Happy Black History Month Canada! Black History month has us thinking about equality and what workplaces can do to increase their equality and diversity. We all know by now that diversity is good for business.

The Canadian law, through various devices and broadly speaking, attempts to promote equality and inclusion. A question that often comes up when employers are thinking about increasing diversity in their workplaces is if favouring minorities when hiring is really treating everyone equally. Doesn’t equality mean we treat everyone, black, white and purple the same? Actually, no! Read on.

Treating Everyone the Same Does Not Necessarily Lead to Equality

We don’t all start off at the same starting line in life. When we measure people by the exact same metrics often those who are from groups that are historically disadvantaged will get left behind when competing against their more privileged peers. However, in Ontario, favouring minorities for a position could still land you in breach of the Ontario Human Rights Code, because you would be discriminating based on race (or any other prohibited ground) in your hiring decision.

Enter affirmative action! The Code allows employers to develop “special programs,” which will allow them to discriminate based on a protected group, where the objective is to promote the success of a historically marginalized group.

Special Programs Under the Code

Section 14 of the Code states that it is not discriminatory to put in place a program if it is designed to:

  • relieve hardship or economic disadvantage
  • help disadvantaged people achieve, or try to achieve, equal opportunity or
  • to contribute to the elimination of the infringement of rights under Part I

A program must satisfy at least one of these points to be a special program under the Code.

In order to discriminate in this way, employers need to apply to the Human Rights Commission to designate their program as a “special program” under the Code.

Special Employment

Section 24 of the Code also allows for discrimination with respect to employment where an organization is primarily engaged in serving the interests of persons identified by a prohibited group of discrimination. In these instances, identification with a specific Code-protected group is a genuine qualification for the job. For example, a woman’s shelter would be justified in discriminating in hiring by only hiring women because they are a special interest organization serving women.

Takeaways

Creating real substantive equality in our workplaces is definitely tricky. The Ontario Human Rights Commission provides lots of useful information, including this guide.