law rather than criminal law, most employers will experience the process as focused on ﬁnding fault and blame. As the UK court

104

Ibid., para. 41.

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pointed out in Anya v. University of Oxford, the legal and evidential difﬁculties are increased by the emotional content of the cases: Feelings run high. The complainant alleges that he has been unfairly and unlawfully treated in an important respect affecting his employment, his livelihood, his integrity as a person. The person against whom an accusation of discrimination is made feels that his acts and decisions have been misunderstood, that he has been unfairly, even falsely, accused of serious wrongdoing. The accusations may not only be hurtful to him as a person but may also be damaging to his employment, his prospects and his relationships with others.105 (emphasis added)

Or even more poignantly in the words of Jenifer Ross: Finding that someone acted in a racially discriminatory manner is seen as equivalent to declaring them to be a (intentional) racist. They are indeed seen as being ‘branded’.106 (emphasis added)

This is so, despite the fact that no discriminatory intent need be proved. In light of this, complaint-based approaches will necessarily breed negative, defensive and conﬂictﬁlled responses. As noted earlier, experience has shown that complaints about systemic discrimination are particularly problematic in this regard. The discrimination complained of is subtle, difﬁcult to perceive and often involving facially-neutral policies or practices that have been long-standing. Complaints of this nature will often be viewed as disruptive and disloyal, both by employer and fellow employees. Complainants will often be viewed as seeking unwarranted special treatment. Moreover, discrimination cases, and particularly ethnic discrimination cases, often trigger very emotional responses. Employers react extremely defensively when complaints of this type are initiated. It is difﬁcult to bring about institutional or systemic change in a ﬁrm which has mobilized its forces to prove that there is nothing wrong with the ﬁrm’s policies or practices.

4.6. Conclusion In this chapter I have examined the limits and weaknesses of addressing systemic discrimination in employment, and in particular systemic ethnic discrimination, solely through complaint-based models of antidiscrimination law. I began with the recognition that complaint-based approaches have played an important role in eliminating many extreme and overt forms of discrimination – they are indeed necessary for clarifying and further developing the law of discrimination. Furthermore, they provide a crucial legal remedy for victims of discrimination seeking redress. However, the mechanisms of

105 106

Anya v. University of Oxford [2001] EWCA Civ 405, no. 9. Jenifer Ross, “The Burden of Proving Discrimination,” International Journal of Discrimination and the Law, 4 (2000): 95–117, 111.

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complaint-based approaches are demonstratively too speciﬁc and too selective in their capture, identiﬁcation and remedy of causes in the cycle of disadvantage to be capable, in itself, of delivering substantive equality.107 It is submitted that complaint-based models must be complemented by the use of contract-based and statutory-based obligations to promote ethnic equality. I explain in Part II why these proactive obligation regimes manage to capture, identify and remedy systemic discrimination in employment more effectively than complaint-based models. I end this chapter where I began – with the not too enlightening pronouncement that discrimination in employment persists despite the efforts of many states to eliminate it. When assessing the effectiveness of antidiscrimination law, one must necessarily have as a guide, the experiences of those who suffer from discrimination. For the victims, an antidiscrimination law obviously creates expectations that such a law will bring about a signiﬁcant change in the conditions of life which one associated with such discrimination.108 If the law in practice merely continues to replicate the status quo of disadvantage for these victims, then it will eventually be viewed as a legitimization of their disadvantage and subordination. The lofty promise of antidiscrimination law will become one more conﬁrmation that there will never be real change. When complaintbased models fail to capture, identify and remedy systemic discrimination, they at the same time contribute to segmenting those glass-ceilings and hidden barriers by conﬁrming that there is no problem. In light of this failure, it becomes all the more understandable why victims choose alternative ways to survive. It is a great injustice to be victimized because of the color of your skin, but it is a far far greater crime to be victimized by the very law which was to proclaim your equality. Alan Freeman conjures up a graphic image of the doctrinal reality of complaint-based models presented to black Americans:109 THE LAW: “Black Americans, rejoice! Racial discrimination has now become illegal.” BLACK AMERICANS: “Great, we who have no jobs want them. We who have lousy jobs want better ones. We whose kids go to black schools want to choose integrated schools if we think that would be better for our kids, or want enough money to make our own schools work. We want political power roughly proportionate to our population. And many of us want houses in the suburbs.” THE LAW: “You can’t have any of those things. You can’t assert your claim against society in general, but only against a named discriminator, and you’ve got to show that you are an individual victim of that discrimination and that you were intentionally discriminated against.* And be sure to demonstrate how that discrimination caused your problem,* for any

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109

Bob Hepple, “Have Twenty-ﬁve Years of the Race Relations Acts in Britain Been a Failure?” in Discrimination: The Limits of Law, edited by Bob Hepple and Erika Szyszczak (London: Mansell, 1992), 26–27. Alan Freeman, “Antidiscrimination Law: A Critical Review” in The Politics of Law: A Progressive Critique, edited by David Kairys (New York: Pantheon Books, 1982), 97. Alan Freeman, “Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine” in Anti-Discrimination Law, edited by Christopher McCrudden (Aldershot: Dartmouth, 1991), 283.

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Chapter 5 Ethnic Equality in Employment 5.1. Introduction: Formal and Substantive Equality Equality is a protean word. It is one of those political symbols – liberty and fraternity are others – into which men have poured the deepest urgings of their hearts. Every strongly held theory or conception of equality is at once a psychology, an ethic, a theory of social relations, and a vision of the good society.1

Equality is an elusive concept; it is constantly evolving. Notions of equality of centuries past are inadequate to meet the challenges of today. Our notion of equality today is not informed merely by formal equality (“like cases shall be treated alike”) but also by substantive equality. In antidiscrimination laws, judicial decisions and government programs and policies, we apply and promote both formal and substantive equality. Formal equality is the principle of consistency, referred to by some scholars as equality as consistency.2 It is perhaps best stated in the words of Aristotle: “[T]hings that are alike should be treated alike, while things that are unalike should be treated unalike

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2

John Schaar, “Equality of Opportunity, and Beyond” in Equality: Selected Readings, edited by Louis Pojman and Robert Westmoreland (New York: Oxford University Press, 1997), 137. Sandra Fredman, Discrimination Law (Oxford: Oxford University Press, 2002), 7; Catherine Barnard and Bob Hepple, “Substantive Equality,” in Cambridge Law Journal, 59, no. 3 (2000), 562.

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in proportion to their unalikeness.”3 Things and persons can of course be alike in many ways, while at the same time unalike in other ways. One must therefore identify relevant criteria so as to determine whether things or persons are alike such that they deserve to be treated alike in a speciﬁc context. The all-important question is thus: When are two things or persons relevantly alike or relevantly unalike? Let us take for example an employer who seeks to ﬁll a job. A formal approach to equality is concerned with whether the selection criteria actually used by the employer was a procedurally correct one4 or a statutorily impermissible criteria. An example of the former criteria would be work experience or education, while an example of the latter criteria may be the applicant’s race or sex. In applying equality as consistency in a particular case, one must necessarily identify the relevant criteria (for the distribution of advantages or disadvantages) and apply them consistently, but one need not look to the consequences of having chosen such criteria. If the selection criteria actually used is a statutorily-impermissible one, then the principle of equality of consistency is violated. On the other hand, if the criteria applied are not forbidden by law, then the principle of equality as consistency is not violated. In either case the application of the principle is rather mechanical in that it does not consider the consequences of the application of selection criteria that are not forbidden by law.5 The principle of equality as consistency may thus be satisﬁed in a given case even if the choice of selection criteria is not necessary and results in an unjustiﬁable increase in social inequalities.6 Substantive equality, on the other hand, is concerned with the consequences of the choice of relevant criteria on the actual distribution of advantage and disadvantage.7 While the principle of equality as consistency is concerned with a comparison of treatment, substantive equality is concerned with a comparison of consequences. Not only is substantive equality concerned with the impact on distribution of advantages and dis-

3

4 5

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7

Aristotle, Ethica Nichomacea, Bok V3, s. 1131a–6, (translated by W. Ross, Oxford: Clarendon Press, 1925) quoted in the Canadian Supreme Court decision Andrews v. Law Society (British Columbia), [1989] 1 S.C.R. 143, 166. The term procedural equality is often used as a synonym for formal equality. When enacting antidiscrimination legislation (embodying the principle of equality as consistency), legislators do indeed look to the consequences of unjustiﬁable differential treatment on the basis of personal characteristics such as race, religion, sex etc. It is precisely these consequences which engender the need to enact legislation. In the application of equality as consistency, however, the process becomes: (1) a comparison of the situation and treatment of individuals – the complainant and the comparator, and (2) a determination whether any unjustiﬁable difference in treatment is linked to statutorily-forbidden personal characteristics. This process is in effect carried out so as to identify the “relevant” criteria actually used by the alleged discriminator. In doing so, one can then know whether it is a statutorily forbidden or permissible criteria. This process of comparison does not involve any consideration of the consequences of applying facially-neutral criteria. Colleen Sheppard, Study Paper on Litigating the Relationship Between Equity and Equality (Ontario: Ontario Law Reform Commission, 1993), 4. Sandra Fredman, Discrimination Law (Oxford: Oxford University Press, 2002), 11.

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advantages, it also embodies a normative commitment to reducing disparities between groups, a commitment to reducing the social, political and economic disadvantages of subordinated groups in society.8 A substantive approach to equality poses the questions: Is difference converted into disadvantage? Is it justiﬁable? And if not justiﬁable, how may the disadvantage be reduced? This normative commitment may be manifested in various ways, for example, through legislation, in judicial decisions, and in government programs. It may be manifested in group-oriented approaches or individual-oriented approaches, in complaintbased approaches or in regulatory-based approaches such as contract compliance.9 Some approaches to substantive equality are more accepted than others. The prohibition of indirect discrimination has over the last 30 years become a well-established substantive approach to equality, developed both through judicial construction and statutory construction. As explained in chapter 2 the concept of discrimination today embraces also a prohibition against indirect discrimination. This is reﬂected both at the national level as well as in the interpretation of international human rights treaties by treaty enforcement bodies. Indirect discrimination is when persons in relevantly different situations are treated on the basis of factors other than prohibited characteristics (i.e., treated in a facially neutral way), yet this results in unjustiﬁable, disadvantageous and differential consequences (for a speciﬁc group) causally linked to a prohibited characteristic. The elimination of indirect discrimination is thus one way of reducing an unequal distribution of advantages and disadvantages. Other more controversial substantive approaches to equality demand outcomes which are equal. Examples of this are preferential hiring and preferential promotion. However, there are various kinds of preferential hiring and promotion – some more controversial than others. Some approaches involve the selection of a person from a speciﬁc group if the applicants are equally meritorious (weak preferential treatment), while other approaches involve such a selection so long as the member of the group is qualiﬁed for the position, regardless of whether a competing applicant is more qualiﬁed (strong preferential treatment). Some approaches to preferential hiring and promotion are less controversial, for example, when it is done by way of court order in order to rectify proven discrimination. Court-ordered positive action (UK), afﬁrmative action (USA) and employment equity (Canada) that do not involve preferential selection are also designed to promote substantive equality. Some measures are tailored to ensure that the processes for 8

9

See Gwen Brodsky and Shelagh Day, “Beyond the Social and Economic Rights Debate: Substantive Equality Speaks to Poverty,” Canadian Journal of Women and the Law 14 (2002): 185–220, 207: “It may be that the most important thing about formal equality is what it lacks. Formal equality lacks a normative commitment to reducing disparities between groups.” See also Béatrice Vizkelety, “Adverse Effect Discrimination in Canada: Crossing the Rubicon from Formal to Substantive Equality” in Non-Discrimination Law: Comparative Perspectives, edited by Titia Loenen and Peter Rodrigues (The Hague: Kluwer Law International, 1999), 233. See also Rosalie Silberman Abella, Equality in Employment: A Royal Commission Report (Ottawa: Minister of Supply and Services Canada, 1984), 6. Contract compliance is the use of the public procurement process as a means to promoting equality in employment. Contract compliance is discussed in detail in chapter 8.

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distributing advantages and disadvantages at the workplace work equally well for all persons, while other measures are more focused on outcomes (salary levels, placement in organizational hierarchy, representation in numbers). Substantive approaches to equality also include regulatory regimes which impose statutory-based and contractbased proactive obligations on employers to promote equality in employment. These last two are the subject matter of this thesis. The normative commitment of substantive equality is not built upon utopian illusions. The antidiscrimination measures mentioned above are pragmatic; they do not envision an accomplished moment or state of absolute equality. The value in the concept of equality is the commitment to achieving it. Without this commitment, equality is an empty abstraction. As Judge Rosalie Abella put it: It is probable that absolute equality is unattainable. But even if it is, no civilized society worthy of the description can afford not to struggle for its achievement. We may not be able to achieve absolute equality, but we can certainly reduce inequality.10

In this thesis I avoid as much as possible the terms equal opportunity and equality of opportunity. I use them only when they are explicitly referred to in various legal regimes of the countries examined in this thesis, or in the legal literature. These ambivalent terms have been adopted as rhetoric by both those who argue for a restrictive view of antidiscrimination (largely limiting it to equality as consistency) as well as those who argue for an expansive view of antidiscrimination (tending towards equality of outcome). Equality of opportunity can thus refer to any of an entire range of views.11

5.2. Equality Before the Law and the Equal Protection of the Law The notions of formal equality12 and substantive equality are reﬂected to a certain degree in the terms equality before the law and equal protection of the law – the two latter terms being those most often used in international human rights instruments and national legislation and constitutions. Article 26 of the CCPR states: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (emphases added) 10

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Rosalie Silberman Abella, Equality in Employment: A Royal Commission Report (Ottawa: Minister of Supply and Services Canada, 1984), 6. Kimberlé Williams Crenshaw, “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law” in Critical Race Theory: The Key Writings that Formed the Movement, edited by Kimberlé Crenshaw, Neil Gotanda, Gary Peller and Kendall Thomas (New York: The New Press, 1995) 106. Formal equality is also known as “procedural equality” and “equality as consistency”.

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Equality before the law is an aspect of formal equality (or procedural equality), i.e., an aspect of the principle that like cases shall be treated alike. More speciﬁcally, it has to do with the equal application of a given law in comparable situations, irrespective of the party involved. “The right to equality before the law thus is not directed at legislation but rather exclusively at its enforcement. It essentially means that judges and administrative ofﬁcials must not act arbitrarily in enforcing laws.”13 (italics in original) The principle of equality before the law is thus not violated by the enactment of inequitable laws; it does not question the content of the law. The inequity of the laws of South Africa under apartheid and of the deep south in the USA under segregation, were completely compatible with the principle of equality before the law. The principle only states that a given law shall be applied uniformly in similar cases.14 The principle of equality before the law will therefore always be subject to a further inquiry: Are the cases or circumstances similar enough to have the given law applied to them in the same way? Unable to question the content of the law, the principle of equality before the law can therefore not embrace the concept of indirect discrimination. The uniqueness of the latter concept is precisely its ability to question the content of laws which are facially neutral, but which have a disproportionate effect, disadvantaging speciﬁc groups. Furthermore, despite the similarities of the principle of equality before the law and the concept of direct discrimination (i.e., consistent treatment of like cases), the two are not equivalents. I have just mentioned that the concept equality before the law is compatible with inequitable laws. On the other hand, it is perfectly clear that a prohibition against direct racial discrimination is incompatible with inequitable laws based on apartheid and segregation. The requirement of formal equality (i.e., that like cases shall be treated alike) may also be demanded of the legislative body. Such is done in a prohibition of direct discrimination. Hence, the principle of equality before the law is merely one, albeit a signiﬁcant, aspect of formal equality (equality as consistency).15

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Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, (Kehl: N.P. Engel Verlag, 1993), 466. See also Torkel Opsahl, “Equality in Human Rights Law,” in Festschrift für Felix Ermacora, edited by Manfred Nowak, Dorothea Steurer and Hannes Tretter (Kehl: N.P. Engel Verlag, 1988), 53; Asbjørn Eide and Torkel Opsahl, Equality and Non-Discrimination (Oslo: Norwegian Institute of Human Rights, 1990) (Publication No. 1), 7. Bossuyt argues that this principle is hardly needed: “Applying the same rule differently in identical cases would constitute as much an incorrect application of the legal provision in question as a violation of the equality principle.” Marc Bossuyt, “The Principle of Equality in Article 26 of the International Covenant on Civil and Political Rights” in The Limatiation of Human Rights in Comparative Constitutional Law, edited by Armand de Mestral et al. (Cowansville: Les Éditions Yvon Blais, 1986), 280. See Schöpp-Schilling’s deﬁnition of formal equality as identical treatment both before and under the law. Hanna Beate Schöpp-Schilling, “Reﬂections on a General Recommendation on Article 4(1) of the Convention on the Elimination of All Forms of Discrimination Against Women” in Temporary Special Measures: Accelerating De Facto Equality of Women under Article 4(1) UN Convention on the Elimination of All Forms of Discrimination Against Women, edited by Ineke Boereﬁjn et al. (Antwerpen: Intersentia, 2003), 25.

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Equal protection of the law is on the other hand concerned with substantive equality. It is addressed to the legislator, and it makes demands as to the content of the laws enacted. The wording was originally formulated in the Constitution of the United States, Fourteenth Amendment, section 1: “. . . nor [shall any state] deny to any person within its jurisdiction the equal protection of the laws.” Given the Fourteenth Amendment’s origin and purpose – the abolition of slavery and the extension of equality to all persons irrespective of their race – most scholars agree that the principle of equal protection of the law embodies within it an obligation of non-discrimination. This is also so with respect to the principle of equal protection of the law in Article 26 of the CCPR. Nowak argues that the obligation of non-discrimination is a speciﬁcation of the principle of equal protection of the law: [T]he prohibition of discrimination and the obligation to guarantee protection against discrimination in the second sentence of Art. 26 merely seem to be a speciﬁcation of the words ‘equal protection’ and ‘without any discrimination’ in the ﬁrst sentence.16

Beyond this, however, there is no agreement as to what exactly equal protection of law means. For example, the principle of equal protection of law in the Canadian Charter of Rights and Freedoms would prohibit a law which had either the purpose or effect of discriminating on the basis of, among other things, race.17 The Canadian principle thus also prohibits indirect discrimination, i.e., facially neutral laws having a discriminatory effect. On the other hand, the equal protection clause of the USA Constitution has been interpreted such that it only prohibits laws which have a discriminatory intent or purpose.18 The Fourteenth Amendment thus does not prohibit indirect discrimination (USA: adverse impact discrimination).19 On the other hand, USA’s antidiscrimination law, Title VII of the Civil Rights Act 1964 does prohibit indirect discrimination (USA: adverse impact discrimination). The content of equality may thus differ, depending upon whether the equality rights claimed operate on the level of constitution or legislation. This thesis has as its focus the antidiscrimination laws of the countries examined, so it is in these laws that I seek and propose my deﬁnition of ethnic equality in employment.

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18 19

Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, (Kehl: N.P. Engel Verlag, 1993), 468. See Law Society of British Columbia v. Andrews (1989) 1 S.C.R. 143, which involved discrimination on grounds of nationality. See Washington v. Davis, 426 US 229 (1976) at 248. The 14th Amendment only prohibits state discriminatory action and it does not impose any obligation on state or federal authorities to enact legislation prohibiting discrimination by nonstate parties. Title VII of the Civil Rights Act 1964, which prohibits private employment discrimination, is thus not enacted pursuant to the authority of the equal protection clause of the 14th Amendment, but rather pursuant to the Interstate Commerce Clause of the Constitution. Title VII does prohibit indirect discrimination (adverse impact discrimination).

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5.3. Ethnic Equality in Employment This thesis is about the promotion of ethnic equality in employment. But what is ethnic equality in employment? We know that equality is comprised of both formal equality and substantive equality. Although the content of the concept of equality cannot be pinned down with exact precision, at its very least equality is freedom from discrimination.20 So at its very least, ethnic equality is freedom from ethnic discrimination.21 Equality and non-discrimination are not equivalents. Not all disadvantage is a result of discrimination. Moreover, discrimination encountered in one arena (such as in education) can lead to disadvantage in another arena (such as in worklife). However, if we limit our perspective to things that are workplace-related, then ethnic equality at the workplace is a workplace that is free of workplace-related discrimination. The concept of ethnic equality is not static; it is dynamically changing, depending upon time and place. A core focus of the concept of ethnic equality is on disadvantage, individual and group, social, economic and political disadvantage connected to ethnicity. Disadvantage changes over time with the development of society. What society perceives and acknowledges as disadvantage also changes over time. The presence of disadvantage – even the recognition of disadvantage – may differ from country to country. In some countries the use of a minority language as one’s mother tongue may entail a signiﬁcant disadvantage, while other countries may have no signiﬁcant presence of minority languages within its borders. What is less understood is that the concept of ethnic equality must also focus on the structure of advantage in the workplace.22 As shown in chapter 3, many barriers to equality in employment – in the form of systemic discrimination – are hidden in the ordinary administrative and social structures of the workplace. They are not perceived as advantage for the dominant ethnic group primarily because of four reasons: (1) The employment policies and practices appear fair and self-evident because they apply to everyone and have probably existed over a long time. (2) There is in most cases a lack of aggregate data with respect to the policies and practices which could show that they imply advantage for the dominant ethnic group. (3) Some of the reasons the policies and practices imply advantage for the dominant ethnic group, has to do with factors outside of the workplace. This outside-world impact is thus more difﬁcult to perceive. For example, segregated social networks outside of the workplace will mean that the use of a word-of-mouth recruitment policy will always work to the advantage of the dominant ethnic group comprising the workforce.

20

21 22

Rosalie Silberman Abella, Equality in Employment: A Royal Commission Report (Ottawa: Minister of Supply and Services Canada, 1984), 1. See section 2.5 for a discussion of ethnic discrimination and the meaning of ethnicity. See Barbara Reskin, “The Proximate Causes of Employment Discrimination,” Contemporary Sociology 29, no. 2 (2000): 319–328, 322, pointing out that “at least in the lab, the unequal treatment associated with group membership results more often from ingroup preference than outgroup antipathy.”

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(4) People are unaware of their own ingroup favoritism; they are unaware of why they feel more comfortable for example with people of their own ethnic, social, cultural and religious background. Assumptions as to cultural ﬁt in the workplace, for example, imply clear advantages for the dominant ethnic group. But this is not viewed as advantage; it is the mere choice of someone who is perceived as the best candidate. People are sorrowfully unaware of how social and cultural inﬂuences order the way we perceive, interpret, encode, retain and recall information about other people23 – and in so doing, affect our choices. Ethnic equality in employment thus entails: (1) an inquiry into the structure of advantage and disadvantage at the workplace, (2) the implementation of measures so as to make advantage and disadvantage visible and (3) the transformation of these structures so as to remove unjustiﬁable barriers and unjustiﬁable privileges which hinder ethnic minorities in their: (a) access to employment, and (b) participation, development and enjoyment of beneﬁts at the workplace. Informed by the working deﬁnition of systemic discrimination in employment in this thesis, the concept of ethnic equality in employment, as used in this thesis, means workplaces that: (1) Have employment systems that work for all – that do not entail unjustiﬁable privilege for some ethnic groups while unjustiﬁable disadvantage to others. That organizational policies and practices concerning recruitment and selection, training and development, promotion, work assignment, performance appraisal, compensation, retention and termination are formed and structured so as to serve multi-ethnic groups. (2) Have an organizational culture that: (a) is inclusive of all ethnic groups rather than exclusive of some, (b) attaches positive values to the ethnic diversity of the workplace, (c) condemns and disciplines acts of prejudice, ethnic discrimination, ethnic harassment and racist speech and (d) is sensitive to cultural and religious differences among employees. These elements should be reﬂected in formal and informal social behavior, communication, decision-making and interpersonal relationships. (3) Have a degree of numerical representation and distribution in the workforce approximately equivalent to the availability of ethnic minorities in the labor market – availability meaning what would normally be expected based on the composition of the relevant qualiﬁed ethnic minorities in the labor supply pool. In the remainder of this thesis I shall use the terms ethnic equality in employment and systemic ethnic discrimination in employment as positive and negative ways of speaking of the same phenomenon. Consequently, to promote ethnic equality in employment is to ﬁght against systemic ethnic discrimination in employment. Likewise, to work

23

Linda Krieger, “The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity,” Stanford Law Review 47 (1994–1995): 1161–1248, 1187–1188.

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against systemic ethnic discrimination in employment is to promote ethnic equality in employment. Furthermore I use the term systemic ethnic discrimination in employment to refer to systemic discrimination in employment which is connected to race, ethnic origin, national origin, color or descent.24 Part II of this thesis searches for a rational government policy response to systemic ethnic discrimination in employment, i.e., a rational policy for promoting ethnic equality in employment.

24

See section 2.5 for a discussion of these terms.

PART II

Chapter 6 Proactive Obligations to Promote Equality in Employment: An Introduction 6.1. Introduction In previous chapters I have pointed out how traditional antidiscrimination laws have primarily addressed discrimination in employment on a micro-level, and how the mechanism for identifying and remedying discrimination has been based upon a complaint-based model.1 Furthermore, I pointed out the limits and weaknesses of complaint-based approaches in addressing systemic discrimination in employment. It is often stated that traditional complaint-based models of antidiscrimination law involve negative obligations. The law typically prohibits discrimination (direct and

1

Complaint-based antidiscrimination laws secure an important human right. State parties to the UN Convention on the Elimination of All Forms of Racial Discrimination, the UN Covenant on Civil and Political Rights and the European Convention on Human Rights are all obligated to provide for an effective judicial remedy to victims when the respective prohibitions of discrimination in those conventions have been violated. It is crucial that the victims of discrimination have a right to pursue their claims legally and to receive just remedies when breaches are ascertained.

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indirect) and provides some sanction if violated. In an employer context, this means that an employer must refrain from doing something – he or she must refrain from doing acts of discrimination. However, the law does not typically state that the employer is obligated to carry out any speciﬁc action. A prudent employer would adopt an equality policy showing all employees, partners and the local community that there is top-level management commitment to ensuring equality at the workplace, but there is nothing forcing him/her to do so. A prudent employer would review and monitor its policies and practices so as to prevent indirect discrimination, but there is nothing forcing him/her to do so. An employer may simply do nothing and hope for the best. Indeed many employers are simply not aware of the presence of discrimination at the workplace. Such employers, of course, run the risk that victims of discrimination will ﬁle complaints alleging discrimination at the workplace. Whether or not an employer has violated his/her negative obligation to refrain from discrimination, will be determined by the victim’s ability to prove discrimination and the acceptance of that proof by a court, tribunal or some other adjudicatory body. Compliance with a complaint-based antidiscrimination law thus entails the absence of identiﬁable and provable differential treatment or effect establishing discrimination.2 This is a signiﬁcant disincentive for employers to collect information which could help to show the dynamics of non-conscious bias or disparate impact upon non-dominant groups. Although a non-compliant employer risks an adjudicator’s enforcement of sanctions, as pointed out in chapter 4, there is often little direct evidence of discrimination. Employers can also be expected to contest the facts or inferences alleged by complainants. Relative to the number of complaints of discrimination ﬁled, the risk of an employer being adjudicated a discriminator is statistically quite small. In light of the limitations discussed in chapter 4 and in light of the persistence and prevalence of discrimination, and in particular systemic discrimination, several countries have chosen to address discrimination in employment by also adopting regulatory regimes which impose proactive obligations on employers and/or contractors to promote equality in employment. These obligations are not dependent upon proof of discrimination. Under these regimes employers are obligated to carry out preventive actions. If the employer does nothing (or acts insufﬁciently), he or she is in violation of the obligation, without any regard to whether discrimination has occurred. In essence, there is no need for proof of discrimination; there is no need for a victim of discrimination.3 The kinds of proactive obligations imposed are often of a type that would: (a) empower the employer itself to reveal discrimination which occurs at the workplace, and (b) require the employer to systematically prevent and eliminate the discrimination. Compliance is “achieved through and evaluated in relation to, improving institutional

2

3

Susan Sturm, “Second Generation Employment Discrimination: A Structural Approach,” Columbia Law Review 101 (2001) 458–561, 463. It is arguable that many proactive obligations imposed on employers are the kind of actions that a wise employer should already be doing in order to avoid indirect discrimination in the workplace.

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capacity to identify, prevent, and redress exclusion, bias, and abuse.”4 The mechanism for achieving compliance with proactive obligations is more regulatory than adversarial. Typically, an enforcement agency is authorized to provide guidance and to negotiate with employers who do not carry out their proactive obligations. The burden is on the employer to document to the enforcement authorities that it has fulﬁlled its obligations. Some form of sanction is, however, usually available in cases where employers simply refuse to comply with their proactive obligations. The move from the negative obligations of complaint-based approaches to the use of proactive obligations means that the focus shifts from “Who has done something wrong?” to “Who is in the best position to promote equality in employment?” The focus shifts from the compensation of individuals for unlawful discrimination to the transformation of organizational policy, practice and culture at the workplace. The focus is on the participation and inclusion of disadvantaged groups rather than on the identifying of individual victims. The burden of identifying and reporting discrimination shifts from the victim to the employer, and in many cases to the employer’s professional human resources managers, who have greater expertise and tools (e.g., data collection and analysis) for recognizing more subtle forms of discrimination. The strategy is proactive and anticipatory rather than reactive and retrospective. This thesis examines two different types of regimes which impose proactive obligations upon employers/contractors to promote equality: (1) Statutory-based obligations imposed on employers of a speciﬁc type. The thesis examines such regimes in Canada, Great Britain, Northern Ireland, Sweden and Norway. (2) Contract-based obligations imposed on contractors of a speciﬁc type entering into public procurement contracts with the government, for example contracts to supply services, goods or construction works. This regime is known in English as contract compliance. The thesis examines such regimes in the USA, Canada, Great Britain and Sweden.

6.2. Terminological Clariﬁcation The positive obligations imposed on employers are referred to in the USA as afﬁrmative action and in Canada as employment equity. The term afﬁrmative action is a very maligned term in the equality discourse of today, carrying with it many negative connotations which often preclude sober discussion. The term is often used in the mass media to refer to preferential treatment in selection, including the use of quotas. However, none of the proactive obligation regimes examined in this thesis requires preferential hiring or preferential promotions. Indeed the USA contract compliance program

4

Susan Sturm, “Second Generation Employment Discrimination: A Structural Approach,” Columbia Law Review 101 (2001) 458–561, 463.

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prohibits an employer’s use of quotas, preferential hiring or preferential promotion. Such is the confusion of the afﬁrmative action debate of today. As Faye Crosby put it: Controversy and clear thinking do not always go hand in hand. Sometimes, loud disagreements derive primarily from people having different interpretations of the same words. But when people become very attached to one point of view or another, they can refuse to clarify what the words mean.5

In light of this, it would be useful to clarify the meaning of the term afﬁrmative action in an employment context. The term afﬁrmative action has its origins in Executive Order 11246, signed by President Johnson in 1965, imposing contract-based proactive obligations on speciﬁed federal contractors wanting to participate in public procurement contracts. This program goes under the name contract compliance. The framework of this executive order and its obligations is the source of what is often called the classical deﬁnition of afﬁrmative action: “[T]he expenditure of energy or resources by an organization in the quest for equality among individuals from different, discernible groups.”6 Although there is no one deﬁnition of afﬁrmative action which is acceptable to all, this deﬁnition, or variations of it, has widespread acceptance among both proponents and opponents of afﬁrmative action.7 Since 1965 other types of afﬁrmative action programs have been implemented in the USA. Some have been initiated by government; others have been voluntarily adopted. These programs are extremely varied. For example, some are designed to promote equality for women and ethnic minorities in education, to promote the use of minorityowned businesses receiving federal procurement contracts, to increase the number of minority-owned media companies being allocated licenses for broadcast frequencies. Some of these programs use set-asides or other forms of preferential consideration based on race or sex. Some of these programs, for example the set-asides programs of the Small Business Administration, were adopted in light of congressional ﬁndings that widespread discrimination in access to ﬁnancial credit inhibited minority-owned businesses from having an equal opportunity to develop.8 Such a congressional ﬁnding was recognized by the Supreme Court in Fullilove v. Klutznick,9 which upheld a set-aside program established by Congress at the Department of Transportation. Two later Supreme Court decisions, City of Richmond v. J.A. Croson Co.10 and Adarand Constructors Inc. v. Pena11 have severely criticized the use of set-aside programs and 5

6

7 8

9 10 11

Faye Crosby, “Words Worth of Wisdom: Toward an Understanding of Afﬁrmative Action,” Journal of Social Issues, 52, no. 4 (1996): 33–49, at 33. Faye Crosby, Afﬁrmative Action is Dead; Long Live Afﬁrmative Action (New Haven: Yale University Press, 2004) 5. Ibid. George Stephanopoulos and Christopher Edley, Afﬁrmative Action Review: Report to the President (Executive Ofﬁce of the President, 19 July 1995) 55. 448 U.S. 448 (1979). 488 U.S. 469 (1989). 515 U.S. 200 (1995).

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established very stringent rules for when they may be used. As a result, government use of such programs has been reduced. The association of the term afﬁrmative action with preferential treatment in selection can at least partially be explained by the characteristics of some of these later programs. These abovementioned programs differ markedly, however, from the contract compliance program which imposes proactive obligations on speciﬁed contractors to promote equality in the workplace. It is apparent that any discussion of afﬁrmative action must thus clarify what type of afﬁrmative action program one is referring to. This thesis is limited to an examination of regulatory-based proactive obligations imposed on employers and/or contractors for the purpose of promoting (ethnic) equality in the workplace. It does not address afﬁrmative action in general; nor does it address the use of afﬁrmative action in education or to promote minority-owned businesses. Moreover, this thesis is limited to an examination of proactive obligations imposed on employers and/or contractors through regulatory regimes. This therefore excludes any afﬁrmative action or employment equity imposed on employers through court orders or judicial consent decrees. The sources of afﬁrmative action programs at an individual workplace are often of three different types: (a) Court-ordered afﬁrmative action programs, which are imposed on an employer in light of court ﬁndings of discrimination. These afﬁrmative action programs may lawfully entail preferential hiring and preferential promotion – at least in the USA, Canada and Northern Ireland. (b) Regulatory-based afﬁrmative action programs, such as the contract compliance program imposed under Executive Order 11246. Preferential hiring and preferential promotion is prohibited under such programs. (c) Voluntary afﬁrmative action programs adopted by an employer. Preferential hiring and preferential promotion are usually not permitted, but may be permitted if the employer has convincing evidence of its own prior discrimination at the workplace.12 This is at least the case in the USA, Canada and Northern Ireland. Given such differences in the content of afﬁrmative action programs and in the sources of afﬁrmative action programs, it is not surprising that the term afﬁrmative action has come to mean different things to different stakeholders in the debate. Because of the abovementioned confusion and the pejorative nature of the term afﬁrmative action, the Canadian discourse, legal literature and legislation shifted from the use of the term afﬁrmative action in the 1970’s to the term employment equity.13 Judge Rosalie Abella provides a well-reasoned explanation for this shift:

12

13

Wygant v. Jackson Board of Education, 476 U.S. 267 (1986) at 277–278. See also United Steelworkers of America v. Weber, 443 U.S. 193 (1979) and Johnson v. Transportation Agency, 480 U.S. 616 (1987). The regulatory-based proactive obligations imposed upon employers and/or contractors to promote equality in employment are referred to in the various countries examined as follows: Canada uses the term “employment equity obligations”; USA uses the term “afﬁrmative

178

Chapter 6 The language that has collected around the issue of equality often produces overwhelmingly emotional responses. . . . Often the words themselves rather than the issues trigger intellectual resistance. Their use almost instantly produces a protective wall through which reason cannot easily penetrate. In such cases it is sometimes worth changing the language in order to allow the debate to unfold on a more reasonable level. The duel should be between principles and not between reﬂexes. The Commission [proposes] that a new term, ‘employment equity’, be adopted to describe programs of positive remedy for discrimination in the Canadian workplace. No great principle is sacriﬁced in exchanging phrases of disputed deﬁnition for newer ones that may be more accurate and less destructive of reasoned debate.14

In this thesis I have chosen to refer to the kinds of regulatory-based proactive obligations imposed on employers and/or contractors simply as proactive obligations. There are several reasons for this: (1) The expression proactive obligations is free of the kinds of negative connotations associated with alternative expressions. (2) The term afﬁrmative action is unavoidably associated with outgroups. It is viewed as special help for outgroups disadvantaged by discrimination. The focus is on the outgroups. However, many of the regulatory-based positive obligations imposed on employers involve the assessment and transformation of the organizational policies, practices and culture of the ingroup.15 Use of the term proactive obligations avoids this inevitable focus on the characteristics of the outgroups. (3) Use of the expression proactive obligations helps to avoid potential confusion. Let me explain. As will be shown later in chapters 7 and 8, there are several typical kinds of proactive obligations imposed upon employers. They include such things as: (a) collecting data on the workforce so as to analyze whether there is an underrepresentation of ethnic minorities, women, etc in the workforce; (b) carrying out reviews of one’s employment systems (employment policies and practices) so as to reveal hidden barriers to equality, (c) designing a plan so as to promote equality in the workplace; and (d) implementing remedial action to eliminate the barriers to equality revealed in the employment systems review. The term afﬁrmative action is often only associated with the obligation to implement remedial action, i.e., the active measures taken to actually eliminate the barriers to equality. This is, for

14

15

action obligations”; Great Britain uses the expression “statutory duty to promote racial equality”; Northern Ireland uses the expression “statutory duty to promote equality”; Sweden uses the term “aktiva åtgärder” (active measures); and Norway uses the term “aktivitetsplikt” (duty to act). Rosalie Silberman Abella, Equality in Employment: A Royal Commission Report (Ottawa: Minister of Supply and Services Canada, 1984), 6–7. Carol Bacchi, “The Practice of Afﬁrmative Action Policies: Explaining Resistances and How these Affect Results” in Temporary Special Measures: Accelerating De Facto Equality of Women under Article 4(1) UN Convention on the Elimination of All Forms of Discrimination Against Women, edited by Ineke Boereﬁjn et al. (Antwerpen: Intersentia, 2003) 75–76.

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example, how the term afﬁrmative action is used in Northern Ireland legislation.16 The term proactive obligations reﬂects in a far better way the various kinds of obligations required of employers. (4) Use of the word proactive in the term proactive obligations accurately describes the nature of the obligation imposed on employers. The term sets these kinds of obligations in stark contrast to the negative obligations of traditional complaint-based models of antidiscrimination law. With this as my background, I present in chapters 7 and 8 the various proactive obligation regimes examined in this thesis.

16

See Article 55 of the Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO).

Chapter 7 Statutory-Based Proactive Obligations to Promote Equality in Employment: Five Approaches 7.1. Canada a. Introduction Canada adopted its ﬁrst statutory-based employment equity obligations in the federal Employment Equity Act 1986. The act was speciﬁcally intended to address the problem of systemic discrimination in employment which was put on the political agenda in 1984 by the royal commission report on equality in employment.1 The act was in essence the embodiment of the report’s proposals for a systemic response to systemic discrimination. This act was later repealed upon the adoption of a new federal

1

Rosalie Silberman Abella, Equality in Employment: A Royal Commission Report (Ottawa: Minister of Supply and Services Canada, 1984).

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Employment Equity Act in 1995. The 1995 Act is intended to promote equality in employment for four designated groups: (1) visible minorities, which are deﬁned in the act as persons, other than aboriginal peoples, who are non-Caucasian in race or nonwhite in color; (2) women, (3) aboriginal peoples, and (4) persons with disabilities. (These four groups are hereafter referred to collectively as designated groups.) The Act is supplemented by Employment Equity Regulations of 1996. The obligations of the Act and Regulations are administered through a program called the Legislated Employment Equity Program (LEEP).2 The two major categories of employers covered by the Act are as follows: First, federally-regulated private sector employers and Crown corporations that employ 100 or more employees and are involved in a federal undertaking (for example, banking, communications and transportation). In year 2001 there were almost 450 federally regulated private sector companies covered under the Act with a combined workforce of some 635,000 employees.3 The second major category of employers covered by the Act is all federal departments, agencies and commissions, irrespective of the number of employees.4 In 2001 there were 65 federal departments, agencies and commissions with a combined employee population of 149,339 persons.5 b. Obligations Imposed on Employers Under the Act The Employment Equity Act speciﬁes rather detailed obligations that all employers are expected to carry out. Under § 5 of the Act all employers covered under the Act are required to implement employment equity by: (1) identifying and eliminating employment barriers against persons in designated groups that result from the employer’s employment systems, policies and practices that are not authorized by law, and (2) instituting such positive policies and practices and making such reasonable accommodations as will ensure that persons in designated groups achieve a degree of representation in each occupational group in the employer’s workforce that reﬂects their representation in:

2

3

4

5

The Legislated Employment Equity Program (LEEP) is to be distinguished from the Federal Contractors Program (FCP) which imposes employment equity obligations on speciﬁed federal contractors. The FCP is discussed under the section on contract-based proactive obligations, see section 8.5. Human Resources Development Canada, Annual Report Employment Equity Act 2002 (Hull: 2003), 8. A third category of employers covered by the Act is special operating agencies or corporations set out in Part II of the Public Service Staff Relations Act with 100 or more employees. These employers are outside the traditional federal public service and are referred to as separate employers. In 2002 there were 15 such employers with a combined workforce of approximately 60,000 employees. Promoting Equality in the Federal Jurisdiction: Review of the Employment Equity Act (Report of the Standing Committee on Human Resources Development and the Status of Persons with Disabilities (Ottawa: House of Commons, June 2002), chapter 4. Ibid.

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(i) the Canadian workforce, or (ii) those segments of the Canadian workforce that are identiﬁable by qualiﬁcation, eligibility or geography and from which the employer may reasonably be expected to draw employees.

§§ 9–17 of the Act set out with greater speciﬁcity the concrete obligations of the employer that must be carried out: (1) Collection of data and workforce analysis. An employer shall collect information and conduct an analysis of the employer’s workforce, in accordance with the regulations, in order to determine the degree of the underrepresentation of persons in designated groups in each occupational group in the workforce. The identiﬁcation of members of the designated groups shall be done by self-identiﬁcation. Thus, only employees who identify themselves to an employer or agree to be identiﬁed as aboriginal peoples, members of visible minorities or persons with disabilities are to be counted as members of those designated groups for the purposes of implementing employment equity.6 (2) Employment systems review. Where the workforce analysis has identiﬁed an underrepresentation of persons in designated groups in any occupational group of the workforce, the employer shall conduct a review of the employer’s employment systems, policies and practices, in accordance with the regulations, in order to identify employment barriers against persons in designated groups that result from those systems, policies and practices.7 The employment systems review shall include a review of the policies and practices with respect to recruitment, selection, hiring, promotion, development and training, retention and termination and the reasonable accommodation of the special needs of members of designated groups. For each of these, the employer must assess whether its policies and practices have an adverse effect on the under-represented group. Employment systems may be formal or informal, written or understood, organisation-wide or speciﬁc to a work unit.8 The employer must in addition review the way in which the policies and practices are implemented, including the attitudes and behaviours ingrained in the organizational culture.9 Many consider the employment systems review to be the most powerful tool for bringing about equality in employment. While data collection and workforce analysis involve a quantitative approach, the employment systems review involves both a qualitative and quantitative approach. “It is the process through which employers will learn what needs to be changed and how to change it, in order to ensure an equitable

6 7 8

9

§ 9 (2) of the Employment Equity Act 1995. § 9 (1) (b) of the Employment Equity Act 1995. Carol Agocs, “Systemic Discrimination in Employment: Mapping the Issue and the Policy Responses,” in Workplace Equality: International Perspectives on Legislation, Policy and Practice, edited by Carol Agocs (The Hague: Kluwer Law International, 2002), 8. Canadian Human Rights Commission, Employment Systems Review: Guide to the Audit Process (Ottawa: Canadian Human Rights Commission, 2000), 10.

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workplace free of all employment barriers.”10 According to the guidance provided by Human Resources Skills and Development Canada, an employment systems review is typically carried out as follows:11 (a) The ﬁrst step is that the employer must identify for each occupational group and for each employment system, what its policies and practices are. One must ask the question: “How do we actually recruit, promote, conduct interviews etc. This requires a great degree of insight and knowledge as to the organization’s policies and practices. One challenge will be to identify the unwritten and informal practices; such practices may not even be formally recognized by the organization. This is best done through consultations with employees directly affected. Throughout the employment systems review the employer must consult with employee representatives, as well as with employees who are members of the underrepresented groups. This latter group will often prove to be a fertile source for pointing out formal barriers to equality, as well as barriers due to attitudes and unequal treatment. (b) Another way to help ﬁnd the barriers to equality are to analyze the statistical data captured on the different steps in the stafﬁng processes. For example, it may be possible to reveal from the statistics that members of protected groups apply for positions in appropriate numbers, but are screened out before the interview stage. Or that they are being excluded through the use of a particular test. (c) In addition to use of the employer’s own data, the employer should use demographic and social data from external sources as well as research ﬁndings. For example, educational data may indicate that certain requirements will have an adverse effect on certain groups. (d) Where an adverse effect on the protected group is found, the employer must assess whether the policy or practice is necessary for the safe and efﬁcient operation of the organization. The employer must also consider whether an accommodation or reasonable alternative is possible which would lessen or eliminate the adverse effect. Where this is possible without undue hardship, the employer must seek to eliminate the barrier. This new policy or practice will later be carried out through the implementation of the employer’s employment equity plan. Where no accommodation or alternative is possible without undue hardship and the policy or practice is deemed to be necessary, there is no obligation for it to be changed or eliminated.

(3) Employment equity plan. An employer is required to prepare an employment equity plan that, if implemented, would constitute reasonable progress toward implementing employment equity as required by the Act and, among other things:12 (a) speciﬁes the positive policies and practices that are to be instituted by the employer in the short term for the hiring, training, promotion and retention of persons in designated

10 11

12

Ibid., 9. Human Resources Skills and Development Canada, Guidelines for the Employment Equity Act and Regulations: Guideline 6: Employment Systems Review at http://www.hrsdc.gc.ca/asp/ gateway.asp?hr=/en/lp/lo/lswe/we/legislation/guidelines/index-we.shtml&hs=wzp (last visited April 2005). § 10 of the Employment Equity Act 1995.

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groups to correct any underrepresentation identiﬁed by the workforce analysis as well as to eliminate employment barriers found in the employment systems review; (b) establishes timetables for the implementation of such measures; (c) establishes short term numerical goals for the hiring and promotion of persons in designated groups to correct identiﬁed underrepresentation; (d) establishes long term goals for increasing the representation of persons in designated groups in the workforce and establish the employer’s strategy for achieving those goals.

(4) Implementation and monitoring progress. An employer is required to make all reasonable efforts to implement its employment equity plan and to monitor its implementation regularly in order to assess whether reasonable progress is being made.13 (5) Review. An employer is also obligated to review and revise its employment equity plan.14 (6) Communication and consultation. An employer is also obligated to provide information to its employees explaining the purpose of employment equity and the measures to be undertaken. It shall consult with its employees’ representatives. (7) Maintenance of records. An employer shall maintain employment equity records with respect to its workforce, its employment equity plan and its implementation. This includes, inter alia, information for each employee regarding: (a) designated group membership, if any, (b) occupational group, (c) salary and salary increases and (d) promotions.15 (8) Annual reports. A private sector employer shall ﬁle an annual report with the Human Resources Development Canada (Department of Labour) including, inter alia, information on the total number of employees, the number of employees from designated groups by industrial sector, geographic location, employment status, occupational category, salary range, hires, promotions and terminations. These reports are available for public inspection.16 Public sector employers are obligated to ﬁle similar annual employment equity reports to the Treasury Board.17 The obligation to implement employment equity does not require that an employer: (1) undertake measures that would cause it undue hardship, (2) hire or promote unqualiﬁed persons, (3) disregard merit in the selection process, (4) create new positions in its workforce.18 c. Enforcement and Sanctions The Canadian Human Rights Commission (CHRC)19 is responsible for the enforcement of the employment equity obligations imposed under the Act. The approach adopted is

13 14 15

16 17 18 19

§ 12 of the Employment Equity Act 1995. §§ 12 and 13 of the Employment Equity Act 1995. § 17 of the Employment Equity Act 1995 and § 11 of the Employment Equity Regulations 1996. § 19 of the Employment Equity Act 1995. § 21(3) of the Employment Equity Act 1995. § 6 of the Employment Equity Act 1995. The Canadian Human Rights Commission is also the enforcement body for Canada’s

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largely non-adversarial, involving persuasion and negotiation.20 The Commission conducts compliance audits of employers in order to ensure compliance with the obligations imposed. Compliance ofﬁcers may enter upon the employer’s premises, and may require any person to produce for examination or copying, any record or document believed to be relevant to enforcement. The employer is obligated to give the compliance ofﬁcer all reasonable assistance to enable the audit to be carried out and to provide the ofﬁcer with all information relevant to the enforcement of the Act.21 When a compliance ofﬁcer ﬁnds an employer to be in non-compliance with the Act, the ofﬁcer shall ﬁrst seek to obtain a written undertaking from the employer to take speciﬁed measures to remedy the non-compliance. If it is not possible to obtain such an undertaking, or if an undertaking has been breached, the CHRC has the power to issue a direction requiring the employer to take speciﬁed remedial actions.22 The Act establishes an Employment Equity Review Tribunal which can conduct hearings at the request of either the CHRC or an employer. An employer who has received a direction from the CHRC may request that it be reviewed by the Employment Equity Review Tribunal. Upon review, the Tribunal may conﬁrm or rescind the direction; it may also make an order for the employer to remedy the non-compliance. The Tribunal’s orders are enforceable in the same way as court orders, meaning that an employer can be held in contempt of court for refusing to carry out the order.23 Private sector employers are, as stated earlier, obligated to ﬁle annual employment equity reports with Human Resources Development Canada (Department of Labour). Failure to ﬁle this report in accordance with statutory requirements, or the provision of any information known to be false or misleading, may result in a ﬁne of up to $10,000 for a single violation and up to $50,000 for repeated or continued violations.24 From 1997 to year-end 2004, the Commission had initiated audits of 282 employers or 77% of the employer pool covered by the regime. In most cases at least one followaudit was required before the employer could be declared in compliance with the Act. During this same period the Commission had found 189 employers to be in compliance with the Act. Of these, 134 employers had been required to sign undertakings and undergo follow-up audits to verify that this work had been done.25 During this same period the Commission has issued directions to only 23 employers, 10 of which later came into compliance with the Act. Furthermore, 8 employers had been referred to the Employment Equity Review Tribunal, either at the request of the Commission or by the

20 21 22 23 24 25

complaint-based model of federal antidiscrimination law: The Canadian Human Rights Act 1985. See § 22 of the Employment Equity Act 1995. Ibid., § 23. Ibid., § 25. Ibid., §§ 30 and 31. §§ 35 and 36 of the Employment Equity Act 1995. Canadian Human Rights Commission, Annual Report 2004, 16–18.

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employers themselves.26 As of November 2003 the Tribunal had not yet rendered a decision in any of the cases before it.27

7.2. Great Britain a. Introduction The Race Relations Act 1976 is a complaint-based antidiscrimination law. In year 2000 the Act was amended such as to impose comprehensive proactive obligations on public authorities to promote racial equality.28 The obligations aim to make the promotion of racial equality central to the work of public authorities, including planning, policy development, service delivery, regulation, enforcement, inspection and employment. This thesis is, however, only concerned with the proactive obligations to promote racial equality with respect to the role of public authorities as employer or contracting authorities. The proactive obligations of the Race Relations Act are only imposed upon public-sector employers, and they only relate to the promotion of racial equality. Section 71 of the Race Relations Act 1976 states in part: (1) Every body or other person speciﬁed in Schedule 1A or of a description falling within that Schedule shall, in carrying out its functions, have due regard to the need – (a) to eliminate unlawful racial discrimination; and (b) to promote equality of opportunity and good relations between persons of different racial groups. (2) The Secretary of State may by order impose, on such persons falling within Schedule 1A as he considers appropriate, such duties as he considers appropriate for the purpose of ensuring the better performance by those persons of their duties under subsection (1).

Section 71 establishes two types of proactive obligations on public authorities. They have become known in legal literature as: (a) the general duty to promote racial equality, imposed by § 71(1), and (b) the speciﬁc duty to promote racial equality, established by § 71(2). The Secretary of State has exercised its authority under § 71(2) to impose speciﬁc duties on a large number of public authorities by issuing the Race Relations Act 1976 (Statutory Duties) Order 2001 (hereafter “Order”).29 The Order imposes, among other things, speciﬁc duties on public authorities:

26

27

28

29

Canadian Human Rights Commission, 2002 Employment Equity: A Year-End Review (Ottawa: Minister of Public Works and Government Services, 2003), 10–12. Interview of 5 November 2003 with Rhys Phillips, Director of Policy and Legislation in the Employment Equity Branch of the Canadian Human Rights Commission. The Sex Discrimination Act 1975 and the Disability Discrimination Act 1995 do not contain comparable proactive obligations on public authorities to promote gender equality and the equality of disabled persons. The speciﬁc duties came into force in December 2001.

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(a) to publish a Race Equality Scheme that shows how the public authority intends to fulﬁll its duties under § 71 (1) of the Race Relations Act and the Order, and (b) to collect ethnic monitoring data with respect to speciﬁed employment procedures and practices.30 The Act and Order casuistically list in several appendices each public authority covered. For the purpose of simpliﬁcation, one may say that government departments, local government, police, health regulatory bodies, advice agencies and commissions are bound by: (a) the general duty, (b) the speciﬁc duty to publish a Race Equality Scheme and (c) the speciﬁc duty to carry out ethnic monitoring31 obligations with respect to employment. The Race Relations Act 1976 gives the Commission for Racial Equality (CRE) the power to issue statutory codes of practice with the approval of Parliament.32 Pursuant to this authority, CRE has issued the Statutory Code of Practice on the Duty to Promote Race Equality (“Code”). The Statutory Code offers practical guidance to public authorities on how to meet their duty to promote race equality. It is approved by Parliament and is admissible in evidence in any legal proceeding.33 The CRE has also issued detailed guides to public authorities on the duty to promote racial equality and on ethnic monitoring. These non-statutory guides do not have any legal standing, however, they may also be referred to in legal proceedings.34 b. Obligations Imposed on Public-Sector Employers Under the Act and Order The general duty to promote racial equality is a three-part obligation. Public authorities shall, in carrying out their functions, have due regard to the need: 30

31

32

33

34

The speciﬁc duties have been introduced to help public authorities to meet the general duty. The speciﬁc duties are a means to an end, i.e., they involve steps, measures, methods or arrangements, rather than an end in themselves. The main objective is to meet the general duty. When public authorities carry out the speciﬁc duties, they must do so in such a way as to help them meet the general duty. In the ﬁeld of non-discrimination and equality the term “monitoring” is often used in Great Britain and Northern Ireland to refer to the collection of racial, ethnic or religious data on the workforce as a tool to help ﬁght discrimination or promote equality. This is closely related to (but a bit more narrow than) the more general sense of the word – to systematically track something with a view to collecting information. See § 71C of the Race Relations Act 1976. Commission for Racial Equality, Statutory Code of Practice on the Duty to Promote Race Equality (London: 2002), 21. Commission for Racial Equality, Statutory Code of Practice on the Duty to Promote Race Equality (London: 2002). The Code came into effect on 31 May 2002. “A failure on the part of any person to observe any provision of a code of practice shall not of itself render that person liable to any proceedings; but any code of practice issued under this section shall be admissible in evidence in any legal proceedings, and if any provision of such a code appears to the court or tribunal concerned to be relevant to any question arising in the proceedings it shall be taken into account in determining that question.” § 71C (11). Commission for Racial Equality, The Duty to Promote Race Equality: A Guide for Public Authorities (Non-Statutory) (London: 2002), 5.

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(a) to eliminate unlawful racial discrimination; (b) to promote equality of opportunity; and (c) to promote good race relations.35 With respect to public-sector employment, the beneﬁts or outcomes expected to result from the duty are as follows. The duty should help: (a) make the public authority’s workforce more representative of the communities it serves; (b) attract able staff; (c) avoid losing or undervaluing able staff; (d) improve staff morale and productivity; (e) improve the way staff are managed; (f) develop good practice; and (g) avoid claims of unlawful racial discrimination.36 To meet the general duty with respect to the function of employment,37 a public authority must assess whether its employment policies and practices meet the three parts of the duty. In assessing the effects of a policy or practice, the Code states that public authorities should ask themselves the following questions:38 (a) Could the policy or practice have an adverse impact on equality of opportunity for some racial groups? In other words, does it put some racial groups at a disadvantage? (b) Is the adverse impact, if any, unavoidable? Could it be considered to be unlawful racial discrimination? Can it be justiﬁed by the aims and importance of the policy? Are there other ways in which the authority’s aims can be achieved without causing an adverse impact on some racial groups? (c) Could the adverse impact be reduced by taking particular measures? (d) Is further research or consultation necessary? Would this research be proportionate to the importance of the policy? Is it likely to lead to a different outcome?

35

36

37

38

“Good race relations” is shorthand for communities that respect their differences, are secure in the knowledge that they have equal rights and opportunities, and pool their talents and energies to achieve common goals. Commission for Racial Equality, The Duty to Promote Race Equality: A Guide for Public Authorities (Non-Statutory) (London: 2002), 11. Commission for Racial Equality, Statutory Code of Practice on the Duty to Promote Race Equality (London: 2002), 10. The many different functions of public authorities may be more or less relevant to the promotion of racial equality. For example, the maintenance of roads may have no relevance while the provision of police services may have great relevance. However employment is a relevant function for the promotion of racial equality for all public authorities covered by the Act. Commission for Racial Equality, Statutory Code of Practice on the Duty to Promote Race Equality (London: 2002), 18.

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If the assessment suggests that the policy or practice should be modiﬁed, the authority should do this to meet the general duty. Important public authorities are required under the speciﬁc duties outlined in the Order to publish a race equality scheme. The purpose of requiring a race equality scheme is to ensure that public authorities carry out the general duty to promote race equality in a systematic way.39 The scheme is a realistic plan with timetables, setting out the authority’s arrangements for meeting the general and speciﬁc duties. To meet the duties, the scheme must of course be put into practice. With respect to public-sector employment, the scheme shall set out the arrangements for assessing and consulting on the adverse impact of its employment policies and practices on the promotion of racial equality.40 Arrangements shall also be set out for the future monitoring of such adverse impact. This racial equality impact assessment and future monitoring may draw upon various kinds of information: information that is already available, research ﬁndings, population data (including census data), survey results, specially-commissioned research, and statistical analysis of ethnic monitoring data, including data collected at different stages of a process (for example, when applying for a job).41 The race equality scheme shall also set out the arrangements for publishing the results of such assessments, monitoring and consultation and for training staff in connection with the general and speciﬁc duties. Furthermore, the scheme shall set out the authority’s arrangements for making sure that the public has access to information it provides. Regarding employment, this is particularly important with respect to job announcements. Public authorities should consider how they can improve equality of opportunity through public access to information, for example, through outreach or targeted recruitment.42 Racial equality impact assessments must be reviewed at least every three years.43 According to § 5(2) of the Race Relations Act 1976 (Statutory Duties) Order 2001 (Order), public authorities shall have a speciﬁc duty with respect to employment to monitor, by reference to the racial groups to which they belong: (a) the numbers of – (i) staff in post, and (ii) applicants for employment, training and promotion, from each such group, and (b) where that person has 150 or more full-time staff, the numbers of staff from each such group who – (i) receive training; (ii) beneﬁt or suffer detriment as a result of its performance assessment procedures; (iii) are involved in grievance procedures; (iv) are the subject of disciplinary procedures, or (v) cease employment with that person.

39

40 41

42 43

Commission for Racial Equality, The Duty to Promote Race Equality: A Guide for Public Authorities (Non-Statutory) (London: 2002), 17. § 2(2) of the Race Relations Act 1976 (Statutory Duties) Order 2001. Commission for Racial Equality, Statutory Code of Practice on the Duty to Promote Race Equality (London: 2002), 24 and 26. Ibid., 28–29. § 2(3) of the Race Relations Act 1976 (Statutory Duties) Order 2001.

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In addition, public authorities are obligated to publish annually the results of its monitoring under § 5(2).44 The CRE suggests that these results be included in the public authority’s race equality scheme. The speciﬁc duty on employment is designed to enable public authorities to measure their progress in equality of opportunity in public-sector employment. The aim is to provide the necessary information to guide initiatives that could lead to a more representative public-sector workforce. If monitoring reveals that some racial groups are underrepresented in the workforce, appropriate initiatives, according to the Code, could include the setting of recruitment targets for underrepresented racial groups or the targeting of management development courses at racial groups that are underrepresented at certain levels.45 Ethnic monitoring, deﬁned in the Code as the process of collecting, storing and analyzing data about people’s ethnic backgrounds,46 is viewed as essential to giving the public authority a clear picture of what is happening in the entire employment cycle – from application and selection at the one end of the spectrum, to termination of employment at the other end. It is a necessary tool to assessing progress (or the lack of it) in removing barriers to equality of opportunity in public-sector employment. To meet the speciﬁc duty for employers, the public authority needs to collect and monitor information about ethnic background, and to publish the monitoring results annually. However, to meet the general duty, public authorities are strongly urged to analyze the data so as to: (a) ﬁnd patterns of inequality, (b) investigate the existence of barriers to equality of opportunity and (c) take the necessary steps to remove such barriers.47 Preferential hiring and preferential promotion at the point of selection is, however, not permitted under the Act.48 c. Enforcement and Sanctions The Commission for Racial Equality (CRE) is given authority to enforce the speciﬁc duties imposed upon public authorities by the Order. If a public authority has failed to comply with its obligations, the CRE may issue a compliance notice, demanding compliance with the speciﬁc duties and/or information which may verify that the duty has been complied with.49 If the public authority fails to comply with the compliance

44 45

46

47

48

49

Ibid., § 5(3). Commission for Racial Equality, Statutory Code of Practice on the Duty to Promote Race Equality (London: 2002), 31. Ibid., 2. Although the proactive obligations only rest on public-sector employers, the Commission for Racial Equality also recommends in general that private employers collect and analyze ethnic monitoring data so as to help address discrimination. Ibid., 31. See also Commission for Racial Equality, The Duty to Promote Race Equality: A Guide for Public Authorities (Non-Statutory) (London: 2002), 65. Commission for Racial Equality, Statutory Code of Practice on the Duty to Promote Race Equality (London: 2002), 32. § 71 D of the Race Relations Act 1976.

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notice, the CRE may seek a court order requiring the public authority to comply with the requirements of the compliance notice. If the court order is granted and the public authority fails to fulﬁll its requirements, then the public authority may be held in contempt of court.50 If a public authority does not comply with its general duty to promote racial equality, the actions of the public authority (or its failure to act) can be challenged by a claim to the High Court for judicial review. This claim may be made by either the CRE or any relevant interest group.51

7.3. Northern Ireland a. Introduction Northern Ireland has two separate regimes which impose obligations on employers to promote equality in employment: (a) The Northern Ireland Act 1998 which promotes equality between persons of different religious beliefs, political opinions, racial groups, ages, marital status, sexual orientation, sexes, between persons with and without disabilities, and persons with and without dependents. The Act relates to public authorities. (b) The Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO) which promotes equality between persons of different religious beliefs. The Order relates to both private and public employers. b. Northern Ireland Act 1998 The Northern Ireland Act 1998 imposes proactive obligations52 on public authorities (also in their functions as public-sector employers) to promote, among other things, racial equality. There are many parallels between the statutory duty in Great Britain and that of Northern Ireland, for the Northern Ireland duty was used as a model for the duty in Great Britain. However, the Northern Ireland duty to promote equality of opportunity is a much broader obligation, imposing not only a duty to promote racial equality, but also religious equality, gender equality, equality of disabled persons etc. The duty only relates to a public authority’s carrying out of functions related to Northern Ireland. § 75 of the Northern Ireland Act 1998 states in part: (1) A public authority shall in carrying out its functions relating to Northern Ireland have due regard to the need to promote equality of opportunity – (a) between persons of different religious belief, political opinion, racial group, age, marital status or sexual orientation;

50 51

52

Ibid., § 71 E. Commission for Racial Equality, Statutory Code of Practice on the Duty to Promote Race Equality (London: 2002), 50. The legal obligations came into effect as of 1 January 2000.

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(b) between men and women generally; (c) between persons with a disability and persons without; and (d) between persons with dependants and persons without. (2) Without prejudice to its obligations under subsection (1), a public authority shall in carrying out its functions relating to Northern Ireland have regard to the desirability of promoting good relations between persons of different religious belief, political opinion or racial group.

The statutory duty to promote equality of opportunity and good relations grew out of multi-party peace process talks and attempts to make an earlier non-statutory initiative (Policy Appraisal and Fair Treatment, also known as PAFT) more effective. The purpose of the duty is to mainstream equality into the entire range of public policy decisionmaking.53 Mainstreaming is deﬁned in the Guide to the Statutory Duties as: the (re)organization, improvement, development and evaluation of policy processes, so that a[n] . . . equality perspective is incorporated in all policies at all levels and at all stages, by the actors normally involved in policy-making.54

Mainstreaming equality is expected to:55 (a) contribute to better informed decisions by using techniques of systematic policy appraisal and impact assessment, which permit better targeting of policies and practices; (b) lead to greater transparency in decision-making; (c) more effectively address issues of equality, targeting disadvantage and promoting social inclusion; (d) assist public authorities in complying with antidiscrimination legislation. All of these expected beneﬁts of mainstreaming are extremely relevant to the promotion of racial equality by public-sector employers. The public authorities covered by the Act are deﬁned by reference to bodies casuistically listed in other statutory provisions. For simplicity, they include all departments (both United Kingdom-wide departments and speciﬁc Northern Ireland departments) and the important public authorities in Northern Ireland – in all 177 public authorities.56

53

54

55

56

Equality Commission for Northern Ireland, Guide to the Statutory Duties: A Guide to the Implementation of the Statutory Duties on Public Authorities Arising from Section 75 of the Northern Ireland Act 1998, (Belfast: 2002), 5–6. Ibid., 6, quoting from Gender Mainstreaming: Conceptual Framework, Methodology and Presentation of Good Practices, Council of Europe, Strasbourg May 1998. Equality Commission for Northern Ireland, Guide to the Statutory Duties: A Guide to the Implementation of the Statutory Duties on Public Authorities Arising from Section 75 of the Northern Ireland Act 1998, (Belfast: 2002), 7. Interview of 31 October 2003 with Danny Lambe, ofﬁcer with the Statutory Duty Unit of the Equality Commission.

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c. Obligations Imposed on Public-Sector Employers Under the Act and Schedule 9 Schedule 9 of the Northern Ireland Act 1998 sets out in detail the proactive obligations imposed upon public authorities, including with respect to the carrying out of their functions as public-sector employers. Public authorities covered under the Act are obligated to submit an equality scheme for approval to the Equality Commission of Northern Ireland. The equality scheme shall show how the public authority proposes to fulﬁll its duties under § 75 in relation to its relevant functions. More speciﬁcally, the equality scheme shall set out the public authority’s arrangements: (a) for assessing (and consulting on) its compliance with the duties to promote equality of opportunity and good relations pursuant to § 75 of the Act; (b) for assessing and consulting on the likely impact of policies (adopted or proposed) on the promotion of equality of opportunity; (c) for monitoring any adverse impact of policies adopted on the promotion of equality of opportunity; (d) for publishing the results of such assessments and monitoring; (e) for training staff; (f) for ensuring and assessing public access to information and services provided by the authority.57 The equality scheme shall specify a timetable for measures proposed in the scheme and shall include details of how the authority shall deal with complaints arising from a failure to comply with its equality scheme.58 The equality scheme must also conform to any guidelines as to form or content which are issued by the Equality Commission with the approval of the Secretary of State.59 The public authority is of course legally required to implement the equality scheme once it has been adopted by the public authority and approved by the Equality Commission. Furthermore, it shall be reviewed within the ﬁrst ﬁve years of its submission to the Equality Commission, and the outcome of the review shall be submitted to the Equality Commission.60 Although Schedule 9 does not speciﬁcally mention the public authority’s commitment to the statutory duties, the Equality Commission’s Guide to the Statutory Duties states that each equality scheme must include a general introductory statement showing the authority’s top-level commitment to the effective implementation of the statutory duties. The statement of commitment shall include a commitment to the allocation of necessary resources (in terms of people, time and money) to ensure that the statutory duties are complied with. It shall also include a commitment to ensuring that there are effective internal arrangements in place to ensure that the duties are effectively complied with and for monitoring and reviewing progress. Moreover, it shall include a commitment to the development and delivery of a planned program of communication and

57 58 59 60

§ 4 (1) and (2) of Schedule 9 of the Northern Ireland Act 1998. §§ 4 (3) and 10 of Schedule 9 of the Northern Ireland Act 1998. Ibid., § 4 (3) (a). Ibid., § 8 (3).

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training on the equality scheme.61 The Commission’s guidelines on the form and content of equality schemes have been approved by the Secretary of State.62 The Guide to the Statutory Duties also states that an equality scheme must include an outline of the internal arrangements for implementing and reporting on the statutory duties, including clear lines of responsibility within each authority to ensure effective implementation. This is said to require a consideration of whether any structural or organizational changes are needed. Primary responsibility should be allocated to a speciﬁc senior member of staff or high level policy unit. Furthermore, objectives and targets relating to the statutory duties should be built into corporate and annual operating plans. A formal report of progress on meeting objectives should be included in the authority’s annual report or review, and staff performance relating to the implementation of the duties, should be monitored and reviewed through performance review arrangements.63 This progress report must be sent to the Equality Commission annually. The carrying out and publication of equality impact assessments on policies (proposed or adopted) and the subsequent monitoring of any adverse impact of adopted policies on the promotion of equality of opportunity, play major roles in the authority’s promotion of (racial) equality. In the Guide to the Statutory Duties, the Equality Commission gives a detailed description of what is required in carrying out equality impact assessments and monitoring adverse impact in the future:64 (1) The consideration of available data and research. Quantitative data by relevant characteristics, including racial group, shall be collected and analyzed so as to establish a minimum base from which to judge progress (outcomes). The Equality Commission interprets § 75 and Schedule 9 of the Act such that public-sector employers are obligated to collect ethnic monitoring data regarding its workforce.65 The authority should also identify areas where more detailed data are needed and, if necessary, commission new data. (2) The assessment of impacts. The information gathered should be used to decide whether there is, or is likely to be, a differential impact (and in particular direct or indirect negative impact) on groups in relation to the equality categories. If differential impact is identiﬁed, the authority will need to assess whether it is unlawful. However, it is important to point out that the equality impact assessment is not merely about

61

62 63 64 65

Equality Commission for Northern Ireland, Guide to the Statutory Duties: A Guide to the Implementation of the Statutory Duties on Public Authorities Arising from Section 75 of the Northern Ireland Act 1998, (Belfast: 2002), 31. Ibid., 3. Ibid., 32. Ibid., 41–46. Interview of 10 December 2004 with Evelyn Collins, Chief Executive of the Equality Commission for Northern Ireland. See also Equality Commission for Northern Ireland, Guide to the Statutory Duties, op. cit., 42 and Equality Commission for Northern Ireland, Section 75 of the Northern Ireland Act 1998: Practical Guidance on Equality Impact Assessment (Belfast: 2002), 9–14.

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identifying discrimination. It is rather aimed at promoting equality of opportunity in relation to the relevant equality categories. (3) The consideration of measures which might mitigate any adverse impact; and alternative policies which might better achieve the promotion of equality of opportunity. Options must be developed for showing different ways of delivering the policy objectives. This means that impact assessments must also be made of mitigation measures and alternative policies. Prior to having embarked upon an equality impact assessment, the public authority should have considered the aims of the policy. Clearly identiﬁed policy objectives will be essential to a determination of whether alternative ways of achieving them are possible. (4) Formal consultation. Consultation must be carried out with the relevant interest groups affected and other groups with legitimate interests in the matter. (5) The decision by the public authority regarding the policy reviewed, shall take into account the equality impact assessment and consultation carried out. (6) The results of the equality impact assessment shall be published. The equality scheme must give speciﬁcs as to how and where such assessments shall be published. (7) The reviewed policy must be monitored for adverse impact in the future and the publication of the results of such monitoring. Monitoring and evaluation may show that the policy results in greater adverse impact than predicted. If this occurs, the policy may have to be revised. Equality schemes are required to specify how and where such monitoring information will be published. d. Enforcement and Sanctions under the Act and Schedule 9 The Equality Commission of Northern Ireland is authorized to enforce public authorities’ compliance with the proactive obligations under § 75 and Schedule 9 of the Act. When a public authority submits its equality scheme to the Equality Commission, the Commission may approve it, request the public authority to revise it or refer a non-complying equality scheme to the Secretary of State.66 The Secretary of State is authorized to make a scheme for the public authority if the authority refuses to make a scheme in compliance with the Act. Upon doing so, the Secretary of State shall notify the Northern Ireland Assembly and send it a copy of the scheme.67 If a United-Kingdom-wide government department has submitted a non-complying scheme to the Equality Commission, the Commission shall request that the scheme be revised. UK-wide government departments are not referred to the Secretary of State. Where a public authority does not comply with its approved equality scheme, the Equality Commission may undertake an investigation. If the Commission’s investigation report recommends action by the public authority and that action is not taken within a reasonable time, then the Commission may refer the matter to the Secretary of State. The Secretary of State may then give directions to the public authority regarding the matter.68 The enforcement procedure is different regarding UK-wide government depart-

66 67 68

Schedule 9 of the Northern Ireland Act 1998, §§ 3 and 6. Ibid., § 7. Ibid., § 11.

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ments. If the Commission’s recommendations in the investigation report are not carried out by the department, the Commission may lay before Parliament and the Assembly a report regarding the department’s failure to comply with its equality scheme.69 The threat of public embarrassment and a censure from Parliament and the Assembly are thus the ultimate sanction for non-complying UK-wide government departments. e. The Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO) FETO imposes obligations on private-sector and public-sector employers to promote religious equality in employment. The obligations imposed are more robust than under the Northern Ireland Act 1998; the enforcement mechanisms and sanctions for failure to comply are also stronger under FETO. The statutory-based proactive obligations imposed on employers under FETO were ﬁrst introduced in the predecessor to FETO in 1989, The Fair Employment (Northern Ireland) Act 1989 (now repealed). The background for this and other initiatives was the many years of civil disturbances and the extremely disadvantaged position of Catholics in the labor market. f. Proactive Obligations Imposed on Public and Private Employers Under FETO Private-sector employers with more than 10 employees are obligated to register with the Equality Commission.70 Public-sector employers are deemed to be automatically registered with the Commission. All employers covered under FETO (i.e., registered employers and public-sector employers) shall provide the Equality Commission with annual monitoring information on the religious composition of:71 (a) (b) (c) (d)

employees applicants for jobs persons appointed to the jobs (the successful candidates) apprentices

In addition, public-sector employers and private-sector employers with more than 250 employees are obligated to submit annual monitoring information on the religious composition of: (a) persons promoted (promotees) (b) and persons terminating employment (leavers) The monitoring return provided by the employer must include certain additional information speciﬁed in the Fair Employment (Monitoring) Regulations (NI) 199972 as amended by the Fair Employment (Monitoring) (Amendment) Regulations (NI) 2000.73

69 70 71 72 73

Ibid., § 12 (5). Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO), Art. 47–49. Ibid., Art. 52–54. Statutory Rule 1999 No. 148. Statutory Rule 2000 No. 228.

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For each employee, applicant, appointee etc., such additional information includes (a) the person’s sex, (b) the standard occupational classiﬁcation74 of the job involved, and (c) whether the employee works full-time or part-time. Employers are also obligated under Article 55 of FETO to carry out periodic reviews (at least every 3 years) of: (a) the composition of its employees, and (b) its employment practices and procedures in order to determine whether members of each religious community are enjoying and likely to continue to enjoy fair participation in the workplace. When it appears in the course of the review that members of a particular religious community do not enjoy, or are not likely to continue to enjoy, fair participation75 in the workplace, then the employer is obligated to determine, as part of the review, what afﬁrmative action would be reasonable and appropriate.76 Together with the monitoring obligations, the Article 55 review is the cornerstone of the proactive obligations to promote religious equality in employment. Two important documents published by the Equality Commission help to give employers guidance with respect to their obligations under Article 55: (a) The Code of Practice on Fair Employment, which is speciﬁcally referred to in Article 55 (5); and (b) Article 55 Review: A Guide for Employers. On the basis of this guidance, the obligations imposed on employers under Article 55 may be described as follows: (1) The review should be carried out in a formal manner with a written report prepared. The employer should at the outset review its equal opportunity policy. If such a policy does not exist, one should be drawn up. It should be a statement of the organization’s commitment to ensuring fair participation, providing equality of opportunity and ensuring that persons will not be discriminated against on grounds of religious belief. It should include a commitment to consult with trade unions and employees regarding the implementation of the policy. It shall appoint a senior member of staff to be responsi-

74 75

76

There are nine standard occupational classiﬁcations. Although the term fair participation is not deﬁned in FETO, the Code of Practice on Fair Employment equates a lack of fair participation with underrepresentation (see para 1.3.1.). In this sense, fair participation would appear to be representation in the workforce approximately equivalent to labor market availability. Availability here means the representation of Roman Catholics or Protestants in the relevant labor area (i.e., area of expected recruitment) and /or internal feeder pools having the requisite qualiﬁcations to perform the positions included in the job group. The Equality Commission’s rather round-about description of fair participation in its employer guidance, Article 55 Review: A Guide for Employers (Belfast: 2003), is in accordance with this (see 11–13). For an interesting discussion on the term fair participation, see Fiona Cassidy, “The Concept of Fair Particpation,” in Fair Employment Law in Northern Ireland: Debates and Issues, edited by Denise Magill and Sarah Rose (Belfast: The Standing Advisory Commission on Human Rights, 1996) (Employment Equality Series vol. 1). Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO), Art. 55 (2).

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ble for the implementation and regular review of the policy. It should be made known to all employees and job applicants. It should conﬁrm that complaints of discrimination will be regarded as a serious matter and that any form of unlawful discriminatory behavior will be viewed as a serious disciplinary offence.77 (2) The obligation to review the composition of employees entails an obligation to review and analyze the monitoring data collected by the employer. If there is an underrepresentation of a particular religious community in the workforce, the employer must seek to ﬁnd the reasons for such. This same analysis should be carried out for each of the nine occupational classiﬁcations, for example, (a) managers and senior ofﬁcials, (b) skilled trades occupations, (c) sales and customer service occupations etc. If a business has more than one location, each location must be analyzed in the same way stated above. (3) As part of the review it is essential to analyze the composition of job applicants and appointees. Each stage of the recruitment process should be monitored and analyzed (for example, application, shortlisting, interviewing etc.) so that one may identify the success rates of members of the two religious communities at each stage. Of particular importance is the comparison of the respective application and appointment rates for the two religious communities. Any discrepancies in the rates found must be examined and reasons for its occurrence sought.78 (4) The review of employment practices must be carried out in light of the results obtained from analyzing the composition of the existing workforce and applicant ﬂow. Where there is underrepresentation, it may be due to hidden barriers to equality in employment practices. The employment practices and procedures which need to be reviewed for equality impact include: recruitment, pre-employment training, employee training, promotions, transfers, redundancy, termination of employment (leavers) and access to beneﬁts. Employers must analyze the religious composition of those affected by the operation of these practices and procedures. On the basis of this review, employers will be able to identify areas of underrepresentation which require afﬁrmative action.79 (5) Afﬁrmative action is described in the employer guidance as being any action consistent with the legislation which is necessary to bring about positive change.80 The type of afﬁrmative action measures which are appropriate will follow from the analysis of what the review reveals. Employer practices and policies which have an adverse impact on equality should be abandoned or modiﬁed if they cannot be shown to be justiﬁable. Examples of such afﬁrmative action are:81

77

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79 80 81

Equality Commission of Northern Ireland, Code of Practice on Fair Employment in Northern Ireland (1989), para 5.2.2. See also Equality Commission of Northern Ireland, Article 55 Review: A Guide for Employers (Belfast: 2003), 3–4. Equality Commission of Northern Ireland, Article 55 Review: A Guide for Employers (Belfast: 2003), 4–6. Ibid., 6–7. Ibid., 8. Ibid., 9–10. See also Equality Commission of Northern Ireland, Code of Practice on Fair Employment in Northern Ireland (Belfast: 1989), paras 6.5.13 –6.5.23.

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(6) The Equality Commission strongly urges that afﬁrmative action measures be accompanied with the setting of goals and timetables. If it is practicable to do so, goals and timetables must be set. Following an investigation, an employer can be directed by the Commission to set speciﬁc goals and timetables. They are used to measure the progress towards the achievement of fair participation. Goals and timetables should not be confused with the use quotas, which is unlawful under FETO. Goals and timetables are targets which one should make good faith efforts to reach.82 g. Enforcement and Sanctions regarding the Employer’s Proactive Obligations under FETO The Equality Commission is authorized to enforce the employers’ proactive obligations under FETO. Employers are obligated to provide the Commission with all relevant information necessary for supervising compliance with FETO. The Commission conducts compliance reviews on a regular basis. Where the Commission determines that an employer has not carried out its obligations to register, provide monitoring data, carry out an Article 55 review or implement afﬁrmative action, then it may seek written undertakings from the employer that such action will be taken. Where undertakings have been given, the Commission carries out subsequent audits in order to ensure that the action promised has in fact been implemented.83 If the employer refuses to give such undertakings, then the Commission may issue such directions to the employer that are appropriate for achieving compliance. If the undertakings are given, but not complied with, the Commission can either issue directions which supersede the undertakings, or it may make an application to the Fair Employment Tribunal for enforcement of the undertakings. An employer may appeal the Commission’s directions to the Fair Employment Tribunal, which may dismiss the appeal, quash the directions or substitute its own directions. Orders of the Tribunal may be enforced in the same way as court orders, meaning an employer can be held in contempt of court for refusing to carry out the court order.84 Employers who are persistently and ﬂagrantly in violation of their proactive obligations under FETO (i.e., in default), may be blacklisted from entering into government

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84

Equality Commission of Northern Ireland, Code of Practice on Fair Employment in Northern Ireland (Belfast: 1989), para. 6.6. Telephone interview of 17 May 2005 with Jackie McKee, compliance ofﬁcer with the Equality Commission. Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO), Art. 56–59.

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contracts and receiving government grants. This applies to contracts for construction works, as well as, the supply of goods and services. An employer is in default if: (a) convicted of an offence regarding non-registration, (b) convicted of an offence regarding failure to provide the Commission with monitoring data, or (c) the employer has failed to comply with an order of the Fair Employment Tribunal and a penalty has been imposed. When an employer is in default, the Commission may determine that the employer is unqualiﬁed for the purpose of entering into government contracts and receiving government grants. The Commission shall make this determination known to public authorities. Upon having done so, public authorities are obligated not to enter into contract with the unqualiﬁed employer or to give grants to such.85 As of May 2005, no employer had ever been debarred from entering into government contracts.86

7.4. Sweden a. Proactive Obligations Imposed on Public and Private Employers Under the Act on Measures against Ethnic Discrimination in Working Life The Act (1999: 130) on Measures against Ethnic Discrimination in Working Life, which is primarily a complaint-based antidiscrimination law, also includes provisions which impose proactive obligations on both public and private employers. Under the heading “Active Measures”, § 4 states: Within the framework of her or his activities an employer shall carry out a goal-oriented work in order to actively promote equal rights and opportunities in working life without regard to ethnic background, religion or other belief.

More speciﬁc details of the proactive obligations of employers are provided in §§ 5–7: An employer shall carry out such measures which, given due regard to the employer’s resources and circumstances otherwise, can be required to ensure that the working conditions are suitable for employees without regard to their ethnic background, religion or other belief. (§ 5) An employer shall undertake measures to hinder and prevent any employee from being subjected to harassment or retaliatory actions. . . . (§ 6) An employer shall work to ensure that persons, regardless of ethnic background, religion or other belief, are given the opportunity to apply for the employer’s available positions. (§ 7)

The Act thus requires an employer to adopt active measures to promote ethnic and religious equality with respect to working conditions, recruitment and the prevention of harassment and retaliation. Employers and employees are obligated to cooperate in the

85 86

Ibid., Art. 62–66. Telephone interview of 17 May 2005 with Jackie McKee, compliance ofﬁcer with the Equality Commission.

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design and implementation of these active measures.87 The travaux préparatoires to the Act points out that the active measures are intended to help speed up the process of attitudinal change and to introduce a way of thinking that promotes and values ethnic diversity. This in turn will contribute to ethnic minorities being represented in the workplace in proportions which reﬂect their proportions in society.88 Although the Act does not explicitly require an employer to have a written action plan, the Ombudsman for Ethnic Discrimination (the enforcement agency) views a written action plan as an implied obligation. There is support for this view in the travaux préparatoires which states that the requirement of goal-oriented measures entails a requirement of a systematic plan.89 According to the Ombudsman, this requires that employers have documentable plans from which it may be established that they are in compliance with the obligations of the Act. The Ombudsman thus requires employers to have a written action plan, together with concrete and measurable goals (not necessarily numerical) and timetables regarding the implementation of the measures, as well as a statement of who is responsible for carrying out the measures.90 The travaux préparatoires states that the planning of career development and training of employees should be carried out with the idea that ethnic diversity shall be promoted in all types of work and all categories of employees. Regarding new recruitment, it is pointed out that employers should strive to use formal channels, such as using employment agencies, job announcements and other means in order to reach representatives of various ethnicities.91 Beyond the wording of the Act and these statements in the travaux préparatoires, there is no greater speciﬁcation of the obligations imposed on employers. Indeed the travaux préparatoires points out that it is not desirable to give any greater speciﬁcity as to what obligations should or could be adopted. It is preferred that discretion be left to employers and trade unions to ﬁnd out what types of measures are most suitable.92

87 88

89 90

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See § 2 of the Act (1999: 130) on Measures Against Ethnic Discrimination in Working Life. Regeringens proposition 1997/98: 177 (Ny lag om åtgärder mot etnisk diskriminering i arbetslivet) at 43. The Act was amended in 2003 so as to add an obligation on employers to also promote religious equality. The travaux préparatoires referred to here will, thus, not have any reference to religious equality. Ibid., 44. This was conﬁrmed in an interview of 30 September 2004 with Weini Kasei, compliance ofﬁcer with the Active Measures Section of the Ombudsman for Ethnic Discrimination. This was also conﬁrmed once more in an interview of 8 December 2004 with Ann-Christin Hartman, Chief of the Active Measures Section. This is also reﬂected in the Ombudsman’s brochure to private-sector employers: “Råd till arbetsgivare för arbete för etnisk mångfald ” at 6. Furthermore, the standard written agreement used by the Ombudsman in conjunction with employers who are viewed to be in breach of the Act’s obligations regarding active measures entail that the employer undertakes to develop and implement a written action plan. Regeringens proposition 1997/98: 177 (Ny lag om åtgärder mot etnisk diskriminering i arbetslivet) at 45. Ibid., 44.

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The Ombudsman does, however, provide guidance as to how employers may fulﬁll their obligations under the Act.93 The Ombudsman has provided the following advice to employers regarding their obligations under the Act: The Ombudsman encourages employers to undertake equality assessments of various kinds of working conditions, such as terms of employment, wages, working hours, rules regarding vacations, holidays and leaves. Furthermore, equality assessments should be made to ensure that qualiﬁcations speciﬁed in job announcements are in fact job-related. Employers are expected to have a policy clearly stating that ethnic and religious harassment is unacceptable at the workplace. Moreover, employers shall have an established routine for dealing with complaints of harassment and retaliation. Employers are also expected to monitor the implementation of its active measures so as to see whether progress is being made. As stated earlier, however, employers have a great deal of latitude in this regard. With respect to these tasks the employer is expected to collaborate and consult with employees and the local trade union representatives.94 The travaux préparatoires explicitly states that the Act was not intended to introduce any requirement for employers to collect information with respect to the ethnic background of the employees in their workforce.95 In year 2000 the Ombudsman actively encouraged employers to collect ethnic monitoring data. However, the Ombudsman received a great deal of negative media attention as a result. Today the Ombudsman does not actively encourage employers to collect such data, but rather merely indicates that an employer can collect ethnic monitoring data, if it is done with the consent of the employee and by using self-classiﬁcation as a method.96 b. Enforcement and Sanctions Under the Act, an employer’s compliance with these proactive obligations is supervised and enforced by the Ombudsman against Ethnic Discrimination and a Board against Discrimination. An employer is obligated to provide all relevant information to the Ombudsman in connection with its supervision. If an employer fails to provide such information, the Ombudsman may issue an order to do so subject to a civil ﬁne. This order may be appealed to the Board. If an employer has failed to comply with the proactive obligations in §§ 5–7, the Ombudsman seeks undertakings from the employer that it will carry out speciﬁed

93

94 95 96

The travaux préparatoires states that the Ombudsman shall be given the task of providing such guidance. Regeringens proposition 1997/98: 177 at 44. For examples of such guidance, see the brochure: Råd til arbetsgivare for arbete för etnisk mångfald and the Checklist for employers being audited: Underlag för arbetsgivarens genomgång av sitt arbete med aktiva åtgärder at http://www.do.se/upload/do/aktiva/underlag_arbetsgivare.pdf (last visited 16 December 2004). Checklist for employers being audited: Underlag för arbetsgivarens, op. cit. Regeringens proposition 1997/98: 177 at 43. Interview of 30 September 2004 with Weini Kasei, compliance ofﬁcer with the Active Measures Section of the Ombudsman for Ethnic Discrimination.

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actions. If the employer refuses, the Ombudsman may request the Board to issue an order stipulating speciﬁc measures the employer is to carry out under penalty of the payment of a civil ﬁne. (An order can also be directed against the State as employer.) The Board shall investigate the matter and determine whether to issue such an order. If the Ombudsman fails to request an order with respect to an employer who is not in compliance with §§ 5–7, an employee’s association to which the employer is bound by collective contract, may itself make a request to the Board to issue such an order (and ﬁne). The decisions of the Board may not be appealed. If an employer does not comply with the issuance of a ﬁne by the Board, the ﬁne may be enforced by way of court order.97 As of October 2004, the Ombudsman has never requested that the Board ﬁne an employer for failure to comply with its obligation under the Act to carry out active measures to promote ethnic and religious equality. In the auditing of employers’ compliance with the Act’s proactive obligations, the Ombudsman chooses employers on the basis of the following: (a) its own initiative, (b) individual complaints received, and (c) discriminatory job announcements in the media. In 2002 the Ombudsman began a systematic auditing by branch of 400 employers to assess their compliance with the obligation to promote ethnic equality. The employers were in the ﬁelds of banking, accounting, management consulting, law and production of consumer products, as well as, employer organizations and trade unions. The results were very discouraging. Only seven of the employers had written action plans98 and the Ombudsman could only approve of seven employers as being in compliance with the Act.99 The auditing process has continued with respect to the remaining 393 employers. The Ombudsman enters into written agreements with the non-complying employers – agreements which set out the active measures to be carried out by the employers. Although the Ombudsman has limited its full audits to employers having 20 or more employees, the Ombudsman lacks the capacity to follow up and ensure that the signed agreements are fully implemented. As of October 2004 the Ombudsman had only 4–5 compliance auditors. The Ombudsman has not carried out any monitoring of the compliance of public-sector employers.100

97

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100

See §§ 21, 24, 26, 33, 34 and 35 of the Act (1999: 130) on Measures Against Ethnic Discrimination in Working Life. Interview of 30 September 2004 with Weini Kasei, compliance ofﬁcer with the Active Measures Section of the Ombudsman for Ethnic Discrimination. Ombudsmannen mot Etnisk Diskriminering, Årsredovisning 2003 (Annual Report 2003 of the Ombudsman), 17. Interview of 30 September 2004 with Weini Kasei, compliance ofﬁcer with the Active Measures Section of the Ombudsman for Ethnic Discrimination.

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7.5. Norway a. Introduction Norway does not impose a duty upon employers to proactively promote ethnic or racial equality. In 2002 the Holgersen-Law Commission delivered to the Government a comprehensive report together with a proposed draft law against ethnic discrimination. In the draft law the commission proposed that both private- and public-sector employers be obligated to work actively and systematically to promote ethnic equality in employment.101 The active measures were to be carried out, among other things, in areas such as recruitment, wages, terms of employment, promotion, career development and protection against harassment. Employer organizations and trade unions were to have comparable obligations. The Commission also proposed that employers be obligated to describe in their annual reports what active measures they had adopted or planned so as to fulﬁll their obligations to promote ethnic equality. In December 2004 the government presented to the Norwegian parliament its proposal for an Act on the Prohibition of Discrimination on Grounds of Ethnicity and Religion.102 The government proposal to the parliament did not include any proactive obligations on employers to promote ethnic or racial equality. The reasons given for not including proactive obligations included: (a) Such a proposal would result in increased bureaucracy without being able to see that the gains stood in proportion to the burdens. (b) The reporting obligation would lead to additional work and annual reports are not the proper place for reporting on such obligations. (c) To impose such an obligation on local authorities would be in conﬂict with the government’s goal of reducing the amount of detailed-steering by state government over local authorities. (d) Rather than impose obligations on employers, it is better to stimulate employers to undertake voluntary actions to promote equality. In March 2005 the Parliamentary Committee treating the proposed legislation reinstated the proposed proactive obligations in the bill; however, the provision on proactive obligations was rejected by the Parliament in April 2005. Comparable proactive obligations and reporting obligations regarding gender equality are already imposed on employers under the Gender Equality Act. The government did not, however, explain why such obligations were acceptable, while equivalent obligations to promote ethnic equality were not acceptable.

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NOU 2002: 13 (Rettslig vern mot etnisk diskriminering) (Legal Protection Against Ethnic Discrimination), 371. Ot. Prp. Nr. 33 (2004–2005) Om lov om forbud mot diskriminering på grunn av etnisitet, religion mv. (diskrimineringsloven).

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b. Obligations Imposed on Public- and Private-Sector Employers under the Gender Equality Act In 2002 the Gender Equality Act103 was amended so as to impose on all employers (private and public) an obligation to promote gender equality.104 Starting with year 2003 employers were obligated to describe in their annual reports (or for some public authorities, in their annual budgets) the state of gender equality in the workplace and the measures undertaken or planned to promote gender equality. Section 1a of the Gender Equality Act states in part: Public authorities shall make active, targeted and systematic efforts to promote gender equality in all sectors of society. Employers shall make active, targeted and systematic efforts to promote gender equality within their enterprise. Employee and employer organizations shall have a corresponding duty to make such efforts in their spheres of activity. Enterprises that are subject to a statutory duty to prepare an annual report shall in the said report give an account of the actual state of affairs as regards gender equality in the enterprise. An account shall also be given of measures that have been implemented and measures that are planned to be implemented in order to promote gender equality and to prevent differential treatment in contravention of this Act. Public authorities and public enterprises that are not obliged to prepare an annual report shall give a corresponding account in their annual budget. (Ombud’s own translation)

There is very little description in the travaux préparatoires to the amendment regarding the substantive content of what kinds of active measures employers are obligated to undertake. It states that the proactive obligations should be carried out with respect to the employer’s personnel policies in the broad sense of the term. Examples of active measures mentioned are the assessment of the gender impact of such policies as working hours, wages, use of leave, hiring, recruitment and the organization of work.105 Other examples of possible active measures are mentoring, management training for women, child-care facilities and measures to prevent sexual harassment.106 Furthermore, the travaux préparatoires states that the requirement of targeted or goal-oriented efforts entails that the goal of the measures and the persons responsible for achieving them, shall be clearly deﬁned. In the Gender Ombud’s guidance to employers, it provides examples of possible active measures which promote gender equality:107

103 104

105 106 107

Gender Equality Act of 9 June 1976, no. 45. Amendment to the Gender Equality Act of 14 June 2002, no. 21. Prior to the amendment, public authorities were obligated, including in their roles as public-sector employers, to lay the groundwork for gender equality. Ot. Prp. Nr. 77 (2000–2001) Om lov om endringer i likestillingsloven., 19–20. Ibid. See two brochures published by the Gender Equality Ombud: Aktivitets- og redegjørelsesplikten i privat sektor (Obligations of Active Measures and Reporting in the Private Sector) and Aktivitets- og redegjørelsesplikten i offentlig sektor (Obligations of Active Measures and Reporting in the Public Sector.

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(a) developing a gender equality policy; (b) measuring management’s performance by using work with gender equality as a performance indicator; (c) including gender equality in work environment surveys; (d) dividing opportunities for vocational training and career development equally between men and women; (e) creating equal opportunities for promotion by ensuring that meritorious work responsibilities are given to women and men; (f) ensuring that the underrepresented sex is encouraged to apply for new job positions; (g) ensuring that men and women have equal pay for work of equal value, for example by carrying out an equal pay assessment of various occupational categories; (h) preventing sexual harassment, for example by establishing guidelines which make clear what is acceptable social behavior at the workplace; (i) making it easier for both women and men to combine work with family life; and ( j) making it easier for men to take parental leave in connection with childbirth. Under section 1a of the Act employers are obligated to report in their annual report the status of gender equality, as well as, the measures undertaken and planned to promote gender equality. Public-sector employers (for example ministries and subordinate agencies) that do not submit an annual report are obligated to provide the same information in their annual budget. The obligation to report presupposes a systematic description of the facts and circumstances relevant for assessing the degree of equality between men and women. The travaux préparatoires explicitly mentions the following types of information as both relevant and necessary: statistics broken down by sex regarding wages, occupational categories, working hours, use of leave, training, recruitment, promotion and sick leave.108 It further states that one ought also to provide statistics broken down by sex on the number of part-time workers and full-time workers, use of overtime, shift-work and rotation-work.109 The Gender Ombud has indicated in its guidance to employers that other necessary and relevant information would be statistics as to the percentages of men and women in the employer’s organization as a whole, by department and by hierarchical level.110 Importantly, the reporting obligation does not entail an obligation to adopt active measures.111 The signiﬁcance of this fact is that the sanction mechanism for failure to adequately report is different from the sanction mechanism for failure to carry out the obligation to adopt active measures.

108 109 110

111

Ot. Prp. Nr. 77 (2000–2001) Om lov om endringer i likestillingsloven., 25–26. Ibid., 26. See two brochures published by the Gender Equality Ombud: Aktivitets- og redegjørelsesplikten i privat sektor (Obligations of Active Measures and Reporting in the Private Sector) and Aktivitets- og redegjørelsesplikten i offentlig sektor (Obligations of Active Measures and Reporting in the Public Sector. Ot. Prp. Nr. 77 (2000–2001) Om lov om endringer i likestillingsloven, 26.

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c. Enforcement and Sanctions The Gender Ombud is authorized to monitor compliance with the obligation to promote gender equality under § 1a of the Act. If the Gender Ombud ﬁnds that an employer has not made active, targeted and systematic efforts to promote gender equality, the Ombud will seek to negotiate and enter into voluntary arrangements with the employer. However, there is very little that the Gender Ombud can do if an employer refuses to follow its advice. The Act does not contain any sanction mechanism for an employer’s breach of its substantive obligation to make active, targeted and systematic efforts to promote gender equality.112 There is, however, a sanction for an employer’s failure with respect to its reporting obligations. The Ombud is authorized to supervise the qualitative contents of the report, as well as the question whether a report on gender equality has been included in the annual report (annual budget).113 If the report on gender equality is qualitatively deﬁcient, the Ombud may bring the case before the Board of Appeals for Gender Equality, which may issue a directive to the employer regarding measures that are to be undertaken to comply with the Act. If a ministry has failed to comply with the reporting obligations, the Board of Appeals may render an opinion as to such.114

112 113 114

Ibid., 20 and 110. Ibid., 26. § 13, para 2 of the Gender Equality Act.

Chapter8 Contract-Based Proactive Obligationsto PromoteEqualityinEmployment: FourApproaches 8.1.ImpactofEuropeanUnionTreatyLawandProcurementRulesonthe UseofContractCompliance:BackgroundFrameworkforGreatBritainand Sweden AnintegratedEuropeanUnionpresentscertainchallengesformembercountrieswishing to promote equality in employment through the use of the public procurement process.TheEUpublicprocurementrulesareintendedtobringaboutatotalharmonizationofthepublicprocurementprocessesinmemberstatesinordertogiveeffectto theEUtreatyprinciplesoffreemovementofgoodsandservices.Publicprocurement directives,1 whichhavebeentransposedintonationallawinallmemberstates,require speciﬁedprocurementproceduresforcontractsabovecertainthresholdvalues.The

1

Council Directive 92/50 EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, Council Directive 93/36/EEC of 14 June 1993

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purposeoftheseharmonizedproceduresistoensureeffectivecompetition,non-discriminationofnon-nationalcontractors/bidders2 andtransparencyofprocess.However, evenpubliccontractsnotsubjecttothedirectives,mustbeawardedthroughprocedures whichareinconformitywiththetreaty-basedprinciplesofnon-discrimination,equal treatment,transparencyandproportionality.3 Contractorsfromallmemberstatesareentitledtoparticipateinthepublicprocurementprocessesofeachothermemberstate.Thetrans-borderaspectofprocurement createssigniﬁcantchallengesforcontractcompliance.Forexample,theBritishgovernmentwouldhavenoauthoritytorequireGermanorDanishcontractorstocarryout ethnicmonitoringoftheirrespectiveworkforcesinGermanyorDenmarkinorderto promoteequalityinemployment. In2001theEuropeanCommissionissuedanInterpretativeCommunication4 soasto clarifythepossibilitiesforintegratingsocialconsiderations(suchasequalityinemployment)inpublicprocurement.Subsequently,in2004anewCouncilandParliament DirectivewasadoptedentitledtheCoordinationofProceduresfortheAwardofPublic WorksContracts,PublicSupplyContractsandPublicServiceContracts.5 Thisconsolidated2004Directiveistobeimplementedbyallmemberstatesby31January2006, andtheolder(current)directivesshallberepealeduponimplementation.Onseveral signiﬁcantpoints,thenewdirectiveconﬁrmstheCommission’sinterpretationofEU procurementlawputforthintheInterpretativeCommunication. TheCommunicationdividestheprocurementprocessintofourphases:(1)deﬁnition ofsubjectmatterofcontract,(2)selectionofcandidatesortenderers,(3)awardofthe contractand(4)executionofthecontract. Phase 1 (Deﬁnition of subject matter of contract): The Communication sees no problemswithtakingsocialconsiderationsintoaccountwhendeﬁningorspecifying

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coordinating procedures for the award of public supply contracts and Council Directive 93/37/EECof14June1993concerningthecoordinationofproceduresfortheawardofpublicworkscontracts,asamendedbyEuropeanParliamentandCouncilDirective97/52/EC; CouncilDirective93/38/EECof14June1993coordinatingtheprocurementproceduresof entitiesoperatinginthewater,energy,transportandtelecommunicationssectors,asamended byEuropeanParliamentandCouncilDirective98/04/EC. Theprivateemployerseekingtosellgoods,servicesorconstructionworkstothefederalgovernmentisreferredtoasthecontractor,whilethedepartment,agencyorunitofthefederalgovernment entering into contract to purchase is referred to as the contracting authority or contractingagency. TheseEUtreatyprinciplesandtherulesoftheprocurementdirectivesareincorporatedintothe AgreementontheEuropeanEconomicArea(EEA)andthusarealsobindingonmemberstates oftheEEA. CommissionoftheEuropeanCommunities,InterpretativeCommunicationoftheCommission ontheCommunityLawApplicabletoPublicProcurementandthePossibilitiesforIntegrating SocialConsiderationsintoPublicProcurement COM(2001)566ﬁnal(15October2001). CouncilandParliamentDirective2004/18ECof31March2004onthecoordinationofproceduresfortheawardofpublicworkscontracts,publicsupplycontractsandpublicservice contracts.

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whatitisthepublicauthorityisinterestedinpurchasing.Forexample,someservice contractswouldbytheirnaturetakeintoaccountsocialconsiderations:contractsforthe trainingoflong-termunemployedpersonsorcontractsforthepurchaseofcomputer hardware/servicesadaptedtotheneedsofdisabledpersons.6 Phase2 (Selectionofcandidates/tenderers):7 Thecurrent(old)directivescontaintwo setsofrulesregardingtheselectionofcandidatesphase: (a) Thereisanexhaustivelistofcasesinwhichthepersonalsituationofacandidate canleadtoexclusion.Examplesarebankruptcy,convictionofanoffence,graveprofessionalmisconductetc.TheCommunicationmakesclearthatmemberstatesmay excludefromtheprocurementprocess,candidates/tendererswhoareinbreachof amemberstates’ antidiscriminationlegislationifthememberstatehasinnational legislationdeﬁnedsuchabreachasgraveprofessionalmisconduct.8 Article45(2) ofthe2004directiveconﬁrmsthisinterpretation. (b) Thedirectivesalsoprovidethatwhencontractingauthoritiesassessthesuitability ofcandidates/tendererstoparticipateintheprocurementprocedure,theauthority mayonlytakeintoconsiderationcriteriarelatingtocandidates’ economic,ﬁnancial ortechnicalcapacitytofulﬁlthecontract.Socialconsiderations(includingequalityconsiderations)maynotbetakenintoaccounthereiftheydonotdemonstrate technicalcapacity.9 TheCommission’sinterpretationisbasedonthedecisionofthe EuropeanCourtofJusticeinGebroedersBeentjesBV v.StateoftheNetherlands (knownasBeentjes) inwhichacontractorwasexcludedonthebasisofitsinabilitytoemploylong-termunemployedpersonswhencarryingoutthecontract.The Courtstatedthatthecontractconditionthatthecontractormustemploylong-term unemployedpersonshadnorelationtothecheckingofthecontractor’ssuitability onthebasisofitseconomic,ﬁnancialortechnicalcapacity.10 The2004directive doesnotalterthisposition. Phase3 (AwardoftheContract):Afterthepre-selectedcandidateshavesubmittedtheir bids/tenders,thecontractingauthoritywillawardthecontractinaccordancewithits statedawardcriteria.Theprocurementdirectivespermittwodifferentcriteria:(a)the lowest price or (b) the most economically advantageous tender. If the contracting authoritywillusethemosteconomicallyadvantageoustenderasitscriteria,thenitis obligatedtohavestatedtheawardcriteriaitshallusetodeterminethemosteconomicallyadvantageoustender.Inordertoensurethatlocaltenderersarenotfavoured,all

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9 10

Commission of the European Communities, Interpretative Communication, op. cit., footnote15. Theselectionofcandidates/tenderersreferstothepre-selectionofthosecandidatesdeemed qualiﬁedtoparticipateinthecompetitivebiddingprocess. CommissionoftheEuropeanCommunities,InterpretativeCommunication,op.cit.,section 1.3.1. Ibid.,sections1.3and1.3.2. GebroedersBeentjesBV v.StateoftheNetherlands,Case31/87,paras17and28.

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criteria(aimedatidentifyingtheofferwhichiseconomicallythemostadvantageous) mustberelatedtothesubject-matterofthecontractortothewayinwhichitistobeperformed.TheEuropeanCourtofJusticeconﬁrmedthisinterpretationinConcordiaBus FinlandOyAbv.HelsiginkaupunkiandHKL-Bussiliikenne,11 acaseinvolvingtheuse ofenvironmentalconsiderationsasanawardcriterion.Awardcriteriaconcerningatenderer’sequalopportunitiesprogramorwhetherthetenderer’sworkforceisreﬂectiveof thesociety’sdiversity,willinthelargemajorityofcasesbeincompatiblewiththedirectives–becausetheywillnotrelatetothesubjectmatterofthecontractorthemanner inwhichitistobecarriedout.12 Phase4 (ExecutionoftheContract):Theexecutionphaseofthepubliccontractisnot regulatedbytheprocurementdirectives.Thisleavessomeroomforthecontracting authoritytoimposecontractconditions(forexample,obligationstopromoteequality inemploymentpractices)onthesuccessfultenderer.Thetransparencyofthecontract conditionsmustbeensuredbyhavingmentionedtheminthecontractnotice,suchthat allcandidates/tendererswereawareofthempriortotendering.Thesecontractconditionsmaynotbeusedascriteriaineitherselectingcandidates/tenderersorinawarding thecontract;however,oncethecontractisawarded,thesuccessfultenderercannot refusetocarrythemout.Thecontractconditionsmust,however,beincompliancewith EUtreatylawandinparticulartheymaynotdiscriminate,eitherdirectlyorindirectly, againstnon-nationaltenderers.13 Thecontractconditionsmustalsorelatetothespeciﬁc procurementinquestion,andmustnotforexampleimplicatethecontractor’sother workforcewhoisnotinvolvedintheperformanceofthecontract.14 Withrespecttopubliccontractsforthesupplyofgoods,theCommunicationﬁndsitdifﬁculttoenvisage contractualconditionsrelatingtosuchcontracts,since: theimpositionofclausesrequiringchangestotheorganisation,structureorpolicyofan undertakingestablishedontheterritoryofanotherMemberStatemightbeconsidereddiscriminatoryortoconstituteanunjustiﬁedrestrictionoftrade.15

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ConcordiaBusFinlandOyAbv.HelsiginkaupunkiandHKL-Bussiliikenne,CaseC-513/99, decidedon17September2002. Commission of the European Communities, Interpretative Communication, op. cit., section1.4. Ibid.,section1.6. Ibid.SeealsoSueArrowsmith,“AnAssessmentoftheNewLegislativePackageonPublic Procurement,”CommonMarketLawReview 41(2004):1277–1325,1318andfootnote156. ItisalsosuggestedbysomeauthorsthatinordertobecompatiblewithEUTreatylaw,the restrictiveeffectofanyconditionspursuingsecondarysocialobjectiveswouldhavetobeproportionatetotheexpectedcontributionoftheconditiontotheobjective’sgeneralinterest.Joël Arnoul,“SecondaryPoliciesinPublicProcurement:TheInnovationsoftheNewDirectives,” PublicProcurementLawReview 13,no.4(2004):187–197,192. Commission of the European Communities, Interpretative Communication, op. cit., section1.6.

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TheBeentjes decisionhadconcludedthatsocialobjectivescouldbeincludedascontractconditionsprovidedthattheywerenon-discriminatory(i.e.,notmoredisadvantageous for non-national contractors) and that the additional conditions had been mentionedinthecontractnotice.16 Article26ofthe2004directivehasnowconﬁrmed theCommission’sinterpretationthatthecontractconditiontobeperformedbythecontractor,mustrelatetothespeciﬁcprocurementinquestion. ThisframeworkofEUprocurementrulesinessencemeansthatcontractcompliance regimeswhichimposeobligationsonthecontractor’sentireworkforce,wouldnotbe abletobeadoptedinEUmemberstates–atleastnotwithrespecttoforeign-basedcontractors. Member states would not be able to impose on non-national contractors, proactiveobligationstochangeorganizationalstructures,practicesandpoliciesregardinganorganizationlocatedoutsideofthatmemberstate.17 InlightoftheserestrictionsthecontractcomplianceregimesinGreatBritainand Swedenhavehadamorelimitedscopeandaratherdifferentcharacterthantheregimes usedintheUSA andCanada.InpresentingthecontractcomplianceregimesofGreat BritainandSweden,I,withtheexceptionoflocalauthorityinitiativesinBritain,focus onthecontract-basedproactiveobligationsimposedoncontractors,i.e.,contractual obligationsimposedoncontractorsinthe4th phase(theexecutionofthecontract) via conditions of contract.Although equality and social considerations are sometimespermittedtobetakenintoconsiderationinphases1–3(discussedabove),the

16 17

GebroedersBeentjesBV v.StateoftheNetherlands,Case31/87,para37. ThereisaparallelsetofrestrictionsonpartiestotheWorldTradeAgreement’sGovernment ProcurementAgreement1994(GPA).Thesameprinciplesofnon-discriminationandtransparencyintheprocurementprocessapplyintheGPA.Allofthecontract-basedproactive regimesexaminedinthisthesisoriginateincountriesthatarepartiestothisagreement,i.e., GreatBritain,Sweden,USA andCanada.LiketheEUprocurementrules,theGovernment ProcurementAgreement1994doesnotregulatetheexecutionofcontractphase.Thismeans thatproactiveobligationstopromoteequalityattheworkplacemaybeimposeduponcontractorsasconditionsofcontract,providedthattheyarenon-discriminatory.(SeeChristopher McCrudden,“InternationalEconomicLawandthePursuitofHumanRights:A Framework forDiscussionoftheLegalityof‘SelectivePurchasing’ LawsUndertheWTOGovernment ProcurementAgreement”,JournalofInternationalEconomicLaw (1999):3–48,30)Solong asthecontract-basedregimeonlyimposesobligationswithrespecttothedomesticestablishments and staff of the contractor, I cannot see that the proactive obligations (as contract conditions) could be viewed as discriminatory. (See also SueArrowsmith, Government ProcurementintheWTO (TheHague:KluwerLawInternational,2003),330)Becausethe contract-basedregimesofthisthesisgonofurtherthanthis(norhaveIrecommendedthatthey doso),theydonotappeartobeinconﬂictwiththeGovernmentProcurementAgreement.The USA,CanadaandECtooknoexceptionstotheAgreementregardingtheirproactiveobligationregimes,althoughtherewerenegotiationsandexceptionsregardingothertypesofafﬁrmativeactionprovisions,forexampleset-asidesforminoritybusinesses.Thus,itwouldappear that the countries viewed the proactive regimes as falling outside the restrictions of the Agreement.TheEUtreatyruleshoweverappeartosetgreaterrestrictions.Thus,IhavediscussedtheEUtreatyandprocurementrulesingreaterdetail.

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implementationofsuchconsiderationsinthosephasesrelatemoretohowcontracting authorities maybetterpromoteequalitythroughtheprocurementprocess.Anexample wouldbethedeliveryofbetterservicestoacommunityofdiverseethnicities.Thefocus ofthisthesisisonhowemployers/contractors maybeobligatedtopromoteequalityin employment.Itisthroughtheuseofcontractconditionsinphase4thatcontractorscan bemadetoundertakeproactiveobligationstopromoteequalityinemployment. GiventherestrictionsofEUprocurementrulesandtreatylaw,onemayaskwhether amemberstatecouldchoosetosubjectitsownnationalcontractorstocontractconditionsinthe4th phase(executionphase)whichimposeproactiveobligationstopromote equality in the workforce, while choosing not to impose such conditions on nonnationalcontractors.BothSueArrowsmithandPeterTreptesuggestsuchasolution.18 Asstatedearlier,theEUprocurementdirectivesdonotregulatetheexecutionphaseof thecontract.Thus,nationalcontractorscouldnotinvokethedirectivesinprotestofsuch aconstruction.Moreover,EUtreatylaw doesnotprohibitso-called“reversediscrimination”whereamemberstatechoosestoimposeaheavierburdenonitsownnationals. EU treaty law rights of free movement and non-discrimination have not been grantedtonationalsofamemberstatewhentheEuropeanCourtofJusticehasviewed theallegedinfringingregulationasinternaltothatmemberstate.19 Althoughitmay be difﬁcult to implement from a political standpoint, it appears that member states canchoosetoimposeproactiveobligationsontheirownnationalcontractorsinthe executionphaseofthecontract,whilenotimposingsuchobligationsonnon-national contractors.20

8.2.GreatBritain a.HistoricalBackground UseoftheprocurementprocesstopromotesocialobjectivesisnotnewinGreatBritain. From1891until1983thegovernmentusedtheprocurementprocesstopromotethepaymentoffairwagesandtheuseofreasonableworkingconditionsintheprivatesector. Itwasterminatedin1983becausethegovernmentbelievedthatsuchconditionsshould

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SueArrowsmith,TheLawofPublicandUtilitiesProcurement (London:Sweet&Maxwell, 1996)822.“Inpractice,themosteffectivewaytoreconcilecontractcompliancewithfree movementmaythussimplybetolimitcontractcompliancepolicies–likeregulatorylegislation–todomesticcontractors,ortooperationsintheawardingstate.”SeealsoPeterTrepte, Regulating Procurement: Understanding the Ends and Means of Public Procurement Regulation (Oxford:OxfordUniversityPress,2004)187. See Karsten Sørensen and Poul Nielsen, EU-retten, 3rd edition, (Copenhagen: Jurist- og ØkonomforbudnetsForlag,2004),251–254;FredrikSejersted,FinnArnesenetal.,EØS-rett (Oslo:Universitetsforlaget,1995),262;PaulCraigandGráinnedeBúrca,TheEvolutionofEU Law (Oxford:OxfordUniversityPress,1999),528;andRuthNielsenandErikaSzyszczak, The Social Dimension of the European Union, 3rd ed. (Copenhagen: Handelshøjskolens Forlag,1997)107–110. Thisofcourseassumesthatthenationallegislationpermitsit.

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be left to market forces.21 Since 1969 a clause on racial discrimination22 has been encouragedtobeinsertedinpubliccontracts.Today,itswordingisasfollows: (1) TheContractorshallnotunlawfullydiscriminatewithinthemeaningandscopeofany law,enactment,order,orregulationrelatingtodiscrimination(whetherinrace,gender, religion,disability,sexualorientationorotherwise)inemployment. (2) TheContractorshalltakeallreasonablestepstosecuretheobservanceof[paragraph1] byallservants,employeesoragentsoftheContractorandallsuppliersandsub-contractorsemployedintheexecutionoftheContract.

Thereis,however,noenforcementormonitoringofthisclause,anditdoesnotappear thatsanctionshaveeverbeenusedregardingtheclause.23 Furthermore,thisstandard clause does not impose on contractors any proactive obligations to promote racial equality,butratheronlyapassiveobligationnottodiscriminate.Tothatextent,itfalls outsideofthefocusofthisthesis. In 1983 the Greater London Council (GLC) and the Inner London Education Authority(ILEA)actingjointlybecametheﬁrstlocalauthoritiestoimposeproactive obligationsontenderers/contractorstopromoteracialandgenderequalityconcerning theirworkforces.Oneyearlatertheequalityofdisabledpersonswasalsoadded.Atthe timetheGLC/ILEA hadmorethan20,000companiesonanapprovedlist.Ifcompanies wantedtoremainontheapprovedlist,theyhadtodocumentthattheiremployment practices were in essence in compliance with the standards set down in the Codes of Practice of the Commission for Racial Equality and the Equal Opportunities Commission(i.e.,theenforcementagenciesforpromotingracialandgenderequality respectively).Thesestandardsincluded,amongotherthings,thecollectionofdataon theworkforcetoassesswhethertherewasanunderrepresentationofethnicminorities, womenordisabledpersons.Ifacompanydidnotmeetthestandardsoutlinedinthe CodesofPractice,thecompanywouldhavetoadoptaprogrammeofaction(with timetables)designedtobringthecompanyuptothestandardsoftheCodes.Thecompanywasalsorequiredtomonitoritsprogressinachievingthesestandards.Oncethe programmeofactionwasagreedtobythenewly-establishedContractComplianceUnit oftheGLC/ILEA,thenthecompanywasconditionally retainedontheapprovedlist– conditionedupontheprogrammeofactionbeingcarriedoutinpractice.TheContract Compliance Unit was speciﬁcally established to enforce the GLC/ILEA’s contract

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SueArrowsmith,“PublicProcurementasanInstrumentofPolicyandtheImpactofMarket Liberalisation,”LawQuarterlyReview 111(1995):235–284,242. See the Ofﬁce of General Commerce’s Central Unit on Procurement Guidance, No. 59D (General Terms and Conditions of Contract), clause B2. See http://www.ogc.gov.uk/ sdtkdev/new_content/decisionmap/GeneralTerms.pdf(lastvisitedJanuary2005). SueArrowsmith,TheLawofPublicandUtilitiesProcurement (London:Sweet&Maxwell, 1996)804;P.E.Morris,“LegalRegulationofContractCompliance:AnAnglo-American Comparison,”Anglo-AmericanLawReview,19,no.2(1990):87–144,92.Also,interviewof 9March2003withBarbaraCohen,formerheadofthelegaldepartmentattheCommission ofRacialEquality.

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complianceprogram.24 Themainapproachwasconciliatoryinnaturewithaheavy emphasisonadviceandconsultation.Ifacompanyfailedtoagreetoaprogrammeof actionorfailedtocarryoutanagreedprogrammeofaction,theContractCompliance Unit would ultimately take the necessary action to remove the company from the approvedlist.TheﬁrstannualreportoftheContractComplianceUnitstatedthat22 companieshadbeenremovedfromtheapprovedlist.25 Otherlocalauthoritieswere inspiredbyGLC/ILEA’scontractcomplianceprogramandin1986therewereatleast 19otherlocalauthoritiesthathadestablishedcontractcomplianceunits.26 TheadoptionoftheLocalGovernmentAct1988essentiallyputanendtoalocal authority’spossibilitytopromoteequalityinemploymentthroughtheprocurement process.Section17oftheActprohibitedlocalauthoritiesfromtakingintoaccountnoncommercial considerationsintheprocurementprocess.Section18oftheActprovided alimitedexceptionregardingtheconsiderationofracialequalitymattersrelatingtothe contractor’sworkforce.Thislimitedexceptionwasasfollows: (1) Inthepre-qualiﬁcationquestionnaireslocalauthoritieswerepermittedtoask6 approvedquestions prescribedbytheSecretaryofStateregardingracialequalityin employment.Thelocalauthoritieswereabletotaketheanswersintoconsiderationwhenselectingthebidders/tendererspermittedtoparticipateinthecompetitive bidding. (2) Localauthoritiescouldincludecontracttermsrelatingtotheracialequalityofthe contractor’sworkforce.27 TheeffectoftheLocalGovernmentAct1988wastounderminemanyofthecontract complianceinitiativesoflocalauthorities.Subsequently,theLocalGovernmentAct 1999,theLocalGovernmentBestValue(ExclusionofNon-commercialConsiderations) Order2001andtheRaceRelations(Amendment)Act2000haveincombination,providedgreaterscopeforlocalauthoritiestobuildonceagainequalityconsiderationsinto theprocurementprocess.Oneexampleisthatthesixapprovedquestions maynowalso relatetogenderequalityandtheequalityofdisabledpersons.Giventhesenewlimited openings,localauthoritiesmustofcoursestilloperatewithintheboundsoftheEU treatylawandprocurementrulesframework.

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ILEA ContractComplianceEqualOpportunitiesUnit,ContractCompliance:A BriefHistory (London:1990). SueArrowsmith,TheLawofPublicandUtilitiesProcurement (London:Sweet&Maxwell, 1996)804,footnote27. Ibid.,804. CommissionforRacialEquality,RacialEqualityandCouncilContractors:Protectingand PromotingEqualOpportunitiesinEmploymentthroughContracts (London:1995)12–13.

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b.InitiativesbytheCommissionforRacialEquality Therehasneverbeenacentralgovernmentpolicyonthepromotionofracialequality inemploymentthroughtheprocurementprocess.28 Thecurrentcentralgovernmentprocurement policy was issued in 1998, two years prior to the enactment of the Race Relations(Amendment)Act2000.Asdiscussedinsection7.2.a,thatAmendmentnow imposesastatutorydutyonallgovernmentauthoritiestopromoteracialequalityinall theirfunctions(includingprocurement).29 However,therehasyettomaterializeanycentralgovernmentcoordinationwithrespecttohowgovernmentauthoritiesshould,in practice,carryoutthisobligationtopromoteracialequalitythroughtheprocurement process.Intheabsenceofcentralgovernmentsteeringonthismatter,theinitiativehas beenlefttotheCommissionforRacialEquality(CRE)andlocalauthoritiestopromote racialequalitythroughcontractcompliance.CREhaspublishedtwosetsofguidelines onhowgovernmentauthoritiesmayfulﬁlltheirobligationstopromoteracialequality throughtheprocurementprocess–onesetisaguideforlocalauthoritiesandtheother is for all other public authorities.30 Although the CRE guidelines are not formally endorsedbytheOfﬁceofGovernmentCommerce(OGC),therearelinkstotheguidelinesontheOGC’swebsiteandtheguidelinesarereferredtoasusefultoolstohelpgovernmentauthoritiesintheirconsiderationofthepromotionofsocialobjectivesthrough theprocurementprocess. CRE’sguidanceistoalargeextentfocusedonhowgovernmentauthoritiescanuse theprocurementprocesstopromoteracialequalityregardingtheservices beingdeliveredbycontractors.Examplesofthisinclude:(a)guidanceabouthowpublicauthoritiesmaybuildinconsiderationsofracialequalityintothespeciﬁcationofwhatitisthe governmentauthoritywantstopurchase;and(b)guidanceaboutwhatquestionsmay beaskedintheselectingofcandidates/tenderersphasesoastoensurethattenderers havethetechnicalcapacitytodeliveraservicewhereracialequalityisimportant.In otherwords,theracialequalityreﬂectedinthetenderer’sownworkforcemayhave signiﬁcanceforthetenderer’stechnicalcapacitytoperformthespeciﬁc contract.Inboth ofthesetypesofguidanceracialequalityisrelevanttotheprimaryobjectiveofthe speciﬁcprocurement. Thisthesisdoesnothoweverfocusonthepromotionofracialequalityregardingthe services providedbythecontractor,butratherregardingthesituationoftheworkforce ofthecontractor.Moreover,itdoesnotfocusontheracialequalityofthecontractor’s workforcebyreasonofitssigniﬁcanceforaspeciﬁc serviceorperformancetoberendered,butratheronthepromotionofracialequalityinthecontractor’sworkforcegenerally.Thisthesisthusfocusesonracialequalityinthecontractor’sworkforceasa

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SeeCabinetOfﬁceStrategyUnit,EthnicMinoritiesandtheLabourMarket(ReportofMarch 2003)121. Ibid. SeeCommissionforRacialEquality,RaceEqualityandPublicProcurement:A Guidefor Public Authorities and Contractors (published July 2003) and Commission for Racial Equality,RaceEqualityandPublicProcurementinLocalGovernment:A GuideforAuthorities andContractors (publishedJuly2003).

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secondaryobjectiveofprocurement;itisasocialobjectivethatisgraftedontotheprocurementprocess.31 OfcoursetheCREisalsoconcernedwithpromotingracialequalityintheworkforce ofthecontractor.Forexample,theCRE’sguidanceencouragesincertaincasesthe useofcontractclauseswhichimposeonthecontractorparticularproactiveobligations with respect to its employment practices. Three such obligations proposed in the guidanceare: (1) thatthecontractor’sworkforceengagedintheperformanceofthecontractobserve theprovisionsoftheCRECodeofPracticeinEmployment, (2) thatthecontractorcarryoutethnicmonitoringofitsstaffinGreatBritainengaged intheperformanceofthecontract,soastodeterminewhetherthereisanunderrepresentationcomparedtoavailabilityinthelabormarket,and (3) thatthecontractor,intheeventofsuchunderrepresentation,undertakesuchpositiveactionsasrecruitmentoutreach,trainingschemesintendedtoreachmembers ofunderrepresentedgroups,andtheencouragementofmembersofunderrepresentedgroupstoapplyforpromotionsand/ortransfers. BecauseoftherestrictionsofEUprocurementrulesandtreatylaw,CREonlyencouragestheseclausestobeusedincontractsforservicesandconstructionworkswherethe subjectmatterofthecontractishighlyrelevanttothepublicauthority’sownstatutory obligationtopromoteracialequalityinitsfunctions(forexample,intheprovisionof frontlineservices).32 Furthermore,theobligationsmustonlyrelatetothecontractor’s workforceengagedintheperformanceofthespeciﬁc contract.Wheretheseobligations areimposed,itisalsoexpectedthatthecontractorimposesimilarobligationsuponany subcontractorsusedintheperformanceofthecontract.33 AlthoughtheCREguidance doesnotspeciﬁcallyaddressthequestionofenforcement,inlightofthelackofcentral governmentpolicyorsteeringregardingtheuseofcontractcompliance,theenforcementofsuchcontractconditionsandtheapplicationofanysanctions,ifnecessary, wouldbelefttotheindividualcontractingauthorityitself.Seesection9.8formycritiqueofthislimiteduseofcontract-basedproactiveobligations. c.InitiativesbyLocalAuthorities Localauthoritieshavealsocarriedoutinitiativestopromoteequalityviatheprocurementprocess.Sixlocalauthoritiesjoinedtogetherin1997tocreatearacialequality commonstandardforcouncilcontracts(hereafter CommonStandard).34 Thesixcoun31

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Peter Trepte, Regulating Procurement: Understanding the Ends and Means of Public ProcurementRegulation (Oxford:OxfordUniversityPress,2004)169. CommissionforRacialEquality,RaceEqualityandPublicProcurement:A GuideforPublic AuthoritiesandContractors (publishedJuly2003)38–41. Ibid.,42. TheCommonStandardinitiativeisdescribedindetailtheevaluationreport:MichaelOrton andPeterRatcliffe,WorkingforanInclusiveBritain:AnEvaluationoftheWestMidlands ForumPilotProject (2003).ThepaperwaslaterpublishedbytheWestMidlandsForum.

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cilsareknowncollectivelyastheWestMidlandsForum.TheCommonStandardaims toensurethatcontractorsprovidingconstructionworksforthesixcouncilshavearacial equality/equalopportunitiesemploymentpolicyinplaceandthatitisindeedimplemented.A racialequalityorequalopportunitiesemploymentpolicy35 goesbeyonda merewrittenorverbalequalitystatement.Theformerdescribesindetailtheprocedures andpracticesthataredesignedtoensureequalityofopportunityforallemployeesand jobapplicants.36 TheCommonStandardisdesignedsuchthatallsixcouncilsusethestandardand assesscontractorsapplyingtoentertheirapprovedlistsinthesameway.A contractor thatisapprovedbyonecouncilbecomesautomaticallyapprovedbyallsixcouncils jointly.Thus,theCommonStandardisusedatthepre-qualiﬁcationstage.Uponthe awardofcontract,theCommonStandardisalsoincorporatedintothecontractasconditionsofcontract. TheWestMidlandsForumusesthesixapprovedquestions issuedbytheSecretary ofStateasapre-qualiﬁcationquestionnaire.Thesixapprovedquestions areasfollows: (1) IsityourpolicyasanemployertocomplywithyourstatutoryobligationsundertheRace RelationsAct1976and,accordingly,yourpracticenottotreatonegroupofpeopleless favourablythanothersbecauseoftheircolour,race,nationalityorethnicorigininrelationtodecisionstorecruit,trainorpromoteemployees? (2) Inthelastthreeyearshasanyﬁndingofunlawfulracialdiscriminationbeenmade againstyourorganizationbyanycourtorindustrialtribunal? (3) Inthelastthreeyearshasyourorganizationbeenthesubjectofaformalinvestigation bytheCommissionforRacialEqualityongroundsofallegedunlawfuldiscrimination? (4) Iftheanswertoquestion2isintheafﬁrmativeor,inrelationtoquestion3,theCREmade aﬁndingadversetoyourorganization,whatstepsdidyoutakeinconsequenceofthat ﬁnding? (5) Isyourpolicyonracerelationssetout: (a) ininstructionstothoseconcernedwithrecruitment,trainingandpromotion; (b) indocumentsavailabletoemployees,recognizedtradeunionsorotherrepresentativegroupsofemployees; (c) inrecruitmentadvertisementsorotherliterature? (6) Do you observe as far as possible the Commission for Racial Equality’s Code of PracticeinEmployment,asapprovedbyParliamentin1983,whichgivespracticalguidancetoemployersandothersontheeliminationofracialdiscriminationandthepromotionofequalityofopportunityinemployment,includingthestepsthatcanbetaken toencouragemembersoftheethnicminoritiestoapplyforjobsortakeuptraining opportunities?37

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Thetermequalopportunitiespolicy isusedbytheWestMidlandsForumtorefer,notonlyto racialequality,butalsototheequalityofsex,thedisabled,religionetc.–inotherwordsgeneric equalityofopportunity. See the brochure: Guidelines to Employers in Formulating and Implementing an EqualOpportunitiesinEmploymentPolicy(RaceRelations) (WolverhamptonCityCouncil, 1998)2. CommissionforRacialEquality,RacialEqualityandCouncilContractors:Protectingand PromotingEqualOpportunitiesinEmploymentthroughContracts (London:1995)28.

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Contractingauthoritiesareallowedtoaskforevidencetosupporttheanswertoquestionnumber5.ThesixcouncilsthenusetheCommonStandardtoassesstheanswers andtodeterminewhetherthecompanieshaveachievedtherequiredlevelofcriteriaor havepoliciesinplace,whichifimplemented,couldachievetherequiredlevelofcriteria.Ifso,thecompaniesareapprovedaspotentialcandidates/tendererswhomaylater participateinspeciﬁcinvitationstotenderforallsixcouncils.Foreign-basedcompaniesareaskedtosupplydetailsoftheircompliancewiththeirequivalentdomesticlegislationdesignedtoeliminatediscriminationandtopromoteequalityofopportunity.38 TheCommonStandardconsistsof12criteriaand3levelsofdifﬁculty,dependent uponthenumberofemployeesinthecontractor’sworkforce.Contractorsthatmust achievelevel2mustalsoachievelevel1andcontractorsthatmustachievelevel3must alsoachievelevels1and2.TheCommonStandardcriteriaareasfollows: Level1(5to49employees) (1) Allﬁrmswithmorethanﬁveemployeesmustprovideawrittenracialequalitypolicy (orgeneralequalities)policywhichcoversatleast:(a)recruitment,selection,training, promotion,disciplineanddismissal,(b)victimization,discriminationandharassment, makingitclearthatthesearedisciplinaryoffenceswithintheﬁrm(c)identiﬁcationof theseniorpositionwithresponsibilityforthepolicyanditseffectiveimplementation, and(d)communicationofthepolicytostaff. (2) Effectiveimplementationofthepolicyintheﬁrm’srecruitmentpractices,toinclude openrecruitmentmethodssuchastheuseofjobcentres,careersserviceorpressadvertisements. (3) Regularreviewsofthepolicy. (4) Regularmonitoringofthenumberofjobapplicantsfromdifferentethnicgroups. Level2(50to249employees) (5) Written instructions to managers and supervisors on racial equality in recruitment, selection,training,promotion,disciplineanddismissalofstaff.Thesecanbeinstructions forgeneralequalopportunitiesinemployment. (6) Traininginracialequalityformanagersandanystaffresponsibleforrecruitmentand selection.Thismaybeintheformofgeneralequalopportunitiestraining. (7) Monitoringof(a)thenumbersofjobapplicantsforemploymentfromdifferentethnic groups(b)thenumbersofemployeesfromdifferentethnicgroups,bygradeandsection. (8) Ifmonitoringrevealsunder-representationofparticularethnicgroups,actiontocheck thatcriteria1–3,&6–7arebeingusedeffectivelyintheﬁrm,andtomakechangesif necessary. Level3(250ormoreemployees) (9) Regularconsultationonracialequalityissueswithintheworkforce. (10) Regularethnicmonitoringofselection,transfer,training,promotion,disciplineand dismissal.

38

Telephoneinterviewof16February2005withAlanButt,SeniorContractorsAssessment OfﬁcerforWolverhamptonCityCouncil.

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(11) Mention in the ﬁrm’s recruitment advertisements and publicity literature of its arrangementsforofferingequalopportunities,includingracialequality. (12) Ifmonitoring(asincriteria7and10)indicatesunder-representationofanygroup,take actionto(a)checkthecriteria1–3,5,6,9and11arebeingusedeffectivelywithinthe ﬁrm (b) take advice about appropriate action from ofﬁcers from the CRE, Racial EqualityCouncilsortheRaceRelationsEmploymentAdvisoryService,allofwhom offerfreeadvice,and(c)takeappropriateaction(includingpositiveaction)asaresult ofthatadvice.39

InsummarytheCommonStandardrequiresemployers,bothatthepre-qualiﬁcation stageandtheexecutionofcontractstage,tocarryoutproactiveinitiativestopromote racialequalityintheworkforce.Employerswithmorethan250employees,amongother things,must(a)haveacomprehensiveracialequalitypolicyandcommunicatesuchpolicytotheworkforce,(b)useopenrecruitmentmethods,(c)reviewtheirpolicyregularly, (d)collectethnicmonitoringdataregardingawide-rangingsetofpersonneldecisions, (e)carryoutracialequalitytrainingforkeypersonneldecisionmakers,(f)carryoutpositiveactiontoalleviatethesituationifethnicmonitoringrevealsanunderrepresentationofethnicminorities,and(g)carryoutconsultationonracialequalitywithinthe workforce. Contractorsaregiventhreeattemptstomeettherequiredlevelbeforebeingexcluded fromtheapprovedlist.Ifacontractorhasfailedonthreeattempts,thecontractorisnot permittedtoapplyagainfortheapprovedlistwithanyofthesixcouncilsbeforetwo yearshaspassed.40 AsofFebruary2005,morethan4000companieshavebeenapproved bytheWestMidlandsForum.41 TheCommonStandardisalsousedwithrespecttocontractconditions,i.e.,theexecutionphaseofthecontract.Theassessmentcriteriaarewordedsoastoformcontractualobligationsonthepartofthecontractor,forthemostpartwithverylittlechangein thelanguage.42 AllsixcouncilsoftheWestMidlandsForumusethesamemodeltext ascontractconditions.43 From1999post-contractmonitoringbythecontractingauthoritybecame,inprinciple,anintegralpartoftheCommonStandard.Thisisalsoincorporated as a condition of contract. Thus, a contractor may be monitored by the

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MichaelOrtonandPeterRatcliffe,op.cit.,28–29.TheCommonStandardmayalsobefound in the brochure: West Midlands Forum, Racial Equality: Common Standard for Council Contracts, 4 at http://www.birmingham.gov.uk/Media/Racial%20EQuality%20Common% 20Standard.pdf?MEDIA_ID=18654&FILENAME=Racial%20EQuality%20Common%20St andard.pdf(lastvisitedFebruary2005). MichaelOrtonandPeterRatcliffe,op.cit.,31and36. Telephoneinterviewof16February2005withAlanButt,SeniorContractorsAssessment OfﬁcerforWolverhamptonCityCouncil. Seethemodelcontractconditionsinthebrochure:StandingOrders–SpecialConditions: ComplyingwiththeContractConditionsConcerningEqualOpportunities (Wolverhampton CityCouncil). E-mail of 17 February 2005 fromAlan Butt, Senior ContractorsAssessment Ofﬁcer for WolverhamptonCityCouncil.

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contractingauthorityforitsimplementationoftheCommonStandardevenafterithas performedthecontract.Thiscanbeasigniﬁcantremindertothecontractorthatracial equalityinemploymentisanongoingcommitment.Thereportsuggests,however,that limitedresourceshavemeantthatcouncils(contractingauthorities)haveonlyconducted post-contractmonitoringthroughpilotprojects–themostrecentonebeingthepost-contractmonitoringof300contractors.44 Thecommondatabasehasbeenmodiﬁedsoasto be able to record the results of post-contract monitoring.According toAlan Butt, SeniorContractorsAssessmentOfﬁcerforWolverhamptonCityCouncil,thepurpose ofpost-contractmonitoringisnotsomuchtoremovenon-complyingcontractorsfrom theapprovedlist,butrathertoenterintodialoguesoastobringthecontractorintocompliancewiththeCommonStandard.45 TheCommonStandardisonlyusedinrelationtoconstructioncontractsbelow theEU threshold level in the procurement directive.46 As of February 2005 the Common StandardhasneverbeenchallengedasaviolationofEUtreatyorprocurementlaw.47 d.FutureInitiativesfromLocalAuthorities OtherlocalauthoritieshaveexpressedinterestinusingtheCommonStandard,andover thelasttwoyearstheWestMidlandsForumhasconductedseveralnationaltrainingprograms.Atyear-end2004theWestMidlandsForumdecidedtomakeseveralchangesto theCommonStandardandtoattempttohaveitadoptedasanationalstandardforlocal authorities.First,theCommonStandardhasbeenrevisedsoastoincludegenderequalityandtheequalityofdisabledpersons.Secondly,theassessmentcriteriahavebeen reducedfromthreelevelstotwolevels.Allelementsoftheoriginalstandardarehoweverstillcovered–thecriteriaoflevel3arenowincorporatedintolevel2critieria.The newdraftCommonStandardhasbeenformulatedincooperationwiththeEmployers OrganisationandtheCommissionforRacialEquality.ItishopedthatthesocialpartnerswilladoptitinApril2005.RegardlessofwhetherthenewCommonStandard becomesadoptedasanationalstandard,thesixcouncilsoftheWestMidlandsForum havedecidedtoputthenewCommonStandardintoeffectasofApril2005.

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MichaelOrtonandPeterRatcliffe,op.cit.,37–38andtelephoneinterviewof16February2005 withAlanButt,SeniorContractorsAssessmentOfﬁcerforWolverhamptonCityCouncil. Telephoneinterviewof16February2005withAlanButt,SeniorContractorsAssessment OfﬁcerforWolverhamptonCityCouncil. SeeBirminghamCityCouncil,HowToDoBusinesswithBirminghamCityCouncil:A Guide forContractorsandSuppliers (Birmingham:2004),5. E-mailof5February2005fromBarbaraCohen,formerheadofthelegaldepartmentatthe CommissionofRacialEqualityandtelephoneinterviewof16February2005withAlanButt, SeniorContractorsAssessmentOfﬁcerforWolverhamptonCityCouncil.

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8.3.Sweden InaCabinetDecision48 of17January2002theSwedishGovernmentgavetheNational Board for Public Procurement49 the task of designing an antidiscrimination clause whichmaybeusedinpublicprocurementcontracts.Thepurposeoftheclauseistopromoteequaltreatmentinemployment,regardlessofsex,race,color,nationalorigin,ethnicorigin,religion,disabilityandsexualorientation.Initsreport50 of31May2002the NationalBoardforPublicProcurement(NBPP)proposedamodelantidiscrimination clause,whichallegedlyduetotheconstraintsofEUtreatylawandprocurementrules, wasparticularlylimitedinitsscopeandeffect.Thereisnoobligationforcontracting authoritiestousethemodelclause. Themodelclauseistobeusedasaconditionofcontract,thus,itisonlyusedinconjunctionwiththeexecutionphaseofthecontract.Inparticular,itisnottobeusedinconnectionwiththeselectionoftenderers/biddersnorintheawardofthecontract.Thegist ofthemodelclauseisasfollows: (1) Themodelclausestatesthatduringtheperformanceofthecontractthecontractor shall comply with four speciﬁcally named antidiscrimination laws. These four lawsprohibitdiscriminationinemploymentongroundsofgender,ethnicity,disabilityandsexualorientation. (2) Duringthecontractperformancetime,51 thecontractoris,upontherequestofthe contractingauthority,obligatedtoprovidethecontractingauthoritywithawritten accountoftheactivitiescarriedoutbythecontractorsoastocomplywiththe abovementionedantidiscriminationlaws.52 Thewrittenaccountisdueoneweek afterrequestunlessotherwiseagreed. (3) Thecontractorisobligatedtopayliquidateddamagesintheamountof(x)percent ofnationalbaserate53 ifitdoesnotdeliverthewrittenaccountofactivitiestothe contractingauthoritywithintheagreeddeadline.Thecontractorisalsoobligatedto paysuchdamagesifthewrittenaccountisobviouslydeﬁcient. (4) Thecontractorisobligatedtopayliquidateddamagestothecontractingauthority intheamountof(y)percentofthevalueofthecontractperweekifthecontracting

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Regeringsbeslut(Fi2002/422)of17January2002. TheSwedishnamefortheNationalBoardforPublicProcurementistheNämndenföroffentlig upphandling. Nämndenföroffentligupphandling,RapportfrånNämndenföroffentligupphandlingmed exempelpåantidiskrimineringsklausulersomkananvändasiupphandlingskontrakt (2002/ 0019–28of31May2002). Oncethecontracthasbeenperformed,thereisnolongeranyobligationunderthemodel clause. Thecontractingauthority’srighttorequestanaccountingofthecontractor’sactivitiesisnot dependentuponanysuspicionthatthecontractorisinviolationofoneoftheantidiscriminationlaws. ThenationalinsurancesystemofSwedenoperateswithabaseratewhichisperiodically adjustedanduponwhichthecalculationofsocialsecuritybeneﬁtsisbased.

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Onitsfacethemodelclausedoesnotimposeanyproactiveobligationsonthecontractor.However,oneofthelawsmentionedinthemodelclause54 –Act(1999:130)on MeasuresagainstEthnicDiscriminationinWorkingLife–containsanobligationfor theemployertocarryoutgoal-orientedworkinordertoactivelypromoteequalrights andopportunitiesinemploymentwithoutregardtoethnicbackgroundorreligion.(See section7.4foradiscussionofthisstatutory-basedproactiveobligationregime.)More speciﬁcally,theproactiveobligationsaretobecarriedoutwithrespecttoworkingconditions,thepreventionofharassmentandretaliatoryactionsandrecruitmentmethods. BecausetheActdoesnotspecifyingreaterdetailtheexplicitproactiveobligationsto becarriedoutbytheemployer,thereisacertaindegreeofuncertaintywithrespectto whenacontractor’sproactiveactivities(orlackthereof )maybesaidtohaveviolated theAct (see section 9.4). The proactive obligations of theAct and its uncertainty regardingtheassessmentofcomplianceisincorporatedintothemodelclausewhenthe modelclause(contractclause)obligatesthecontractortocomplywiththeAct. TheNationalBoardforPublicProcurement(NBPP)pointsoutinitsreportthat: (1) Themodelclauseisonlytobeusedwithrespecttocontractsinvolvingthepurchase ofservicesorconstructionworksinSweden.Itshouldnotbeusedwithrespectto the supply of goods nor with respect to the supply of services or construction worksperformedoutsideofSweden.55 TheNBPP attributestheserestrictionstothe EUCommission’sInterpretativeCommunicationwhichsuggestedthatanyimpositionofclausesrequiringchangestoorganization,structureorpolicyofanonnationalcontractormightbediscriminatoryandconstituteanunjustiﬁedrestriction oftrade.56 (2) Themodelclausecanonlyrelatetothepartofthecontractor’sworkforceinvolved intheperformanceofthespeciﬁcprocurementcontract.Furthermore,thecontractual period must be one of a certain duration. The NBPP attributes these two requirementstotheEUtreaty’sprincipleofproportionality.AccordingtotheNBPP, obligationsrelatingtothecontractor’sentireworkforcewouldbedisproportionate totheobjectiveofthespeciﬁccontract.Moreover,contractsofashortduration wouldnotinpracticegivethecontractingauthorityanypossibilitytomonitorthe contractor’s compliance with the model clause. Given the lack of any central

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TheSwedishEqualOpportunitiesAct(Jämställdhetslag1991:443)ongenderdiscrimination alsocontainsproactiveobligationsimposeduponemployerstopromotegenderequality. Nämndenföroffentligupphandling, RapportfrånNämnden,op.cit.,10. CommissionoftheEuropeanCommunities,InterpretativeCommunicationoftheCommission ontheCommunityLawApplicabletoPublicProcurementandthePossibilitiesforIntegrating SocialConsiderationsintoPublicProcurement COM(2001)566ﬁnal(15October2001) section1.6.

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enforcementagency,itistheindividualcontractingauthoritythathastheresponsibilityforenforcingtheobligationsofthemodelclause.TheNBPP isofthebelief thatthecontractingauthoritymust monitortheperformanceeachtimethemodel clauseisused,otherwisethismayleadtoadisruptionoffreecompetition.57 (3) Themodelclausedoesnotcontainarighttocancelthecontractifthemodelclause isviolated.TheNBPP believesthatsucharightofcancellationwouldfrightenmany smallbusinessesfromparticipatinginpublicprocurementcontracts.58 (4) Themodelclausedoesnotapplytosub-contractors.TheNBPP believesthatany suchapplicationtosub-contractorswouldmeanthattheprincipalcontractorwould havetomonitorthesub-contractor’scompliancewiththemodelclause.TheNBPP alsobelievesthatitisunreasonablethattheprincipalcontractorshouldberesponsibleforbreachesofthesub-contractor.59 Itshouldbenotedthatthereisnomechanismfordebarringacontractorwhoviolates themodelclause,fromfurtherparticipationinpublicprocurementcontracts. In2004theNBPP issuedareportwhichexaminedthenumberofcontractingauthoritieswhichactuallyusedantidiscriminationclausesinpublicprocurementcontracts.Of 391contractingauthoritiesansweringthesurvey,only6.6%(26)usedanantidiscriminationclauseonaregularbasiswhile4.9%(19)usedsuchaclause,butnotregularly.60 Onemusttakeintoconsiderationthatthemodelclausewasformulatedin2002. Sixofthe45contractingauthoritieswhouseanantidiscriminationclause,answered that they had experienced difﬁculty in the application of the clause – in particular, difﬁculty in assessing whether or not the clause had been breached.61 Part of that difﬁcultyisnodoubtrelatedtothelackofclarityregardingtheproactiveobligations imposed on employers in theAct (1999: 130) on Measures against Ethnic DiscriminationinWorkingLife.Thisiscertainlyfurthercomplicatedbythelackofexpertise inthevariouscontractingauthoritiesregardingtheactualpracticeoftheantidiscriminationlaws. Onlyﬁveofthe45contractingauthoritieswhouseanantidiscriminationclausehad carriedoutactivitiestomonitorthecontractor’scompliancewiththeclause.Thismay alsoexplainwhyonlysixhadexperienceddifﬁcultywiththeuseoftheclause.62 Itwas suggestedbyonecontractingauthoritythattheremaybeaconﬂictofinterestinhavingthecontractingauthorityenforcetheantidiscriminationclause;foritissquarely

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Nämndenföroffentligupphandling,RapportfrånNämndenföroffentligupphandlingmed exempelpåantidiskrimineringsklausulersomkananvändasiupphandlingskontrakt (2002/ 0019–28of31May2002)11,17and26. Ibid.,15. Ibid.,16–17. Nämndenföroffentligupphandling,Utvärderingavanvändningenavantidiskrimineringsklausuleriupphandlingskontrakt (Dnr2003/0301–28of17June2004)6. Ibid.,9. Ibid.,10–12.

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within the contracting authority’s interest to see that the purpose and objective of theprocurementcontractisindeedrealized.Thecontractingauthorityhasthereforelittleincentivetoraisesecondaryequalityissueswhichmayinterferewithitsprimary objective.63 ThereportconcludeswiththeNBPP recommendingthatthegovernmentadoptthe necessarylegislationtobeabletoexclude(debar)thosecontractors,whoviolatethe antidiscriminationclause,fromparticipatinginfuturepublicprocurementcontracts.64 Thisrecommendationhasnotyetbeenfollowedupbythegovernment.

8.4.UnitedStates a.Introduction In1965PresidentJohnsonsignedExecutiveOrder11246,which,asamended,requires contractorswhoenterintofederalgovernmentcontractstoundertakeproactiveobligationstoensureequalopportunityforemployment,withoutregardtorace,65 color,religion,sex,nationalorigin.66 TheOrderrequiresallgovernmentcontracts(fallingwithin thescopeoftheOrder)forthepurchaseofgoods,servicesorconstructionworks,to includeacomprehensivecontractclause(knownastheequalopportunityclause)67 whereby:(1)thecontractoragreestocarryoutcertainobligations,and(2)certainsanctionsaretofollowifthecontractorfailstocarryoutthoseobligations.68 ExecutiveOrder11246(asamended)andregulations69 adoptedpursuanttotheorder, cover: (1) allcontractorsandsubcontractorswhoenterintocontractsforthesaleofgoods and services withavalueofmorethan$10,000peryear;and (2) all contractors and subcontractors who enter into contracts for the sale of constructionworks withavalueofmorethan$50,000peryear. TheExecutiveOrderdoesnotapplytocontractsandsubcontractsconcerningworkto beperformedoutsideoftheUSA,providedtheemployeesperformingtheworkwere

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Ibid.,13. Ibid.,26. ThefollowingethnicminoritiesarethefocusofExecutiveOrder11246:AmericanIndians, AlaskanNatives,Asians,PaciﬁcIslanders,BlacksandHispanics. Section503oftheRehabilitationAct1973(29U.S.C.§793)imposessimilarobligationson employerstopromotetheequalityofdisabledpersons. Seethedeﬁnitionofequalopportunityclause in41C.F.R.§60–1.3. TheOrdersimilarlyrequiresthattheequalopportunityclausebeincludedinfederallyassisted constructioncontractswherethefederalgovernmentisnotaparty.Inclusionoftheclauseis aconditionfortheapprovalofanygrant,loan,insuranceorguaranteebythefederalgovernment.Theapplicantforfederalassistancewouldthushavetoincorporatetheclauseandcause ittobeincorporatedbysubcontractors.See§301ofExecutiveOrder11246. Title41CodeofFederalRegulations(C.F.R.)Chapter60.

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notrecruitedfromwithintheUSA.70 Inyear2002morethan26millionemployeeswere coveredbytheExecutiveOrder,i.e.,nearly22%ofthetotalcivilianworkforce.71 b.ContractualObligationsUndertakenbytheContractorPursuanttotheEqual OpportunityClause Inthecontract’sequalopportunityclausethecontractorundertakesthatduringtheperformanceofthecontract,thecontractorshall:72 (1) notdiscriminateagainstanyemployeeorjobapplicantonthebasisofrace,color, religion,sexornationalorigin. (2) takeafﬁrmativeaction toensurethatjobapplicantsandemployeesaretreatedwithout regard to their race, color, religion, sex or national origin. The afﬁrmative action shall relate to employment, upgrades, demotions, transfers, recruitment, recruitmentadvertising,layoffs,terminations,allformsofcompensation,selection fortrainingandapprenticeship. (3) post in conspicuous places, available to employees and job applicants, notices regardingtheprovisionsofthenon-discriminationclause (4) includeanequalopportunitynoticeinallinternalandexternalsolicitationsfor employment, (5) sendtoalllaborunionswithwhichithasacollectivebargainingagreement,anotice ofitscommitmentsunderExecutiveOrder11246, (6) complywithallrules,regulationsandordersmadebytheSecretaryofLaborpursuanttoExecutiveOrder11246, (7) furnishallinformationandreportsrequired,andpermitaccesstoitsbooks,records andaccountsforpurposesofinvestigationtoascertaincompliance, (8) includetheprovisionsoftheequalopportunityclauseineverysubcontractorpurchaseordernecessarytocarryoutthecontract,suchthattheclausewillbebinding uponeachsubcontractororvendor.Thecontractoragreestotakeanyactionagainst the subcontractor or vendor directed by the Secretary of Labor as a means of enforcingtheprovisions. TheExecutiveOrder’scontract-basedregimeforpromotingequalityinemploymentis knownintheUSA ascontractcompliance.Thecontractualobligationsimposedupon thecontractorconcernallofthefacilitiesofthecontractor(i.e.,organization-wide) unlessspeciﬁcallyexempted,bytheSecretaryofLabor.Theobligationsarethusnot limitedtotheunitperformingthespeciﬁccontract.73 The core of this contract-based regime is the obligation to carry out afﬁrmative action.Theafﬁrmativeactionobligationsarespeciﬁedingreatdetailintheregulations

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SeeExecutiveOrder11246,section204and41C.F.R.§60–1.5(a)(3). Ofﬁce of Federal Contract Compliance Programs,AfﬁrmativeAction Fact Sheet at http://www.dol.gov/esa/regs/compliance/ofccp/aa.htm.(LastvisitedDecember2004). See§202ofExecutiveOrder11246. See§204ofExecutiveOrder11246.

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adoptedbytheSecretaryofLaborpursuanttotheOrder.Theafﬁrmativeactionobligationsdiffer,dependingonwhetherthecontractorisasupplierofgoodsandservicesor asupplierofconstructionworks.Themaindifferenceisthattheconstruction contractorisnotrequiredtodevelopawrittenafﬁrmativeactionprogram.Thisissupposedly duetotheﬂuidandtemporarynatureoftheconstructionworkforce.Constructioncontractorsdo,however,haveafﬁrmativeactionobligations.Theessentialdifferenceisthis: Non-constructioncontractorscarryoutworkforce,availabilityandutilizationanalyses inordertodeterminewhatgoalsforutilizationofethnicminoritiesandwomenthey shouldsetasbenchmarksformeasuringprogressandwhatspeciﬁcafﬁrmativeaction theyshouldundertake(seebelow).Constructioncontractors,however,arenotobligated tocarryouttheseanalysesbecausetheOfﬁceofFederalContractCompliancePrograms (OFCCP)74 establishesthegoals75 andspeciﬁestheafﬁrmativeactionwhichmustbe undertakenbythem. Thelimitationsonspacedonotallowmetogointoalldetailsofcontractcompliance, norisitnecessary.Ihavethuschosentofocusontheafﬁrmativeactionobligationsof non-constructioncontractors(i.e.,acontractorsupplyingeithergoodsorservices),since theobligationsimposedonnon-constructioncontractorsarethemorecomprehensive ofthetwo. Consequently, the following description of afﬁrmative action obligations, unless otherwiseindicated,onlyrelatestonon-constructioncontractors.Eachnon-constructioncontractormustdevelopandmaintainawrittenafﬁrmativeactionprogram(AAP) foreachofitsestablishments,ifthecontractorhas50ormoreemployees(organizationwide)andhasacontractforavalueof$50,000ormore.76 A contractor(whetherforeign ordomestic)whichhasanestablishmentoutsideoftheUSA isnotobligatedtohavean afﬁrmativeactionprogramwithrespecttothat establishment’semployees,providedthe employeesinthatestablishmentareneitherengagedintheperformanceofthecontract intheUSA norrecruitedintheUSA toworkonfederalcontractworkoutsideofthe USA.77 ThusforeigncontractorsareonlycoveredtotheextentthattheyhaveUSAbasedemployeesorUSA-recruited(foreign-based)employeesengagedinfederalcontractworkoutsideoftheUSA. Theafﬁrmativeactionprogramisaself-analysisandself-auditingtool;thecontractormustimplementitandkeepitonﬁle.ThecontractoronlysubmitstheAAP tothe

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TheOfﬁceofFederalContractCompliancePrograms(OFCCP)isthegovernmentagency responsiblefortheimplementationandenforcementofExecutiveOrder11246. TheOFCCP hassetthegoalfortheutilizationofwomenat6.9%ofworkhoursandthisapplies toallconstructioncontractorsthroughouttheUSA.Thegoalwassetin1978andhasremained thesame.ThegoalsfortheutilizationofethnicminoritiesareformulatedintermsofapercentageofworkhoursperformedinaspeciﬁcStandardMetropolitanStatisticalArea(SMSA). ItthusdiffersfordifferentSMSA’s.SeeOFCCP,TechnicalAssistanceGuideforFederal Construction Contractors, 7 at http://www.dol.gov/esa/ofccp/TAguides/consttag.pdf (last visitedJanuary2005). 41C.F.R.§60–2.1. Interviewof3February2005withHeidiDalzell-Finger,DeputyDirectoroftheDivisionof ProgramOperationsattheOfﬁceofContractCompliancePrograms.

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enforcementauthorities(OFCCP)ifrequestedtodosoinconjunctionwithacompliancereview.78 Thestatedpurposeoftheafﬁrmativeactionprogramisasfollows: Anafﬁrmativeactionprogramisamanagementtooldesignedtoensureequalemployment opportunity.A centralpremiseunderlyingafﬁrmativeactionisthat,absentdiscrimination, overtimeacontractor’sworkforce,generally,willreﬂectthegender,racialandethnicproﬁle ofthelaborpoolsfromwhichthecontractorrecruitsandselects.Afﬁrmativeactionprograms containadiagnosticcomponentwhichincludesanumberofquantitativeanalysesdesigned toevaluatethecompositionoftheworkforceofthecontractorandcompareittothecompositionoftherelevantlaborpools.Afﬁrmativeactionprogramsalsoincludeaction-oriented programs.Ifwomenandminoritiesarenotbeingemployedataratetobeexpectedgiven their availability in the relevant labor pool, the contractor’s afﬁrmative action program includesspeciﬁcpracticalstepsdesignedtoaddressthisunderutilization.Effectiveafﬁrmativeactionprogramsalsoincludeinternalauditingandreportingsystemsasameansofmeasuringthecontractor’sprogresstowardachievingtheworkforcethatwouldbeexpectedin theabsenceofdiscrimination.79

TheadministrativeregulationsatTitle41oftheCodeofFederalRegulations(Chapter 60)setoutthecontentsoftheafﬁrmativeactionprogram(AAP)tobecarriedoutbythe contractor: (1) Thecontractormustwriteupanorganizationalproﬁlewhichindicatesforeachjob titleandeachorganizationalunitthenumberofmaleandfemaleemployeesandthe total number of male and female employees in each of the following groups:80 Blacks, Hispanics,Asians/Paciﬁc Islanders, andAmerican Indians/Alaskan Natives.81 Furthermore,thecontractormustmaintainrecordswhichcanidentifythe gender,raceandethnicityofeachemployee,andwherepossible,ofeachapplicant.82 Noparticularmethodofcollectingthisinformationismandated,buttheuse ofself-identiﬁcationreportingisstronglyrecommended.Ifself-identiﬁcationisnot feasible,thenvisualobservationmaybeused.83 (2) Thecontractormustcarryoutajobgroupanalysis,wherebyjobtitleswithsimilar content, wage rates and opportunities, are combined to form job groups. If a

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TheAfﬁrmativeActionProgramisnotsubmittedtotheOFCCP inadvanceforapproval. 41C.F.R.§60–2.10. 41C.F.R.§60–2.11. A whitepersonisdeﬁnedas“anindividual,notofHispanicorigin,withoriginsinanyofthe original peoples of Europe, NorthAfrica or the Middle East.” Ofﬁce of Federal Contract Compliance Programs, Federal Contract Compliance Manual, Chapter 1B (Glossary of GeneralDeﬁnitions). 41C.F.R.§60–1.12(c).Althoughcontractorsarealsoobligatedtopromoteequalemployment opportunityregardlessofreligionandnationalorigin,thereisnomonitoringobligationand thusnoobligationtocollectdataontheworkforceconcerningreligionandnationalorigin. OFCCP,FrequentlyAsked QuestionsfortheEmployer athttp://www.dol.gov/esa/regs/compliance/ofccp/faqs/emprfaqs.htm,lastvisitedJanuary2005.

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haslessthan150employees,itmayutilizethefollowingninejobgroupcategories: Ofﬁcialsandmanagers,professionals,technicians,sales,ofﬁceandclerical,craft workers(skilled),operatives(semiskilled),laborers(unskilled),andserviceworkers.84 Thepercentageofethnicminoritiesandwomenineachjobgroupmustbe provided.85 (3) Thecontractormustdeterminetheavailability ofethnicminoritiesandwomenfor eachjobgroup.“Availability isanestimateofthenumberofqualiﬁedminoritiesor womenavailableforemploymentinagivenjobgroup,expressedasapercentage ofall qualiﬁedpersonsavailableforemploymentinthejobgroup.”86 Inotherwords itexpressesasapercentagetherepresentationofqualiﬁedethnicminoritiesand women in the relevant labor market. In determining availability the contractor mustconsider:(a)thegeographicalareainwhichthecontractorwouldnormally recruit or could reasonably be expected to recruit, (b) the percentage of ethnic minoritiesandwomenamongthosepromotable,transferable,andtrainablewithin thecontractor’sorganization.Todetermineavailabilitythecontractorcanusecensusdata,87 datafromlocaljobserviceofﬁces,anddatafromcollegesorothertraining institutions. In addition, the Equal Employment Opportunity Commission (EEOC)providesdataaggregatedfromtheEEO-1formsthatallprivateemployerswith100ormoreemployeesmustﬁle.88 TheEEO-1formrequirestheemployer toprovidethenumbersofemployeesineachoftheninejobgroupcategories(see no.2above)brokendownbysexandrace/ethnicity. (4) The contractor must compare the percentage of ethnic minorities and women employeesinitsjobgroups(internalrepresentation)withtheavailability forthose jobgroups(externalrepresentation)inordertodeterminewhetherthecontractorhas anunderutilization89 ofethnicminoritiesandwomeninitsworkforcegenerallyand speciﬁcallyforeachjobgroup.90 (5) Uponashowingofunderutilization,thecontractormust: (a) setplacementgoals91 forethnicminoritiesand/orwomen,theannualpercentageof whichisatleastequaltoavailability,

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Thisistheﬁrststepinthecontractor’scomparisonofitsinternalrepresentationofethnic minoritiesandwomenwiththeestimatedavailabilityofethnicminoritiesandwomenqualiﬁed tobeemployed.41C.F.R.§60–2.12. 41C.F.R.§60–2.13. 41C.F.R.§60–2.14. Thecensuswebsite(http://www.census.gov/)presentsdataonraceandethnicity,cross-tabulatedbyothervariablessuchasdetailedoccupations,occupationalgroups,gender,worksite geography,residencegeography,education,ageandindustry.FromJanuary2004thecensus websitehasincludedaCensus2000SpecialEqualEmploymentOpportunityTabulation,makingiteasierforemployerstoﬁndtheavailabilitydatatheyneed. Federalcontractorswith50ormoreemployeesmustalsoﬁleanEEO-1form,iftheyhavecontracts,subcontractsorpurchaseordersof$50,000ormore. Thisthesisusesthetermunderrepresentation,whichisthecomparabletermusedinCanada, GreatBritainandNorthernIreland. 41C.F.R.§60–2.15. Theplacementofgoalscontemplatesasinglegoalforallethnicminoritiescollectively.

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(b) performin-depthanalysesofitstotalemploymentprocesstodeterminewhetherand whereimpedimentstoequalityinemploymentexist,includingasaminimumevaluationsofapplicantﬂow,hires,terminations,promotions,compensationsystems,selection,recruitmentandreferrals, (c) assignresponsibilityandaccountabilityfortheAAP toanofﬁcialwhohastheauthority,resourcesandsupportoftopmanagementtoensureeffectiveimplementation, (d) developandexecuteaction-orientedprogramsdesignedtocorrectanyproblemareas identiﬁedintheemploymentprocessanalysis, (e) developandimplementaninternalauditandreportingsystemthatperiodicallymeasures theeffectivenessofitsAAP by,amongotherthings,monitoringallpersonnelactivity, reviewingreportresultswithalllevelsofmanagement,andmakingrecommendations totopmanagementofhowtoimproveunsatisfactoryperformance.92

Contractors are obligated to make good faith efforts to meet their goals; however, goalscannotbeinﬂexibleorfunctionasquotas.Theregulationsexpresslyforbidtheuse ofquotasandpreferentialhiringorpromotions.Goalsarenotusedtoachieveproportionalrepresentation,butratherasbenchmarkstomeasureprogresstowardachieving equalopportunityinemployment.93 Thefailuretoreachone’sgoalsisnotbyitselfaviolationoftheequalopportunityclause;however,failuretocarryoutone’sobligations ingoodfaithisaviolation.94 Anafﬁrmativeactionprogramisanongoingobligationinthesensethatitmustbe updatedannually95 andthecontractorisobligatedtomaintainitanditsdocumentation ofgoodfaitheffortofimplementationforthecurrentafﬁrmativeactionprogram(AAP) yearandtheimmediatelyprecedingAAP year.96 Althoughthecontractordoesnotrisk acompliancereviewafterithascompletedperformanceofthecontract,thedocumentationitisobligatedtoretainmaybeusedtomeasureprogress(orlackthereof)inasubsequentcompliancereviewinconnectionwithanewcontract.97 c.EnforcementandSanctions TheOfﬁceofFederalContractCompliancePrograms(OFCCP)98 isthegovernment agencyauthorizedtoimplementandenforceExecutiveOrder11246andtheregulations adoptedpursuanttotheOrder.EachyeartheOFCCP conductscomplianceevaluations ofcontractorstodeterminewhethercontractorsareincompliancewiththeirobligations undertheOrder.A corporatemanagementcomplianceevaluation(glassceilingreview) isdesignedtoassesstheexistenceofbarrierstoadvancementintomid-levelandsenior corporatemanagement.A complianceevaluationcaneitherbeadeskauditconducted

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41C.F.R.§§60–2.16and2.17. Ibid. 41C.F.R.§§60–2.35. 41C.F.R.§§60–2.1(c). 41C.F.R.§§60–1.12(b). Interviewof11December2002withWilliamDoyle,DeputyDirectorfortheOfﬁceofFederal ContractCompliancePrograms. TheOfﬁceofFederalContractCompliancePrograms(OFCCP)isapartoftheDepartmentof Labor.

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atOFCCP ofﬁcesoranon-sitereview,conductedatthecontractor’sestablishment.An on-sitereviewwillnormallyinvolveanexaminationofpersonnelandemploymentpolicies,inspectionandcopyingofdocumentsrelatedtoemploymentactions,andinterviewswithemployees,supervisors,managersandhiringofﬁcials.99 Thecontractorsto bereviewedarechosenonthefollowingbases:(a)contractorsﬂaggedbyacomputer programforhavingbelowaverageparticipationratesforminoritiesorwomen,(b)contractorsselectedrandomly,and(c)contractorsidentiﬁedthroughcomplaints.Inyear 2000therewere4,162compliancereviewsand42corporatemanagementreviewsconducted.100 In2001theOFCCP hadastaffof444complianceofﬁcers. Individuals who allegedly suffer discrimination by contractors or subcontractors coveredbyExecutiveOrder11246,mayﬁlecomplaintswiththeOFCCP.101 A complaint involving one alleged victim will usually be referred to the Equal Employment OpportunitiesCommission,whichenforcestheCivilRightsAct1964–whichisthe ordinarycomplaint-basedmechanismforredressingemploymentdiscrimination(both individuallyandviaclassaction).However,theOFCCP willinvestigatecomplaintsit receivesinvolvinggroupvictimsorshowingapatternorpracticeofdiscrimination.102 Ifacompliancerevieworcomplaintinvestigationindicatesnon-compliancewiththe equalopportunityclauseofthecontract,theOFCCP willattempttosecurecompliance byconciliationandpersuasion,oftenenteringintoconciliationagreements.Inaconciliationagreementthecontractor/subcontractoragreestocarryouttheactionnecessary tocorrecttheviolations.103 Ifconciliationeffortsfail,theOFCCP mayreferthecaseto theSolicitorofLaborfortheimplementationofadministrativeenforcementproceedings.104 Afterahearingbeforeanadministrativelawjudge,thejudgeshallrecommend ﬁndings,conclusionsandadecisiontotheAdministrativeReviewBoardoftheUS DepartmentofLabor,whichwillrenderaﬁnaladministrativeorder.105 A contractorthat failstocomplywiththisﬁnaladministrativeordermayhaveitscontractterminatedor suspended,orthecontractormaybedebarredfromenteringintofuturecontractswith thefederalgovernment.106 Debarmentishoweverusedrarelyandfrom1974(theﬁrst yeardebarmentwasused)until2001therehadbeen43ﬁrmsthathadbeendebarred.107

99 100

101 102

103 104 105 106 107

41C.F.R.§§60–1.20and2.30. Ofﬁce of Federal Contract Compliance Programs, Program Quick Facts at http://www. dol.gov/esa/media/reports/ofccp/ofqfacts.htm,(lastvisitedJanuary2005). 41C.F.R.§§60–1.21. Inyear2000theOFCCP carriedout306complaintinvestigations.SeeOfﬁceofFederal ContractCompliancePrograms,ProgramQuickFacts,op.cit. Inyear2000therewere1,694conciliationagreementsenteredinto.Ibid. 41C.F.R.§60–30.5. 41C.F.R.§60–30.27. 41C.F.R.§60–30.30. SeeJonathanLeonard,UseofEnforcementTechniquesinEliminatingGlassCeilingBarriers (PaperpreparedfortheGlassCeilingCommission)(1990),27andOfﬁceofFederalContract CompliancePrograms,AccomplishmentDataforFiscalYears1990through2001.

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8.5.Canada a.Introduction TheFederalContractorsProgram(FCP)wasestablishedin1986byCabinetDecision topromoteemploymentequityforfourdisadvantagedgroups:(1)Aboriginalpeople, (2)visibleminorities,108 (3)personswithdisabilities,and(4)women.Thesefourgroups are referred to collectively as the designated groups. Details of the program are describedinTreasuryBoardCircularNo.1986–44.TheFederalContractorsProgram coversCanadian-based109 contractorswith100ormoreemployeeswhohavecontracts withthefederalgovernmentforthesalegoodsorservices110 withavalueof$200,000 ormore.111 ContractsforthesaleofconstructionworksarenotcoveredbytheFederal ContractorsProgram.112 Asaconditionfortheawardofsuchcontracts,abidderis required to certify in writing its commitment to employment equity according to speciﬁedcriteriaonthereversesideoftheCertiﬁcateofCommitment.113 Whenacoveredcontractorhasbeenawardedthecontract,itisrequiredtoimplementtheemploymentequityobligations.Inyear2002therewere891federalcontractorscoveredbythe FCP,withatotalof1,082,184employees.114 b.ContractualObligationsUndertakenbyContractorsbytheCertiﬁcateof CommitmenttoImplementEmploymentEquity Contractors are obligated to implement employment equity in accordance with the FederalContractorsProgram’sCriteriaforImplementation,115 whichareinessencethe sameobligationsasthoseundertheEmploymentEquityAct1986andEmployment EquityRegulations1996116 imposedonfederally-regulatedprivate-sectoremployers

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Visibleminoritiesarepersons,otherthanaboriginalpeoples,whoarenon-Caucasianinrace ornon-whiteincolor. TheFCP doesnotcoverforeignorganizationsunlesstheyhaveaCanadianworkforceof100 ormoreemployees.SeeTreasuryBoardCircularNo.1986–44,para5.Seealsohttp://www. hrsdc.gc.ca/asp/gateway.asp?hr=/en/lp/lo/lswe/we/programs/fcp/faq/b.shtml&hs=wzp (last visitedJanuary2005). Legalservicesare,however,excludedfromcoverage.Inaddition,theprogramdoesnotcover subcontractorsorcontractorsalreadysubjecttothestatutory-basedemploymentequityprogram,i.e.,federally-regulatedprivatesectoremployerswith100ormoreemployees.Treasury BoardCircularNo.1986–44,para7.Seesection7.1foradescriptionofthefederally-regulatedprivatesectoremployers. TobecoveredbytheFCP thecontractormusthaveafederalgovernmentcontractwhich, standingalone,hasavalueof$200,000ormore. TreasuryBoardCircularNo.1986–44,para5. See§3.1ofAppendixDofTreasuryBoardCircularNo.1986–44. See http://www.hrsdc.gc.ca/asp/gateway.asp?hr=/en/lp/lo/lswe/we/information/what. shtml&hs=wzp(lastvisitedJanuary2005). Seehttp://www.hrsdc.gc.ca/en/lp/lo/lswe/we/programs/fcp/criteria/Criteria.pdf(lastvisited January2005). FederalcontractorsarenotdirectlycoveredundertheEmploymentEquityAct;however,§42

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under the Legislated Employment Equity Program, described in section 7.1.b.The obligationsrelatetothecontractor’sentireCanadianorganization.117 Ishallstatebrieﬂy the11criteriaandaskthereadertorefertosection7.1.bforafullerdescriptionofthese obligations: Criterion1: Thecontractorshallcommunicateitsemploymentequitypolicyand measurestoemployees. Criterion2: Thecontractorshallassignaseniorofﬁcialtoberesponsibleforthe developmentandimplementationofemploymentequity. Criterion 3: The contractor shall collect and maintain information on all of its workforce,byoccupation,salarylevelandtheiridentiﬁcationasamemberofadesignatedgroup(i.e.,aborigine,visibleminority,disabledpersonorwoman). Criterion4: Thecontractorshallanalyzetheworkforcedatatocomparetheinternalrepresentationofthedesignatedgroupswiththeavailabilityofqualiﬁedmembers ofdesignatedgroupsinthelabormarket(inwhichthecontractorcanreasonablybe expectedtorecruit).Thecomparisonshallshowwhetherthereisanunderrepresentationofdesignatedgroupsinthecontractor’sworkforce. Criterion5: Wherethereexistsanunderrepresentationofmembersofdesignated groupsintheworkforceorinparticularoccupationalcategories,thecontractorshall carryoutanemploymentsystemsreviewinordertoﬁndwhetherandwherethereexist barrierstoequalityinemployment. Criterion 6: The contractor shall address any underrepresentation and barriers revealedintheworkforceanalysisandemploymentsystemsreviewbysettingnumericalandnon-numericalgoalsandtimetablesforhiring,trainingandpromotionofdesignatedgroupmembers. Criterion7: Thecontractorshalldevelopanemploymentequityplantohelpthecontractorreachitsgoalsandtimetables.Theemploymentequityplanshallreﬂectthework carriedoutincriteria1–6aswellasdescribetheworktobedevelopedincriteria8–10. Criterion8: Thecontractorshalladoptspecialmeasuresandreasonableaccommodation to accelerate the entry, development and promotion of designated group members. Criterion9: Thecontractorshallestablishapositiveworkenvironmentthatencouragestheintroductionanddevelopmentofmembersofdesignatedgroups. Criterion10: Thecontractorshalladoptmonitoringproceduressoastobeableto assesstheprogressandresultsachievedinimplementingemploymentequity.

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(2)oftheActrequiresthattheMinisterofLaborensurethattheemploymentequityobligationsimposedonfederalcontractorsundertheFederalContractorsProgrambecomparable tothoseimposedonemployersundertheAct.Thespeciﬁedcriteriaforcontractorsdonot, however,includeareportingrequirement.PromotingEqualityintheFederalJurisdiction: Review of the Employment Equity Act (Report of the Standing Committee on Human Resources Development and the Status of Persons with Disabilities (Ottawa: House of Commons,June2002),chapter4,no.2. See http://www.hrsdc.gc.ca/asp/gateway.asp?hr=/en/lp/lo/lswe/we/programs/fcp/faq/ c.shtml&hs=wzp(lastvisitedJanuary2005).

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Criterion11: Thecontractorshallprovideenforcementauthoritieswithauthorizationtoenterpremisesandtoaccessrecordsrelatedtoemploymentequityandtomeet withemployees,supervisors,tradeunionrepresentativesetc. Thecontractor’sobligationsdonotterminateafterperformanceofthecontractiscompleted.Thecommitmenttoemploymentequityisongoing.118 c.EnforcementandSanctions TheFederalContractorsProgramisadministeredandenforcedbytheLabourStandards and Workplace Equity Directorate, which is a division of Human Resources DevelopmentCanada(HRDC)119 (DepartmentofLabor).Between1995and1998the staffofemployeesworkingspeciﬁcallywiththeFederalContractorsProgram,was reduced from 26 to 13 (combined national headquarters and regional ofﬁces). Compliancereviewsofthecontractorswerecarriedoutbyregionalstaffwhichhada totalof7.5employeesin1999.120 Thereductionofpersonnelledtoasigniﬁcantcutback inthenumberofcompliancereviewscarriedout.In1993therewere213compliance reviewsclosedbytheWorkplaceEquityDirectorate,whereasin1999therewereonly 33compliancereviewsclosed.121 Whenacontractorisfoundtobeinnon-compliancewiththeFederalContractors Program’sCriteriaforImplementation,thecomplianceofﬁcerswillcarryoutnegotiationsandconsultationswiththecontractorinordertoreachanamicablesolution.The onlysanctionfornon-complianceisdebarment;thereisnorighttocancelthecontract undertheFederalContractorsProgram.A contractormayappealacompliancereview’s ﬁndingofnon-compliancetotheMinisterofLabour.Uponsuchanappeal,anindependentreviewwillbeundertaken.Iftheindependentreviewﬁndsthecontractorin non-compliance,theenforcementauthoritymaydebarthecontractorfromparticipatinginfuturepublicprocurementcontracts.122 From1986to2002only8contractors weredebarred.123 OnceadmittedtotheFederalContractorsProgram,acontractorcanonlywithdraw fromitbyacceptingaself-imposedsanctionofforfeitingitseligibilitytobidonany futurefederalgovernmentcontractshavingavalueof$25,000ormore.124

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See http://www.hrsdc.gc.ca/asp/gateway.asp?hr=/en/lp/lo/lswe/we/programs/fcp/faq/ b.shtml&hs=wzp(lastvisitedJanuary2005). In2004thedivisionchangeditsnametoHumanResourcesSkillsandDevelopmentCanada (HRSDC). EvaluationandDataDevelopment(HRDC),FinalReportfortheEvaluationoftheFederal ContractorsProgram (April,2002)16. Ibid.,18. TreasuryBoardCircularNo.1986–44,paras14–15.SeealsotheFCP websitehttp://www. hrsdc.gc.ca/asp/gateway.asp?hr=/en/lp/lo/lswe/we/programs/fcp/suppliers/appeals_sanctions. shtml&hs=wzp(lastvisitedJanuary2005). EvaluationandDataDevelopment(HRDC),op.cit.,20. See http://www.hrsdc.gc.ca/asp/gateway.asp?hr=/en/lp/lo/lswe/we/programs/fcp/faq/ j.shtml&hs=wzp(lastvisitedJanuary2005).

Chapter 9 A Rational Government Policy Response to Systemic Ethnic Discrimination in Employment 9.1. Introduction and Scope a. Introduction This chapter poses the question: What is a rational government policy response to systemic ethnic discrimination in employment?1 What are the characteristics of such a policy response? In light of my ﬁndings in chapters 3 and 4 regarding the mechanisms and characteristics of systemic discrimination in employment and the limits of traditional complaint-based approaches, a rational government policy response would necessarily entail something more than this. Government exhortations of voluntary action as a macro-level government strategy to address systemic ethnic discrimination in employment, is not an appropriate policy response. As the Hepple Report describes it, the British government’s strategy of voluntary action in the 1960’s failed abysmally because

1

I use the term systemic ethnic discrimination to refer to systemic discrimination which is connected to race, ethnic origin, national origin, color or descent. See section 2.5 for a discussion of these terms.

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“there was no pressure to change entrenched managerial practices.”2 Moreover, after many years of the Canadian government’s having urged employers to carry out voluntary action to promote equality in employment, the Royal Commission Report on Equality in Employment concluded in 1984 that a voluntary approach had not had signiﬁcant impact on the improvement of employment opportunities for women, visible minorities, disabled persons and aboriginal persons.3 Government calls for voluntary action, standing alone, simply cannot bring about change in organizations that for various reasons (e.g., economic, social etc.) are resistant to change. As we shall see in section 9.3.d, middle and lower management resistance to change is indeed a signiﬁcant hurdle for the promotion of equality at the workplace. This thesis chooses as its subject the assessment of one type of government policy response which has been documented to have had impact on systemic ethnic discrimination in employment: the imposition of proactive obligations on employers to promote ethnic equality. In this chapter I assess collectively the government policy responses presented in chapter 7 (statutory-based proactive obligation regimes) and chapter 8 (contract-based proactive obligation regimes). Thus, the term employer is used to refer to either employers subject to statutory-based regimes or to contractors subject to contract-based regimes, or to both collectively. If a government’s proactive obligation regime is to be a rational policy response to systemic ethnic discrimination in employment, then that regime must impose a set of obligations designed to ensure that the employer adopt an internal equality program at the workplace, which itself is a rational response to the problem.4 Consequently, the obvious point of departure in answering the question posed in the ﬁrst sentence of this chapter is ﬁrst to understand the dynamics and nature of the problem that the policy is intended to address. In chapter 3, systemic discrimination in employment was deﬁned as: patterns of behaviour that are part of the social and administrative structures of the workplace, and that unjustiﬁably create or perpetuate a position of relative disadvantage for some groups, and privilege for other groups, or for individuals on account of their group identity.5

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Bob Hepple, Mary Coussey and Tufyal Choudhury, Equality: A New Framework: Report of the Independent Review of the Enforcement of UK Anti-Discrimination Legislation (Oxford: Hart Publishing, 2000), 57. Rosalie Silberman Abella, Equality in Employment: A Royal Commission Report (Ottawa: Minister of Supply and Services Canada, 1984), 195–197. In this thesis I use the terms proactive obligation regime, proactive regime and regime to refer to the government’s regulatory scheme for promoting equality in employment; I use the term equality program to refer to the employer’s internal initiative for promoting equality at its workplace. This deﬁnition is taken almost verbatim from Carol Agocs’ deﬁnition. I have only added the word “unjustiﬁably” to her deﬁnition. See Carol Agocs, “Systemic Discrimination in Employment: Mapping the Issue and the Policy Responses,” in Workplace Equality: International Perspectives on Legislation, Policy and Practice, edited by Carol Agocs (The Hague: Kluwer Law International, 2002), 2.

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Systemic discrimination in employment involves advantage and disadvantage that is employer-related. It is linked to the workplace’s administrative structures or organizational culture, which produces, contributes to or permits unjustiﬁable differential treatment, unjustiﬁable disproportionate impact or a hostile or poisonous work environment. In chapter 3 it was shown that an understanding of systemic discrimination in employment required an examination of three characteristics of the workplace: employment systems,6 organizational culture and numerical representation and distribution. Using case law and social science studies, I illustrated ideal typical situations which lead to systemic discrimination in employment, from which one could distill its characteristics and mechanisms of operation. On the basis of these characteristics one could then propose employer-based responses designed to counter or alleviate systemic discrimination in employment. In section 3.3, I made some preliminary ﬁndings as to what employers needed to do to address systemic discrimination in employment. I shall brieﬂy re-state these ﬁndings. (1) Addressing systemic discrimination in employment involves change in organizational policy, practice and culture. Because systemic discrimination is a continuing phenomenon, this change should be carried out by way of an ongoing problem-solving approach and an ongoing learning process – and perhaps most importantly with the good-will, resources and expertise of the organization itself so as to bring about the necessary organizational change. Organizational change of this type requires management commitment at all levels (top, middle and line management) and communication between management and employees, both “top-down” and “bottom-up”. (2) Because of the difﬁculty in perceiving systemic discrimination in employment, the employer must carry out quantitative and/or qualitative studies (investigations) which enable it to identify the barriers to ethnic equality in human resources policies and practices. The employer should carry out an employment systems review7 in order to determine whether and where there exist discriminatory barriers adversely affecting the hiring, promotions, career development, performance appraisal, retention etc. of ethnic minorities. The review should include the consultation of ethnic minority employees. (3) How systemic discrimination in employment occurs is not well-understood in the workplace. Employers, managers, decisionmakers, interviewers and other “gatekeepers” should undergo training so as to understand the role that “neutral” rules and

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As described in chapter 3, the term employment systems refers to the organisational policies and practices governing the human resource management of an organization, for example, policies and practices concerning recruitment, hiring, training, career development, promotion, compensation, retention, termination, work assignment, performance appraisal, etc. Carol Agocs, “Systemic Discrimination in Employment: Mapping the Issue and the Policy Responses,” in Workplace Equality: International Perspectives on Legislation, Policy and Practice, edited by Carol Agocs (The Hague: Kluwer Law International, 2002), 8. Generically-speaking the employment systems review is simply the qualitative and/or quantitative review process by which the employer learns what needs to be changed (and how to change it) in order to ensure that its human resource policies and practices at the workplace are free from barriers to (ethnic) equality.

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Chapter 9 non-conscious stereotyping and bias can play in evaluative processes and interpersonal relations. In recognizing this, employers would understand better the need to build preventive mechanisms into employment systems. A proper response to systemic discrimination entails the incorporation of transparency and accountability into evaluative processes, the issuance of proper guidance concerning the exercise of discretion, and the use of adequate restraints so as to deter the inﬂuence of stereotypes and bias in the evaluation process. (4) Where there is a limited pool of ethnic minority job candidates, the employer should carry out targeted recruitment (outreach) or other steps so as to provide a pool of candidates which is more representative of the availability of ethnic minorities in the labor market. (5) Employers should adopt proper grievance procedures to ensure that allegations of harassment, poisonous work environment and discrimination are taken seriously, investigated thoroughly and effectively remedied if established. The complainant must be protected from retaliation. The employer must ensure that the culture of the workplace does not permit or tolerate harassment or discrimination by building in incentives and disincentives, rewards and punishments into the policies and practices at the workplace. (6) Employers should actively promote the social and professional inclusion of ethnic minorities at the workplace, for example, by establishing, encouraging and rewarding internal mentoring and networking initiatives to enhance the social and professional network of ethnic minorities.

Although the role of the employer is primary in addressing systemic ethnic discrimination in employment, a rational government policy is also determined by other factors, such as the government institutional structure chosen to provide guidance and to enforce and control compliance, and the sanctions available for non-compliance, allocation of resources to the enforcement agency etc. In her article Systemic Discrimination in Employment: Mapping the Issue and the Policy Responses,8 Carol Agocs proposed ﬁve issues that should be discussed when assessing the effectiveness of a policy response to systemic discrimination in employment. I ﬁnd these issues to be most useful in helping to answer the question posed in this chapter: What are the characteristics of a rational policy response to systemic ethnic discrimination in employment? I have reformulated all of the issues; however, the content of them is essentially the same as those proposed by Agocs. The issues are: (1) Is the government policy based on a clear understanding of the dynamics and nature of systemic discrimination in employment? In other words, do the obligations imposed by the policy on employers address the problem in all of its dimensions, so as to bring about organizational transformation regarding employment systems, organizational culture and the numerical representation and distribution of ethnic minorities? (2) Does the government policy state the employer’s obligations with sufﬁcient clarity and speciﬁcity to enable a practical assessment of employer compliance?

8

Carol Agocs, op. cit., 17–18.

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(3) Does the government policy provide the necessary practical guidance and technical assistance to employers? (4) Does an enforcement agency monitor employer compliance with the government policy and apply the regulatory pressure necessary to achieve compliance? (5) Does the government policy provide meaningful consequences linked to employer compliance, including sanctions for failure to implement employer obligations and/or rewards for implementing them? Although the last four issues relate more generally to the effectiveness of any regulatory policy, they are also so directly related to the policy’s ability to address systemic ethnic discrimination in employment that a thorough discussion of these issues is unavoidable. The allocation of adequate resources is obviously crucial to the rationality and success of any government policy. Nevertheless, I have found it difﬁcult to assess this issue concerning the various proactive regimes examined. This thesis takes it for granted that any proactive obligation regime proposed by government must have adequate resources to succeed. Although this chapter does not speciﬁcally assess the sufﬁciency of the resources allocated to the institutional framework enforcing the various regimes, I do comment upon the allocation of resources in some cases where I ﬁnd it extremely lacking or where drastic cutbacks have had signiﬁcant consequences. One other point needs to be clariﬁed. None of these proactive obligation regimes work perfectly. Domestic scholars and equality experts will no doubt have criticisms of their native proactive regimes that I have not focused on. For example, a regime may be criticized for not having wider coverage, i.e., not having more employers falling within the scope of the regime. It may also be criticized for a lack of sufﬁcient resources or for inappropriate priorities in the use of those resources. My focus is narrower and more principled than the focus of a domestic critic. I have focused on the inherent capability of the regime’s key components in responding to the challenges of systemic (ethnic) discrimination in employment. Given the nature of this thesis my criticism is thus focused on aspects that are generalizable to other regimes. Such criticism would also be of value to other countries that are considering the adoption of a proactive regime. b. Scope of this Chapter A word of caveat with respect to the scope of this chapter is necessary. Proactive obligation regimes are controversial government policies. Opposition to them is often based on philosophical or moral grounds, for example, some argue that any focus on ethnicity or race at the workplace (even for equality purposes) is inherently wrong. Some argue that proactive regimes lead to lower productivity, although this argument is not supported by the evidence.9 Some argue that proactive regimes are detrimental to the

9

See Jonathan Leonard, “Antidiscrimination or Reverse Discrimination: The Impact of Changing Demographics, Title VII and Afﬁrmative Action on Productivity,” Journal of Human Resources, 19 (1984): 145–173. See also Barbara Reskin, The Realities of Afﬁrmative Action in Employment (Washington, D.C.: American Sociological Association, 1998), 76: “Of the

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psychological well-being of the beneﬁciaries, creating self-doubt. Some argue that proactive regimes involve “reverse discrimination”, undermining meritocratic principles. This chapter and this thesis do not address such arguments. The scope of this thesis does not permit a full-scale debate on the pros and cons of proactive obligation regimes.10 In addition, some who oppose proactive regimes have argued that such regimes are not effective. This chapter takes it for granted that employers who do something preventive to address systemic discrimination will achieve more in the way of non-discrimination and equality than employers who do nothing preventive. Studies designed to measure the impact of proactive regimes on macro-level numbers of ethnic minorities hired and promoted, for the most part conﬁrm this (see below). However, the main focus of this chapter is not to assess the impact of proactive regimes in general on the employment situation of ethnic minorities, but rather to assess more speciﬁcally what key elements of proactive obligation regimes work, appear to work, or at least appear to be capable of addressing systemic ethnic discrimination in employment. As the ﬁve issues above indicate, those key elements concern not only the obligations imposed on employers, but also the institutional structure of control and enforcement, the guidance given to employers and the quality of craftsmanship in the design of the proactive obligation regime. In order to help put into perspective this chapter’s main focus on the key elements of proactive regimes, it may, however, be useful with a brief review of some of the studies that have measured the impact of proactive regimes in general on employment outcomes for ethnic minorities. Such studies are for the most part carried out in the USA and Canada – countries where proactive regimes have been in existence the longest. Studies from the early 1970’s carried out on the impact of USA’s contract compliance program revealed that despite weak enforcement in the early years the proactive regime had been effective in increasing black male employment share in workplaces subject to the regime.11 However, after 1973 enforcement efforts became more aggressive and this proved to have a greater impact. One way of measuring the impact of proactive obligation regimes is to compare the employment growth of ethnic minorities at contractors

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handful of studies that address the effect of afﬁrmative action on productivity, none suggests a negative effect of the employment of women or minorities on productivity.” As pointed out in section 6.2 the rhetoric of the public debate often confuses proactive regimes in employment with afﬁrmative action outside of employment. Furthermore, the court-ordered afﬁrmative action programs are also confused with regulatory-based proactive obligation regimes. In the court-ordered afﬁrmative action programs of some countries, judges can require employers to ﬁll speciﬁc job vacancies with a speciﬁed number or proportion of ethnic minorities. However, regulatory-based proactive regimes do not require preferential hiring and preferential promotion. In light of this, much of the argument alleging reverse discrimination is simply misplaced with regards to proactive obligation regimes examined in this thesis. Jonathan Leonard, “The Impact of Afﬁrmative Action Regulation and Equal Employment Law on Black Employment,” The Journal of Economic Perspectives, 4, no. 4 (1990): 47–63, 50.

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subject to afﬁrmative action obligations and non-contractors with no afﬁrmative action obligations. Jonathan Leonard, one of the most proliﬁc researchers on the impact of afﬁrmative action, carried out such an impact study of 68,690 businesses from 1974 to 1980. He found that black male and female employment shares increased signiﬁcantly faster in contractor businesses than in non-contractor businesses. Businesses subject to the contract compliance regime (compared with non-contractor businesses) had a 6.5% greater demand for black males relative to white males. For non-black minority males (e.g., Hispanic males) the growth was even greater: 11.9% relative to white males. The growth rate for black females was 11.0% relative to white females.12 Before 1974 the growth of ethnic minorities in contractor businesses was largely in unskilled and semi-skilled jobs, whereas the growth from 1974 to 1980 included representation in all occupational categories except technical and crafts.13 Thus, the contract compliance program has had impact on occupational advancement as well as entry-level hiring.14 There was, however, a signiﬁcant change in the 1980’s during the Reagan and Bush years. The stafﬁng and budget of the OFCCP, the enforcement agency, was sharply reduced. The budget was reduced by $20 million between 1980 and 1986, while authorized full-time employment was reduced by almost 40% (from 1454 to 906).15 The threat of sanctions was reduced – from 13 debarments16 during the Carter years to 4 debarments each during the Reagan and Bush (Senior) years. President Reagan even considered dismantling the entire OFCCP ofﬁce, but he did not have the support to do so, given a Congress with a Democratic majority.17 With these cutbacks in stafﬁng and budget the OFCCP actually doubled the number of compliance reviews carried out, sacriﬁcing quality. Jonathan Leonard concluded that the OFCCP during these years was just “going through the motions.” Indeed, between 1980 and 1984 Leonard found that both male and female black employment grew more slowly among contractors than non-contractors.18 According to Leonard:

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Jonathan Leonard, “The Impact of Afﬁrmative Action on Employment,” Journal of Labor Economics, 2 (1984): 439–463, 459. Barbara Reskin, The Realities of Afﬁrmative Action in Employment (Washington, D.C.: American Sociological Association, 1998), 46. Jonathan Leonard, “Employment and Occupational Advance Under Afﬁrmative Action,” The Review of Economics and Statistics, 66, no. 3 (1984): 377–385, 382. Linda Faye Williams, “Tracing the Politics of Afﬁrmative Action” in The Afﬁrmative Action Debate, edited by George Curry (Reading, Mass: Addison-Wesley Publishing, 1996), 250. Debarment is the exclusion of a contractor/employer from participating in government contracts for a speciﬁed period. Crosby, Faye. Afﬁrmative Action is Dead; Long Live Afﬁrmative Action (New Haven: Yale University Press, 2004), 103. Jonathan Leonard, “The Impact of Afﬁrmative Action Regulation and Equal Employment Law on Black Employment,” The Journal of Economic Perspectives, 4, no. 4 (1990): 47–63, 58. See also Jonathan Leonard, Afﬁrmative Action in the 1980s: With a Whimper, Not a Bang (Unpublished paper) (1990), 4–8.

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Chapter 9 The 1980s then present an experiment on the effectiveness of afﬁrmative-action with minimal threat of sanctions. The results of this experiment were to eliminate employment advance for minorities and women as a result. . . . (emphasis added)19

By 1992 President Clinton was in ofﬁce and the administration once again gave its support to afﬁrmative action. Research carried out by Rodgers and Spriggs revealed that after 1990 contractors were once again more likely than non-contractors to employ black men and women.20 Moreover, from 1992–1994 Holzer and Neumark conducted a study in four large metropolitan areas which revealed that black men increased chances of being hired by 15% when they sought employment at an afﬁrmative action employer as opposed to business without any afﬁrmative action program.21 I take the ﬁndings of these studies as a starting point – that the imposition of proactive obligations on employers can have a signiﬁcant impact on the alleviation of systemic ethnic discrimination and the promotion of ethnic equality in employment. These ﬁndings should be kept in mind as a general background to that which follows: an assessment of the key elements of proactive obligation regimes and their signiﬁcance for ethnic equality in employment. In this assessment of the key elements of proactive obligation regimes I shall not make constant references to (or comparisons with) how these key elements work better than traditional complaint-based approaches to antidiscrimination. I have already made my case in chapter 4 that the traditional complaint-based approach, standing alone, is an inherently inadequate government response to systemic discrimination in employment. Supplementing a traditional complaint-based approach with a proactive obligation regime will in itself address systemic discrimination more effectively, provided that the proactive regime has an impact on systemic discrimination in employment.22 All of the proactive regimes examined in this thesis have clearly some features that on a macrolevel give them a comparative advantage over complaint-based approaches in addressing systemic discrimination in employment. First, the obligations imposed on employers to work preventively are ongoing obligations. So long as the employer remains subject to the proactive regime, it must adopt preventive measures. In other words, it is not a one-off obligation imposed by court order. 19

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Jonathan Leonard, Use of Enforcement Techniques in Eliminating Glass Ceiling Barriers (Paper prepared for the Glass Ceiling Commission) (1990), 10. William Rodgers and William Spriggs, “The Effect of Federal Contractor Status on Racial Differences in Establishment-Level Employment Shares: 1979–1992,” The American Economic Review, 86, no. 2 (Papers and Proceedings of the Hundredth and Eight Annual Meeting of the American Economic Association January 5–7, 1996 (1996): 290–293. See also Barbara Reskin, The Realities of Afﬁrmative Action in Employment (Washington, D.C.: American Sociological Association, 1998), 49. Harry Holzer and David Neumark, “Are Afﬁrmative Action Hires Less Qualiﬁed? Evidence from Employer-Employee Data on New Hires,” Journal of Labor Economics, 17, no. 3 (1999): 534–569, 546. I have explained in chapter 4 why the traditional complaint-based approach should not be replaced with a proactive obligation regime, but rather complemented by it.

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Secondly, the obligations imposed on employers are organization-wide. With only two exceptions the proactive regimes examined obligate the employer to take proactive measures with respect to its entire nation-wide workforce. In other words, the remedial action taken by the employer is not limited to beneﬁting the successful complainants in a law suit.23 Thirdly, proactive obligation regimes avoid the hostility which results from the accusation of discrimination being lodged against the employer or fellow employees in complaint-based approaches. Fourthly, proactive obligations are designed to prevent discrimination before it occurs, while complaint-based approaches are designed to repair the damage of discrimination once it has already taken place. Fifthly, proactive obligation regimes encourage the production of information that reveal problem areas and can lead to the identiﬁcation of barriers to equality. Such is not the case with complaint-based approaches. Although individual complainants can in a court proceeding force the employer to produce speciﬁed information, the complaintbased approach does not encourage the employer to go looking for barriers to equality. Indeed, it is well-known that lawyers often advise employers not to collect information that can show problems for fear that it can be used in complaint-based processes.24 Like the proverbial ostrich with its head in the sand, the problems you don’t see are problems you don’t have to worry about. In this sense, proactive regimes shift the burden of making visible workplace discrimination from the individual complainant to the employer. With these in mind I turn to an assessment of the key elements of the proactive regimes examined and their signiﬁcance in addressing systemic ethnic discrimination in employment. But ﬁrst, for the reader’s ease in following the discussion in this chapter I provide a general overview of the proactive obligation regimes examined in this thesis.

9.2. General Overview of the Proactive Obligation Regimes The following statutory-based proactive obligation regimes have been examined in Part II: Canada: Promoting equality for members of visible minorities, women, aboriginal persons and disabled persons Great Britain: Promoting racial equality 23

24

The two exceptions are the contract-based regimes of Sweden and Great Britain. Because of EU treaty law and procurement rules the regimes can only impose obligations on contractors with respect to the speciﬁc workforce carrying out the actual government contract. See chapter 8 for a discussion of the implications of the EU treaty law and procurement rules. See section 9.9 (conclusion) for my opinion of the signiﬁcance of this for the value of those two regimes. The Common Standard, i.e., local authority initiatives in Great Britain to impose contract-based obligations on contractors, does not appear to be so limited however. Susan Sturm, “Second Generation Employment Discrimination: A Structural Approach,” Columbia Law Review 101 (2001): 458–561, 476 and accompanying footnotes.

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Chapter 9 Northern Ireland: (1) Northern Ireland Act 1998: Promoting equality between persons of different religious beliefs, political opinions, racial groups, ages, marital status, sexual orientation, sexes, between persons with and without disabilities, and persons with and without dependents (hereafter referred to as the Northern Ireland regime promoting generic equality) (2) Fair Employment Treatment Order 1998: Promoting religious equality (hereafter referred to as the Northern Ireland regime promoting religious equality) Sweden: Promoting ethnic equality and religious equality Norway: Promoting gender equality

The following contract-based proactive obligation regimes have been examined in Part II: USA: Promoting racial, gender and religious equality, as well as the equality of disabled persons Canada: Promoting equality of visible minorities, women, persons with disabilities and aboriginal persons Sweden: Promoting equality as to sex, race, color, national origin, ethnic origin, religion, disability and sexual orientation Great Britain: Promoting racial equality (both central government and local government contracting authorities)

The presentation of these regimes in chapters 7 and 8 reveal many similarities – particularly with respect to the kinds of proactive obligations imposed on employers. Younger regimes have been inﬂuenced by the experiences of older regimes. The Canadian statutory-based regime adopted in 1986 was clearly inﬂuenced by the US contract-based regime adopted in 1965, despite the change in terminology from afﬁrmative action to employment equity. Inﬂuenced by the Canadian statutory-based regime, the Fair Employment (Northern Ireland) Act 1989 (the predecessor to the current Northern Ireland regime promoting religious equality) introduced compulsory religious monitoring of the workforce.25 Likewise, Great Britain’s statutory duty to promote racial equality imposed on public authorities in year 2000, is in large part modeled after the 1998 Northern Ireland regime promoting generic equality.26 There are as well clear par25

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R. D. Osborne and Ian Shuttleworth, “Fair employment in Northern Ireland,” in Fair Employment in Northern Ireland: A Generation On, edited by Bob Osborne and Ian Shuttleworth (Belfast: Blackstaff Press Limited, 2004), 5. As explained in section 7.3, Northern Ireland has two separate proactive obligation regimes: (1) A proactive regime pursuant to the Northern Ireland Act 1998 promotes equality between persons of different religious beliefs, political opinions, racial groups, ages, marital status, sexual orientation, sexes, between persons with and without disabilities, and persons with and without dependents (referred to in this chapter as generic equality). It relates only to public authorities. (2) A proactive regime pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO) which promotes equality between persons of different religious beliefs (referred to in this chapter as religious equality). It relates to both private and public employers.

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allels between the Swedish statutory duty to promote racial equality and Norwegian statutory duty to promote gender equality. On the other hand, the regimes of the various countries differ signiﬁcantly with respect to: (1) the disadvantaged group(s) intended to beneﬁt from the regimes, and (2) the kind of employer upon whom the obligation is imposed, i.e., public and/or private employers. With respect to the disadvantaged group(s) intended to beneﬁt, the differences are due to the different social and historical contexts of inequality in the various countries. However, the fact that the USA, Canada and Northern Ireland have proactive obligation regimes intended to promote the equality of multiple and various disadvantaged groups, in itself, shows that there is much in common in the promotion of equality in employment. An effective policy response to systemic (gender) discrimination is to a large degree generalizable to addressing systemic (ethnic) discrimination and vice-versa. The kind of employers subject to the proactive regimes has signiﬁcance for the scope of the proactive regimes. The number of employers subject to the regimes will of course have signiﬁcance for how effective they can be in producing change throughout society in general. Given that the focus of this thesis is the ability of proactive regimes to address systemic discrimination in employment as a phenomenon, the scope of employers covered by the various regimes is not so signiﬁcant. I am more interested in the content and character of the regimes than in their scope of applicability. However, in order to facilitate a better understanding of the scope of the regimes I provide an overview below of the kinds of employers covered by the various regimes. The Kinds of Employers Covered in Both the Statutory and Contract-Based Regimes 27 Great Britain: Statutory regime: Public employers Contract regime: Contractors supplying services and constructions works28 Northern Ireland: Statutory regime relating to religious equality: Public and private employers Statutory regime relating to generic equality: Public employers

27

28

With respect to Great Britain, Northern Ireland and Norway the statutory-based obligation to promote equality is an obligation on public authorities in general, i.e., in conjunction with all the operations and services carried out by the public authorities. This includes, of course, the work of public authorities in their capacities as employers. This thesis is about equality in employment; therefore, I focus on the obligation on public authorities in their capacity as public employers. However, the general duty on public authorities also has a relationship to contract-based obligations to promote equality. This is so because public authorities also carry out operations in their capacity as public procurers of services, goods and construction works. Their duty to promote equality may therefore inﬂuence the way in which they carry out such public procurement. The Common Standard initiative by local authorities, described in section 8.2.c, only relates to contractors supplying construction works.

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Chapter 9 Norway: Statutory regime: Public and private employers Canada: Statutory regime: Public employers and federally-regulated private sector employers Contract regime: Contractors supplying services and goods Sweden: Statutory regime: Public and private employers Contract regime: Contractors supplying services and construction works USA: Contract regime: Contractors supplying goods, services and construction works

As is apparent from this section, there are a good number of proactive regimes of various types, content and scope. I do not discuss each and every regime for each and every issue discussed below. I have tried, however, to highlight enough of the regimes that the reader has a feeling of fully understanding the speciﬁc issue addressed. I now turn to my assessment of the key elements in the proactive regimes examined.

9.3. Do the Obligations Imposed on Employers Address the Problem in All of its Dimensions? a. Introduction The proactive obligations imposed on employers by the various regimes presented in chapters 7 and 8 can largely be classiﬁed into three types: (1) diagnostic actions, (2) remedial actions, and (3) facilitative actions. Diagnostic actions enable the employer to identify the barriers to equality, for example the collection and analysis of ethnic data and the employment systems review. Remedial actions are designed to eliminate unjustiﬁable barriers to equality, for example targeted recruitment (outreach), structuring of interviews and mentoring. Facilitative actions give structure, coherence and credibility to the equality program, for example the adoption of an equality plan with goals and timetables, the allocation of personnel and ﬁnancial resources to the program, and the review and monitoring of progress. In addition, there are a few obligations which don’t ﬁt into these categories. One example is the obligation to maintain records so that enforcement authorities can carry out a thorough compliance review of the employer. This thesis will not discuss every obligation imposed on employers in all of the proactive regimes examined, but rather only those which are considered to be the most signiﬁcant in addressing systemic ethnic discrimination in employment.

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b. Diagnostic Actions: The Identiﬁcation of Barriers to Ethnic Equality in Employment As previously shown, one of the most distinctive characteristics of systemic ethnic discrimination in employment is that it is difﬁcult to perceive. Therefore, in order to address systemic discrimination employers must ﬁrst make it visible – employers must identify the barriers to ethnic equality in employment. The proactive regimes examined in this thesis have imposed different kinds of obligations on employers regarding the identiﬁcation of barriers to equality. On the one hand, the regimes of Canada, USA, Great Britain and Northern Ireland have obligated employers to use both quantitative and qualitative techniques in the identiﬁcation of barriers to equality. This is considered to be a necessary preliminary step to the subsequent choice and implementation of remedial action (e.g., training, mentoring etc.) designed to address the barriers identiﬁed. On the other hand, the Swedish and Norwegian regimes do not impose speciﬁc obligations on employers regarding the identiﬁcation of barriers to equality. Both regimes, however, mention in their guidance certain techniques that an employer may carry out so as to identify barriers to equality. More speciﬁcally, the proactive regimes of Canada, USA, Great Britain and Northern Ireland require employers to do the following: (1) Collect data on its workforce (including ethnic data), primarily via selfidentiﬁcation. (2) Analyze the workforce data and labor market availability data in order to determine whether there is an underrepresentation of protected groups (e.g., women, ethnic minorities or disabled persons) in the workforce generally and in each occupational group.29 As explained in chapter 3, underrepresentation is measured by comparing the protected group representation in each occupational group in the workforce (internal representation) with the protected group representation in the relevant external labor pool (external representation). The relevant external labor pool is the labor pool from which the employer can reasonably be expected to recruit, taking into account qualiﬁcations, eligibility and geographic location. A ﬁnding of underrepresentation identiﬁes potential problem areas and is an indication that the employment systems of the employer are likely to contain barriers to equality. (3) Carry out an employment systems review (both quantitative and qualitative review) for each occupational group showing underrepresentation, in order to ﬁnd out whether and where there exist barriers to equality. For each of its employment systems, the employer must assess whether its policies and practices have an adverse effect on the underrepresented group. The terminology used in describing these obligations may differ; however, the essential substance of these obligations is the same in Great Britain, Canada, USA and 29

Examples of occupational groups are: senior managers, middle managers, supervisors, skilled crafts and trades workers, clerical personnel, semi-skilled manual workers, other manual workers etc.

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Northern Ireland. For example, while Canada and Great Britain use the term underrepresentation, the term underutilization is used in the USA and the expression lack of fair participation in Northern Ireland. Furthermore, while Canada uses the term employment systems review to refer to the quantitative and qualitative review of the employer’s policies and practices with respect to recruitment, selection, hiring, promotion, development and training, retention, termination etc., the regulations in the USA refer to an analysis of the total employment process, and both Great Britain and Northern Ireland refer to such a review as equality impact assessments. The Swedish regime does not require the collection of ethnic data nor any workforce and labor market analysis so as to make visible an underrepresentation in the workforce generally and in occupational groups. According to the Ethnic Discrimination Ombudsman, employers are not encouraged to collect ethnic data on their workforce.30 In its guidance to employers the Ombudsman mentions certain kinds of qualitative equality reviews that the employer can undertake, for example, equality assessments of terms of employment, wages, working hours, rules regarding vacations, holidays and leaves. The Ombudsman also mentions the equality assessment of job qualiﬁcations so as to ensure that the qualiﬁcations are job-related. However, these proposed qualitative reviews are not obligatory. A cabinet decision31 of 7 October 1999 obligates Swedish public authorities to make an action plan to promote ethnic equality in employment. Furthermore, public authorities have an obligation to report annually to the government on their plans and activities. Because of these obligations, public employers are, according to the Ombudsman, expected to do more than that which the Act imposes on private employers.32 In its guidance to public employers the Ombudsman encourages, for example, the collection of ethnic data in order to establish a benchmark and to ascertain the present situation of ethnic minorities at the particular workplace. The Ombudsman states that it is difﬁcult to fulﬁll the annual reporting obligation without collecting ethnic data.33 Furthermore, the guidance includes a model one-day seminar for the entire workplace designed to help identify barriers to ethnic equality in employment.34 The Ombudsman has no enforcement authority, however, with respect to the Cabinet decision, and a 2004 study commissioned by the government35 revealed that only 63% of the 234 public authorities surveyed had established such action plans and only 32% of those with action plans (i.e., 47 public employers) collected and analyzed ethnic data.36 The Norwegian regime promotes only gender equality. (In April 2005 the Norwegian Parliament chose not to adopt a proactive obligation regime to promote ethnic 30

31 32

33 34 35

36

Interview of 30 September 2004 with Weini Kasei, compliance ofﬁcer with the Active Measures Section of the Ombudsman for Ethnic Discrimination. Regeringsbeslut of 7 October 1999 (Ku1999/2927/IM). Ombudsmannen mot etnisk diskriminering, Råd för myndigheternas arbete för att främja lika rättigheter och lika möjligheter och med främjandeplaner (Stockholm: 2004), 8. Ibid., 8–9. Ibid., 17–18. Statskontoret, Handlingsplaner för etnisk och kulturell mångfald: Ett lämpligt verktyg för att stärka etnisk och kulturell mångfald innom staten? (Study 2004:18 of 8 July 2004). Ibid., 79–80.

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equality.)37 The collection of data regarding gender is not problematic. The employer is obligated to account for the status of gender equality in its annual report and this is interpreted by the Gender Ombud to mean, among other things, an obligation to present statistical data regarding the gender make-up of its workforce. The employer is thus obligated to collect data on gender at the workplace. However, the collection of data and the calculation of underrepresentation would only provide an indicator that there are likely to be barriers to equality. Yet, the Norwegian regime does not obligate employers to carry out an employment systems review so as to actually ﬁnd the speciﬁc barriers to equality. The travaux préparatoires to the Act on Gender Equality, as well as the Ombud’s guidance to employers, provide examples of actions that the employer could do to identify barriers to equality. They include assessments of the gender impact of such policies as working hours, wages, use of leave, hiring, recruitment and organization of work. However, as with the Swedish regime, employers are not obligated to undertake such actions. Given that both the Swedish and Norwegian regimes do not obligate employers to carry out reviews so as to identify barriers to equality, the regimes implicitly presume that the remedial actions to be carried out by employers, can be effective without having identiﬁed the speciﬁc barriers to equality. Perhaps this is possible – at least to some degree. However, it is notable that in 1995 the US Federal Glass Ceiling Commission38 found that one characteristic of best practice programs that were most successful in overcoming exclusionary barriers to equality in employment, is that the programs begin by identifying the internal barriers to equality that are speciﬁc to the organization.39 37 38

39

Beslutning i Odelsting nr. 67 (2004–2005). In 1991 the US Congress established the Federal Glass Ceiling Commission to study and make recommendations on the elimination of artiﬁcial barriers to the advancement of women and ethnic minorities to management and decisionmaking positions in business. Over a four year period the Commission (a 21-member bipartisan body appointed by the President and Congressional leaders) gathered information on barriers, opportunities, policies, perceptions, and practices as they affected ethnic minorities and women and preventing them from reaching the highest levels of decisionmaking in the business world (also known as the “glass ceiling”). The Commission delivered its ﬁndings in 1995: Federal Glass Ceiling Commission, Good for Business: Making Full Use of the Nation’s Human Capital (The Environmental Scan: A Fact-Finding Report of the Federal Glass Ceiling Commission) (Washington, D.C., 1995). Several months later a set of recommendations for addressing the glass ceiling were adopted by the Commision: Federal Glass Ceiling Commission, A Solid Investment: Making Full Use of the Nation’s Human Capital (Recommendations of the Federal Glass Ceiling Commission) (Washington, D.C., 1995). The Glass Ceiling Commission found that successful glass ceiling initiatives have certain common characteristics: (1) They have CEO (Chief Executive Ofﬁcer) support; (2) They are part of the strategic business plan, i.e., they have been mainstreamed; (3) They are speciﬁc to the organization, i.e., designed to address the speciﬁc barriers identiﬁed in the organization; (4) They are inclusive, e.g., they do not exclude white men; (5) They address preconceptions and stereotypes; (6) They emphasize and require accountability up and down the line; (7) They track progress; (8) They are comprehensive. Federal Glass Ceiling Commission, Good for Business, op. cit., 9. See also page 39.

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The collection and analysis of ethnic data can be a powerful diagnostic tool in helping the employer to identify the barriers to ethnic equality that are speciﬁc to the organization.40 Some scholars view it as absolutely essential, and proclaim that color-blind strategies to promote equality are doomed to fail: it [is] clear that a ‘color-blind’ society built upon the subordination of persons of one color [is] a society which [cannot] correct that subordination because it [can] never recognize it.41

Without the collection of ethnic data: (a) The employer cannot determine whether the workplace has an underrepresentation of ethnic minorities in general or in speciﬁc occupational groups when compared with the labor market availability of such ethnic minorities. (There is of course an exception for those cases where the representation of ethnic minorities is so glaringly absent that one need not count at all.) (b) The employer will ﬁnd it more difﬁcult to identify the speciﬁc barriers to ethnic equality through its employment systems review if it is cut off from the use of quantitative methods. For example, one way to help ﬁnd the speciﬁc barriers to equality in the employment systems review is to analyze the statistical data captured on the different steps in the evaluative processes (often referred to as ﬂow data). One collects tracking data on the job applicants at each step in the hiring process – application, initial screening, shortlisting, testing, interviewing, reference checking, and offer of employment. It would be possible, for example, to reveal from the statistical data that ethnic minorities do not apply for positions in appropriate numbers, or are screened out before the interview stage. Or that they are being excluded through the use of a particular test (e.g., a psychometric test). Without the collection of ethnic data, the employer is more limited in the methodological tools available for identifying the speciﬁc barriers to ethnic equality.42 40

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Even complaint-based processes are dependent upon statistical data in order to address discrimination. The very concept of indirect discrimination implies a need for data. A showing of disadvantage for one group as compared with another group requires information about how members of such groups are affected. Thus such statistical data is essential to provide evidence to support claims of ethnic discrimination. James Goldston, “Race and Ethnic Data: A Missing Resource in the Fight Against Discrimination,” in Ethnic Monitoring and Data Protection: The European Context, edited by Andrea Krizsán (Budapest: Central European University Press – INDOK, 2001), 21. Alfred Blumrosen quoted in Kimberlé Williams Crenshaw, “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law” in Critical Race Theory: The Key Writings that Formed the Movement, edited by Kimberlé Crenshaw, Neil Gotanda, Gary Peller and Kendall Thomas (New York: The New Press, 1995), 106. The collection and analysis of ethnic data is not just relevant for the identiﬁcation of artiﬁcial barriers to ethnic equality. It also has relevance for other proactive obligations imposed on employers. For example, without the collection and analysis of ethnic data the employer may ﬁnd it more difﬁcult to: (a) establish rational numerical goals concerning the hiring or promotion of ethnic minorities; and (b) measure progress or lack of progress in the promotion of ethnic equality in employment.

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However, there are legitimate concerns about the collection of ethnic data at the workplace. Given the historical abuse of ethnic data, it is understandable that governments, employers and some ethnic minorities themselves oppose the collection of such data. The legacy of abuse and the potential for future abuse are signiﬁcant arguments. However, opponents are also worried that the collection of ethnic data will reinforce negative stereotypes, interfere with privacy rights, and lead to inaccurate categorizations. In light of such concerns, ﬁfty-percent of the countries in the Council of Europe have constitutions that prohibit the collection of ethnic data.43 States decide for themselves whether they prohibit or permit the collection of ethnic data within their jurisdictions. There are no international human rights norms or supranational norms (e.g., EU norms) which prohibit states or employers from collecting ethnic data, provided that appropriate safeguards are taken to protect conﬁdentiality and prohibit abuse. For example, the EU Directive on Personal Data permits the collection of ethnic data by employers pursuant to employment law obligations imposed by national legislation, provided that adequate safeguards are adopted.44 States that require employers to collect ethnic data so as to determine the underrepresentation of ethnic minorities in the workplace, are also likely to collect ethnic data on a macro level (such as via census or by having employers report such data to the government). This is because employers must have information regarding the representation of ethnic minorities in the available labor market for particular occupational groups in order to be able to calculate whether or not their workplaces have an underrepresentation. This information on the external labor market is most often provided to employers by labor ministries and is based on census data or similar macro-level collection of data. This basically means that it would be somewhat contradictory for a state to impose an obligation on employers to collect ethnic data so as to determine workplace underrepresentation, if the government did not also provide information to employers regarding the external representation of ethnic minorities in the labor market. The abovementioned legitimate concerns as to the collection of ethnic data are, however, beyond the scope of this thesis. The focus of this chapter is on the characteristics of a rational government policy in addressing systemic ethnic discrimination in employment. The focus here will be on whether and how the collection and analysis of ethnic data (or lack thereof ) has signiﬁcance for the identiﬁcation of barriers to ethnic equality and thus signiﬁcance for the ability to address systemic ethnic discrimination in employment. Even without the collection of ethnic data, it is possible for an employer to identify barriers to ethnic equality by using qualitative methods, as well as quantitative methods that do not entail the collection of ethnic data. With respect to the latter method, data on nationality (i.e., citizenship), country of birth and parents’ country of birth are often

43

44

James Goldston, “Race and Ethnic Data: A Missing Resource in the Fight Against Discrimination,” in Ethnic Monitoring and Data Protection: The European Context, edited by Andrea Krizsán (Budapest: Central European University, 2001) 21. See Article 8 (2) of the European Community Directive on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data of 24 October 1995, 95/46/EC (OJ L 231, 23.11.1995, 31).

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viewed as less sensitive than data on ethnicity. Countries such as Norway, Denmark and Sweden, that do not collect macro-level data on ethnic origin, do collect macro-level data on nationality, country of birth and parents’ country of birth. To some extent such data can function as a proxy for data on ethnic origin, particularly where the ethnic minority population of the country is comprised largely of ﬁrst and second generation immigrants. As for qualitative methods, one may undertake consultations with human resources personnel, other gatekeepers and members of ethnic minorities in order to obtain their opinions as to the barriers to equality. Such consultations are often done through interview or with the use of focus groups. Other methodological techniques may involve the use of questionnaire surveys to obtain reported experiences, perceptions or attitudes about discrimination and harassment. Employers may also carry out equality impact assessments of the policies and practices related to evaluative processes, including hiring, promotions, selection for career development or training, allocation of work assignments, performance appraisals and retention. Other qualitative methods include reviews of job qualiﬁcations in order to ensure that they are job-related. A review of employee or applicant complaints may also provide insight into the policies and practices at the workplace. These qualitative methods can help give the employer the information necessary to identify barriers to equality at the workplace. Thus, one can question why the Swedish and Norwegian regimes do not obligate employers to identify barriers to equality using qualitative methods. c. Remedial Actions Remedial actions are those actions designed to eliminate unjustiﬁable barriers to equality in employment. With few exceptions45 the proactive regimes examined in this thesis do not state speciﬁc remedial actions that the employer is obligated to carry out. The reason for this is most likely the following: Not all workplaces will possess the same kinds of barriers to ethnic equality. Some will identify barriers in recruitment, while others will identify barriers in the interview process. Some will identify barriers in the performance appraisal routines, while others will identify barriers in channels to information. Each barrier to ethnic equality demands remedial action designed to address that speciﬁc barrier. Although training of employees and managers can help to bring about a general awareness regarding a cross-section of barriers caused by stereotyping and 45

The Swedish regime requires the employer to carry out actions so as to ensure that recruitment methods reach an ethnically diverse pool of potential applicants. The two Canadian regimes require the employer to explain in its employment equity plan what plans it has for the targeted training of underrepresented groups. The USA regime requires the employer to take afﬁrmative action regarding recruitment and selection for training. The Common Standard for the contract-based regime of local authorities in Great Britain requires open recruitment methods and the training of gatekeepers. Public authorities in Great Britain are obligated to set out in their equality plans (race equality schemes) their arrangements for training staff in connection with their duty to promote race equality. With these few exceptions, the proactive regimes generally describe the remedial action required in a general way. For example a regime may require afﬁrmative action with respect to hiring and promotion upon a showing of underrepresentation. However, the remedial action undertaken in such a case could be a host of different varieties of action.

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bias, most remedial actions will have to be tailored to the speciﬁc problem in order to have any decisive effect. It is important to keep in mind the ﬁnding of the Glass Ceiling Commission that the most successful equality programs are designed to address the speciﬁc problems of the workplace.46 In light of this, it is difﬁcult for proactive regimes to require all employers to carry out a speciﬁc set of remedial actions. It is the identiﬁcation of the particular barrier that dictates what remedial action is necessary. Thus, the obligations imposed on employers must allow for an appropriate degree of ﬂexibility in the choice of remedial action. The guidance to employers is signiﬁcant in describing both ideal-typical barriers to equality often encountered and remedial actions that can effectively address such barriers. Below I exemplify some selected forms of remedial action. (1) Targeted recruitment (outreach): Outreach, which is the common name for the targeted recruitment, is intended to increase the recruitment pool of job applicants from underrepresented groups. Outreach is one of the most frequently used types of remedial action. It seeks to overcome the negative effects which often result when organizations use informal recruitment methods such as word-of-mouth recruitment. Because of segregated social networks of ethnic groups in many societies, many ethnic minorities do not have equal access to the employer recruitment channels that create the pool of candidates for job openings. Outreach efforts are often directed towards schools and communities where members of underrepresented groups are concentrated. Organizations can advertise job openings in local newspapers or use local job centers to come into contact with qualiﬁed applicants. (2) Training: Managers, decisionmakers and other “gatekeepers” are key persons to undergo training, but also a wider group of staff may also beneﬁt from training. Training may be of different types with varying objectives. Those who have the responsibility to implement the equality program should be trained so as to carry out their obligations adequately, including diagnostic, remedial and facilitative actions. Undoubtedly, the carrying out of quantitative and qualitative investigations to identify barriers to equality will entail specialized training. Training should also seek to provide participants with a general understanding of how discrimination occurs, and in particular how systemic discrimination occurs. They should be made aware of the substance of antidiscrimination laws and the organization’s policies and practices in dealing with violations. Given that the equality program will involve organizational change, employees must be trained in the implementation of the new routines, policies and practices and how any resistance to implementation shall be dealt with. Top management should participate in training so as to show its commitment to the equality program and to the promotion of equality in the workplace. Training should be monitored and reviewed for effectiveness. (3) The incorporation of transparency, accountability and guidance into evaluative processes: Informal evaluative processes with inadequate transparency, accountability and guidance are often identiﬁed as signiﬁcant barriers to ethnic equality at the workplace. Evaluative processes are used in relation to decisions as to hiring, 46

Federal Glass Ceiling Commission, Good for Business, op. cit., 39.

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Chapter 9 promotions, career development, the allocation of work assignment, performance appraisal and retention. This is a signiﬁcant chunk of the employment systems of an organization. The transparency of the process relates to the ability of an objective third-party to see and follow in the aftermath what has transpired, and more speciﬁcally on what basis the decision or evaluation was made. The accountability of the process relates to the evaluator having to stand accountable to others for his/her decision or evaluation. This necessarily means that the decision or evaluation will be reviewed by superiors or others so as to ensure compliance with established standards. The presence of adequate guidance in the process relates to the establishment of routines and standards and the training of evaluators so as to ensure fairness in the process.

A good example of the enhancement of transparency, accountability and guidance in the interview process is provided by Campion and Arvey47 who propose six interview practices by which employers may ensure that the interview process does not operate as an artiﬁcial barrier to equality: (a) Job descriptions should be written. This makes it easier to establish interview objectives, interview questioning strategy and evaluation standards. Job-related selection criteria and uniformity of application help to counter charges of subjectivity. (b) Interviewers should be carefully selected (i.e., having minimum qualiﬁcations) and trained so as to ensure uniform application of selection criteria and uniform interview format. (c) Interview questions should be job-relevant and asked of all interview candidates. (d) The review of interview objectives, question strategy and evaluation standards by others can counter allegations of subjectivity. This can be done by either using multiple interviewers or panel interviews. The review of interviewer ﬁndings by a management committee is also a way of increasing the accountability of interviewers for their decisions. (e) Employers should ensure the transparency of the interview process by systematically recording and storing interview sheets containing information gathered in interviews and reasons for interviewer decisions. (f ) Employers should monitor interviewer decision results for disparate impact on protected groups.

Although these proposals relate to the interview process, similar proposals could also be made with respect to other types of evaluative processes. (4) Social and professional inclusion initiatives: Many ethnic minorities experience that channels to information-sharing, career advice and support are not as open to them as for members of the ethnic majority. Some employers seek to overcome these barriers by establishing, encouraging and rewarding internal mentoring and networking initiatives to enhance the social and professional network of ethnic minorities. As stated in 47

James Campion and Richard Arvey, “Unfair Discrimination in the Employment Interview,” in The Employment Interview: Theory, Research, and Practice, edited by Robert Eder and Gerald Ferris (London: Sage Publications, 1989).

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chapter 3, mentoring is a relationship between a mentor and protégé designed to broaden the protégé’s experiences, give him/her good career advice and opportunities to demonstrate talents. Networking is the voluntary association of colleagues to support and guide one another, to share information and resources and to encourage the organization to become more welcoming to members of protected groups. Networking allows underrepresented groups to gain greater voice. “Individual employees may be reluctant to speak up . . . and a lone voice might be ignored. By combining voices and efforts . . . employees risk less and garner greater attention.”48 Both mentoring and networking can help to provide access to informal, “invisible” channels of information within an organization. d. Facilitative Actions Management commitment and accountability, communication and consultation Management commitment, management accountability, communication and management-employee consultation are key elements to any successful organizational change, and thus key elements in any proactive regime designed to promote (ethnic) equality in employment. Studies designed to identify the key elements of afﬁrmative action programs which make them effective, have consistently ranked management commitment and accountability, communication and consultation among the most important.49 For example, in 1997 the Equal Employment Opportunity Commission (USA) established 48

49

Erica Foldy, “Managing Diversity: Identity and Power in Organizations,” in Gender, Identity and the Culture of Organizations, edited by Iiris Aaltio and Albert Mills (London: Routledge, 2002), 106. The studies referred to are largely from the USA and Canada, i.e., from those countries that have had proactive obligation regimes for the longest period of time. See for example: Michael Hitt and Barbara Keats, “Empirical Identiﬁcation of the Criteria for Effective Afﬁrmative Action Programs,” The Journal of Applied Behavioral Science 20, no. 3 (1984): 203–222. In Kenneth Marino’s study a survey of 50 contract compliance ofﬁcers in the US enforcement agency OFCCP revealed that management commitment was ranked number one as the most important evidence demonstrating an employer’s good faith efforts to implement the afﬁrmative action program: Kenneth Marino, “Conducting an Internal Compliance Review of Afﬁrmative Action,” Personnel: American Management Association’s HR Focus, (March/ April 1980): 24–34, 28. See also Harish Jain and Rick Hackett, “Measuring Effectiveness of Employment Equity Programs in Canada: Public Policy and a Survey,” Canadian Public Policy XV, no. 2 (1989): 189–204; Harish Jain and John Lawler, Good Practices for Visible Minorities in Canadian Workplaces (Report prepared for Human Resources Development Canada (2003) at http://www.hrsdc.gc.ca/en/lp/lo/lswe/we/special_projects/RacismFree Initiative/GoodPractices.shtml (last visited March 2005); Susan Vernon-Gerstenfeld and Edmund Burke, “Afﬁrmative Action in Nine Large Companies: A Field Study,” Personnel: American Management Association’s HR Focus (April 1985): 54–60; Harish Jain, Peter Sloane and Frank Horwitz, “Measuring Employment Equity Effectiveness: Quantitative and Qualitative Approaches,” (chapter 4) in Employment Equity and Afﬁrmative Action: An International Comparison, edited by Harish Jain, Peter Sloane and Frank Horwitz (Armonk: M.E. Sharpe, 2003) 108–125. See also additional references cited in Barbara Reskin, The Realities of Afﬁrmative Action in Employment (Washington, D.C.: American Sociological Association, 1998), 62–63.

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a Task Force (“Task Force on Best Practices”) to study “best practices” of equal employment opportunity policies and programs of private sector employers. The Task Force found, on the basis of submittals from employers, that employers themselves considered management commitment and accountability and management and employee communication to be the most important factors in the success of such programs.50 The Task Force incorporated this insight into its deﬁnition of a best practice,51 concluding that a best practice, among other things, must: (1) manifest management commitment and accountability and (2) ensure management and employee communication.52 Employers who have top-level management commitment to their equality programs are likely to make good faith efforts (reasonable efforts) to implement the substantive aspects of the programs. Management commitment may be demonstrated in various ways, for example: (1) the allocation of responsibilities for the equality program to a senior ofﬁcial, (2) the assignment of adequate authority to those individuals responsible for implementing and monitoring the equality program, (3) the development and promulgation of the organization’s equality policy by the chief executive ofﬁcer (CEO) or other top executive, (4) the involvement of line managers in the preparation of an equality plan designed to eliminate barriers to ethnic equality, including the setting of goals and timetables, (5) the participation of top management in equality training, (6) the review and assessment by top management of progress reports on the equality program, (7) the inclusion of equality issues on the agenda of departmental meetings.53 Although the proactive regimes examined in this thesis do not expressly state that management commitment is a technical requirement,54 the proactive obligations in themselves require good faith implementation by employers and thus implicitly a 50

51

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Reginald Jones (Chair), Task Force Report on Best Equal Employment Opportunity Policies, Programs and Practices in the Private Sector (Washington, D.C.: 1997), 23–24 at http://www.eeoc.gov/abouteeoc/task_reports/practice.html (last visited March 2005). The Federal Glass Ceiling Commission (USA) made a similar ﬁnding concerning management commitment and accountability. See Federal Glass Ceiling Commission, A Solid Investment: Making Full Use of the Nation’s Human Capital (Recommendations of the Federal Glass Ceiling Commission) (Washington, D.C., 1995), 19–20. The Task Force on Best Practices deﬁned a “best practice” as follows: (1) A best practice complies with the law. (2) A best practice promotes equal employment opportunity and addresses one or more barriers that adversely affect equal employment opportunity. (3) A best practice manifests management commitment and accountability. (4) A best practice ensures management and employee communication. (5) A best practice produces noteworthy results. (6) A best practice does not cause or result in unfairness. Reginald Jones (Chair), Task Force Report, op. cit., section 1. It is widely accepted in literature on human resources management that organizational change that is supported by both management and employee representatives have a better chance of success than top-down, unilaterally-imposed change. See for example Gill Dix and Sarah Oxenbridge, Information and Consultation at Work: From Challenges to Good Practice (London: Acas Research and Evaluation Section; Research Paper 03/03, 2003), 23–30. Kenneth Marino, “Conducting an Internal Compliance Review of Afﬁrmative Action,” Personnel: American Management Association’s HR Focus, (March/April 1980): 24–34, 31. The Northern Ireland proactive regime established pursuant to the Northern Ireland Act 1998 does, however, expressly require management commitment as a technical requirement.

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demonstration of management commitment.55 Furthermore, the guidance for each of the proactive regimes examined in this thesis makes it clear that the demonstration of management commitment is expected of the employer. For example, in the guidance for both the Canadian statutory-based regime and contract-based regime the demonstration of senior management commitment is considered the ﬁrst step: An effective employment equity program requires the ongoing commitment of the entire organization, starting with senior management. . . . The role of senior management is to: – establish employment equity as a corporate objective; – communicate the policy objective to all staff members; and – demonstrate ongoing support and involvement in both words and actions. Continuous visible involvement of senior management in the planning and implementation stages is crucial, particularly to ensure managers throughout the organization remain committed.56

Without management commitment the employer cannot demonstrate good faith efforts to implement its proactive obligations. Without a demonstration of good faith efforts, the employer will be deemed non-complying. Indeed, the contract compliance program in the USA refers to the entire afﬁrmative action program as the institutionalization of the contractor’s commitment to equal opportunity.57 Management accountability is closely linked with management commitment; the former is indeed a manifestation of the latter. However, management accountability goes further than mere commitment; it derives from mechanisms or processes by which managers are reviewed and rewarded or punished on the basis of their performance regarding equality at the workplace. For the most part this means that the evaluation of the performance of managers and supervisors is – at least in part – based on his/her performance with respect to the equality program. Management accountability is not only important because of management’s role as a driving force behind the equality program. Managers are also signiﬁcant decisionmakers and gatekeepers, having direct inﬂuence on hiring, promotion, performance appraisal, assignment of work, etc. Signiﬁcant in this respect are studies which have revealed that the biasing effects of stereotypes in evaluative processes are reduced when evaluators know that they will be held accountable for their judgments. Not only does it reduce the expression of bias, but also bias in the non-conscious cognitive processes, such as the encoding of information.58 In light of 55 56

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Reginald Jones (Chair), Task Force Report, op. cit., 17. Human Resources Skills and Development Canada, Guidelines for the Employment Equity Act and Regulations: Guideline 1: Getting Started, 3 at http://www.hrsdc.gc.ca/asp/gateway. asp?hr=/en/lp/lo/lswe/we/legislation/guidelines/index-we.shtml&hs=wzp (last visited April 2005). See 41 C.F.R. § 60–2.10. Barbara Reskin, “The Proximate Causes of Employment Discrimination,” Contemporary Sociology, 29, no. 2 (2000): 319–328, 325. See also additional references conﬁrming the signiﬁcance of management accountability cited in Barbara Reskin, The Realities of Afﬁrmative Action in Employment (Washington, D.C.: American Sociological Association, 1998), 65–66.

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this, management accountability is a central element in addressing systemic discrimination in employment. Examples of management accountability include: (1) the evaluation of management on their success in actively fostering the careers of (and retaining) high performing ethnic minority employees, (2) the formalization of sanctions (including demotion) for having failed to comply with the organization’s equality policy or for (consistently) failing to use good faith efforts to promote equality, (3) the linkage of incentive pay to the achievement of goals speciﬁed in the equality program, (4) exposure in the company newsletter or magazine of successful equality efforts, and (5) the review of hiring and promotion decisions by the person in charge of the equality program or an equality program committee. The Glass Ceiling Commission found in 1995 that there is a particular need for the incorporation of management accountability into equality programs because: Many middle- and upper-level white male managers view the inclusion of minorities and women in management as a direct threat to their own chances for advancement.59

The Commission’s survey of chief executive ofﬁcers (CEO’s) also conﬁrmed their awareness of white male resistance to the inclusion of ethnic minorities and women. Given the ﬁndings of both the Glass Ceiling Commission and the Task Force on Best Practices that employers themselves consider management accountability to play a key role in the success of equality programs, it is somewhat surprising that none of the proactive regimes require management accountability.60 Even in the guidance there is conspicuously little mention of management accountability. Generally, it is not even proposed as an action that employers can or ought to adopt. The Norwegian regime does, however, encourage the use of such a linkage in the promotion of gender equality: “[M]anagers should be evaluated on the basis of equality work.”61 Although the Task Force refers to both “top-down” and “bottom-up” communication, communication and consultation are in general not the same. Communication is the disclosure of information by management which allows employees to be properly informed about developments, whereas consultation is the process by which management and employees or their representatives jointly examine and discuss issues of mutual concern, 59

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Federal Glass Ceiling Commission, Good for Business: Making Full Use of the Nation’s Human Capital (The Environmental Scan: A Fact-Finding Report of the Federal Glass Ceiling Commission) (Washington, D.C., 1995), 31. In the guidance to Great Britain’s statutory-based regime the public authority’s obligation to publish the results of its equality impact assessments, consultations and monitoring is referred to as a mechanism of accountability: “If you are to win and keep public conﬁdence, you need not only to promote race equality, but to be seen to be doing so. By publishing the results of your activities, you will show that you are carrying out the speciﬁc duties. . . .” Commission for Racial Equality, The Duty to Promote Race Equality: A Guide for Public Authorities (NonStatutory) (London: 2002), 52. I consider this to be a different type of accountability than the management accountability described here. Gender Equality Ombud: Aktivitets- og redegjørelsesplikten i privat sektor (Obligations of Active Measures and Reporting in the Private Sector) (brochure), 3.

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and it presumes that the views of employees will be taken into account before making decisions.62 Effective communication and consultation helps the employer to identify barriers to equality, helps dampen employee and management resistance to the equality program and helps employees and managers to understand what behavior the organization expects of them and what reactions will occur if that standard of behavior is infringed. All of the proactive regimes examined in this thesis mention communication and consultation as a central element of the employer’s equality program. This is done either as a speciﬁc requirement or in the form of guidance and advice given to employers. Preparation and implementation of an equality plan The broad rules and obligations of legislation have to be translated into day-to-day compliance details at the workplace. Personnel need to know who is responsible for carrying out what tasks. An equality plan helps to ensure that the employer has systematically thought through and structurally organized answers to such questions as: (1) What remedial actions will be taken to eliminate identiﬁed barriers to equality? (2) Who will be responsible for implementing the actions? When? How will it be done? (3) Are the necessary resources allocated? (4) How is one to deal with resistance? (5) What benchmarks will be used to measure progress? (6) How will progress be measured? By whom? How often? (7) What is to happen if no progress is made? These and many other questions must be answered in order to successfully translate the employer’s legal obligations into a day-to-day culture of compliance. The proactive regimes of Canada, USA, Great Britain and Northern Ireland explicitly require the preparation and implementation of a written plan to eliminate barriers to equality in employment. In the USA this plan is referred to as an afﬁrmative action program; in Canada it is called an employment equity plan; in Great Britain a race equality scheme and in Northern Ireland an equality scheme (if pursuant to the Northern Ireland Act 1998) or an article 55 review (if pursuant to the Fair Employment Treatment Order 1998). (Of the two Northern Ireland regimes, I shall for simplicity sake refer to the former as the regime to promote generic equality, and the latter as the regime to promote religious equality.) I shall use the term equality plan to collectively refer to each or all of these various plans. The contents of the equality plans in the various regimes do, however, differ. The employment equity plan of Canada, is prepared after the employer has identiﬁed the barriers to equality, i.e., after the employer has carried out the collection and analysis of data on the workforce and of labor market availability, as well as, the employment systems review. The equality plan addresses speciﬁcally how the barriers are to be eliminated, i.e., what remedial actions and facilitative actions shall be carried out. Whereas the USA’s afﬁrmative action program is a document which includes the workforce and labor market analyses and the analysis of employment systems, as well as, the description of how the identiﬁed barriers are to be eliminated. The Northern Ireland article 55 review is also a kind of hybrid document which includes both a review of the workforce and 62

Advisory, Conciliation and Arbitration Service (Acas), Employee Communications and Consultation (London: Acas advisory booklet, code Acas/B06 of November 2004).

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labor market analyses, as well as, the speciﬁcation of how the identiﬁed barriers to equality are to be eliminated. The race equality scheme of Great Britain and the equality scheme of Northern Ireland are somewhat different in that they are designed to be tools for public authorities’ promotion of equality in all of their activities, not merely in their role as public employer. However, the schemes require the setting out of arrangements for identifying barriers to equality in employment, as well as, the publication of equality assessment results and the authority’s intended actions in light of the assessment results.63 Pursuant to these proactive regimes, public authorities are obligated to publish their equality plans – thus, making public authorities accountable to the public for any failure to implement the plan. In addition, public authorities in Northern Ireland must submit their equality plans to the Equality Commission (i.e., the enforcement agency) for approval prior to implementation. The government in Great Britain speciﬁcally chose not to require any prior approval of equality plans in conjunction with its proactive regime. The Hepple Report, which was an independent review of UK antidiscrimination legislation, made no recommendation of prior approval of the equality plan by an enforcement agency. It was felt that prior approval would be unfeasible, given the large number of public authorities in Great Britain and the limited resources of the Commission for Racial Equality.64 The Norwegian proactive regime does not require employers to establish an equality plan, and the Gender Ombud does not encourage employers to make an equality plan.65 In an interview with the advisor on proactive obligations at the ofﬁce of the Gender Ombud the advisor saw no particular beneﬁt in equality plans. This standpoint is in sharp contrast with that of the Ethnic Discrimination Ombudsman in Sweden. The Swedish proactive regime does not explicitly require employers to make an equality plan. However, the Ombudsman views a written equality plan as an implied obligation. In its guidance to employers the Ombudsman indicates that the making of an equality plan is an implicit obligation because employers are required to have documentable plans from which it may be established that employers are in compliance with the obligations of the proactive regime. The plan must include concrete and measurable goals (not necessarily numerical) and timetables regarding the implementation of the plan.66 The Swedish Ombudsman has found the lack of written equality plans to be a major hinder in its compliance reviews. In its Annual Report of 2003 the Ombudsman 63

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See Commission for Racial Equality, The Duty to Promote Race Equality: A Guide for Public Authorities (Non-Statutory) (London: 2002), 52 and Equality Commission for Northern Ireland, Guide to the Statutory Duties: A Guide to the Implementation of the Statutory Duties on Public Authorities Arising from Section 75 of the Northern Ireland Act 1998 (Belfast: 2002), 43–44. Bob Hepple, Mary Coussey and Tufyal Choudhury, Equality: A New Framework: Report of the Independent Review of the Enforcement of UK Anti-Discrimination Legislation (Oxford: Hart Publishing, 2000), 62. Interview of 1 March 2005 with Ingrid Dåsnes, Advisor on Proactive Obligations, at the Gender Ombud. Ombudsmann mot etnisk diskriminering, Råd till arbetsgivare för arbete för etnisk mångfald, 6.

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describes a survey-audit of 400 private-sector employers of which only 7 could be said to be in compliance with the law. In an interview with the compliance ofﬁcer it was stated that it was those same 7 employers that had written equality plans.67 The Swedish government has apparently understood the disadvantages of not having an explicit obligation in the law requiring employers to establish and implement an equality plan. In a decision of 27 January 2005 the government supplemented the terms of reference for an all-party law commission scheduled to deliver a report in January 2006 on harmonizing the Swedish antidiscrimination laws. The supplementary mandate asks the commission to propose a draft provision requiring employers to establish equality plans for the promotion of ethnic and religious equality.68 I believe that the Swedish situation is very illustrative of the need for written equality plans – particularly regarding the promotion of ethnic equality in countries whose proactive regimes have not had a long history. The need is particularly great in proactive regimes that do not specify in detail the kinds of proactive obligations imposed on employers. When the employer is left with wide discretion regarding the promotion of equality it is very likely that the fulﬁllment of the obligation will not be approached in a systematic or comprehensive fashion. The situation in Sweden supports this conclusion. The Swedish situation also illustrates that proactive regimes would be welladvised to explicitly require employers to make and implement a written equality plan. In my assessment, it is difﬁcult to envision how employers can work systematically and comprehensively towards promoting ethnic equality at the workplace without a written equality plan. The work in connection with the establishment of an equality plan not only translates the broad obligations into day-to-day compliance routines, it also helps to demonstrate that management is committed to the equality program. It is important that the employer be perceived as having worked systematically and structurally to eliminate barriers to ethnic equality. Organizational programs and initiatives of signiﬁcance are not dealt with haphazardly by management, and this is particularly so with initiatives which involve organizational change. The adoption of an equality program without a written plan makes an implicit statement as to the degree of priority accorded the program. Yet, equality initiatives are no different than any other important organizational initiative. The work must be well-planned, routines must be designed and communicated and the day-to-day compliance must be carried out systematically, comprehensively and professionally. Any deviation from the ordinary way of working in the organization will not go unnoticed. In order to win the conﬁdence of ethnic minorities it is not sufﬁcient to incorporate fairness into employment systems; one must be perceived as incorporating fairness into employment systems. Or to put it another way: One must not only say equality and actually do equality; one must be perceived as doing equality.

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Interview of 30 September 2004 with Weini Kasei, compliance ofﬁcer with the Active Measures Section of the Ombudsman for Ethnic Discrimination. See also Ombudsmann mot etnisk diskriminering, Årsredovisning (Annual Report) 2003, 17. Tilläggsdirektiv till Diskrimineringskommittén (N 2002:06), Dir. 2005:8, 3.

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Numerical goals and timetables The employer’s inclusion of numerical goals (targets) and timetables in the equality plan is considered to be one of the most important components of any successful equality program. Goals and timetables are used as tools for planning and for measuring progress towards equality in employment. Goals and timetables serve as objectives or targets that are reasonably attainable through the good faith implementation of the equality plan. They should be both realistic and challenging if they are to be useful. Goals should not only refer to the numbers or percentages of ethnic minorities in employment or applying for jobs; they should also refer to the numbers or percentages of ethnic minorities receiving training, receiving mentors, entering into career development programs etc. Both the Glass Ceiling Commission and the Task Force on Best Practices view the establishment of goals and timetables as an aspect of management commitment and accountability. The setting of goals and timetables is a clear expression of management’s commitment to the promotion of equality. Furthermore, without goals and timetables one cannot effectively measure the performance of managers.69 Indeed, without goals and timetables managers cannot even know what progress is expected regarding the promotion of equality. The empirical research carried out by Jonathan Leonard in the late 1970’s reveals the signiﬁcance of the setting of goals and timetables as a key component of any proactive regime. The data used in Leonard’s research came from 4479 contractors, each of whom was subjected to two consecutive compliance reviews by the OFCCP (agency enforcing the USA contract compliance program). The employer’s goals for the following year were established during the ﬁrst compliance review and a consecutive compliance review controlling the outcome took place one year later. While controlling for other factors, Leonard was able to view the impact of the goals and timetables on the contractor’s proportional representation of ethnic minorities in employment. The data collected by Leonard also enabled him to view the impact of successively higher levels of OFCCP pressure, for example, (a) interim progress reports demanded from the employer, (b) conciliation process initiated, and (c) the issuance of a show-cause notice to the employer requiring it to explain why it should not be debarred from participating in future government procurement. Although Leonard found no signiﬁcant impact of these three elements of the enforcement process, he found that [T]he afﬁrmative action goal is the single best predictor of subsequent employment demographics. It is far better than the establishment’s own past history, even controlling for the direct impact of detailed regulatory pressure.

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See Federal Glass Ceiling Commission, Good for Business: Making Full Use of the Nation’s Human Capital (The Environmental Scan: A Fact-Finding Report of the Federal Glass Ceiling Commission) (Washington, D.C., 1995), 42 and Reginald Jones (Chair), Task Force Report on Best Equal Employment Opportunity Policies, Programs and Practices in the Private Sector (Washington, D.C.: 1997), 23–24 at http://www.eeoc.gov/abouteeoc/task_ reports/practice.html (last visited March 2005), section II (I).

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This indicates that while establishments promise more than they deliver, the ones that promise more do deliver more, even conditioning on the past growth rate of employment share.70 (emphasis added)

Leonard concludes that the employer’s afﬁrmative action goals and timetables are strongly correlated with the employer’s improvements in the employment percentage of ethnic minorities.71 Despite this strong correlation, Leonard also found that the goals were not being fulﬁlled with the rigidity one would expect of quotas. This ﬁnding was not surprising, given that the inability to meet one’s goals does not in itself carry any sanction. In the eyes of the OFCCP it is the failure to carry out a good faith implementation of the plan which may subject an employer to sanction. Thus, Leonard answered with empirical evidence the twin argument concerning goals and timetables that opponents of afﬁrmative action in the USA have made: (1) that goals and timetables have no value and only amount to a bureaucratic paper exercise and (2) that goals are just a polite word for inﬂexible quotas.72 Although Leonard is perhaps the most renown researcher to recognize the signiﬁcance of goals and timetables in proactive obligation regimes, he is not the only one. The three studies of Hitt and Keats, Jain and Hackett, and Marino have all concluded that the setting of goals and timetables is an indispensable element of any proactive obligation regime.73 Upon a showing of underrepresentation, the two proactive regimes of Canada and the proactive regime of the USA require the employer to set goals and timetables for reducing the underrepresentation in its workforce. The annual percentage goals set for a particular occupational group must not be less than the external representation of the protected group. This is to say, that employers should aim to hire and promote members of protected groups at least on par with what a barrier-free system of policies and practices should produce.74 70

71 72

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Jonathan Leonard, “What promises are Worth: The Impact of Afﬁrmative Action Goals,” The Journal of Human Resources, vol. xx, no. 1, (1985): 3–20, 15. Ibid., 20. A 1994 survey of 641 contractors subject to the USA contract compliance regime revealed that only 2% complained that the OFCCP imposed quotas. Thus, the overwhelming majority of contractors do not consider the imposition of goals and timetables to be quotas. See George Stephanopoulos and Christopher Edley, Afﬁrmative Action Review: Report to the President (Executive Ofﬁce of the President, 19 July 1995), section 6.3. Michael Hitt and Barbara Keats, “Empirical Identiﬁcation of the Criteria for Effective Afﬁrmative Action Programs,” The Journal of Applied Behavioral Science 20, no. 3 (1984): 203–222; Kenneth Marino, “Conducting an Internal Compliance Review of Afﬁrmative Action,” Personnel: American Management Association’s HR Focus, (March/April 1980): 24–34; and Harish Jain and Rick Hackett, “Measuring Effectiveness of Employment Equity Programs in Canada: Public Policy and a Survey,” Canadian Public Policy XV, no. 2 (1989): 189–204. For USA see 41 C.F.R. § 60–2.16. For Canada see the guidance for both the statutory-based regime and the contract-based regime: Human Resources Skills and Development Canada, Guidelines for the Employment Equity Act and Regulations: Guideline 7: Employment Equity Plan, 17 at http://www.hrsdc.gc.ca/asp/gateway.asp?hr=/en/lp/lo/lswe/we/legislation/ guidelines/index-we.shtml&hs=wzp (last visited April 2005).

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The Northern Ireland proactive regime that promotes religious equality can in essence be said to require an employer to use goals and timetables in its equality plan. Both the law establishing the regime and the Equality Commission strongly urges employers to set goals and timetables: “[W]here it is practical to do so you must set such goals and timetables.”75 Furthermore, after an investigation the Commission can direct the employer to use the goals and timetables speciﬁed by the Commission.76 This is about as close to a requirement as can be without explicitly making it an absolute requirement. As stated earlier the Swedish Ethnic Discrimination Ombudsman interprets the proactive regime to require employers to have a written equality plan together with concrete and measurable goals (not necessarily numerical) and timetables regarding the implementation of the plan. The proactive regime of Great Britain and the Northern Ireland proactive regime that promotes generic equality have in common the fact that they relate to public authorities in all of their activities, not merely to their role as public employers. The regimes require the adoption of proactive measures to promote equality and the timetabling of these measures. Although the setting of goals and timetables with respect to employment is not explicitly mentioned in the guidance, public employers are obligated to collect and analyze ethnic data so as to determine whether there is an underrepresentation of ethnic minorities. Upon a showing of underrepresentation and a subsequent equality impact assessment which identiﬁes barriers to equality in employment, the public authorities are obligated to adopt measures to alleviate such barriers and these measures must be timetabled. In its guidance to British public authorities the Commission for Racial Equality, the enforcement agency, urges public employers to set targets and timetables. The guidance gives the following advice about the setting of targets: – set targets that are challenging but achievable, and that are based on relevant internal and external benchmark data; – set stage-by-stage and ﬁnal achievement dates; – develop an action programme that will deliver the target; – review your progress towards the target; – identify and deal with any obstacles to your progress; and – revise your targets downwards or upwards, if the evidence suggests that they were originally set unrealistically high or were not challenging enough.77

The law embodying the Norwegian proactive regime (which only promotes gender equality) states that “employers shall make active, targeted and systematic efforts to promote gender equality.”78 According to the Ombud’s guidance to employers, the pro-

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Equality Commission of Northern Ireland, Code of Practice on Fair Employment in Northern Ireland (1989), para. 6.6. See also the Fair Employment Treatment Order 1998, § 55 (3). Ibid. Commission for Racial Equality, Ethnic Monitoring: A Guide for Public Authorities (NonStatutory) (2002), 66. Section 1a of the Act on Gender Equality 1976.

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active measures shall be result-oriented in the sense that the goals shall be concrete and the result shall be measurable.79 The Ofﬁce of the Gender Ombud interprets the obligation for employers to set goals as broad enough to include both numerical and nonnumerical goals. The legal amendment implementing the Norwegian proactive regime is relatively new, and the Ombud has initially focused on the task of bringing about general awareness regarding the law’s obligations and the fulﬁllment of the most basic requirements, for example the reporting obligation. Although the Gender Ombud has not yet speciﬁcally encouraged the setting of numerical goals, it may at some later point do so in order for employers to be in full compliance with the law.80 All of the proactive regimes which require or encourage the use of goals make very clear that goals are not the same as quotas; all regimes forbid the use of quotas. In contrast with quotas, goals may not be used to supersede merit selection principles. Goals do not require employers to hire a less qualiﬁed person in preference to a more qualiﬁed one.81 Nor should goals be considered to be a ceiling or ﬂoor for the hiring or promotion of protected groups. The central position of the employer’s setting of goals and timetables in almost all of the proactive regimes examined is a clear indication of its signiﬁcance. This is supported by the research carried out on the impact of goals and timetables on the implementation of equality in employment. The setting of goals and timetables embody management commitment and enable management accountability. This is particularly so if line managers are brought into the process of setting them. The process of setting of goals and timetables forces the employer to think through the impediments to equality. The employer is forced to think through the remedial action to be implemented and its effect on outcomes. The employer is forced to consider both internal and external constraints. For example: The setting of the goals must take into consideration such things as the severity of underrepresentation, the turnover of employees, the anticipated growth or reduction of the workforce, the particular circumstances of the employer, the local, regional, national and global economies, etc. There should be openness on management’s part regarding the use of goals and timetables. Keeping them conﬁdential will only open for unnecessary rumor and speculation, which can also lead to resistance. Moreover, the importance of goals and timetables as evidence of management commitment and accountability will be lacking. Management’s open commitment to the use of goals and timetables also serves an important educational purpose. It establishes their use as a standard feature of good human resources management and it serves to educate employees about the crucial distinction between goals and quotas.82 79

See Likestillingsombud (Gender Equality Ombud): Aktivitets- og redegjørelsesplikten i offentlig sektor (Obligations of Active Measures and Reporting in the Public Sector), 3 and Likestillingsombud (Gender Equality Ombud): Aktivitets- og redegjørelsesplikten i privat sektor (Obligations of Active Measures and Reporting in the Private Sector), 3. 80 Telephone interview of 22 April 2005 with Lars Christensen, deputy director, Ofﬁce of the Gender Ombud. 81 See for example the USA regulation 41 C.F.R. § 60–2.16 (e)(4). 82 See Equality Commission of Northern Ireland, Code of Practice on Fair Employment in Northern Ireland (1989), para. 6.6.6.

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Employer monitoring and review of progress; Revision All of the proactive regimes examined that require or encourage the setting of goals and timetables also require or encourage the monitoring of progress of the equality program. The employer’s regular monitoring and review of progress goes hand-in-hand with the setting of goals and timetables. There can be no accountability for the equality program unless one monitors and reviews the progress (or lack thereof ) in achieving the goals established. It should come as no surprise that the Glass Ceiling Commission and Task Force on Best Practices also list the tracking (monitoring) of progress as a characteristic common to best practice initiatives.83 Furthermore, the three studies (mentioned earlier) of Hitt and Keats, Jain and Hackett, and Marino respectively concluded that the employer’s monitoring of progress is central to the success of a proactive obligation regime.84 The employer’s monitoring of progress, however, is more than the mere monitoring of the achievement of numerical goals. It should entail the monitoring of all of the various components of the entire equality program, including the monitoring and review of all remedial action undertaken. For example, if management decisions were made to begin using structured interviews and to keep memoranda which give reasons for decisions after interviews, then there should be a monitoring mechanism to ensure that these procedures are being followed. Moreover, monitoring will no doubt entail some of the same diagnostic actions (quantitative and qualitative) carried out in order to identify barriers to equality. This time they are carried out in order to perceive changes in outcome. In this way one may perceive the progress or lack of progress in eliminating the barriers. The purpose of monitoring and review is to identify what aspects of the equality plan work and what aspects do not work. In order to measure progress one must ﬁrst adopt key performance indicators which can document progress. Numerical goals and timetables are indeed performance indicators; however, other aspects of the equality program may require more qualitative measures as performance indicators. Top management should review the progress of the equality program and, if necessary, revise its approach so as to ﬁnd better ways of achieving progress. Monitoring of progress should preferably be integrated with other organizational auditing tools and other accountability mechanisms. In this way the monitoring actions become viewed as one of the standard practices of good human resources management. The monitoring of progress will also help to demonstrate to the enforcement authorities that the employer is making good faith efforts to implement the equality plan. The employer’s willingness to monitor, review and if necessary revise ensures an ongoing problem-solving approach. Systemic ethnic discrimination is not well under83

84

See Federal Glass Ceiling Commission, Good for Business, op. cit., 9 and Reginald Jones (Chair), Task Force Report, op.cit., section III (H). Michael Hitt and Barbara Keats, “Empirical Identiﬁcation of the Criteria for Effective Afﬁrmative Action Programs,” The Journal of Applied Behavioral Science 20, no. 3 (1984): 203–222; Kenneth Marino, “Conducting an Internal Compliance Review of Afﬁrmative Action,” Personnel: American Management Association’s HR Focus, (March/April 1980): 24–34; and Harish Jain and Rick Hackett, “Measuring Effectiveness of Employment Equity Programs in Canada: Public Policy and a Survey,” Canadian Public Policy XV, no. 2 (1989): 189–204.

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stood and there are no easy answers as to how to eliminate it. The remedial action chosen may not have the desired impact. This ongoing problem-solving approach and ongoing learning-process is essential in the search for an effective remedial action. e. A Word on the Remainder of this Chapter The rationality of the obligations imposing the adoption of an internal equality program at the workplace and the rationality of the government policy response to systemic discrimination are two separate inquiries. The former is not a sufﬁcient condition for ensuring the latter. In section 9.3 of this chapter I have addressed the rationality of the obligations imposed on employers. I have assessed whether the obligations imposed by the various proactive regimes address the problem of systemic (ethnic) discrimination in employment in all of its dimensions. I reserve my judgment on this assessment for the conclusion of this chapter (see section 9.9). In the remainder of this chapter I shall address four other factors relating to the regulatory structure and design of the proactive regime. These factors also have a direct bearing on the rationality of the government policy response to systemic discrimination in employment. They concern: (1) the clarity and speciﬁcity of the obligations, (2) the guidance and assistance provided to employers, (3) the institutional monitoring of employer compliance and the application of regulatory pressure, and (4) the sanctions provided for non-compliance.

9.4. The Speciﬁcity of Obligations and the Ability to Assess Compliance Question: Does the Government Policy State the Employer Obligations with Sufﬁcient Clarity and Speciﬁcity to Enable a Practical Assessment of Employer Compliance? All regulatory policies which seek to bring about changes in the workplace are dependent upon employer compliance with those policies. This is true regardless of whether the policy concerns health and safety, the environment, equality or a host of other important socio-economic issues. There are many factors that can inﬂuence employer compliance with regulatory policy. Examples are: (1) the existence of effective tools or guidance which encourage and assist employers to willingly comply with the policy; (2) a credible monitoring of employer compliance; and (3) the ability and willingness to sanction non-compliance. These issues are addressed in sections 9.5, 9.6 and 9.7 respectively. This section focuses on the ability to assess compliance, i.e., how easy it is to know when the obligations imposed have been complied with. This assessment of compliance is done both by the employer itself (self-assessment) and by the enforcement agency. The ability to assess compliance is largely dependent upon the design of the law, regulation, order, rule or contract clause imposing obligations upon the employer. More speciﬁcally, it is dependent upon the clarity and speciﬁcity of the obligations imposed. The ﬁght against discrimination and the promotion of equality in society have had a long tradition of government exhortations and declarations urging employers to treat all persons fairly and equally irrespective of ethnicity, race, sex, disability etc. Exhortations

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create neither rights nor obligations. They may have symbolic value; however, exhortations have been found to be lacking in effect when used as the sole or primary instrument of change (see section 9.1.a). If the government policy response to systemic discrimination in employment imposes obligations on employers that are vague, unclear or lacking in speciﬁcity, then it is likely to be viewed by employers more in the vein of a program declaration or exhortation as opposed to a binding obligation. Moreover, given the difﬁculties in perceiving systemic discrimination and the fact that most employers simply don’t envision that they have a discrimination problem in the workplace (see section 1.1), government imposed obligations that are unclear and lack speciﬁcity will most likely be insufﬁcient to motivate the employer to address the problem in a systematic and comprehensive way including the allocation of necessary resources. There are simply too many other priorities that also need attention. In a nutshell, uncertain obligations produce uncertain initiatives and uncertain results! In such cases assessment of compliance becomes difﬁcult – both assessment by the employer itself as well as assessment by the enforcement agency. The application of regulatory pressure is also reduced, because the legal system’s requirement of legal certainty will make it difﬁcult for an enforcement agency to sanction noncompliance except in the clearest of cases. For these reasons, it is important that the policy state the employer obligations with sufﬁcient clarity and speciﬁcity to enable a practical assessment of compliance. The proactive regimes of Norway and Sweden differ signiﬁcantly from the regimes of Great Britain, Canada, USA and Northern Ireland with respect to the speciﬁcity of obligations imposed upon employers. The similarities of the four latter regimes and the similarities of the two former regimes are striking enough that one can speak of two types of regimes: (1) a high-speciﬁcity regime and (2) a low-speciﬁcity regime. The regimes of Great Britain, Canada, USA and Northern Ireland are high-speciﬁcity regimes, while the regimes of Norway and Sweden are low-speciﬁcity regimes. The Swedish and Norwegian regimes, in comparison with the regimes of the other four countries, have a considerably lesser degree of speciﬁcity of the obligations imposed. The substantive obligation in Norway is worded as follows: “Employers shall make active, targeted and systematic efforts to promote gender equality within their enterprise.”85 What does this mean to the employer who wants to know what speciﬁcally is demanded of him? Guidance to employers may give various ideas about what the employer can do, but most employers will want to know what they must do. In addition, the Norwegian regime imposes a reporting obligation which states that an employer shall in its annual report86 give an account of: (1) the actual state of affairs regarding gender equality in the organization, and (2) the implemented and planned measures to promote gender equality. The reporting obligation is interpreted to require statistical information broken down by sex on such areas as employment, wages, recruitment, promotion. This reporting obligation is more speciﬁc as to what the employer is expected to do. 85 86

Section 1a of the Gender Equality Act of 9 June 1976, no. 45. A public employer that is not required to submit an annual report shall provide the same information in its annual budget.

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The substantive obligation of the Swedish statutory-based regime (with similar language to the Norwegian substantive obligation) is worded as follows: “[A]n employer shall carry out a goal-oriented work in order to actively promote equal rights and opportunities. . . .”87 The Swedish regime does however go on to mention the areas of working conditions, harassment, retaliation and recruitment. Yet, compared to the regimes of the high-speciﬁcity type, the Swedish obligation must still be considered very general in its wording. This is primarily so because the term working conditions is very general, encompassing many organizational practices. Furthermore, the provision on working conditions introduces an additional ambiguity by stating that the obligation to carry out measures to ensure that working conditions are suitable for all ethnic groups, is subject to “due regard to the employer’s resources and circumstances otherwise”. (See section 7.4.a for the complete wording of the proactive obligation.) No other proactive regime examined in this thesis has a comparable qualiﬁcation built into the description of the employer’s proactive obligations. Although the areas of harassment, retaliation and recruitment are speciﬁc, these problem areas only form a very small part of the much fuller panoply of proactive obligations imposed on employers in the high-speciﬁcity model. The lack of clarity and speciﬁcity of the Swedish statutory-based regime is also incorporated into the Swedish contract-based proactive regime. This is because the obligation on the employer in the contract-based proactive regime is to comply with the antidiscrimination law which contains the statutory-based obligations. In this way the obligations of the contract-based proactive regime are just as unclear and unspeciﬁed as the obligations of the statutory-based proactive regime. According to a Swedish study commissioned by the National Board of Public Procurement there were only 45 contracting authorities who chose to impose contract-based proactive obligations on contractors. Of these, six contracting authorities stated that they had experienced difﬁculty in assessing whether or not the clause had been breached.88 Given that only 5 of the 45 contracting authorities using the antidiscrimination clause stated that they had monitored the contractor’s compliance with the clause, one may assume that the great majority of contracting authorities who monitor compliance, experience difﬁculty in assessing compliance. This is a strong indication that the lack of clarity and speciﬁcity regarding the obligations imposed on employers, may be affecting the effectiveness of the regime. With the exception of the Norwegian reporting obligation, the general wording of the Norwegian and Swedish regimes do not specify any particular diagnostic, remedial or facilitative actions that the employer must carry out.89 This generality of obligations 87

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Sections 4–7 of the Act (1999: 130) on Measures against Ethnic Discrimination in Working Life. Nämnden för offentlig upphandling, Utvärdering av användningen av antidiskrimineringsklausuler i upphandlingskontrakt (Dnr 2003/0301–28 of 17 June 2004), 9. As stated earlier in section 9.3.a the proactive obligations imposed on employers can largely be divided into three types: diagnostic actions, remedial actions and facilitative actions. I also pointed out earlier that with few exceptions none of the proactive regimes specify particular remedial actions to be carried out by the employer. The particular remedial actions necessary are speciﬁc to the organization, depending upon the kinds of barriers to equality identiﬁed or presumed to exist in the organization.

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entails a signiﬁcantly greater amount of freedom given to Norwegian and Swedish employers in the choice of how they are to fulﬁll their obligation. Both the Norwegian and Swedish enforcement authorities provide employers with examples of how they may fulﬁll their obligation, but the employers are not bound to follow this advice. The generality of obligations makes it very difﬁcult to determine whether an employer has failed to fulﬁll its obligation. This is particularly so with the Norwegian substantive obligation. If an employer conducts a gender impact assessment of its recruiting methods and a survey of employees about sexual harassment, is that enough to comply with the obligation? How can the employer know? There is simply no clear standard by which to judge whether the obligation has been fulﬁlled. Furthermore, the Norwegian regime provides no sanction whatsoever for an employer’s failure to comply with the substantive obligation “to make active, targeted and systematic efforts to promote gender equality.”90 The enforcement of sanctions against employers in all but the clearest of cases might indeed have raised fundamental questions as to the law’s lack of legal certainty. On the other hand, the regimes of the high-speciﬁcity type impose very detailed obligations on employers. They are sufﬁciently speciﬁc that there is much less difﬁculty in determining whether the obligations have not been met by the employer. Examples of these obligations will help to illustrate my point. Regimes belonging to the high-speciﬁcity type require employers to adopt a set of diagnostic actions, i.e., to carry out analyses and reviews which enable the employer to identify barriers to equality. Speciﬁcally, the employer must: (1) collect data on its workforce (including ethnic data), (2) analyze workforce data and labor market availability data in order to determine whether there is an underrepresentation of protected groups in the workforce generally or in speciﬁc occupational groups, and (3) carry out an employment systems review (both quantitative and qualitative review) for each occupational group showing underrepresentation, in order to ﬁnd out whether and where there exist barriers to equality. Furthermore, the employer must carry out a set of facilitative actions to give structure, coherence and credibility to its equality program. For example, the employer must: (1) prepare and implement a written equality plan which speciﬁes the remedial actions to be taken to eliminate barriers to equality identiﬁed at the workplace, (2) incorporate numerical goals and timetables into the equality plan, and (3) monitor and review the progress of the implementation of the equality plan. There may always be some questions as to whether an employer has carried out its obligations fully and in good faith. However, these obligations (in comparison with those of the low-speciﬁcity regimes) are much clearer. It is easier for both the employer and the enforcement agency to determine whether the obligations imposed have been complied with. If the employer cannot demonstrate that it has carried out an underrepresentation study, then it is in non-compliance. If it has no written equality plan, then it is in non-compliance. It is important to understand however that this high-speciﬁcity and low-speciﬁcity divide is not an “either-or;” it is more like a spectrum. It is not always easy to know whether one is in compliance with the obligations imposed on employers

90

Ot. Prp. Nr. 77 (2000–2001) Om lov om endringer i likestillingsloven, 20 and 110.

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even with high-speciﬁcity regimes. This is particularly so when one moves from the obligations that appear to involve more technical compliance to the obligations to carry out the remedial actions necessary to eliminate barriers to equality. There is no ﬁxed answer as to how to fashion remedial actions. Some actions are more “off the shelf ” types while others require more tailoring to the speciﬁc barrier to equality. In light of this, there will always be some uncertainty regarding compliance also with the highspeciﬁcity regimes; however, there will be a much greater degree of uncertainty regarding compliance assessment in the low-speciﬁcity regimes of Sweden and Norway. Most importantly, this greater degree of uncertainty affects the effectiveness of the proactive regime.

9.5. Guidance and Technical Assistance to Employers Question: Does the Government Policy Provide the Necessary Practical Guidance and Technical Assistance to Employers? With all of the references to guidance in previous sections of this chapter, it should be apparent to the reader that guidance plays a signiﬁcant role in helping the employer to understand what it is obligated to do and how it can or must fulﬁll those obligations. The language of laws, administrative regulations and executive orders are perhaps necessarily technical and legalistic. At any rate they are often inappropriate as adequate guidance to employers and employees.91 As a result enforcement agencies have been instrumental in providing assistance and advice to employers subject to proactive obligation regimes. Guidance goes under many different names: Codes of practice, guidelines, information kits, handbooks, etc. Guidance is usually written by the enforcement agencies. The guidance provided creates no legal obligations on employers, but rather sets standards of behavior. They are indications of good employer practices in the promotion of equality. Guidance for the most part has no legal signiﬁcance beyond its probative value as a tool to help interpret the employer’s legal or contractual obligation. Courts and tribunals may or may not choose to take such guidance into consideration when interpreting the employer’s obligations. However, the British statutory-based regime and the Northern Ireland statutorybased regime promoting religious equality authorize the adoption of guidance that has a sort of stamp of ofﬁcial approval. In Great Britain a statutory code of practice is one that is approved by Parliament; in Northern Ireland it is a code approved by the Northern Ireland Assembly. The British Statutory Code of Practice on the Duty to Promote Race Equality is an example.92 The process for adoption is as follows: The Commission for Racial Equality

91 92

Alec Samuels, “Codes of Practice and Legislation,” Statute Law Review, 29 (1986): 29–34, 29. Section 71C of the Race Relations Act (as amended) gives the Commission for Racial Equality the authority to issue a statutory code of practice with the approval of Parliament regarding the proactive duty to promote racial equality.

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(CRE) prepares and publishes a draft of the code. After having taken into consideration any comments on the draft during consultation, the draft is presented to the Secretary of State. If approved by the Secretary of State, he/she lays it before both Houses of Parliament. Either House may reject the draft code within 40 days. If there is no such rejection, the Code is approved by Parliament and it comes into force on a date stipulated by the Secretary of State.93 A statutory code does not create binding obligations on the employer; however, the code is admissible in evidence in any legal action and the court or tribunal shall, if relevant, take the code’s recommendations into account.94 The CRE also publishes non-statutory guidelines on the duty to promote racial equality, i.e., guidance that is not approved by Parliament. The non-statutory guidelines usually highlight examples of good practice developed by employers, and also include more practical advice. Although the non-statutory guidance serves a more practical function for the employer seeking hands-on advice, the formal process through which the statutory code of practice is adopted clothes it with a greater degree of legitimacy and authority than the non-statutory guidance. The Northern Ireland proactive regime for the promotion of religious equality has a comparable statutory code of practice. It is in essence formally adopted in the same way as the British statutory code of practice. It is drafted by the Equality Commission, submitted to the appropriate department for approval and then laid before the Northern Ireland Assembly for approval. The legal signiﬁcance of the code of practice is the same as the signiﬁcance of the British statutory code of practice.95 The Equality Commission also provides practical guidance which is not adopted in this formal manner. Although there may be some advantages in a formal code of practice approved by Parliament or the Assembly, such as greater legitimacy and authority, the less formally adopted guidance gives the enforcement agency greater ﬂexibility. The less formally adopted guidance may include practical examples of good practice. It can also be amended quickly in order to take into consideration changes in legislation or changes in the kinds of barriers to equality experienced by underrepresented groups. All of the centralized96 enforcement agencies provide some form of guidance over the internet on the agency’s homepage. Several have a webpage entitled “Frequently Asked Questions” or something comparable. In general there is a great wealth of guidance to be found on these webpages.97 For example, the USA’s Ofﬁce of Federal Contract Compliance Programs publishes its entire internal compliance manual used by com93 94

95

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Ibid. Section 71C (11) of the Race Relations Act (as amended). See also Commission for Racial Equality, Statutory Code of Practice on the Duty to Promote Race Equality (London: 2002), 11. See Schedule 1 of the Fair Employment Treatment Order (FETO) 1998. The code of practice is presently under revision due to change in legislation. See section 9.6 for an explanation of the two proactive regimes which do not have a centralized enforcement agency. This thesis has only had access to the guidance provided by centralized enforcement agencies. Some examples: For the British Commission for Racial Equality, see http://www.cre.gov.uk/ under the heading “The Race Equality Duty” (last visited May 2005). For the Canadian Human Rights Commission, see http://www.chrc-ccdp.ca/employment_equity/default-en.asp (last visited May 2005).

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pliance ofﬁcers on its homepage.98 Both the Canadian contract-based regime and statutory-based regime use a common, comprehensive guidance document (several hundred pages) on the employer’s obligations.99 Norwegian and Swedish statutory regimes are comparatively younger regimes, and there is thus less guidance published by their respective enforcement agencies.100 At this time the Norwegian Gender Ombud has only published a 4-page brochure for private employers, a 4-page brochure for public employers and a 2-page fact sheet on the proactive obligations. It is, however, in the process of collecting examples of best practices.101 In addition to the provision of guidance, several of the enforcement agencies provide technical assistance. Several agencies provide employers with easy electronic access to statistical databases which allow them to determine the availability of speciﬁc groups in the appropriate labor market. In this way employers can more easily calculate whether they have an underrepresentation in the workforce generally or in speciﬁc occupational groups. The Equality Commission (Northern Ireland) and OFCCP (USA) provide such technical assistance, and the Human Resources Skills Development Canada provides such assistance to employers subject to either the contract-based regime or the statutory-based regime in Canada. Another type of technical assistance is the provision of templates which simplify the task of the employer in preparing a particular document. A template is a standard-format document used as a starting point for the preparation of a document so that the format does not have to be recreated each time. Templates help to ensure that the employer is taking into consideration and addressing all of the matters that the enforcement agency expects the employer to consider and address. The Equality Commission provides a template so as to facilitate the employer’s accurate fulﬁllment of its Article 55 review reporting obligation.102 The Commission for Racial Equality (GB) has published a template of its internal compliance assessment document so as to show the employer what is expected of the employer regarding its equality scheme.103 The Canadian Human Rights Commission provides a self-identiﬁcation form to help employers collect ethnic data on its workforce. The Swedish Ombudsman provides a checklist to help employers see whether they have fulﬁlled all of the aspects of their proactive obligations.104 98 99

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103 104

See http://www.dol.gov/esa/regs/compliance/ofccp/fccm/fccmanul.htm. See http://www.hrsdc.gc.ca/asp/gateway.asp?hr=/en/lp/lo/lswe/we/ legislation/guidelines/ index-we.shtml&hs=wzp (last visited May 2005). For the Swedish Ethnic Discrimination Ombudsman, see http://www.do.se/o.o.i.s?id=1968 and http://www.do.se/o.o.i.s?id=456 (last visited May 2005). For the Norwegian Gender Ombud, see http://www.likestillingsombudet.no/ under the headings “privat sector” and “offentlig sector” (last visited May 2005). Interview of 1 March 2005 with Ingrid Dåsnes, Advisor on Proactive Obligations, at the Gender Ombud. See Equality Commission for Northern Ireland, Article 55 Review: Report Structure (Belfast: 2004) at http://www.equalityni.org/publications/recentpubdetails.cfm?id=2 (last visited May 2005). See http://www.cre.gov.uk/duty/compliance.html (last visited May 2005). See http://www.do.se/o.o.i.s?id=456 (last visited May 2005).

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Because both the British statutory-based regime and the Northern Ireland statutorybased regime promoting generic equality are concerned with promoting equality in all of the functions of the public authority (not just its role as public employer), only a small part of the guidance for these two regimes relates to the public authority’s role as public employer, i.e., the public employer’s role in promoting equality at its workplace. An evaluation of the British proactive regime carried out for the CRE approximately a year after the regime had gone into effect, reported a surprising number of public authorities that were not aware that they also had obligations as public employers.105 This could of course be a passing phase; one year after entry into effect is not a long time. However, it could also be an indication that it may be useful to separate out the guidance regarding the public authority’s proactive obligations as public employer. The Northern Ireland statutory-based regime promoting generic equality has a great deal of guidance relating to the public authority’s promotion of equality in all of their functions in general (for example the delivery of services to the public); however, very little of the guidance relates to the public authority’s role as public employer and the promotion of equality at its workplace. When I asked why this was so, it was explained that there was a great wealth of guidance to public employers regarding the promotion of religious equality at the workplace.106 It is apparently thought that the guidance provided under the one regime would be generalizable to the obligations under the other regime. This may be true to some degree. However, the two regimes do differ signiﬁcantly (see section 7.3) and it would seem that the kinds of barriers to equality encountered by ethnic minorities and other underrepresented groups would differ enough from the barriers to religious equality, so as to justify the generic equality regime’s own guidance for public authorities in their capacity as public employers. As stated earlier, proactive regimes do not usually specify the remedial actions that employers are obligated to carry out; this is dependent upon the barriers to equality identiﬁed in the organization. Thus, it is crucial that the guidance give the employer insights as to how particular kinds of remedial action may help to address speciﬁc barriers to equality. Unfortunately, the guidance provided by most of the enforcement agencies is dominated by assistance and advice with respect to diagnostic actions and facilitative actions. These two types of actions are perhaps the most technically challenging; however, organizational change will only occur through the implementation of remedial action. When guidance on remedial actions is provided, it is almost always guidance with respect to training and targeted recruitment (outreach). I do not consider the mere listing up of possible types of remedial action to be guidance. Guidance should provide the employer with an understanding of the ideal-typical barriers to equality, how they operate and how the remedial action can help to eliminate or alleviate the consequences of those barriers. Furthermore, guidance should help the employer understand how it can formulate and carry out the remedial action in practice.

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Commission for Racial Equality, Towards Racial Equality: An Evaluation of the Public Duty to Promote Race Equality and Good Race Relations in England and Wales (2002) (London, 2003), 12. Interview of 10 December 2004 with Evelyn Collins, Chief Executive of the Equality Commission for Northern Ireland.

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One type of remedial action that I have found relatively little guidance on is the formalization of evaluative processes, such as by incorporating transparency, accountability and guidance to evaluators into them. As pointed out in section 9.3.c, this represents a big chunk of the employment systems of the employer. One notable exception is the OFCCP’s (USA) use and publication of the Uniform Guidelines on Employee Selection Procedures which relates to selection procedures used in relationship to any employment decision (hiring, promotion, selection for career development, retention etc.).107 There is some guidance on certain aspects of this topic published for employers subject to the Swedish statutory-based regime,108 the two Canadian regimes109 and the Northern Ireland regime for religious equality.110 However, I have found no guidance on the formalization of evaluative processes produced for employers subject to the Norwegian statutory-based regime, the British statutory-based regime and the Northern Ireland statutory-based regime promoting generic equality. I ﬁnd that all of the regimes could beneﬁt by providing signiﬁcantly more guidance on the remedial actions in general and on the formalization of evaluative processes in particular. In addition, I have found almost no guidance on the potential use of management accountability by employers in the promotion of equality (see section 9.3.d). As already pointed out, management accountability is a powerful tool which may be used to minimize management resistance to the equality program, as well as to minimize both conscious and non-conscious stereotypes and bias which inﬂuence evaluative processes. I believe that guidance provided by the various regimes should at the least inform employers of the value of management accountability and show how it can be incorporated into the equality program.

9.6. The Monitoring of Compliance and Application of Regulatory Pressure Question: Does an Enforcement Agency Monitor Compliance with the Government Policy and Apply the Regulatory Pressure Necessary to Achieve Compliance? Generic regulatory experience teaches us that the likelihood of detection is a key factor affecting compliance.111 Thus, it should come as no surprise that the existence of an

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Although the Uniform Guidelines on Employee Selection Procedures is in the form of “guidelines” it is adopted as an administrative regulation. See 41 C.F.R. § 60–3. See for example the two handbooks: Rekrytera utan att diskriminera (Handbok från J¨mO, DO, HomO och Handikappombudsmannen) (Stockholm, 1999), 35–76 and Ombudsmannen mot Etnisk Diskriminering, Aktiva Åtgärder för att Främja Etnisk Mångfald i Arbetslivet (DO:S Handbok för Aktiva Åtgärder) (Stockholm, 1999), 75–79. See for example Human Resources Skills and Development Canada. Guidelines for the Employment Equity Act and Regulations: Guideline 7: Employment Equity Plan at http://www.hrsdc.gc.ca/asp/gateway.asp?hr=/en/lp/lo/lswe/we/legislation/guidelines/indexwe.shtml&hs=wzp (last visited April 2005). Equality Commission for Northern Ireland, Article 55 Review: Report Structure (Belfast: 2004). Lyle Fairbairn and Margot Priest, Enhancing Compliance with Human Rights Objectives:

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enforcement agency that monitors employer compliance with proactive obligation regimes signiﬁcantly enhances compliance with (and the effectiveness of ) the regime. This was the subject of Jonathan Leonard’s study from 1984 assessing the impact of the USA enforcement agency’s compliance reviews on the employment outcomes of ethnic minorities.112 Leonard used the disaggregated data sets of 68,690 establishments ﬁling EEO-1 reports for both the years 1974 and 1980. On the EEO-1 form employers provide the numbers of employees in each of nine job group categories broken down by sex and race/ethnicity. Both contractors (subject to the USA Contract Compliance Program) and non-contractors (not subject to the program) ﬁle the EEO-1 form.113 Leonard then merged the EEO-1 demographic data with data on the enforcement authority’s compliance reviews. There had been 27,000 compliance reviews undertaken at 11,000 establishments between 1973 and 1981. Leonard found that compliance reviews played a signiﬁcant role over and above that of mere contractor status (i.e., having obligations under the proactive regime). The growth rate of black male employment over the 6 year period in contractors subjected to compliance review was 7.9% greater than in contractors not subjected to compliance review. The comparable ﬁgure for non-black minority males (e.g. Hispanic males) was 15.2% and for black females it was 6.1%.114 Leonard concluded that the direct pressure of being subjected to a compliance review does make a difference. Leonard knew from a previous study with this same data set (see section 9.1.b) that being subjected to the obligations of the contract compliance program (i.e., contractor status) had itself a signiﬁcant impact on the growth of ethnic minority employment compared with non-contractor businesses. Now in this study he found that the collective impact of both contractor status (being subject to the program) and having been subjected to a compliance review was almost twice that of the impact of mere contractor status. This was so for black males, non-black minority males and black females.115 The monitoring of employer compliance with the proactive regime is usually carried out by way of a compliance review (also called compliance audit). The point of the compliance review is not simply to ascertain whether or not there is compliance, but also to bring about compliance. With the exception of the contract-based regimes of Great Britain and Sweden, all of the proactive obligation regimes have a centralized enforce-

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Policy Options (Paper of 9 November 1999 prepared for the Canadian Human Rights Review Panel), see Annex A: Key Factors Affecting Compliance, 59. The 2003 Annual Report of the Canadian Human Rights Commission (which enforces Canada’s statutory-based proactive regime) states that employment growth of underrepresented groups can, in part, be attributed to compliance audits. This is because employers who are audited by the Commission decrease the gaps of underrepresentation in the years following the audit. See Canadian Human Rights Commission, 2003 Annual Report, 25. All private employers with 100 or more employees must ﬁle an EEO-1 form. Federal contractors with 50 or more employees must also ﬁle an EEO-1 form, if they have contracts, subcontracts or purchase orders of $50,000 or more. Jonathan Leonard, “The Impact of Afﬁrmative Action on Employment,” Journal of Labor Economics, 2, no. 4 (1984): 439–463, 451. Ibid.

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ment agency which monitors employer compliance.116 In the contract-based regimes of Great Britain and Sweden it is the individual contracting authority which enforces the contract-based proactive obligations. There are three reasons I consider such an arrangement to be particularly problematic from an enforcement point of view. First, contracting authorities have a need for the primary objective of the contract to be fulﬁlled; they are purchasing goods, services or construction works from the contractor.117 From the contracting authority’s position the promotion of equality in the contractor’s workforce is a secondary consideration. There is a potential conﬂict of interest here. It is within the direct interest of the contracting authority to ensure that the primary object of the contract is realized. The efﬁcient functioning of the contracting authority may indeed depend upon it. The contracting authority therefore has little incentive to make demands on the contractor regarding secondary equality considerations because they may interfere (or be perceived to interfere) with the primary objective of the contract. Secondly, contracting authorities are likely to lack expertise regarding the promotion of equality in employment and the interpretation of the legislative or executive mandate imposing the contract-based proactive obligation on employers. This is likely to be a particular problem regarding relatively small contracting authorities that do not have such a large number of procurement contracts so as to justify the acquisition of the necessary expertise. When there is inadequate expertise in contracting authorities regarding the promotion of workplace equality, one can also expect that effective monitoring of employer (contractor) compliance will not be carried out. As pointed out earlier in section 9.4 only 5 of the 45 contracting authorities using the antidiscrimination clause in Sweden carried out any monitoring of the contractor’s compliance with its proactive obligations. Training of key personnel could of course help, but even such trained personnel would probably not be able to develop the same kind of expertise as compliance ofﬁcers in a centralized enforcement agency. Thirdly, any given government may have dozens – even hundreds – of different units and sub-units which may function as contracting authorities with the right to enter into contracts for the purchase of goods, services and construction works. If each individual contracting authority is to enforce contractor compliance with the proactive obligation regime, there are bound to be inconsistencies in the levels of enforcement and in the various interpretations of what compliance with the proactive regime entails. For these reasons, I believe that there are signiﬁcant disadvantages in allocating responsibility to the individual contracting authorities to enforce contractor compliance. Use of a centralized enforcement agency avoids any potential conﬂict of interest; such an agency need not be concerned with the performance of the primary objective of the contract. It is the promotion of equality in employment which is the centralized agency’s mandate. In addition, the compliance ofﬁcers working in a centralized agency will develop great expertise in the monitoring of employer/contractor compliance. This is

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The contract-based proactive obligation regimes of the USA and Canada (and all of the statutory-based proactive obligation regimes) use a centralized enforcement agency to monitor compliance. See chapter 8 for a full understanding of how contract compliance programs are constructed.

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of particular importance since the process of bringing about compliance often entails guidance and assistance to the contractor/employer as well as the application of pressure. A centralized enforcement agency will also to a larger degree be able to avoid inconsistencies in the levels of enforcement and in interpretations of what compliance entails. Furthermore, because of this conﬂict of interest on the part of the contracting authorities, it is also unwise to let the individual contracting authorities decide whether or not to use the contract-based regime. This is only possible with the Swedish and British contract-based regimes, for these are the only regimes examined that are not obligatory. Contracting authorities may choose not to impose the regime on contractors. According to a government-commissioned Swedish report, only 6.6% of contracting authorities use this regime on a regular basis.118 I have no statistics on the central government’s use of contract compliance in Britain, but the Commission for Racial Equality and other statutory equality bodies have regularly urged the central government to take such a regime into greater use.119 This non-obligatory character of the regime seriously diminishes the comprehensiveness and effectiveness of it. Because the contract-based proactive regimes of Sweden and Great Britain have no centralized enforcement agency and because the monitoring of compliance carried out by the individual contracting authorities has been insigniﬁcant, this thesis has no additional insights into the process of monitoring carried out pursuant to these two regimes. Thus, the remainder of this section only concerns the proactive regimes with a centralized enforcement agency, i.e., the contract-based regimes of the USA and Canada and all of the statutory-based regimes. The compliance review is not merely an instrument to inform the enforcement agency as to the employer’s status as complying or non-complying, it is also (and perhaps most importantly) a mechanism for the application of regulatory pressure to bring the employer into compliance. This is best illustrated in the proactive regimes of the USA, Canada and the Northern Ireland proactive regime for religious equality. In these regimes the compliance review process has several stages: (1) a preliminary assessment (desk audit) of the employer’s equality plan and supporting documents to determine whether all elements required by the proactive regime are met, (2) an on-site review to interview key employees, managers and hiring ofﬁcials, so as to verify the preliminary assessment, (3) the conducting of negotiations regarding unresolved issues, so as to extract written undertakings120 (promises) from the employer as to future action which would enable the employer to come into compliance, (4) the follow-up review where the employer’s carrying out of the negotiated undertakings are veriﬁed, and (5) a subsequent implementation audit to monitor for the employer’s good faith implementation of the equality program, including its remedial action. Many view the negotiation

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Nämnden för offentlig upphandling, Utvärdering av användningen av antidiskrimineringsklausuler i upphandlingskontrakt (Dnr 2003/0301–28 of 17 June 2004) 6. Evelyn Collins, Contract Compliance: An Opportunity for Progress towards Equality in the 1990’s (Dissertation, Queen’s University of Belfast, 1990), 63–64. This written undertaking is referred to as a conciliation agreement in the USA.

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and extraction of promises as the single most important catalyst behind the transformation of non-complying employers into complying employers. This is conﬁrmed by Jonathan Leonard’s study (discussed at the beginning of this section) on the impact of being subjected to compliance reviews, as well as his study on the impact of setting numerical goals and timetables when done in connection with compliance reviews (see section 9.3.d). This point is also illustrated by a study from Northern Ireland on the impact of afﬁrmative action agreements to promote religious equality entered into by employers subject to the proactive regime and the enforcement agency.121 The data for the study were the annual monitoring returns122 ﬁled by businesses with the enforcement agency, which included information on employees broken down by religion from 1990 to 2000. This data permitted the authors to view over a 10-year period the employment growth for underrepresented groups and the degree of workplace integration of Protestants and Catholics. This information was merged with the data on 322 afﬁrmative action agreements entered into between 1990 and 2000 with the enforcement agency.123 These afﬁrmative action agreements, negotiated by the enforcement agency, were essentially of two types: (1) a legally binding agreement to carry out speciﬁc remedial actions, and (2) a voluntary (non-binding) agreement to carry out speciﬁc remedial actions.124 The agreements were used in relation to both private and public employers. The legally binding agreements were used mostly with larger businesses in the private sector, while the voluntary agreements were used with smaller businesses and publicsector employers. The results of the study showed that the afﬁrmative action agreements were a statistically signiﬁcant factor in both the employment growth for the underrepresented group and shift in the degree of integration of Protestants and Catholics.125 If the negotiation process does not succeed in the employer giving undertakings to carry out speciﬁed action to come into compliance, the enforcement authorities may

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Christopher, McCrudden, Robert Ford and Anthony Heath, “The Impact of Afﬁrmative Action Agreements” in Fair Employment in Northern Ireland: A Generation On, edited by Bob Osborne and Ian Shuttleworth (Belfast: The Blackstaff Press, 2004). All employers submitting annual monitoring returns are subject to the obligations of the proactive regime to promote religious equality. The present enforcement agency is the Equality Commission of Northern Ireland which was set up in year 2000. It replaced its predecessor, the Fair Employment Commission, which was the party to the afﬁrmative action agreements. The difference between the legally-binding agreement and the voluntary agreement is as follows: The legally-binding agreement could be enforced by the enforcement agency by making an application to a tribunal for the enforcement of the agreement. In this case, the enforcement agency would not have to prove the underlying issue of non-compliance with the obligations of the regime. It need merely show that the employer did not carry out its undertaking in the agreement. In contrast to this, the voluntary agreement could not be enforced as such. To pursue an employer who did not carry out the agreed actions of a voluntary agreement, the enforcement agency would ﬁrst have to issue directions that certain acts should be carried out by the employer and thereafter enforce in court the failure to carry out such directions. Christopher, McCrudden et al., op. cit., 123 at footnote 2.

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issue directions (Canada and Northern Ireland) or a compliance notice (Great Britain) demanding that the employer comply with its obligations. This increase of regulatory pressure appears, at least in some cases, to have impact. The issuance of directions by the Canadian Human Rights Commission has at least had some impact. From 1997 to 2002 the Commission issued directions to 23 employers. By the end of 2002, ten of the employers had come into compliance.126 If the enforcement agency’s compliance notice or direction is not complied with, the enforcement agencies in Canada, Northern Ireland and Great Britain may seek a court or tribunal order demanding the employer to carry out speciﬁed action to come into compliance. If such an order is granted and it fails to bring the employer into compliance, then sanctions are applied. This step-by-step increase of regulatory pressure on the employer has been referred to in the Hepple Report as an equality enforcement pyramid.127 The report describes the enforcement pyramid in this way: At the base, the regulators assume voluntary compliance and promise co-operation. When this fails they climb up the pyramid with progressively more deterrent penalties until there is compliance. In order to work, there must be a gradual escalation and, at the top, sufﬁciently strong sanctions to deter even the most persistent offender.128

It is suggested in the report that this type of enforcement mechanism is more effective because it responds to the different behavior of the various organizations subject to regulation. Although this sounds plausible, we have no empirical studies conﬁrming this – at least not relating to proactive obligation regimes. In fact Jonathan Leonard’s empirical study of the USA contract-based regime (described in section 9.3.d) revealed no signiﬁcant impact on outcomes from the individual components of the enforcement process, but he did indeed ﬁnd signiﬁcant impact from the sum of the components working as a whole. Leonard stated: “We have a policy that appears to be effective in its whole and ineffective in its parts.”129 This ﬁnding is not necessarily in conﬂict with the model of the enforcement pyramid of the Hepple Report; however, it does seem to conﬁrm that the transformation of non-complying employers to complying employers is best achieved by the application of regulatory pressure. That is to say that regulatory pressure must be applied; the objectives sought cannot be left up to voluntary compliance. The statutory-based proactive regimes of Sweden and Norway are relatively new. The Swedish regime promoting ethnic and religious equality was introduced in 1999 and the

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Canadian Human Rights Commission, 2002 Employment Equity: A Year-End Review (Ottawa: Minister of Public Works and Government Services, 2003), 12. Bob Hepple, Mary Coussey and Tufyal Choudhury, Equality: A New Framework: Report of the Independent Review of the Enforcement of UK Anti-Discrimination Legislation (Oxford: Hart Publishing, 2000), 58–59. Ibid. Jonathan Leonard, “What promises are Worth: The Impact of Afﬁrmative Action Goals,” The Journal of Human Resources, vol. xx, no. 1, (1985): 3–20, 19.

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Norwegian regime promoting gender equality in 2002. The monitoring mechanisms of the enforcement agencies cannot be said to be fully developed or operational. Much of the work in the ﬁrst years after adoption has gone to increasing the general awareness of employers regarding their proactive obligations. This is also reﬂected, for Norway’s part, in the small amount of resources allocated to the monitoring of employer compliance. The Swedish Ombudsman has a staff of 4–5 persons who carry out all of the work regarding the proactive regime, while the Norwegian Ombud has a staff of 11/2 persons working with the proactive regime. In 2002 the Swedish Ombudsman began its ﬁrst systematic auditing of 400 employers. Only seven were judged by the Ombudsman to be in compliance with their obligations. Over the next two and a half years the compliance ofﬁcers negotiated with non-complying employers so as to extract written undertakings (promises) to carry out speciﬁc actions. These undertakings (agreements) were entered into by both the Ombudsman and the employer. In the 2004 Annual Report the Ombudsman states that each of these negotiations has been extremely time-consuming and resource-demanding. The Ombudsman surmises that this is because the general awareness of employers regarding ethnic discrimination has not reached a level where employers themselves take initiative to actively prevent it.130 In an interview with a compliance ofﬁcer I was told that the Ombudsman does not have the capacity to carry out follow-up audits so as to ensure that the employer undertakings have actually been carried out.131 In year 2004 the Norwegian Gender Ombud carried out audits of 175 private employers and 117 public employers to assess their compliance with the reporting obligations of the Norwegian proactive regime. The employers are obligated to give an account in their annual report of the status of gender equality, as well as, the measures undertaken and planned to promote gender equality.132 The Ombud reviewed the employers’ annual reports for the activities of the year 2003. Approximately half of the public employers were in compliance with their reporting obligations. The gender equality reports of 30% of the public employers were so defective as to be in non-compliance with the law’s requirements, while 20% failed to report on gender equality at all in their annual report (annual budget).133 The audits of private employers revealed that only 30% were in compliance with their reporting obligations, while 70% of the reports were so defective as to be in non-compliance with the law’s requirements. Only two private employers failed to report on gender equality at all in their annual report.134

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Ombudsmannen mot Etnisk Diskriminering, Årsredovisning 2004 (Annual Report 2004 of the Ombudsman), 23. 131 Interview of 30 September 2004 with Weini Kasei, compliance ofﬁcer with the Active Measures Section of the Ombudsman for Ethnic Discrimination. 132 Public employers that do not submit annual reports are obligated to give a comparable account of gender equality in their annual budgets. 133 Likestillingsombud, Kontroll av redegjørelser i statlige virksomheter 2004 at http://www.likestillingsombudet.no/fremme/statskontroll2004.html (last visited April 2005). 134 Likestillingsombud, Kontroll av redegjørelser i private virksomheter 2004 at http://www. likestillingsombudet.no/fremme/privat2004.html (last visited April 2005).

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After the audit each employer received a letter from the Gender Ombud, commenting on the contents of the reporting obligation, a brief evaluation of the employer’s compliance with the obligation and some recommendations for improvement. The Ombud did not however attempt to initiate any negotiations or dialogue with non-complying employers.135 Given the personnel resources allocated to the proactive obligation work, the conducting of negotiations and dialogue was probably not a valid alternative. However, the additional pressure on employers resulting from negotiations and the extraction of undertakings to come into compliance was lost. It should be noted that the Gender Ombud has only audited the employer compliance with the reporting obligation. It has not yet carried out any audits of employer compliance with the substantive obligation to implement active measures to promote gender equality. Although the monitoring of the reporting obligation can give some indication as to the substantive proactive obligations adopted by the employer, such monitoring cannot apply the regulatory pressure necessary to bring about compliance with the substantive proactive obligations. As we shall see in the following section, the Gender Ombud is in a difﬁcult position. The proactive regime lacks a sanction for non-compliance with the substantive obligation, and the monitoring of compliance has much less meaning when there is no sanction available. The Gender Ombud must of course use the tools that are available to her/him. Whatever usefulness this proactive regime may have for gender equality, it is deﬁnitely not an appropriate model for promoting ethnic equality. For this model presupposes a very high degree of existing knowledge, motivation and initiative on the part of employers for promoting equality. Such knowledge, motivation and initiative is simply not present to the same degree regarding the promotion of ethnic equality – at least not in Sweden and Norway. One need only recall the lament of the Swedish Ethnic Discrimination Ombudsman upon ﬁnding that after three years of information campaigns about the proactive obligations imposed on employers, only 7 of 400 employers were in compliance with their obligations. All of the proactive regimes take into consideration that smaller employers cannot do as much as larger employers. This is taken into consideration in two ways: First, several of the regimes are only applicable to employers with a certain minimum number of employees. For example, the Canadian contract-based regime only applies to contractors with 100 or more employees. Similarly, the afﬁrmative action obligations of the USA contract-based regime, only apply to employers with 50 or more employees. The Northern Ireland proactive obligations for promoting religious equality only relate to employers with more than 10 employees. The Norwegian reporting obligation is for the most part imposed on businesses with more than 20 employees or a property value of more than 20 million Norwegian Crowns.136 Secondly, even if the regime applies to all employers, the monitoring of compliance is usually limited to employers with a certain minimum number of employees. For

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Interview of 1 March 2005 with Ingrid Dåsnes, Advisor on Proactive Obligations, at the Gender Ombud. See § 1–2 of Regnskapsloven of 17 July 1998, number 56.

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example, in 2002 the Swedish Ombudsman only monitored employers with 10 or more employees, whereas in 2003 it only monitored employers with 20 or more employees.137 In the Gender Ombud’s guidance to Norwegian employers it states that the degree of active measures required is greater for large employers than for small employers.

9.7. Sanctions for Non-Compliance Question: Does the Government Policy Provide Meaningful Consequences Linked to Employer Compliance, Including Sanctions for Failure to Implement Employer Obligations and/or Rewards for Implementing Them? The likelihood of sanction and severity of sanction are well-known factors affecting compliance with government regulations.138 If employers can ignore the obligations of the proactive regime with impunity, the credibility of the regime will suffer.139 Sanctions play a major role in the overall ability of the enforcement agency to apply regulatory pressure. I have stated earlier that most compliance ofﬁcers consider the negotiation process to be the single most important factor in transforming non-complying employers into complying employers. This of course presupposes an effective sanction for noncompliance. Without sanctions there is precious little regulatory pressure. A proactive regime with no sanction for non-compliance is not very different from a government exhortation of voluntary action. A proactive regime without sanctions for non-compliance, like voluntary actions, cannot be expected to have signiﬁcant impact. Thus, it is somewhat surprising that one of the regimes examined in essence has no sanction for non-compliance. The Norwegian regime for promoting gender equality has no sanction for an employer’s non-compliance with the substantive obligation to “make active, targeted and systematic efforts to promote gender equality”. The only sanction in connection with the Norwegian regime is for non-compliance with the reporting obligation. If an employer does not fulﬁll its reporting obligation, the Gender Ombud can request the Board of Appeals to direct the employer to do so. The Norwegian Gender Ombud has not yet carried out any monitoring of employer compliance regarding the substantive obligation. One type of sanction for non-compliance adopted by several of the proactive regimes is the enforcement agency’s request of a tribunal or court order directing the employer to carry out speciﬁc actions so as to come into compliance. This order is then enforced

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Ombudsmann mot etnisk diskriminering, Årsredovisning (Annual Report) 2003, 19. Lyle Fairbairn and Margot Priest, Enhancing Compliance with Human Rights Objectives: Policy Options (Paper of 9 November 1999 prepared for the Canadian Human Rights Review Panel), 15. P. E. Morris, “Legal Regulation of Contract Compliance: An Anglo-American Comparison,” Anglo-American Law Review, 19, no. 2 (1990): 87–144, 130.

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in the ordinary way that court orders are enforced. This means that an employer who refuses to comply with the order can be held in contempt of court. This type of sanction has been adopted by the Canadian statutory-based regime, the Northern Ireland regime for promoting religious equality and the Great Britain statutory-based regime. In the case of Great Britain the sanction is only for a public employer’s non-compliance with its speciﬁc duty140 to make an equality plan and to collect ethnic data. Prior to the agency’s request for a tribunal or court order, it usually issues directions (Canada and Northern Ireland) or a compliance notice (Great Britain) to the employer demanding compliance with its obligations. It is difﬁcult to know how severe the sanction of contempt of court can be. It is the court itself that decides the sanction for contempt of court. It can range from imprisonment to the imposition of a ﬁne. I am not aware of any case where an employer has been sanctioned in this way for contempt of court. It is more a sanction in theory than in practice. But a sanction in theory, if severe enough, can also serve its function. Moreover, even the issuance of directions and compliance notices can have signiﬁcance (see section 9.6). The sanction of a civil ﬁne is authorized by the Swedish statutory-based regime. If the employer refuses to comply with its obligations, the enforcement agency (the Ombudsman) can request a Board to issue a civil ﬁne. Up to now the Ombudsman has never made such a request. Like the sanction of contempt of court, the severity of a civil ﬁne will depend upon its size. One must also keep in mind that there will be costs involved in the adoption of any internal equality program. If the sanction of civil ﬁne is small in comparison with the costs of the equality program, some employers will no doubt view the sanction of non-compliance as the lesser of the two evils. In other words, some employers may be willing to pay the ﬁne if they can avoid the costs of the equality obligation. This is particularly so where there is also little risk of detection. Although there is no way of knowing until the sanction of civil ﬁne has in fact been used, it is difﬁcult to envision that a Board will issue a ﬁne in an amount that would be sufﬁcient for general deterrence. Undoubtedly the most severe (and most effective) sanction for non-compliance is debarment, i.e., the exclusion of a contractor/employer from participating in government contracts for a speciﬁed period. The right to participate in government contracts (the opposite of debarment) can also be viewed as a reward – an incentive for contractors to comply with the obligations of the proactive regime. The selling of goods, services and construction works to government entities is a very lucrative business for many employers. Such employers will have strong incentives to comply with their proactive obligations if debarment is a sanction for non-compliance. This may be the case even if the sanction is not used so very often by the enforcement agency. As long as it is used often enough to be considered a realistic threat, employers will most likely want to avoid conﬂicts with the enforcement agency. The ﬁnancial consequences of being excluded from this lucrative business is simply too great. The USA and Canadian contract-based

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See section 7.2.b for an explanation of what the speciﬁc duty entails.

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proactive regimes both authorize debarment as a sanction for non-compliance. It has not been used frequently however. In the USA it had been used less than 45 times since the contract compliance program’s start in 1965 up to 2001, whereas the Canadian regime debarred 8 contractors from 1986 to 2002. A variant of debarment can be found in the Common Standard used by six local authorities in Great Britain (see section 8.2.c) to impose proactive obligations on potential tenderers to promote racial equality. The Common Standard is primarily used as a mechanism for granting pre-qualiﬁcation approval for participation in local government tenders. If employers carry out the proactive obligations (which basically set up a framework of diagnostic, remedial and facilitative actions), they will be approved as potential tenderers who may later participate in speciﬁc tenders for local authority contracts. In essence this pre-qualiﬁcation approval system functions as a kind of debarment, for if the employers do not carry out the obligations they are excluded from the approved list for participation in government tenders. The same proactive obligations are incorporated as conditions of contract entered into with the successful bidder. The six local authorities have only recently carried out a pilot project for monitoring compliance during the execution phase of the contract. The project entails the monitoring of the actual implementation of the framework of actions adopted by the contractor. Presumably, those who have not implemented their framework of actions and are thus in non-compliance, can ultimately be debarred, i.e., excluded from the approval list. As described in chapter 8, although the Common Standard is only used in relation to construction contracts below the EU threshold level in the procurement directives, the regime is still limited by the constraints of EU treaty law. There may be some question whether the Common Standard’s exclusion of a contractor from the approved list is fully in compliance with EU treaty law (see section 8.1); however, as of February 2005 it had never been challenged. Although the sanction of debarment is mostly known from its use in connection with contract-based proactive regimes, there is no reason that it can’t also be used as a sanction for non-compliance in statutory-based proactive regimes. The Northern Ireland proactive regime for promoting religious equality does precisely that. It is a statutorybased regime which uses both the ultimate sanction of contempt of court as well as the sanction of debarment. I am of the opinion that all of the proactive regimes could be improved by authorizing (if they have not already done so) debarment as a sanction for non-compliance. It is the only sanction that also functions as a strong incentive for compliance. In addition to the sanction of debarment, the USA contract-based regime authorizes the enforcement agency (OFCCP) to request the Solicitor of Labor to terminate the contract if the contractor refuses to comply with the proactive obligations and conciliation efforts have failed. No other contract-based regime authorizes termination of contract as a sanction. I do not view the termination of contract as a particularly useful sanction. There are two reasons for this. First, any central enforcement agency would be hardpressed to terminate the contract, given that the governmental function of the contracting authority is very likely dependent upon its realization. Secondly, any termination of the contract would surely entangle the contracting authority and the enforcement

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agency in a complicated law suit141 involving not only the question of non-compliance with proactive obligations, but also the contractor’s primary performance of the government contract. Termination may even be looked upon as the contracting authority’s attempt to get out of an ill-bargained agreement. It would simplify matters greatly to simply debar the contractor upon completion of the contract. Any resulting litigation would at least be limited to the question of non-compliance with the proactive obligations. An interesting and informal sanction for non-compliance is the threat of public embarrassment. Negative publicity attracts the attention of senior management and directors, and many employers are very concerned about their public reputation. The annual report of the Canadian Human Rights Commission regularly highlights employers that have refused to comply willingly with its proactive obligations.142 The Norwegian Gender Ombud has also used this informal sanction effectively regarding the reporting obligation. After media coverage of the named ministries that did not comply with their reporting obligations the ﬁrst year after entry into force of the proactive obligations, the level of compliance improved signiﬁcantly the following year.143 In an interview with the compliance ofﬁcer at the Swedish Ombudsman the ofﬁcer stated that the Swedish proactive regime would be strengthened if the Ombudsman were allowed to give to the media the names of non-complying employers who refuse to cooperate with the Ombudsman.144 Although this thesis does not examined the Australian proactive obligation for the promotion of gender equality, it is interesting to note that it explicitly authorizes the use of so-called “name and shame” as a sanction for non-compliance.145 As with all sanctions, it is difﬁcult to quantify its signiﬁcance. If the naming only occurs in a report of the enforcement agency, the impact will be less than if it is also picked up by the daily press. No business likes negative media attention and some businesses are particularly proud of their ethical image. These businesses will be those most inﬂuenced by this sanction. I believe that a combination of sanctions would have the most signiﬁcant impact on a non-complying employer. Because debarment is used relatively infrequently and requires a heavy administrative process to ensure due process, it should be accompanied with other sanctions such as contempt of court for refusing to carry out a tribunal or court order to carry out speciﬁed action to come into compliance. Furthermore, the ability to “name and shame” could be very useful in many instances. As stated earlier,

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Both the contractor and the contracting authority are likely to suffer ﬁnancial loss as a result of the incompleted contract. See for example Canadian Human Rights Commission, 2002 Employment Equity: A Year-End Review (Ottawa: Minister of Public Works and Government Services, 2003), 52. The Commission lists those employers for which it has been forced to issue directions or referrals to the Employment Equity Tribunal. Interview of 1 March 2005 with Ingrid Dåsnes, Advisor on Proactive Obligations, at the Gender Ombud. Interview of 30 September 2004 with Weini Kasei, compliance ofﬁcer with the Active Measures Section of the Ombudsman for Ethnic Discrimination. Section 19 of the Australian Equal Opportunity for Women in the Workplace Act.

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I have less faith in the use of a civil ﬁne which may make it all too easy for businesses to buy their way out of their obligations. In addition, termination of contract seems to me to be a far less practical sanction than debarment. It should be kept in mind that although these sanctions are necessary to give meaning to the application of regulatory pressure, the vast majority of non-complying employers captured by the compliance review process, do come into compliance long before there is a need to use such sanctions.

9.8. A Brief Word on Contract-Based Regimes vs. Statutory-Based Regimes A quick look at the contract-based regimes of the USA and Canada on the one hand and the statutory-based regimes of Canada and Northern Ireland (regime for promoting religious equality) on the other hand, would reveal that the content and scope of the obligations imposed on employers are strikingly similar. The two types of regimes do indeed have their special characteristics, for example, the contract-based regime’s obligation for the contractor to impose the very same obligations on sub-contractors (USA). Moreover, contract-based regimes will by nature only be applicable to contractors, while statutory-based regimes can apply to a broader scope of employers. However, apart from these special characteristics, one can basically accomplish the same objective of promoting equality through the one or the other type of regime. This is illustrated well by the two Canadian regimes which in essence impose the same substantive obligations on employers and provide common guidance to employers. Although the two regimes have different enforcement agencies with different sets of sanctions for noncompliance, both regimes could very well have used the same enforcement agency with the same routines and procedures for compliance review and the same set of sanctions for non-compliance. In light of this, systemic ethnic discrimination in employment can be addressed just as effectively by either of the two regimes. I consider debarment to be the most effect sanction for non-compliance (see section 9.7). In order to use debarment as a sanction, EU member states146 would have to adopt national legislation which deﬁned breach of the proactive obligations regime as grave professional misconduct (see section 8.1). Otherwise the use of such a sanction against non-national contractors would conﬂict with EU treaty and procurement rules. Debarment is usually thought of as a sanction connected with contract-based regimes. But this is only because most contract-based regimes authorize this sanction and most statutory-based regimes do not. Yet, there is no reason this powerful sanction should not also be used in statutory-based regimes. I would therefore recommend that statutorybased regimes also adopt debarment as a sanction for non-compliance. A rational government policy response to systemic ethnic discrimination must of course take into consideration the legal constraints on the policy response. The constitution of the country is one such consideration. I have already mentioned that the constitution of some countries prohibit the collection of ethnic data. More problematic for 146

The same goes for the member states of the Agreement on the European Economic Area (EEA).

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this thesis is, however, the role of EU treaty and procurement law and its signiﬁcance for member states – and in particular its signiﬁcance for the contract-based proactive regimes of Great Britain and Sweden. EU treaty and procurement law presents particular hindrances for an effective contract-based regime in Great Britain and Sweden. The contract-based regimes, as they are practiced today by central government authorities in Great Britain and government authorities in Sweden, cannot be said to have any impact on the promotion of ethnic equality in employment. There is one main reason for this: The obligations imposed on the employer (i.e., the equality program) can only relate to that part of the contractor’s workforce in Sweden or Great Britain involved in the performance of the speciﬁc procurement contract. It cannot relate to the remainder of the employer’s workforce, i.e., the workforce not involved with that speciﬁc contract. This restriction basically renders the entire equality program useless. A contractor may have a thousand employees, but maybe only ﬁve or maybe a dozen are involved in the performance of the speciﬁc government contract. The staff performing the contract most likely differs from contract to contract, depending upon the content of the contract and the availability of manpower at the time of performance. How can a contractor adopt a meaningful equality program related only to each new subset of employees performing the speciﬁc contract? How can the collection of ethnic data and the calculation of underrepresentation have any meaning whatsoever? The staff performing the contract is unlikely to reﬂect the ethnic make-up of either the workforce as a whole or any individual occupational groups. Thus, the calculation of underrepresentation for the staff performing a speciﬁc contract makes no sense! It says nothing about the barriers to equality in the workforce or in the various occupational groups. Should an entire equality plan be adopted for each different performance of every different government contract carried out by the contractor? The answers to these questions are readily apparent. Any regime proposing such a structure is deserving of criticism. EU treaty and procurement law is thus a major problem for the use of contract-based proactive regimes in member states – at least in the way that it is framed today in Sweden and Great Britain. There is however an alternative design which may avoid such problems. I would propose the following: In order to avoid the constraints of EU treaty and procurement law, the contract-based regimes should only be applicable to national contractors. If non-national contractors are not subjected to the regime’s obligations, the EU rules are not implicated. (See section 8.1 for my discussion of the question whether an EU member state can treat its own nationals less favorably than non-nationals.) I am quite aware that this may be politically difﬁcult to accomplish. It may even require legislative amendment, where legislation requires that all contractors be treated equally. A more palatable alternative is simply to adopt a workable statutory-based proactive regime (which is by nature limited to national employers) and include debarment as a sanction. One in essence accomplishes the same objective without as much political overtones.

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9.9. Conclusion Chapter 9 is a lex ferenda exercise. It is a search for a rational government policy response to systemic ethnic discrimination in employment. In search of this rational policy I have sought to ﬁnd what key elements of proactive obligation regimes are signiﬁcant for the promotion of ethnic equality. I have made two separate inquiries. First, in section 9.3 of this chapter I have assessed whether the obligations imposed on the employer (i.e., the internal equality program) by the various proactive regimes address the problem of systemic (ethnic) discrimination in employment in all of its dimensions. Secondly, in sections 9.4–9.7 of this chapter I have assessed the institutional framework set up to aid and enforce employer compliance with the proactive regimes. This latter assessment has inquired into: (1) the speciﬁcity of the obligations and its impact on the ability to assess compliance, (2) the institutional guidance provided to employers, (3) the institutional monitoring of compliance and the application of regulatory pressure, and (4) the sanctions for non-compliance. As a backdrop to this chapter’s inquiry, we know from social science evidence that proactive regimes do have impact on the macro-level numbers of ethnic minorities hired and promoted. More importantly, we also know this: Although none of the proactive regimes work perfectly, all of the regimes examined have certain comparative advantages over complaint-based approaches when it comes to addressing systemic discrimination. The obligations imposed in the proactive regimes are ongoing obligations. With only two exceptions, the obligations imposed on employers are also organizationwide, applicable to the entire workforce of the employer. Proactive regimes work preventively rather than retrospectively, and they do not create the same hostility at the workplace that accusations of discrimination produce. Finally, proactive regimes both encourage the production of information which can make visible systemic discrimination, as well as shift the burden of doing so from the individual complainant to the employer. We have seen that with few exceptions, the proactive regimes do not impose speciﬁc remedial action on employers. Different employers will have different types of barriers to equality, and different barriers will demand different types of remedial actions in response. Although the importance of remedial actions is unquestionable, it seems to me that it is equally as important that the obligations imposed on employers force the employer to set up a framework of internal self-regulation (i.e., enforced self-regulation). This internal self-regulation will in turn help the employer choose, implement and stand accountable for the remedial action necessary to produce practical and noteworthy results. In other words, the framework of internal self-regulation helps to make different approaches to remedial action uniformly effective. Moreover, a culture of compliance is enhanced by a framework of internal self-regulation. Compliance with the proactive regime becomes an internal matter of importance as well as an external concern. What are the key characteristics of a framework of internal self-regulation? In essence, the very same topics that I have discussed in section 9.3: (1) mechanisms for identifying problem areas, (2) the commitment necessary to address the problems, (3) a well-designed plan for dealing with the problem, including the choice of remedial action and the allocation of resources, routines and responsibilities, (4) the setting of

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benchmarks and other performance indicators, and (5) the internal monitoring and review of progress and the willingness to revise if reasonable progress is not made. Any framework of self-regulation must entail ongoing mechanisms (quantitative and/or qualitative) for identifying problem areas – in this case – barriers to ethnic equality in employment. Proactive regimes that do not require employers to adopt diagnostic actions which enable the identiﬁcation of barriers to equality (such as the two Swedish regimes and the Norwegian regime) are not imposing a framework of internal self-regulation. They cannot ensure that systemic discrimination in employment is made visible. It is far more difﬁcult to garner management commitment and counter employee resistance to an equality program when the systemic discrimination is not revealed for all to see. It is only when systemic discrimination is made visible that one can successfully challenge the assumption that policies affect everyone in the same way. Furthermore, choosing remedial actions without ﬁrst having identiﬁed the speciﬁc problem is like striking out in the blind. In such cases employers will be all too willing to simply fall back on general attitudinal training as a response. Attitudinal training has, of course, its place in the panoply of remedial actions; however, it is by no means a panacea for all barriers to ethnic equality. Any framework of self-regulation must be organization-wide. Systemic ethnic discrimination is a problem for the entire workforce; there are no segments of the workforce that are immune to it. Consequently, the framework of self-regulation must encompass the entire national workforce. Limiting the equality framework to the staff performing a speciﬁc contract (such as the Swedish and British contract-based regimes)147 is simply incompatible with any idea of internal responsibility and selfregulation.148 Moreover, as shown in section 9.6, any such limitation is also unworkable as a tool to promote ethnic equality. I started this chapter with some preliminary ﬁndings. The ﬁrst ﬁnding was: Addressing systemic discrimination in employment involves change in organizational policy, practice and culture. The promotion of equality is no different than any other kind of organizational change faced by the employer: Written policies must be adopted and communicated. Clear lines of responsibility and separate resources must be allocated. Consultation on the impact of the changes must be carried out. New routines must be put in place. Goals must be understood. Timetables for implementation must be agreed upon. Arrangements must be made for how resistance is to be dealt with. Procedures must be reviewed so as to conﬁrm the desired outcome. Organizational change that is intended to be organization-wide and designed to affect policies, practices and culture, is no small affair. Thus, it is difﬁcult to envision how employers can work seriously, sys147

148

The British local authority contract compliance initiatives have not been so limited. See section 8.2.c. As pointed out in section 9.6, these two regimes also lack comprehensiveness in one other respect. It is left to the contracting authorities to decide whether or not they wish to use the regime. There is no obligation for all contracting authorities to impose contract-based proactive obligations on contractors. According to one Swedish report, only 6.6% of contracting authorities use this regime on a regular basis. There is little reason to think that the statistics are any better in Britain.

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tematically and comprehensively towards bringing about this organizational change without a written plan. A written equality plan is no guarantee. But it seems to me to be an indispensable element of success and indeed an indispensable element of any framework of self-regulation. Proactive regimes that do not expressly require the adoption of a written equality plan would be well-advised to do so. I also envision management commitment, the setting of goals and timetables and the employer monitoring and review of progress to be essential elements of any framework of self-regulation. Why are these so essential? I submit the following reason: Systemic discrimination in employment is not very well understood today. It is difﬁcult to perceive and deeply embedded in the ordinary way in which we do things at the workplace. When it is made visible, there are no ﬁxed or certain solutions for dealing with it. Each workplace is different, and discrimination is an ever-evolving phenomenon with a dynamic of its own. In order to address systemic discrimination successfully, the employer must commit itself to an ongoing problem-solving approach and an ongoinglearning process. It is only through the setting of benchmarks and performance indicators, the monitoring and review of progress, and the willingness to revise, that such an approach is possible. The majority of proactive regimes examined are in accord with this; they require these elements in the employer’s framework of self-regulation. Although management accountability is not required by any of the proactive regimes, its signiﬁcance for promoting equality in employment is undeniable. All studies assessing the impact of equality programs rank management accountability as one of the most important components. However, because it involves the reward and punishment of managers, it is understandable that governments choose to leave this to the discretion of employers. I am of the opinion though that the guidance to employers could do much more in presenting management accountability as a very useful element that employers should give serious consideration to using. The employer’s remedial action is of course the key to change. Without the remedial action the framework of self-regulation is for naught. As stated earlier, proactive regimes impose remedial action on employers, but generally not any speciﬁc remedial action. The remedial action is dictated by the type of problem. If the pool of ethnic minority job applicants is too limited, then outreach is one answer. If access to information-sharing and career advice is the problem, then the support of mentoring and networking initiatives is an answer. If the informality of evaluative processes is the problem, then the formalization of those processes by incorporating transparency and accountability is an answer. However, remedial action without the framework of selfregulation can be like a shot in the dark – it is likely to miss its target. Without knowing the speciﬁc problem to be addressed, without a well-designed plan, without management commitment, without the setting of goals and timetables, without the monitoring of progress – without this framework – remedial action becomes mere cosmetic compliance. In light of this understanding, a rational government response to systemic ethnic discrimination in employment is – at least in part – a regime that forces employers to set up a framework of internal self-regulation and to adopt the remedial action necessary to produce practical and noteworthy results. A rational internal equality program – even if adequately designed to address systemic ethnic discrimination – is not, however,

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sufﬁcient to ensure employer compliance. It is the institutional framework for aiding and enforcing employer compliance that is primary in this matter: The ability to assess compliance, the guidance provided employers to assist compliance, the monitoring and use of regulatory pressure in achieving compliance and the sanctions for non-compliance. These four things make up the institutional framework surrounding compliance. I have pointed out in section 9.4 the weaknesses of the Norwegian and Swedish statutory-based regimes regarding their lack of speciﬁcity in describing the employer obligations. One must understand the context to fully appreciate why non-speciﬁc obligations are so devastating to the effectiveness of proactive regimes. First, it is my contention that most employers do not understand what ethnic discrimination is (see sections 1.1 and 3.2.a). They view discrimination as caused only by attitudinal problems and nothing more. Thus, most employers do not even on a general, theoretical level really understand the problem. Secondly, most employers do not believe that they have a discrimination problem at their workplace. It is not difﬁcult to ﬁnd studies where employers openly admit that employment discrimination is a societal problem, and at the same time are remarkably resistant to the idea that discrimination could be a problem in their company.149 This has to do with the difﬁculty in perceiving systemic discrimination in employment. Thus, most employers do not view the problem as relating particularly to them. Thirdly, if ethnic discrimination (which is detested and condemned by most employers) is occurring from the ordinary policies and practices of the workplace, then employers certainly cannot know much about how to ﬁx the problem. So, this is the context for those regimes that impose obligations which are unclear and lack speciﬁcity: The employers don’t understand the problem; the problem has no relationship to them; and in any event, they don’t know how to ﬁx it. This context does not provide a great deal of motivation for equality work. Indeed, this context is fertile soil for the choice of minimal action and cosmetic compliance. For an employer seeking minimal action, uncertain obligations ﬁt him/her like hand in glove. In such a context, many employers are interested in ﬁnding out what obligations must be complied with. This is where the low-speciﬁcity regimes fall short. They have no speciﬁc must-obligations, only can-obligations. The assessment of compliance in such a situation is an insurmountable task – both for employer and enforcement agency. Guidance can help, but it cannot transform can-obligations into must-obligations. Most enforcement agencies have provided a great deal of practical guidance and technical assistance to employers. However, this guidance is dominated by advice and assistance with respect to the employer’s diagnostic and facilitative actions. Organizational change will only occur through the implementation of remedial actions. Given that the proactive regimes do not in general specify the type of remedial action to be taken, it is crucial that the guidance provided give the employer insights as to how particular kinds of remedial action may help to address speciﬁc barriers to equality. It is not sufﬁcient to merely list up possible types of remedial action. Employers must be able to envision how they can formulate and carry out the remedial action in practice. When guidance 149

Shelley Burke and Marie-Rose Nyandwi, Employmen Equity in Canada and Beyond: An International Perspective (Part I: Comparison of Legislation) (A study prepared for the 2001 Parliamentary Review of the Empoyment Equity Act) (2001), 29.

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has been provided on remedial actions, it has almost always dealt exclusively with training and targeted recruitment (outreach). There is far too little guidance on how employers should formalize their evaluative processes by incorporating into them greater transparency, accountability and guidance to evaluators. It would be to the beneﬁt of all of the regimes if their respective enforcement agencies were to provide more guidance on the employer’s remedial actions in general and on the formalization of evaluative processes in particular. The negotiation process of the compliance review and the threat of sanctions produce a synergy of regulatory pressure that may be used to help achieve employer compliance. If one of these is missing, the regulatory pressure is diminished. Prior to any application of sanctions, the negotiation process may have several steps whereby the pressure is increasingly applied. For example, in some regimes the enforcement agency can request a tribunal or court order demanding the employer to carry out speciﬁed action. If the employer still refuses, then it can be subjected to the sanction of contempt of court (see section 9.6). However, prior to this request for an order, the enforcement agency usually issues a direction or compliance notice to the employer, demanding compliance with its obligations. This step in the negotiation process has been shown to have some impact. From 1997 to 2002 the Canadian Human Rights Commission issued directions to 23 employers. By the end of 2002, ten of the employers had come into compliance.150 Prior to the issuance of directions or compliance notices, enforcement agencies seek to negotiate undertakings (promises) from the employers that they will carry out speciﬁed actions. We know from social science evidence that these undertakings have signiﬁcant impact on the promotion of equality. Those who promise more, also actually do more! We also know from social science studies that being subjected to a compliance review has signiﬁcance for the effectiveness of the proactive regime. So, it is not surprising that most of the regimes, given the restrictions of their resources, do try to monitor as widely as possible for employer compliance.151 The Swedish and British contract-based regimes are, however, in a somewhat different position. They are the only regimes without a centralized enforcement agency. The enforcement of the proactive obligations is left up to the individual contracting authorities and this seems to be problematic from an enforcement perspective. Contracting authorities have a conﬂict of interest when it comes to enforcing secondary considerations of equality. The contracting authorities are themselves the purchasers of goods, services and construction works from contractors. They are dependent upon these contracts being carried out. Thus, they have little incentive to enforce secondary considerations which may interfere with the primary objective of the contract. Furthermore, the persons carrying out the monitoring in the individual contracting authorities do not have the opportunity to develop the same degree of expertise that compliance ofﬁcers in a centralized enforcement agency have. This combination of

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Canadian Human Rights Commission, 2002 Employment Equity: A Year-End Review (Ottawa: Minister of Public Works and Government Services, 2003), 12. Although the Gender Ombud in Norway has monitored employer compliance with its reporting obligations, it has not yet monitored for compliance with the substantive obligation of the regime. See section 9.6.

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factors seems to affect the use of monitoring as an enforcement tool. For example, only 5 of the 45 contracting authorities who regularly use the contract-based regime in Sweden carried out any form of monitoring of employer compliance (see section 9.6). It would seem that the use of a centralized enforcement agency to enforce proactive obligations has clear advantages over the use of individual contracting authorities. Debarment is undoubtedly the most severe (and most effective) of all the various sanctions used in proactive regimes. It is also the only sanction that also functions as a reward. Employers who desire to sell goods, services or construction works to the government have strong incentives to comply with their proactive obligations. Although debarment is not used frequently, the risk of debarment and ﬁnancial loss is simply too great a risk to take for many employers. Not all employers seek to sell their wares to government, but many of the biggest employers do. For example, 22 % of the civilian workforce of the USA worked for employers who sold goods, services or construction works to the federal government in year 2002. I consider debarment to be the sanction of preference, and I would recommend that it be used in statutory-based regimes as well as contract-based regimes. Moreover, I believe that a combination of different sanctions would be most effective. Debarment should be combined with the sanction of contempt of court for refusal to carry out court or tribunal orders. Furthermore, the possibility to “name and shame” employers who refuse to comply with their obligations could be very useful in particular situations. The weaknesses and strengths of the various proactive regimes are determined by the presence or absence of the key elements herein discussed. These key elements are to be found both in statutory-based regimes and contract-based regimes. Indeed, these two types of regimes can have striking similarities, despite their differences in approach. As a method for promoting ethnic equality in employment I do not favor the one or the other. However, the restrictions of EU treaty and procurement law do present serious obstacles to any member country seeking to adopt a workable contract-based regime. Given these restrictions, it appears to me that EU member states may avoid these problems in two ways. First, member states may explicitly limit the applicability of their contract-based regime to national contractors and thereby avoid the restrictions of EU treaty and procurement law. Secondly, member states may choose to use a statutory-based regime with debarment as one of the available sanctions for non-compliance. Of course, member states may also choose to do both of these. A rational government policy response to systemic ethnic discrimination in employment is one that takes into consideration the assessments of key elements herein discussed. It is a policy that understands that the institutional framework for aiding and enforcing employer compliance is alpha and omega for bringing about the necessary changes in organizational policies, practices and culture. I have tried to demystify the work of promoting ethnic equality at the workplace, highlighting it as a job to be done just as all other jobs. Like workplace internal responsibility schemes for health and safety and the environment, the work to prevent and eliminate systemic ethnic discrimination at the workplace needs not only remedial action, but also both an internal framework of self-regulation and an external institutional framework for aiding and enforcing compliance. Indeed the obligations imposed by these frameworks result in a professionalization of human resources management.

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The rhetoric of today often portrays proactive obligation regimes as contrary to our meritocratic system. On the contrary, as long as systemic discrimination in employment is more pervasive than the proactive efforts to eliminate it, it is indeed systemic discrimination that is the real threat to meritocracy.152

152

Barbara Reskin, The Realities of Afﬁrmative Action in Employment (Washington, D.C.: American Sociological Association, 1998), 84.

Chapter 10 Conclusion In April 2005 the Norwegian Parliament adopted a new complaint-based law prohibiting ethnic discrimination. In doing so it speciﬁcally voted down a provision of the bill that would have imposed proactive obligations on employers to promote ethnic equality in employment. The government had deleted the law commission’s draft provision on proactive obligations when it sent the law proposal to the Parliament; however, during the work of the parliamentary committee, the committee chose to reinstate the proposed proactive obligation provision.1 The substance of this proactive obligation provision, which was voted down by Parliament, was modeled after the proactive obligation provision in the current Norwegian Act on Gender Equality. I have criticized this proactive regime in chapter 9 for its lack of a sanction for an employer’s non-compliance with its substantive obligations, as well as for its lack of speciﬁcity of the obligations imposed on employers. This lack of speciﬁcity makes it difﬁcult to assess whether the employer is in compliance with its obligations. But even this relatively weak version of a proactive regime was not adopted. What was the reason given by the government for deleting the proactive obligation provision? Too much bureaucratic red

1

The parliamentary committee’s proposed proactive obligation provision was the same as that adopted by the law commission which produced the ﬁrst draft of the law against ethnic discrimination. It was when this law commission’s draft was re-worked by the government that the proactive obligation provision was deleted.

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tape and a preference for voluntary initiatives. Why is it that both the Norwegian government and Parliament could see the need to impose proactive obligations on employers to promote gender equality and at the same time see no need to impose such obligations to promote ethnic equality? The government and Parliament both recognize that ethnic discrimination is a problem in Norway. That is why the government proposed and the Parliament adopted the new law. The new law contains a prohibition against both direct and indirect discrimination; it prohibits harassment, instructions to discriminate and retaliation; it contains a shifting burden of proof and an economic compensation to victims for violations of the law. It sets up an enforcement body to enforce the law and a Board of Appeals to render administratively binding decisions. What more could one want? Parliamentarians and government ofﬁcials probably feel that they have gone a long way in the ﬁght against ethnic discrimination – And they have! This law is to be commended. Many stakeholders have worked hard for many years to bring about this crowning event. I too am one of them. And at the precise moment when all seem satisﬁed with the fruition of years of effort and labor, I pen the ﬁnishing touches on a thesis that calls into question the very workability of the law in one of the most important segments intended to be addressed – systemic ethnic discrimination in employment. This is the subject of this thesis! Systemic discrimination in employment does not turn many heads. It does not make headlines in the media. It is difﬁcult to understand conceptually and it does not rhyme with the dictionary deﬁnition of discrimination. Where is the unsavory perpetrator, this blameworthy, prejudiced ﬁgure openly espousing dislike for ethnic minorities? Someone whose acts we could all agree upon as disgusting and despicable. No, systemic discrimination in employment is far more sober. It is more likely to be embedded in nonconscious favoritism for ingroups rather than conscious antipathy for outgroups.2 It is embedded in group-based generalizations that save us the time and energy otherwise necessary for individual assessment. It is embedded in neutral policies and practices – in the ordinary ways in which we do things at the workplace. We know this from the ﬁndings of judicial decisions and empirical studies. We know this from qualitative and quantitative data. Systemic discrimination is an empirical reality, whether or not it is perceived as so. It is deﬁned as: patterns of behaviour that are part of the social and administrative structures of the workplace, and that unjustiﬁably create or perpetuate a position of relative disadvantage for some groups, and privilege for other groups, or for individuals on account of their group identity.3 This is pervasive, not some rotten apples that can easily be neutralized.

2

3

Barbara Reskin, “The Proximate Causes of Employment Discrimination,” Contemporary Sociology 29, no. 2 (2000): 319–328, 322. This deﬁnition is taken almost verbatim from Carol Agocs’ deﬁnition. I have only added the word “unjustiﬁably” to her deﬁnition. See Carol Agocs, “Systemic Discrimination in Employment: Mapping the Issue and the Policy Responses,” in Workplace Equality: International Perspectives on Legislation, Policy and Practice, edited by Carol Agocs (The Hague: Kluwer Law International, 2002), 2.

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What are then some of the ideal typical situations where we ﬁnd relative privilege and relative disadvantage for different ethnic groups – i.e., barriers to ethnic equality in employment? First, we ﬁnd it in the informal use of recruiting methods such as word-of-mouth recruitment (i.e., informal referrals from current employees). Because of the segregated social networks of ethnic groups, ethnic minorities do not have equal access to the recruitment channels that create the pool of candidates for job openings.4 Secondly, we ﬁnd it in evaluative processes with inadequate transparency, accountability and guidance. Examples are: (1) the use of selection criteria that are not jobrelated, (2) the inconsistent application of selection criteria, for example, the use of unstructured interviews that result in differential questioning of interviewees, (3) the use of informal selection methods, such as informal appointments of persons in acting positions, (4) unclear selection criteria which easily lead to the inﬂuence of personal bias and stereotypes. The less formal the evaluative process, the more likely unintended or non-conscious bias can affect the process. The less formal the evaluative process, the less likely the process will allow for the recognition of qualiﬁcations in candidates who are different from those who typically perform the job. Informal evaluative processes mean signiﬁcant barriers to ethnic equality – not only in hiring, but also in promotions, selection for career development, the allocation of meritorious work assignments, performance appraisals and retention (for example in a period of downsizing). Thirdly, we ﬁnd it in different access to information-sharing, career advice and support. The social and professional exclusion of ethnic minorities from informal and “invisible” networks of information, advice and support is particularly problematic in workplaces that have not achieved a critical mass of ethnic minorities. In such cases members of ethnic minorities become viewed as representatives or spokesmen for their ethnic group (an outgroup) rather than as individuals. Fourthly, we ﬁnd it in cases of harassment and poisonous work environment. These are often complex cases where multiple individual acts, which in themselves may appear insigniﬁcant or benign, may cumulatively produce harm for which the employer is responsible. The acts may have been carried out over a lengthy period of time and may have been carried out by different actors or even anonymous actors. Fifthly, we ﬁnd it in the refusal of employers to take seriously allegations of discrimination and harassment. Those who complain are often viewed as disloyal and disruptive of a previously “harmonious” work environment. Common to each of these is the link to the workplace’s administrative structures (or lack thereof ) or organizational culture which produces, contributes to, tolerates or condones unjustiﬁable differential treatment, unjustiﬁable disproportionate impact or a hostile or poisonous work environment – or even simply permits such to go undetected and as a result to ﬂourish. Systemic discrimination is thus comprised of direct and indirect discrimination. It does not compete with them.

4

Jomills Braddock and James McPartland, “How Minorities Continue to Be Excluded from Equal Employment Opportunities: Research on Labor Market and Institutional Barriers,” Journal of Social Issues 43, no. 1 (1987): 5–39, 7 and 12.

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It is judicial decisions and social science studies that point us to these ideal-typical situations (and others) of systemic discrimination. They help us see better the characteristics and mechanisms of systemic discrimination. We see that systemic discrimination is not an aberrant, isolated or an individualized incident; indeed it must be viewed as a continuing phenomenon. It is often subtle and difﬁcult to perceive, hidden within neutral rules and long-standing traditions. It involves unintended and non-conscious bias and stereotyping. Because of inadequate safeguards (such as the lack of transparency, accountability and guidance) in evaluative processes, non-conscious bias and stereotypes inﬂuence the processes and yet are permitted to go undetected. Systemic discrimination is characterized by underrepresentation in the workforce and occupational groups and underrepresentation in the pool of candidates for job opportunities and occupational advancement. Because much of this kind of discrimination is non-conscious or unintended, the heavy social stamp of moral blameworthiness is absent in systemic discrimination. An allegation of systemic discrimination will therefore often be met with hostility and retaliation. It is precisely these mechanisms that make systemic discrimination difﬁcult to address by way of traditional complaint-based approaches. At the same time, it is these mechanisms and characteristics which can inform employers of the kinds of preventive action that may be taken to alleviate systemic discrimination at the workplace. The concept of systemic discrimination in employment calls for an uncomfortable introspection and self-analysis of organizational policies, practices and culture. And more importantly, it calls for change: When the veil of “neutrality” is lifted, when employers5 make visible the embedded barriers to equality, then the appropriate employer response (where such barriers cannot be justiﬁed) is organizational change. Organizational change that can ensure that systemic discrimination is no longer condoned, tolerated or trivialized – that can ensure that it no longer goes undetected. I have given four main reasons for why complaint-based approaches cannot adequately address systemic discrimination in employment: First, complaint-based approaches fail to capture discrimination that does not result in a formal complaint. Complaint-based approaches are dependent upon victims coming forward, but we know from the social science evidence that most victims of discrimination do not come forward. Most victims of discrimination do not see that their situation will improve by accusing their employer or fellow employee of discrimination. Instead, victims of discrimination choose to be guided by an ethic of survival and selfhonor rather than be marked by the status of victimhood.6 Indeed many victims fear that administrative or legal proceedings will worsen their situation. They fear retaliation from the employer and they fear that witnesses will not come forward. As a result, most victims of discrimination choose to keep the status quo rather than protest. Secondly, complaint-based approaches tend to individualize discrimination by searching for individualized explanations – by searching for a blameworthy perpetra5

6

As in chapter 9, I use the term employer(s) to collectively refer to employer(s) and contractors(s). Shelagh Day, “Impediments to Achieving Equality” in Equality and Judicial Neutrality, edited by Sheilah Martin and Kathleen Mahoney (Toronto: Carswell, 1987), 430–431.

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tor and an innocent victim. In doing so, such approaches fail to recognize the role of the unconscious in discriminatory behavior, to recognize the role of our historical, social and cultural baggage in inﬂuencing our beliefs and actions. This undercuts the perspective of discrimination as a social phenomenon where society-at-large is responsible for its perpetuation. It creates innocent bystanders who view discrimination as a problem in other institutions, other departments, other sectors of the market. As long as one has not been identiﬁed as a perpetrator of discrimination, then all must be functioning as it should. It legitimizes the workplace of the unidentiﬁed “perpetrator” as an equal opportunity employer. One need not redress discrimination where no perpetrator of discrimination has been identiﬁed. With such a perspective the underlying cause of systemic discrimination – an institutional framework of policies, practices and culture with embedded advantages for some and disadvantages for others – will not change. The individualization of discrimination as a discrete incident, separate and apart from discrimination as a social phenomenon, means that much systemic discrimination in employment simply does not get expressed as a legal wrong.7 It therefore remains unaddressed. Thirdly, the difﬁculties in proving discrimination in complaint-based approaches are often insurmountable. It is rare to ﬁnd direct evidence of systemic discrimination today. Most discrimination cases, particularly in employment, involve instead the drawing of inferences from primary facts (i.e., circumstantial evidence) concerning events that may have taken place prior to, simultaneous with or after the alleged act of discrimination. I submit that adjudicators are reluctant to draw appropriate inferences of racial discrimination from circumstantial evidence. Although there is no requirement of discriminatory intent in the proof of discrimination, in the eyes of society (and therefore also of adjudicators) a ﬁnding of racial discrimination will be viewed as equivalent to pronouncing the employer to be an intentional racist. The employer would in effect be branded. Thus, adjudicators are reluctant to infer racial discrimination without a ﬁnding of the employer’s dishonesty, the employer’s racist attitudes or some other evidence of a higher probative value than usual. Fourthly, complaint-based approaches cannot bring about organizational transformation, which is the key to successfully addressing systemic ethnic discrimination in employment. Complaint-based approaches do not focus on organizational structure and culture as such, but rather on the retrospective unraveling of a discrete incident of discrimination – and only if a complaint is ﬁled. Most employment discrimination complaints only involve a single issue at a single workplace. The most prevalent remedy for proven discrimination is an award of ﬁnancial compensation. Although court orders may be issued to stop a discriminatory act, such orders must in general be tailored speciﬁcally to remedy the problem complained of by the complainant. Such remedies are limited in their ability to transform employment systems (i.e., organisational policies and practices governing human resources management). These remedies are for the most part restricted to making whole the individual complainant or for redressing the situation of the individual complainant. 7

D. Marvin Jones, “The Death of the Employer: Image, Text, and Title VII,” Vanderbilt Law Review, 45 (1992): 349–395, 383.

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In sum, complaint-based approaches do not force employers to make visible the presence of systemic ethnic discrimination. They do not force employers to identify barriers to ethnic equality in employment. They do not force employers to work systematically and structurally towards transforming the organizational policies, practices and culture so as to serve all ethnic groups equally. In complaint-based approaches the absence of an identiﬁed perpetrator is equivalent to the absence of discrimination. In the absence of an identiﬁed perpetrator, such an approach gives the false impression that all ethnic groups are treated and affected equally. Complaint-based approaches entail a one-off, micro-level, case-speciﬁc perspective. Simply put, this approach is too speciﬁc, too selective, and too individualized in perspective to be able to capture, identify and remedy systemic ethnic discrimination in employment. Proactive obligation regimes promoting ethnic equality, however, can and do capture, identify and remedy systemic ethnic discrimination. Proactive regimes focus on bringing about an organizational change regarding three factors: (1) employment systems (policies and practices of human resources management), (2) the numerical representation and distribution of underrepresented ethnic groups, and (3) organizational culture. Although the focus of regulatory-based proactive regimes may resemble some courtordered afﬁrmative action programs, there are two signiﬁcant differences. First, proactive regimes do not require the use of preferential hiring, preferential promotions or quotas, whereas the court-ordered programs often do. Secondly, proactive regimes cast a broad net in their capture, identiﬁcation and redress of systemic discrimination, whereas the redress in court-ordered afﬁrmative action programs will always be limited to the parts of the complaint that the court has found substantiated. Proactive regimes have comparative advantages that complaint-based approaches do not have. The proactive obligations imposed on employers are ongoing obligations and organization-wide obligations. Because proactive regimes work preventively on a macro-level rather than retrospectively on a micro-level, they can encourage the production of information which can make visible systemic ethnic discrimination and they can avoid the creation of hostility that arises at the workplace when an employer or employee is accused of discrimination. But this is not enough. I have identiﬁed two broad conditions necessary for proactive regimes to effectively address systemic ethnic discrimination in employment: Condition #1: The proactive regime must obligate the employer to set up a framework of internal self-regulation. This framework must include ongoing diagnostic actions (quantitative and/or qualitative) which enable the employer to identify barriers to ethnic equality, and facilitative actions, which give structure, coherence and credibility to the framework of self-regulation. Furthermore, the employer must be obligated to adopt the remedial actions necessary to address unjustiﬁable barriers to ethnic equality. As shown in chapters 3 and 4 the difﬁculty in perceiving systemic ethnic discrimination is a major reason that complaint-based approaches fail to address it. For proactive regimes the visibility of systemic ethnic discrimination is the foundation upon which all else rests. If it is not made visible, there is likely to be no motivation, commitment or reason to change the status quo. Furthermore, the identiﬁcation of the speciﬁc barriers to ethnic equality dictates the kind of remedial action necessary to alle-

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viate the barrier. Proactive regimes that do not require diagnostic actions cannot ensure that systemic ethnic discrimination will be made visible. This internal framework of self-regulation must contain the ordinary components that organizations use when working seriously and systematically towards bringing about organizational change that may be comprehensive, organization-wide and uncertain in results. There must be management commitment (top, middle and line) to the promotion of ethnic equality at the workplace. Written policies must be adopted and communicated. Clear lines of responsibility and separate resources must be allocated. Barriers to equality must be identiﬁed. Remedial action must be chosen, formulated and implemented. Consultation on the impact of the changes must be carried out. New routines must be put in place. Benchmarks must be set; goals must be understood. Timetables for implementation must be agreed upon. Arrangements must be made for how resistance is to be dealt with. Procedures must be reviewed so as to conﬁrm the desired outcome. It is unlikely that all this can be done without having a written plan. Proactive regimes that do not require the employer to develop a written equality plan cannot ensure a systematic and structured framework of self-regulation. Remedial action is of course the key to eliminating systemic ethnic discrimination. All proactive regimes impose obligations on the employer to adopt remedial action. But the choice and effect of remedial action may be uncertain. We don’t know enough about the barriers to ethnic equality to be able to say with certainty that this speciﬁc remedial action will eliminate that targeted barrier. Remedial action and organizational change is also not an end in itself. The purpose of such change is to make an impact on the numerical representation and distribution of underrepresented ethnic minorities in the workplace. Yet, one may expect a period of trial and error before noteworthy results are achieved. The remedial action, i.e., the organizational change must also function in such a way that it does not interfere with the efﬁciency and effectiveness of the organization. Given this uncertainty, the framework of self-regulation must be characterized by a problem-solving approach and an ongoing learning process. This requires: (1) the choice, formulation and implementation of remedial action, (2) the setting of benchmarks (numerical goals and timetables), (3) management commitment to the goals and process, (4) the monitoring and review (by management) of progress, and (5) the willingness to revise. Such a framework helps to ensure that the various remedial actions implemented will produce practical and noteworthy results. Condition #2: In order to ensure that the employer complies with its obligations, the proactive regime must establish an institutional framework for aiding, monitoring, negotiating, pressuring and ultimately enforcing (under threat of sanction) the employer’s compliance. Condition # 1 requires that the proactive obligations imposed on employers have the capability to address systemic ethnic discrimination in all of its dimensions. But even the very best set of proactive obligations is to no avail, if employers do not comply with their obligations. Experience shows that some employers will comply on their own accord, but many will not. Thus, the institutional framework must be directed towards transforming non-complying employers into complying employers. This institutional framework begins with the design of the regime’s mandate, i.e., the design of the law, regulation or executive order which imposes the proactive obligations

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on employers. The less the speciﬁcity of the obligations imposed on employers, the greater the difﬁculty in assessing the employer’s compliance with those obligations. This difﬁculty in assessment is experienced by both the employer and the enforcement agency. Many employers will only be willing to do that which they are legally (or contractually) obligated to do. If the obligation imposed on the employer is merely a general and vague obligation to carry out goal-oriented work towards promoting equality at the workplace, then the obligation gives no indication of what the employer must do. In some respects this resembles government exhortations calling for voluntary action – where it is totally left up to the employer to decide how it will promote equality. Unable to determine whether or not they are in compliance, many employers will choose to use minimal efforts and some will choose to do nothing. Cosmetic compliance with a poorly designed mandate will neither bring about organizational change nor make a signiﬁcant impact on ethnic equality at the workplace. For when enforcement agencies cannot practically assess the employer’s compliance with its obligations, the legal uncertainty that results affects the effectiveness of the agency’s enforcement efforts. Because laws, regulations and executive orders are written in technical legal language, enforcement agencies must provide guidance to employers to assist them in understanding their obligations. The remedial actions to be undertaken by the employer depend upon the speciﬁc types of barriers to ethnic equality. Thus, it is essential that the guidance both give the employer insight into the ideal-typical situations where barriers to ethnic equality are found and help the employer to understand how speciﬁc types of remedial action can address such barriers. Furthermore, the guidance must show how such remedial action can be formulated and implemented in practice. Unfortunately, much of the guidance provided by enforcement agencies relates to the employer’s obligations to carry out diagnostic and facilitative actions. There is clearly a greater need for guidance relating to remedial actions. Moreover, there is a greater need for guidance relating to the speciﬁc type of remedial action concerning the formalization of the evaluative processes, i.e., the incorporation of transparency, accountability and guidance to evaluators into the process. Institutional frameworks that are best at transforming non-complying employers into complying employers have centralized enforcement agencies that do the following: They monitor employer compliance regularly; they negotiate undertakings from employers to carry out speciﬁed actions; they apply regulatory pressure on employers who are unwilling to do so; and they sanction employers who persistently refuse to carry out their obligations. Empirical studies have shown the signiﬁcant impact of employers being subjected to compliance reviews and giving undertakings to carry out speciﬁed actions. Employers subjected to compliance reviews have comparatively greater employment growth for ethnic minorities than employers not subjected to compliance reviews. Likewise, employers who set numerical goals and timetables as a part of the negotiation process have a signiﬁcant impact on employment growth for ethnic minorities. The research indicates that those who promise more (goal-wise) actually do more in practice. There is thus a cumulative effect on ethnic minority employment growth resulting from the combination of employers being subjected to compliance reviews and having

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set numerical goals and timetables during the negotiation process with the enforcement agency. Although the use of sanctions by enforcement agencies has been relatively infrequent, it is an indispensable part of the enforcement process. The negotiation of undertakings, the enforcement agency’s issuance of directions and compliance notices and the threat of the use of sanctions work together to provide a synergy of regulatory pressure that can be brought to bear on the non-complying employer. A credible sanction is however necessary to achieve this regulatory pressure. Debarment is undoubtedly the most severe (and most effective) sanction used by proactive regimes. It is the only sanction that also (in its absence) functions as an incentive. Employers who desire to sell goods, services or construction works to the government have a compelling incentive to comply with their proactive obligations. Although debarment is not used frequently, the risk of debarment and ﬁnancial loss is simply too great a risk to take for many employers. The sanction of debarment can and should be used both in statutory-based proactive regimes as well as contract-based proactive regimes. A combination of different sanctions would however be most effective. The possibility to “name and shame” employers who refuse to comply with their obligations could be very useful. Most organizations are concerned about their public reputation. Negative publicity catches the attention of senior management and board directors. Employers that are most concerned about their ethical image will be those that are most inﬂuenced by this sanction, but others may be as well. The use of court or tribunal orders (under threat of contempt of court) may also be useful. The vast majority of employers do however come into compliance long before any need to use sanctions. What is needed is a credible threat to give teeth to the application of regulatory pressure. Proactive regimes without any sanction whatsoever cannot be expected to have signiﬁcant impact. Indeed such a regime is not very different from a call upon employers to carry out voluntary action, which has not been shown to have the necessary impact. Proactive obligation regimes which fulﬁll these two conditions can address systemic ethnic discrimination in employment far better than traditional complaint-based approaches. Both statutory-based regimes and contract-based regimes can be equally as effective in this regard. EU treaty and procurement rules do, however, impose restrictions on the way member states may use contract-based proactive regimes. With respect to non-national contractors, member states would only be able to impose obligations relating to the workforce connected to the speciﬁc government contract being performed. This is an extreme limitation that basically renders the proactive obligation regime useless with respect to these contractors. Rather than treat all contractors alike (rendering the regime useless), I recommend that EU member states only impose proactive obligations on national contractors. In this way one avoids any EU restrictions which could interfere with the effectiveness of the regime. An alternative could be to adopt a statutory-based regime with debarment as a sanction. Statutory-based regimes are by nature limited to domestic-based employers. Complaint-based approaches and proactive obligation regimes are not in opposition with each other. Indeed they complement each other well. Complaint-based approaches provide an indispensable legal mechanism to victims of discrimination seeking redress.

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Complaint-based approaches have also been absolutely crucial in the clariﬁcation and development of the law of discrimination. The development and understanding of the concept of indirect discrimination has taken place in judicial decisions rendered pursuant to complaint-based approaches. This, in turn has played a major role in our understanding of the concept of systemic (ethnic) discrimination in employment. Proactive obligation regimes are therefore dependent upon the continued development of the law of discrimination through complaint-based approaches. Because proactive obligation regimes can and do address systemic ethnic discrimination effectively, these two approaches to antidiscrimination are in need of each other to bring about ethnic equality in employment. What then do I say to the Norwegian Parliament and government having voted down and rejected the proposed proactive regime for promoting ethnic equality in employment? I say that a rational government policy response to systemic ethnic discrimination in employment is not the government exhortation of voluntary action. To re-write a quote by Judge Rosalie Abella: Government exhortation is the classic crutch upon which some lean in the hopes of coaxing change. But exhortation is an unreliable agent, glacially slow in movement and impact, and completely ineffective in the face of opposition. It promises no immediate relief despite the immediacy of the injustice.8 To the Parliament and government I say that a rational government policy response to systemic ethnic discrimination in employment is a policy that treats equality at the workplace the way it treats health and safety at the workplace. It is a policy that imposes on employers an internal framework of self-regulation and an obligation to adopt the necessary remedial actions to address unjustiﬁable barriers to ethnic equality. It is a policy that establishes an institutional framework for aiding, monitoring, negotiating, pressuring and ultimately enforcing (under threat of sanction) the employer’s compliance with those obligations. To the Parliament and government I say that the obligations imposed by these frameworks result in a strengthening of the meritocratic system and a professionalization of human resources management. The promotion of ethnic equality has, in other words, an add-on value wherein all groups beneﬁt. The formalization of evaluative processes does not just mean a fair chance for ethnic minorities and for other disadvantaged groups; it also means the end to nepotism, cronyism and political favoritism – signiﬁcant barriers also for members of the ethnic majority.9 To the Parliament and government I say that there is no quick ﬁx, that the making of these frameworks has its challenges. The speciﬁcation of employer obligations may be politically challenging, but it is the right thing to do. The provision of proper guidance to employers entails costs, but it is also cost-saving in the long run. The monitoring of employer compliance may result in allegations of bureaucratic red tape, but the goal of

8

9

In the quotation of Judge Rosalie Abella which I have re-written, Judge Abella was referring, not to government exhortation, but rather to the government’s use of education as a crutch. See Rosalie Silberman Abella, Equality in Employment: A Royal Commission Report (Ottawa: Minister of Supply and Services Canada, 1984), 8. Barbara Reskin, The Realities of Afﬁrmative Action in Employment (Washington, D.C.: American Sociological Association, 1998), 84.

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organizational change is illusory without it. The use of sanctions may be hard, but it is also fair. Just as no internal framework of self-regulation is possible without management commitment, no institutional framework is possible without government commitment. Yes, the internal framework of self-regulation and the institutional framework for aiding and enforcing employer compliance do not come without costs! But the day for symbolic responses and exhortations is long gone.

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Index Abella report 95–96, 164, 177 accountability in evaluative processes 120–122, 240, 252, 254–256, 259, 277, 293, 295, 301–302, 306, 308 adverse effect discrimination (Canada) 28, 47–49, 50–52, 57, 86 see also indirect discrimination adverse impact discrimination (USA) 44, 46, 57, 138, 166 see also indirect discrimination afﬁrmative action see section 6.2 175–179 afﬁrmative defense 35–36 allocation of work assignments 112, 121, 254 approved questions (Great Britain) 216, 219 availability 46, 122, 168, 218, 228–230, 234, 240, 252, 261, 272, 275, 290 barriers for ethnic minorities 13 best practice, deﬁnition of 11, 258 n. 51 Best Practices, Taskforce on 258, 258 n. 51, 260, 264, 268

bifurcated analysis (Canada) 47, 49–50 blameworthy perpetrator 74–75, 133, 136 bona ﬁde occupation qualiﬁcation (BFOQ) 35, 37, 52–53 bona ﬁde occupation requirement (BFOR) 49, 51–53 burden of going forward with the evidence 27 n. 8, 46 burden of proof 7–9, 27, 27 n. 8, 10, 44, 46, 48–49, 53–55, 55 n. 119, 60, 62–63, 75, 86–87, 89, 127, 145, 157, 300 burden of production 27 burden of persuasion 46, 86 reversed burden of proof 27 shared burden of proof 27 n. 10, 62 “but-for” test 34 canteen culture 92–93 causal link to protected characteristics 34, 38, 41, 87 chill factor 132 circumstantial evidence see section 4.4 138–151

26,

324

Index

codes of practice 11, 188, 215, 273 color (as discrimination ground) 30, 43, 62, 69, 77–78, 87, 227 communication and consultation 185, 257, 260–261 comparable circumstances 2, 32–33, 35, 39 comparative advantages of proactive regimes 12, 244, 291, 304 comparator 31–32, 36, 38–39, 40, 88, 136, 138 complaint-based approaches to antidiscrimination 2, 4, 93, 126, 244 compliance, monitoring see section 9.6 277–285 concept of discrimination see chapter 2 25–89 contract-based proactive obligations 5–6, 10, 12, 99, 176, 213, 218, 271, 279 contract compliance 13, 156, 163, 175–177, 209–210, 213, 215, 216–218, 227–228, 242–243, 259, 264, 287 cosmetic compliance 293–294, 306 critical mass 98–99, 118, 122, 301 cultural ﬁt 102, 134, 168 damages 93, 152, 154, 223 debarment 232, 235–255, 243, 286–290, 296, 307 descent (as discrimination ground) 77, 79, 85, 169 designated groups 182–183, 185, 233–234 diagnostic actions 248–249, 268, 272, 276, 292, 304–305 differential questioning in interviews 108, 111, 121, 301 differential treatment 26–28, 31, 32–34, 36, 41, 69–71, 75, 84–85, 88, 95, 116, 136–137, 174, 239, 301 difﬁculties in proving discrimination see section 4.4 138–151 direct discrimination 2, 28, 30, 32–36, 38–41, 49–51, 70–72, 88, 94–95, 97–98, 133, 137, 165 direct evidence 16, 75, 139, 174, 303 directives (European Union) 7, 9–10, 29, 32, 55, 59, 61–62, 89, 209–212, 214, 287 see Employment Directive see Equal Treatment Directive see Race Directive

disparate impact discrimination (USA) 28 n. 16 see also indirect discrimination disproportionate group-impact 95 discrimination concept of 2–3, 7, 25–29, 32, 40–41, 47, 53, 77, 85–86, 88, 126–27, 133, 151, 163 non-conscious 121 discrimination testing 17–18 discriminatory intent 8, 26–27, 31–32, 38, 44, 50, 59, 71–75, 76–77, 98, 133–134, 158, 166, 303 disparate impact 28 n. 16, 46, 61, 70, 151, 174, 256 disparate treatment 28 n. 14, 32, 77, 91, 133 duty to promote race equality (Great Britain) general duty 187–188, 190–192 speciﬁc duty 187–188, 190–191, 286 Employment Directive 22, 29, 53–54, 59–62, 64, 76, 89 employment equity 5, 11, 13, 98–99, 155–156, 163, 175, 177–178, 181–186, 233–235, 246, 259, 261 employment systems 99, 117–119, 121–122, 151–152, 182–185, 239 nn. 6–7, 240, 248–252, 256, 303–304 employment systems review 122, 178, 183–185, 234, 239, 248–252, 261, 272 employment tests 107–108, 111 equality equality as consistency 161–162, 164–165 equality before the law 38, 164–165 equality of opportunity 164, 187, 189–196, 198, 219–220 formal equality 26, 38, 127, 137, 161, 164–165, 167 substantive equality 86, 127, 159, 161–164, 166–167 equal opportunity clause (USA) 226–227, 231–232 equal protection of the law 164, 166 Equal Treatment Directive 29, 53–4, 62, 76 equality impact assessment (NI) 190, 195–196, 250, 254, 266 equality plan 261–263 equity and indirect discrimination 41

Index ethnic data, collection of 5, 248–250, 252–253, 266, 275, 286, 289–290 ethnic discrimination see section 2.5 1–4, 28–29, 139–141, 168–169 ethnic equality in employment 4, 166–169, 205, 244, 249–250, 252, 257, 290, 292, 296, 299, 301, 304, 308 ethnicity 78–82 ethnic origin (as discrimination ground) see section 2.5.b 78–82 European Union directives on discrimination 7, 9, 29, 76 exhortations, government 237, 269, 306 facilitative actions 248, 255, 257, 261, 271–272, 276, 287, 294, 304, 306 fair participation (Northern Ireland) 250 ﬂow data 252 genuine and determining occupation requirement (GDOR) 37 Glass Ceiling Commission report 251, 255, 260, 264, 268 goals and timetables 264–267 guidance and technical assistance 241, 273, 294 harassment 18, 27, 39, 97, 102, 104–106, 115, 123, 136, 140, 150, 152, 168, 201, 203, 205–207, 220, 240, 254, 271–272, 300–301 Hepple report 237, 262, 282 hierarchy of credibility 146–147, 150 hijab 63 see religious headscarf hostile work environment 103 human rights see sections 2.3.g and 2.3.h indicators of discrimination see section 1.3 13–22 indirect discrimination see section 2.3 2, 4, 7–10, 28–32, 35, 71, 85– 89, 93–95, 137–138, 151, 153, 163, 165–166, 252 n. 40 inferences, drawing of see section 4.4 138–151 ingroup favoritism 168

325

institutional discrimination see systemic discrimination institutional racism 92, 92 n. 4 instructions to discriminate 27, 300 intention see discriminatory intent interviews, unstructured 108, 110, 121, 301 job analysis 117 n. 73 justiﬁcation defense 53, 55–56, 60–62, 65, 87, 89, 127 legal method used in thesis legitimate aim 30, 53, 55, 61, 66–67, 87 less favorable treatment 31, 33–34, 36, 40, 66 MacPherson report 92, management accountability 106, 257, 259, 260, 267, 277, 293 management commitment 97, 102, 120, 174, 239, 256–257, 258, 258 nn. 50–51, 54, 259, 264, 267, 292–293, 305, 309 measuring discrimination 17 mentoring 114, 123, 206, 240, 248–249, 256–257, 293 monitoring 6, 120, 156, 185, 188, 190–191, 194–201, 203–204, 210, 215, 218, 220–222, 231, 234, 246, 248, 258, 268–269, 278–281, 283–285, 287, 291, 293–296, 305, 308 monitoring progress 185 terminology in Great Britain 249 monitoring compliance see section 9.6 277–285 motive see discriminatory intent “name and shame” 288, 296, 307 national origin see section 2.5.c 4, 77–78, 81–83 negotiating with non-compliant employers 305 networking 123, 240, 256–257, 293 numerical representation and distribution 99, 118–119, 168, 239–240, 304–305 objective and reasonable justiﬁcation 65–68, 87 ongoing obligations 244, 291, 304

326

Index

organizational culture 3, 10, 92, 94–95, 99, 114, 116–119, 122, 124, 168, 183, 239–240, 301, 304 organization-wide obligations 95, 156, 227, 245, 292, 304–305 outreach 122, 190, 200, 218, 240, 248, 255, 276, 293, 295 performance appraisals, stereotyping in 120–121, 254, 301 perpetrator, blameworthy 74–75, 133, 136 phases of procurement process 210, 214 poisonous work environment 95, 105–106, 116, 123, 239–240, 301 prejudice 1–2, 21, 26, 31, 33, 38, 73, 85, 92, 94, 133, 139, 168, 193 proactive measures, types of 245, 266 diagnostic actions 248, 268, 272, 276, 292, 304–305 facilitative actions 248, 255, 261, 271, 272, 276, 287, 294, 304, 306 remedial actions 22, 186, 248, 251, 254, 255, 261, 267–269, 272–273, 276–277, 280–281, 291–296, 304–306, 308 proactive obligations see chapter 6 5–6, 10–12, 238, 244–246, 289 contract-based see chapter 8 5–6, 10–12, 175–176, 289–290 statutory-based see chapter 7 5, 10–12, 175–176, 289–290 use of term 177–178 problem-solving approach 119, 239, 268–269, 293, 305 procurement process, phases of 210, 214 proof of discrimination 8–10, 27, 30–31, 41, 72, 75–76, 134, 174, 303 proportionality, requirement of 61 psychometric testing 108 public procurement directives (European Union) 209 quotas 5, 11, 99, 102, 175, 176, 200, 231, 265, 304 Race Directive 76, 78, 89

29, 37, 53–54, 59–62, 64,

rational government response to systemic discrimination 2, 4, 6, 10, 169, 237, 291, 293, 296, 308 recruitment methods, informal 106, 220–221, 224, 254–255 regulatory pressure see section 9.6 277–285 religious headscarf 63 remedial actions 22, 186, 248, 251, 254–255, 276–277, 291–292, 295, 304–306 reporting obligation 205, 207–208, 250, 267, 270–271, 275, 283–285, 288 sanctions for non-compliance see section 9.7 285–289 selection criteria 37, 41–42, 44, 58, 88, 102, 112, 120–121, 136–137, 162, 256, 301 self-identiﬁcation 183, 229, 275 self-regulation, internal 291–293, 304 set-asides 176, 213 sex stereotyping 112–115 shared burden of proof 27, 62 speciﬁcity of obligations see section 9.4 269–273 statistical discrimination 33, 110 statistically signiﬁcant, when disparity is 45 statutory-based proactive obligations see chapter 7 5, 10–12, 175–176, 289–290 stereotyping as cognitive process 121 n. 82, 240 structural discrimination see systemic discrimination systemic discrimination see chapter 3 2–4, 6–8, 10, 50–52, 126–128, 137–138, 155–156, 167–169 characteristics of 3, 10, 115, 119, 124, 147, 152, 237 generally 42, 87, 145–146 systemic ethnic discrimination 2, 4–6, 13, 22, 158, 168–169, 237–238, 240–242, 244–245, 248–249, 253, 289, 291, 293, 296, 300, 303–305, 307–308 Taskforce on Best Practices 258, 258 n. 51, 260, 264, 268 transparency in evaluative processes 122, 240, 255, 295

Index underrepresentation 95, 95 n. 13, 97, 99–100, 102, 106, 118, 120, 122, 137, 140, 156, 178, 183, 185, 199, 249, 250–253, 272, 290, 302 underutilization (USA) 250 unstructured interviews 108, 110, 121, 301 victimhood 130, 302

327

victimization 27, 220 visible minorities 11–12, 96, 99–102, 182–183, 233, 238, 245–246 word-of-mouth recruitment 255, 301

20, 132, 167,

INTERNATIONAL STUDIES IN HUMAN RIGHTS

1. Bertrand G. Ramcharan: Humanitarian Good Offices in International Law. The Good Offices of the United Nations Secretary General in the Field of Human Rights. 1983 ISBN 90-247-2805-3 2. Bertrand G. Ramcharan: International Law and Fact-Finding in the Field of Human Rights. 1983 ISBN 90-247-3042-2 3. Bertrand G. Ramcharan: The Right to Life in International Law. 1985 ISBN 90-247-3074-0 4. Katarina Tomaševski and Philip Alston: Right to Food. 1984

ISBN 90-247-3087-2

5. Arie Bloed, Pieter van Dijk: Essays on Human Rights in the Helsinki Process. 1985 ISBN 90-247-3211-5 6. K. Tornudd: Finland and the International Norms of Human Rights. 1986 ISBN 90-247-3257-3 7. Berth Verstappen and Hans Thoolen: Human Rights Missions. A Study of the Fact-Finding Practice of Non-Governmental Organizations. 1986 ISBN 90-247-3364-2 8. Hurst Hannum: The Right to Leave and Return in International Law and Practice. 1987 ISBN 90-247-3445-2 9. H. Danelius and Herman Burgers: The United Nations Convention Against Torture. A Handbook on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 1988 ISBN 90-247-3609-9 10. David A. Martin: The New Asylum Seekers: Refugee Law in the 1980’s. The Ninth Sokol Colloquium on International Law. 1988 ISBN 90-247-3730-3 11. Cecilia Medina: The Battle of Human Rights. Gross, Systematic Violations and the Inter-American System. 1988 ISBN 90-247-3687-0 12. Claus Gulmann, Lars Adam Rehof: Human Rights in Domestic Law and Development. Assistance Policies of the Nordic Countries. 1989 ISBN 90-247-3743-5 13. Bertrand G. Ramcharan: The Concept and Present Status of the International Protection of Human Rights. Forty Years After the Universal Declaration. 1989 ISBN 90-247-3759-1 14. Angela D. Byre: International Human Rights Law in the Commonwealth Caribbean. 1991 ISBN 90-247-3785-0 15. Natan Lerner: Group Rights and Discrimination in International Law. 1990 ISBN 0-79230-853-0 16. Shimon Shetreet: Free Speech and National Security. 1991

ISBN 0-79231-030-6

INTERNATIONAL STUDIES IN HUMAN RIGHTS

17. Geoff Gilbert: Aspects of Extradition Law. 1991

ISBN 0-79231-162-0

18. Philip E. Veerman: The Rights of the Child and the Changing Image of Childhood. 1992 ISBN 0-79231-250-3 19. Mireille Delmas-Marty: The European Convention for the Protection of Human Rights. International Protection versus National Restrictions. 1992 ISBN 0-79231-283-X 20. Arie Bloed and Pieter van Dijk: The Human Dimension of the Helsinki Process. The Vienna Follow-up Meeting and its Aftermath. 1991 ISBN 0-79231-337-2 21. Lyal S. Sunga: Individual Responsibility in International Law for Serious Human Rights Violations. 1992 ISBN 0-79231-453-0 22. Dinah Shelton and Stanislaw J. Frankowski: Preventive Detention. A Comparative and International Law Perspective. 1992 ISBN 0-79231-465-4 23. Michael Freeman and Philip E. Veerman: Ideologies of Children’s Rights. 1992 ISBN 0-79231-800-5 24. Stephanos Stavros: The Guarantees for Accused Persons Under Article 6 of the European Convention on Human Rights. An Analysis of the Application of the Convention and a Comparison with Other Instruments. 1993 ISBN 0-79231-897-8 25. Allan Rosas, Diane Goodman and Jan Helgesen: Strength of Diversity. Human Rights and Pluralist Democracy. 1992 ISBN 0-79231-987-7 26. Andrew Clapham and Kees Waaldijk: Homosexuality: A European Community Issue. Essays on Lesbian and Gay Rights in European Law and Policy. 1993 ISBN 0-79232-038-7 28. Howard Charles Yourow: The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence. 1995 ISBN 0-79233-338-1 29. Lars Adam Rehof: Guide to the Travaux Préparatoires of the United Nations Convention on the Elimination of all Forms of Discrimination against Women. 1993. ISBN 0-79232-222-3 30. Allan Rosas, Arie Bloed, Liselotte Leicht and Manfred Nowak: Monitoring Human Rights in Europe. Comparing International Procedures and Mechanisms. 1993 ISBN 0-79232-383-1 31. Andrew Harding and John Hatchard: Preventive Detention and Security Law: A Comparative Survey. 1993 ISBN 0-79232-432-3 32. Yves Beigbeder: International Monitoring of Plebiscites, Referenda and National Elections. SelfDetermination and Transition to Democracy. 1994 ISBN 0-79232-563-X

INTERNATIONAL STUDIES IN HUMAN RIGHTS

33. Thomas David Jones: Human Rights: Group Defamation, Freedom of Expression and the Law of Nations. 1997 ISBN 90-411-0265-5 34. David M. Beatty: Human Rights and Judicial Review: A Comparative Perspective. 1994 ISBN 0-79232-968-6 35. Geraldine Van Bueren: The International Law on the Rights of the Child. 1995 ISBN 0-79232-687-3 36. Tom Zwart: The Admissibility of Human Rights Petitions. The Case Law of the European Commission of Human Rights and the Human Rights Committee. 1994 ISBN 0-79233-146-X 37. Helene Lambert: Seeking Asylum. Comparative Law and Practice in Selected European Countries. 1995 0-79233-152-4 38. E. Lijnzaad: Reservations to UN-Human Rights Treaties. Ratify and Ruin? 1994 ISBN 0-7923-3256-3 39. L.G. Loucaides: Essays on the Developing Law of Human Rights. 1995 ISBN 0-7923-3276-8 40. T. Degener and Y. Koster-Dreese (eds.): Human Rights and Disabled Persons. Essays and Relevant Human Rights Instruments. 1995 ISBN 0-7923-3298-9 41. J.-M. Henckaerts: Mass Expulsion in Modern International Union and Human Rights. 1995 ISBN 90-411-0072-5 42. N.A. Neuwahl and A. Rosas (eds.): The European Union and Human Rights. 1995 ISBN 90-411-0124-1 43. H. Hey: Gross Human Rights Violations: A Search for Causes. A Study of Guatemala and Costa Rica. 1995 ISBN 90-411-0146-2 44. B.G. Tahzib: Freedom of Religion or Belief. Ensuring Effective International Legal Protection. 1996 ISBN 90-411-0159-4 45. F. de Varennes: Language, Minorities and Human Rights. 1996

ISBN 90-411-0206-X

46. J. Raikka (ed.): Do We Need Minority Rights? Conceptual Issues. 1996 ISBN 90-411-0309-0 47. J. Brohmer: State Immunity and the Violation of Human Rights. 1997 ISBN 90-411-0322-8 48. C.A. Gearty (ed.): European Civil Liberties and the European Convention on Human Rights. A Comparative Study. 1997 ISBN 90-411-0253-1 49. B. Conforti and F. Francioni (eds.): Enforcing International Human Rights in Domestic Courts. 1997 ISBN 90-411-0393-7

INTERNATIONAL STUDIES IN HUMAN RIGHTS

50. A. Spiliopoulou Akermark: Justi.cations of Minority Protection in International Law. 1997 ISBN 90-411-0424-0 51. A. Boulesbaa: The U.N. Convention on Torture and the Prospects for Enforcement. 1997 ISBN 90-411-0457-7 52. S. Bowen (ed.): Human Rights, Self-Determination and Political Change in the Occupied Palestinian Territories. 1997 ISBN 90-411-0502-6 53. M. O’Flaherty and G. Gisvold (eds.): Post-War Protection of Human Rights in Bosnia and Herzegovina. 1998 ISBN 90-411-1020-8 54. A.-L. Svensson-McCarthy: The International Law of Human Rights and States of Exception. With Special Reference to the Travaux Préparatoires and the Case-Law of the International Monitoring Organs. 1998 ISBN 90-411-1021-6 55. G. Gilbert: Transnational Fugitive Offenders in International Law. Extradition and Other Mechanisms. 1998 ISBN 90-411-1040-2 56. M. Jones and L.A. Basser Marks (eds.): Disability, Divers-ability and Legal Change. 1998 ISBN 90-411-1086-0 57. T. Barkhuysen, M.L. van Emmerik and RH.P.H.M.C. van Kempen (eds.): The Execution of Strasbourg and Geneva Human Rights Decisions in the National Legal Order. 1999 ISBN 90-411-1152-2 58. S. Coliver, P. Hoffman, J. Fitzpatrick and S. Bowen (eds.): Secrecy and Liberty: National Security, Freedom of Expression and Access to Information. 1999 ISBN 90-411-1191-3 59. W.S. Heinz and H. Fruhling: Determinants of Gross Human Rights Violations by State and State-Sponsored Actors in Brazil, Uruguay, Chile, and Argentina. 1960-1990. 1999 ISBN 90-411-1202-2 60. M. Kirilova Eriksson: Reproductive Freedom. In the Context of International Human Rights and Humanitarian Law. 1999 ISBN 90-411-1249-9 61. M.B. Eryilmaz: Arrest and Detention Powers in English and Turkish Law and Practice in the Light of the European Convention on Human Rights. 1999 ISBN 90-411-1269-3 62. K. Henrard: Devising and Adequate System of Minority Protection. Individual Human Rights, Minority Rights and the Right to Self-Determination. 2000 ISBN 90-411-1359-2 63. K. Tomasevski: Responding to Human Rights Violations. 1946-1999. 2000 ISBN 90-411-1368-1 64. L.-V.N. Tran: Human Rights and Federalism. A Comparative Study on Freedom, Democracy and Cultural Diversity. 2000 ISBN 90-411-1492-0

INTERNATIONAL STUDIES IN HUMAN RIGHTS

65. C. Tiburcio: The Human Rights of Aliens under International and Comparative Law. 2001 ISBN 90-411-1550-1 66. E. Brems: Human Rights: Universality and Diversity. 2001

ISBN 90-411-1618-4

67. C. Bourloyannis-Vrailas and L.-A. Sicilianos: The Prevention of Human Rights Violations. 2001 ISBN 90-411-1672-9 68. G. Ulrich and K. Hastrup: Discrimination and Toleration. New Perspectives. 2001 ISBN 90-411-1711-3 69. V.O. Orlu Nmehielle: African Human Rights System. Its Laws, Practice and Institutions. 2001 ISBN 90-411-1731-8 70. B.G. Ramcharan: Human Rights and Human Security. 2002

ISBN 90-411-818-7

71. B.G. Ramcharan: The United Nations High Commissioner for Human Rights. The Challenges of International Protection. 2002 ISBN 90-411-1832-2 72. C. Breen: The Standard of the Best Interests of the Child. A Western Tradition in International and Comparative Law. 2002 ISBN 90-411-1851-9 73. M. Katayanagi: Human Rights Functions of United Nations Peacekeeping Operations. 2002 ISBN 90-411-1910-8 74. O.M. Arnadottir: Equality and Non-Discrimination under the European Convention on Human Rights. 2002 ISBN 90-411-1912-4 75. B.G. Ramcharan: The Security Council and the Protection of Human Rights. 2002 ISBN 90-411-1878-0 76. E. Fierro: The EU’s Approach to Human Rights Conditionality in Practice. 2002 ISBN 90-411-1936-1 77. Natan Lerner: Group Rights and Discrimination in International Law. Second Edition. 2002 ISBN 90-411-1982-5 78. S. Leckie (ed.): National Perspectives on Housing Rights. 2003

ISBN 90-411-2013-0

79. L.C. Reif: The Ombudsman, Good Governance and the International Human Rights System. 2004 ISBN 90-04-13903-6 80. Mary Dowell-Jones: Contextualising the International Covenant on Economic, Social and Cultural Rights: Assessing the Economic Deficit. 2004 ISBN 90-04-13908-7 81. Li-ann Thio: Managing Babel: The International Legal Protection of Minorities in the Twentieth Century ISBN 90-04-14198-7

INTERNATIONAL STUDIES IN HUMAN RIGHTS

82. K.D. Beiter: The Protection of the Right to Education by International Law. 2006 ISBN 90 04 14704 7 83. J.H. Gerards: Judicial Review in Equal Treatment Cases. 2005

ISBN 90 04 14379 3

84. V.A.Leary and D. Warner: Social Issues, Globalization and International Institutions. Labour Rights and the EU, ILO, OECD and WTO. 2005 ISBN 90 04 14579 6 85. J.K.M. Gevers, E.H. Hondius and J.H. Hubben (eds.): Health Law, Human Rights and the Biomedicine Convention. Essays in Honour of Henriette Roscam Abbing. 2005 ISBN 90 04 14822 1 86. C. Breen: Age Discrimination and Children’s Rights. Ensuring Equality and Acknowledging Difference. 2006 ISBN 90 04 14827 2 87. B.G. Ramcharan (ed.): Human Rights Protection in the Field. 2006 ISBN 90 04 14847 7 88. G. Gilbert: Responding to International Crime. Second Edition. 2006 ISBN-13 978 90 04 15276 2. ISBN-10 90 04 15276 8 89. T. Obokata: Trafficking of Human Beings from a Human Rights Perspective. Towards a Holistic Approach. 2006 ISBN-13 978 90 04 15405 6. ISBN-10 90 04 15405 1 90. P. Bartlett, O. Lewis and O. Thorold: Mental Disability and the European Convention on Human Rights. 2007 ISBN-13 978 90 04 15423 0. ISBN-10 90 04 15423 X 91. R. Craig: Systemic Discrimination in Employment and the Promotion of Ethnic Equality. 2007 ISBN-13 978 90 04 15462 9. ISBN-10 90 04 15462 0

This series is designed to shed light on current legal and political aspects of process and organization in the field of human rights MARTINUS NIJHOFF PUBLISHERS – LEIDEN • BOSTON

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