ONTARIO HUMAN RIGHTS COMMISSION
CONTENTS
Tuesday 8 February 1994
Ontario Human Rights Commission
Employment Equity Commission
Juanita Westmoreland-Traoré, commissioner
Kumar Singh, executive director
STANDING COMMITTEE ON GOVERNMENT AGENCIES
*Chair / Présidente: Marland, Margaret (Mississauga South/-Sud PC)
*Vice-Chair / Vice-Président: McLean, Allan K. (Simcoe East/-Est PC)
*Bradley, James J. (St Catharines L)
Carter, Jenny (Peterborough ND)
*Cleary, John C. (Cornwall L)
*Curling, Alvin (Scarborough North/-Nord L)
*Frankford, Robert (Scarborough East/-Est ND)
Harrington, Margaret H. (Niagara Falls ND)
Mammoliti, George (Yorkview ND)
*Marchese, Rosario (Fort York ND)
Waters, Daniel (Muskoka-Georgian Bay/Muskoka-Baie-Georgienne ND)
*Witmer, Elizabeth (Waterloo North/-Nord PC)
*In attendance / présents
Substitutions present/ Membres remplaçants présents:
Cooper, Mike (Kitchener-Wilmot ND) for Mr Mammoliti
Fletcher, Derek (Guelph ND) for Ms Carter
Huget, Bob (Sarnia ND) for Mr Waters
Lessard, Wayne (Windsor-Walkerville ND) for Ms Harrington
Clerk pro tem / Greffière par intérim: Bryce, Donna
Staff / Personnel: Pond, David, research officer, Legislative Research Service
The committee met at 1433 in the Trent Room, Macdonald Block, Toronto.
ONTARIO HUMAN RIGHTS COMMISSION
The Chair (Mrs Margaret Marland): Good afternoon. We are going to continue our review of the Ontario Human Rights Commission.
EMPLOYMENT EQUITY COMMISSION
The Chair: Ms Juanita Westmoreland-Traoré is our Employment Equity Commissioner. Welcome, Ms Traoré. Am I pronouncing your name correctly?
Ms Juanita Westmoreland-Traoré: I prefer Westmoreland-Traoré. It's a little bit longer, but that's me.
The Chair: I think that's only right. Do you have a brief opening statement or comments you wish to make?
Ms Westmoreland-Traoré: Yes, I do have an opening statement. With the permission of the Chair, I would like to read a statement. I have copies of the statement; they're presently being reproduced and they will be presented to the members as soon as they arrive.
The Chair: Okay. Introduce your colleague for the Hansard record, please.
Ms Westmoreland-Traoré: The executive director of the Office of the Employment Equity Commissioner is sitting with me, Mr Kumar Singh. I will also be accompanied by the director of communications, Mr Pierre Lebel, and our legal counsel, Arlene Minott.
I would just like to beg the indulgence of the Chair. Unfortunately, I have a pressing engagement, a prior commitment at 4 o'clock. This is something that has been outstanding and I wasn't able to rearrange it and so I will have to make my statement and answer the questions. If there is another time or another occasion to make myself available, I will do so, but this afternoon I have to leave in order to make my engagement at 4 o'clock.
The Chair: It's up to the committee. If the committee is not finished with its questions, then we would schedule your return.
Mrs Elizabeth Witmer (Waterloo North): You'll be leaving at 4 or a quarter to 4?
Ms Westmoreland-Traoré: A quarter to four.
The Chair: We probably won't be finished in that time frame. Anyway, proceed, because the committee is scheduled to sit till 5.
Ms Westmoreland-Traoré: I'll do my best. I am honoured to be invited to appear as a witness before the standing committee in its review of the operations of the Ontario Human Rights Commission and I'll do my best to assist the committee by answering your questions.
I'd like to place my presentation in the context of both the evolution of human rights and the development of fair employment law. Let me quote from the preamble of the Employment Equity Act, 1993, which describes this interrelationship:
"The people of Ontario have recognized in the Human Rights Code the inherent dignity and equal and inalienable rights of all members of the human family and have recognized those rights in respect of employment in such statutes as the Employment Standards Act and the Pay Equity Act. This act" -- meaning the Employment Equity Act -- "extends the principles of those acts and has as its object the amelioration of conditions in employment for aboriginal people, people with disabilities, members of racial minorities and women in all workplaces in Ontario and the provision of the opportunity for the people in these groups to fulfil their potential in employment."
As you know, Bill 79, the Employment Equity Act, 1993, received third reading on December 9, 1993, and will be proclaimed this year. The adoption of this new legislation is an important milestone in human rights legislation in Ontario and indeed internationally.
The act promotes equality in employment by legislating proactive equity requirements, thus reducing the need for lengthy proof of discrimination. It focuses on the systemic roots of discrimination and the removal of systemic barriers and it is based on a collaborative model; that is, it requires employers to implement employment equity in partnership with unions and employees. Given these unique elements, the new act is a worthy contribution to the international construction of human rights and evolving universal employment standards.
Employment equity is about allowing people -- all people -- the opportunity to participate fully in the labour force. For most of us, employment is the key to meeting our individual and family needs. Most of us spend one third of our lives on jobs where we are paid a wage or a salary.
All people in the province are entitled to equal treatment in employment under the Ontario Human Rights Code. However, despite this entitlement, many people are still disadvantaged in employment because of systemic and intentional discrimination. Both Ontario's Human Rights Code and Canada's Charter of Rights and Freedoms specifically allow for special programs to improve conditions for disadvantaged individuals or groups.
The purpose of the Employment Equity Act, 1993, is to provide groups in our society who have, for far too long, faced barriers to equal participation in the workplace the opportunity to contribute and to fulfil their potential. The four designated groups are aboriginal people, people with disabilities, racial minorities and women. Statistics, studies and experience demonstrate that members of these groups are disproportionately represented in entry-level, low-paying and part-time positions.
Aboriginal peoples are virtually unrepresented in many workplaces across the province. The rate of unemployment for aboriginal peoples is twice that of other people. On average, aboriginal peoples living off reserve earn 26% less than the national average, while those on reserve earn 42% less than other Canadian workers. On the job, aboriginal peoples are too often subjected to negative stereotyping and paternalistic treatment. Increasingly, however, there are positive indications that aboriginal peoples are succeeding in higher education through community-based education and training programs managed by aboriginal people.
The rate of unemployment for persons with disabilities is also twice that of other workers and official statistics do not include those people who have become completely discouraged and given up looking for work altogether. Thirty per cent of unemployed people with disabilities report they have been refused a job because of their disability. Persons with disabilities face negative attitudes and misconceptions about disabilities, as well as physical barriers such as inaccessible work sites and a lack of technical devices.
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When the minister tabled the Employment Equity Act in June 1992, the Honourable Elaine Ziemba, Minister of Citizenship, announced that she would establish a working group to advise her on issues regarding the employment of persons who are severely disadvantaged because of their disabilities. The work of this group, chaired jointly by Dr Shirley Van Hoof, chairperson of the Ontario Advisory Council for Disability Issues, and myself, will contribute to the development of policy and regulation on disability issues. A major objective of the group has been to propose a coordinated strategy across government ministries, such as the Ministry of Education and Training, the Ministry of Transportation and the Ministry of Community and Social Services, to bring about improved conditions for persons with severe disabilities.
Women and men who are members of racial minorities experience higher levels of unemployment and underemployment. In their 1985 study Who Gets the Work?, Henry and Ginzberg found that for every job offer a black person in Toronto receives, a white person with the same level of experience and education receives three. Despite the fact that 22% of racial minorities in Ontario have university degrees, as compared to 13% of other members of the labour force, racial minorities still earn less than other workers.
Among members of racial minorities, discrimination is often found in the recruitment, hiring and selection practices of organizations. For example, a survey of a representative sample of agencies, personnel recruiters and hiring managers conducted by the Canadian Recruiters Guild between 1985 and 1988 found that 94% had discriminated on the basis of colour and that 87% of corporate recruiters and all agency recruiters had received direct discriminatory requests from those they worked for and most had complied with those biased requests.
Women, of course, are the largest designated group and make up at least half of the other three designated groups. Although some women have made substantial gains in employment, many women are still concentrated in part-time jobs or traditional occupations. As a matter of fact, 41% of women are found in only 10 occupations: secretary, sales clerk, cashier, food and beverage server etc. In contrast, men comprise the majority of workers in all of the other 180 occupations.
Although the wage gap between women and men employed full-time has narrowed -- it was recently reported that women earn an average of 71.8% of what men earn -- women continue to earn less than men with comparable or lower levels of education. In fact, as a group, women university graduates working full-time earn about as much as males with only a high school education. Like many racial minority persons, women in the labour force often come up against a glass ceiling which blocks their promotion into decision-making positions.
The new labour market reality makes employment equity a necessity for many forward-looking businesses. Data from Statistics Canada and other demographic studies show a marked increase in the labour force participation rates of designated group members. The statistics confirm that the profile of Canada's population and its labour force is changing. This change is also reflected in the marketplace, in the consumer base and in the equity or shareholder base of major corporations. In order to remain competitive, organizations can no longer rely on the traditional pool of workers; they must draw on a growing and more diverse pool of skills, experience and expertise.
This will mean an increased obligation on employers to accommodate and to retain designated group members in the workplace. Through employment equity planning, employers can prepare for the changing workplace and culture and meet the needs of all their employees.
The Employment Equity Act is the culmination of a long and sustained process of public consultation over the years. More recently, my office conducted public consultations on employment equity across the province, from November 1991 to March 1992. The consultations consisted of the distribution of a discussion paper entitled Working Towards Equity, public hearings in nine cities, joint initiative projects with 25 organizations, special meetings with participants from aboriginal communities, a mail survey, technical seminars and consultation with the construction industry. Over 400 written submissions were received and analysed.
The consultative process was an opportunity for input from all sectors across the province, as well as an invitation for technical and expert advice on the implementation and enforcement of employment equity legislation. Recommendations arising from the consultations directly contributed to the development of the Employment Equity Act, which was introduced in the Ontario Legislature concurrently with the publication of the consultation report Opening Doors.
The act requires employers to take three main steps to implement employment equity. First, employers must conduct a workforce survey, a snapshot of the workforce which reveals how many employees are members of the designated groups and at what levels of the organization they are working. Before conducting the survey, however, employers will provide adequate information and education in the workplace to explain clearly the principles of employment equity and the purpose of the survey. This information will set the climate for a successful workforce survey.
Second, employers must review their employment policies and practices to identify discriminatory barriers.
Third, they must develop an employment equity plan or plans to eliminate these barriers. The employment equity plan must contain qualitative measures -- that is, positive measures, supportive measures and accommodation measures, according to the circumstances -- as well as specific numerical goals and timetables for achieving results.
Employers will carry out these main steps jointly with bargaining agents. In non-unionized workplaces, employers will consult with employees who are not represented by a bargaining agent, including employees who are members of the designated groups. Employee and union involvement will increase the acceptance and effectiveness of the planning.
The policy direction behind the Employment Equity Act has taken into account the concerns of the employer community to avoid excessive administration. This has been accomplished in several ways. I suggest the following to you: First of all, the regulation stipulates that the employment equity plan will be in effect for three years; secondly, employers are obliged to file certificates with the Employment Equity Commission, rather than reports or plans; thirdly, the Employment Equity Act will be phased in over a three-year period, allowing for a staggered implementation schedule based on the size and resources of employers; and, again, the act establishes modified requirements for smaller employers, who represent about half of all workforces covered. There are few reporting requirements based on a three-year period of reporting.
The cost of employment equity must be balanced against its benefits. Many employers have recognized employment equity as sound human resources planning which broadens the pool of qualified candidates and brings new talents and perspectives into the workforce. One employer, Manulife Financial, for example, has described employment equity as "a commonsense business policy to increase productivity, improve our ability to attract and retain talented employees and enhance our position in both domestic and international markets."
As Employment Equity Commissioner, my mandate is to advise the government on the development of employment equity legislation in Ontario, through the Minister of Citizenship. It is also my role to prepare for the establishment of the Employment Equity Commission, to participate in interministerial committees relating to employment equity and to have a public presence, where appropriate, on issues concerning employment equity.
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As the Employment Equity Commission has not yet been established and we are in a process of transition, I can only speak tentatively about the Employment Equity Commission. In addition, as commissioner of employment equity my role is of course limited to employment equity and I wouldn't presume to offer any particular expertise on the operations of the Ontario Human Rights Commission.
I have chaired and continue to chair a number of committees. These include the Public Education Advisory Committee, which provides input into our public education strategies and materials; the Working Group on the Employment of Persons with Severe Disabilities, which considers special employment equity measures for persons with severe disabilities and helps coordinate government-wide initiatives in this area; and the interministerial employment equity committee on francophone issues, which examines employment barriers faced by francophones in Ontario's workplaces. These committees assist us in fulfilling our mandate and in ensuring that the work of our office is responsive to the needs and concerns of all our equity partners.
Together with Naomi Alboim, Deputy Minister of Citizenship, I co-chair an internal employment equity implementation advisory group whose members include a representative of the Ontario Human Rights Commission, a representative of Management Board, a representative of the Ministry of the Attorney General, a representative of the Pay Equity Commission and a representative of Cabinet Office. The purpose of the group is to receive policy and program delivery advice from equity ministries and agencies, to facilitate ongoing consultation and collaboration, and to ensure a corporate approach to equity planning.
My office, in consultation with related ministries and agencies, develops and implements public education strategies. Public education is critical to promote better understanding and acceptance of employment equity, to set the climate for the successful implementation of employment equity and compliance with the act; and also, of course, to dispel the prevailing misunderstandings about employment equity programs. We believe strongly that both legislation and education are required to achieve employment equity in Ontario.
To continue to build networks, my office has maintained an extremely active public speaking schedule since its inception, both responding to requests for speakers and proactively targeting key stakeholders. In addition, information about employment equity and the act has been distributed through info-kiosks in major shopping malls across Ontario, has been distributed through our information hotline, which has handled over 9,000 inquiries to date, and through our newsletter, which reaches a mailing list of over 18,000 readers and is to increase substantially in the next few months. A resource guide listing employment equity videos and print materials is also being prepared.
A two-phase public education program is now under way. Phase 1 of the program provides training on the principles and benefits of employment equity through, for example, the joint initiatives program and training workshops.
The joint initiatives program is very important to our office's public education strategy. It was designed to develop lasting partnerships with community organizations. Through the program, not-for-profit groups can receive support from the office, albeit modest, to undertake projects which raise awareness of employment equity. Groups participating in the joint initiatives projects have, for example, organized conferences, workshops and new equity networks and have produced materials such as videos, brochures and newsletters.
Eight workshops for workplace and community trainers were piloted in the fall and winter of 1993 and are now being held across the province. Several workshops will be conducted entirely in French.
Phase 2 of the public education program, which will begin after the act is proclaimed and the regulation is finalized, will provide information and more technical training on how employment equity can be implemented in the workplace.
To promote awareness of employment equity and to support public education initiatives, my office has just completed the production of three new posters and a 12-minute video entitled Equity Works. Currently, my office is preparing implementation guidelines and workbooks which will be available by the date of proclamation to assist employers, unions and employees to implement employment equity. The guidelines will clarify the requirements of the act and the regulation and will suggest best practices for employment equity planning. A number of consultants have been retained to research and develop these guidelines. In many cases, focus group sessions were held to obtain input from all sectors.
Planning for data and information technology, as well as client services, is also under way. Preliminary data requirements for establishing numerical goals have been identified and will be finalized upon completion of the regulation and discussions of federal-provincial working committees.
In its capacity as facilitator, the future commission will provide information and advice on implementing employment equity in general and the act in particular. It will of course fulfil its role as a monitoring and enforcement agency. By examining certificates filed by employers, by conducting workplace audits and by consulting with stakeholders, the commission will assess the progress of employment equity in Ontario and submit annual reports to the Minister of Citizenship. I look forward to the proclamation of the act and to the creation of an effective and responsive Employment Equity Commission.
I'd like to end by going back to the preamble of the Employment Equity Act, where I began: "The people of Ontario recognize that eliminating discrimination in employment and increasing the opportunities of individuals to contribute in the workplace will benefit all people in Ontario."
I think it speaks to the collective enrichment that we will experience when we have achieved genuine improved employment equity in this province, and I thank you for this time.
The Chair: Thank you, Ms Westmoreland-Traoré. You're still insisting on leaving at what time?
Ms Westmoreland-Traoré: At 3:45 or 3:50, if you take the five minutes.
The Chair: It's just that it does present a problem for the committee in terms of divvying up the available time. I'll make it 23 minutes per caucus.
Mr Alvin Curling (Scarborough North): I want to thank you, Ms Westmoreland-Traoré, for coming in, because it's extremely important, your presentation and the impact and the effect it will have as we review the Ontario Human Rights Commission. I still stand that it's one of the most important agencies in the province, and how it's conducted.
Your contribution here at this juncture is I think of the most importance of all of any presentation, if I dare say so. I say so because the Human Rights Commission has been going through many, many changes, and one of the changes that has been most profound is the one setting up an Employment Equity Commission. Really, what it's all about is that the Ontario Human Rights Commission has taken a sector of its unit, a systemic unit, and established another unit called the Employment Equity Commission, which is very much needed.
Not that I'm very impressed with the systemic unit right now, what has been done in the Human Rights Commission in regard to systemic discrimination, because I think it should be concentrating very much so in that area more than the individual complaints that really take most of its time.
We had somehow wanted the commissioner, that's you, to come before us when we were doing the Employment Equity Act.
Mr James J. Bradley (St Catharines): Is that right?
Mr Curling: We had wanted that.
Mrs Witmer: Yes, we did.
Mr Curling: The reason for that is that we see some changes coming in the Ontario Human Rights Commission because of that setup. We know of your expertise and of course of your knowledge and your contribution, not only since you've been here but before.
One of the questions that comes to mind -- I don't know if it was properly answered, but there are cases that need to be dealt with by both the Ontario Human Rights Commission and the Employment Equity Commission. I want to know, how those two would work together.
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If you could tell me, do you think that justice will be denied due to what I feel now -- I don't want to call it cumbersome because we're not quite sure. As you said, the Employment Equity Commission has not yet been fully established because we are waiting for proclamation and the regulations to come out to see how it functions.
Do you see any difficulty in that process or any confusion within the process of bringing one's case to the Human Rights Commission? While you're answering that I just want to know too, at this moment, if someone has an employment equity concern, would they now go to the Ontario Human Rights Commission or would they wait until the Employment Equity Commission is established before they put that case forward?
Ms Westmoreland-Traoré: Mr Curling, that is quite a complex question. I would like to begin just by making a comment about your opening remark.
With all due respect, I do not feel that the new Employment Equity Commission will basically be a part of the existing Ontario Human Rights Commission. I think that we can draw several very clear distinctions between the work of the Ontario Human Rights Commission and that of the Employment Equity Commission.
I believe that there are obvious areas for collaboration because this is human rights law and it is about equality in the workplace, and that is an objective that we share with the Ontario Human Rights Commission. But if you look at the focus and the objectives of our legislation you will see that there are very clear differences.
First of all, our commission will be concentrating on employment whereas the Ontario Human Rights Commission has a much broader mandate and includes services, includes also housing, accommodation, whereas our focus and our responsibility will be employment.
The second major difference I would say is that the Ontario Human Rights Commission deals primarily, not exclusively but primarily, with individual cases and indeed will provide recourse and remedy to individuals or groups that have complaints of discrimination.
Our legislation will follow a proactive model much like the pay equity legislation and will require employers to adopt plans and to remove discrimination in a systemic way. It's not a legislation that deals with the question of intent or that deals with the question of certain actions that may have taken place, but indeed that looks at policies and practices and their effects on groups and seeks group remedies.
I would also say that in our work we will be providing, as our legislation states, assistance to employers, unions and other stakeholders, and this assistance will take different forms. Some of it will be material, some of it will be forming linkages and some of it will be educational work. This is really an all-encompassing task.
Our mandate also requires us to do audits. The audits will be an occasion for us to assess how employment equity is unfolding, to provide some assistance if necessary, to arrive at settlements with employers if there are differences of opinion, and if necessary to go before the Employment Equity Tribunal. This is different from the scheme of the Ontario Human Rights Commission. The Ontario Human Rights Commission does not audit but indeed has the responsibility of investigating once complaints have been laid. So I would say that our focus is different, our work will be different and I believe we may have common objectives but we will have resources exclusively dedicated to systemic change within the workplace.
Until the employment equity legislation is proclaimed the Ontario Human Rights Commission will continue in its mandate, and that is as it should be. Once our commission is up and running, then I think with our information and our strategy and workforce we will be able to encourage the development of the employment equity plan.
Mr Curling: The systemic unit which in the Ontario Human Rights seems to address the real core of where most of the discrimination is coming from, regardless of those identified groups, whether disabled or racism or what have you, employment equity I feel is moving of course in the right direction. We're trying to get, as you say, a group solution or where to find the root of the problem of why people don't advance or get promoted or hired in the workplace, to find systemic causes, and then, after identifying them, eliminating them.
Many of the witnesses who have come before us have identified that the problem with the Ontario Human Rights is that it deals too much with the individual cases and spends far too little time dealing with the systemic problems and it should concentrate on the systemic problems. Do you feel that could be the direction to eliminate some of the discrimination that is happening here, or should the Ontario Human Rights continue to pay most of its time and attention to individual complaints or on systemic complaints issues?
Ms Westmoreland-Traoré: I think that these are very weighty considerations. I think that the Ontario Human Rights Commission is best placed to provide you with its observations and its reflections on this subject. With all due respect, I don't believe that in my position I do have sufficient information on changes, strategies, deliberations of the Ontario Human Rights Commission to give you a comment on that.
Mr Curling: That's unfortunate. I say that because what this committee does is review agencies and try to find a way of improving agencies that the government funds so that they can serve the people better. I know if we go to the Human Rights Commission I don't think I'll get all very objective; I think they'll try their best, of course, to give us as best how they do their job, but to find out from others how they see it.
I think, like employment equity, it has a great impact on how the Ontario Human Rights will work because I see too that they are kind of a human rights exercise of identifying and eliminating systemic discrimination in the workplace.
It's unfortunate that you may feel you're not in a position; I feel otherwise. I've heard you speak quite often and I know that you do acquire a tremendous amount of experience and knowledge in that area.
My second question is, and I want to give my colleague some chance to ask his question, do you see a similar backlog developing in the Employment Equity Commission, unless of course you indicate a specific time frame? I know you have all those time frames in which they will have to bring a plan about. Do you see any backlog developing here?
People are rather scared, in any of the justice areas in this province, that in all those justice areas there is a tremendous amount of backlog in the courts, in the Human Rights etc. Of course, the Ombudsman doesn't call hers a backlog but the fact is that we see a backlog there. We see that justice delayed, the old cliché, is justice denied, and the fear that people see that, "Here we go again; if we form a queue of employment equity to get our case resolved there's going to be a backlog."
Ms Westmoreland-Traoré: Mr Curling, I hate to start off on this voyage thinking that we may be already accumulating certain backlogs. We are only at the very beginning of our process and we are into a preparatory mode. We are carrying out consultations with our stakeholders in order to develop services that are efficient, that are responsive and that are timely. We have had some reports and discussions with, for instance, members of the Pay Equity Commission, the Ontario Human Rights Commission, the Attorney General's office, so that we would address some of these questions. We are looking forward in, should I say, an optimistic way to being able to manage the work of the future commission.
At the same time, I think there is a slight difference in the position of the future Employment Equity Commission and the Ontario Human Rights Commission because the Ontario Human Rights Commission has a mandate to receive the complaints that individuals and groups would bring to that commission to attempt to settle, to investigate the complaints, to decide and take forward the ones that are appropriate to the tribunal, whereas under the Employment Equity Act the Employment Equity Commission does not receive complaints.
The Employment Equity Commission assists employers. The Employment Equity Commission has a role to audit. The Employment Equity Commission can and will develop a strategy in order to audit effectively, will divide its tasks into different sectors, perhaps different regions, different levels, will target according to labour market industrial activity to see how most effectively to use this tool of auditing. So the Employment Equity Commission I believe will have, to a certain extent, greater capacity to manage the work that it undertakes.
I'm looking forward and I hope that the Employment Equity Commission will be successful in this task.
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Mr Bradley: I have a couple of questions.
The Chair: You have 10 minutes.
Mr Bradley: Thank you. I'll try to make my questions quite concise.
You will recall the controversy in November of this year when the Ontario government put in an ad, I believe it was in the Globe and Mail, for a person in a fairly senior position in the Management Board of Cabinet, and that excluded able-bodied white males from applying. Subsequent to that, after considerable pressure that ad was pulled. Do you believe that employment equity can be served by prohibiting able-bodied white males from applying for jobs because they have been, as some would say, overrepresented in the public service in years gone by?
Ms Westmoreland-Traoré: I cannot talk to the specifics of the ad, the competition in the OPS that you're referring to. That specific circumstance is really not within my mandate. I will, however, comment on the general question of positive measures.
Maybe I can take you back a little, just because I'm aware of the consultations, deliberations, input that went into defining equality rights in Canada as they are contained in the Charter of Rights and Freedoms. As you know, section 15 of our charter redefines equality rights in Canada as being equality before the law, equality under the law, equal benefit of the law and equal protection of the law, and this was the result, obviously, of the experience of women, racial minorities, aboriginal people and people with disabilities in Canada because of the limitations of the former definition of equality.
Besides this extension of the right of equality in our constitutional charter, subsection 15(2) specifically provided for special programs and declared that in Canada special programs designed to relieve or eliminate disadvantage of groups and individuals within those groups are constitutional and permissible. This is the basis of the positive measures as they are set forth in the Employment Equity Act, as they are also permissible under the Ontario Human Rights Code. Positive measures --
Mr Bradley: They may be permissible, but my specific question is dealing with whether or not as commissioner you believe -- and I'll take away the specific incidence there -- that able-bodied white males should be excluded from applying for jobs in the public service so that we can meet the goals of employment equity. You can talk about all the positive measures; I'm just asking about that. That's a negative measure and I want to know whether or not you agree with that negative measure.
Ms Westmoreland-Traoré: In order to answer that question, I believe that I would refer to the process that is set up under Bill 79 which requires both employers and unions or employers and their employees to consider the specific circumstances of their workplace, to analyse whether there is underrepresentation, in what occupations and at what levels, and what measures would be required in order to achieve representativity or equitable representation. I believe that is a decision under Bill 79 which is left to the workplace, and the different measures that will be available go from training, outreach recruitment, mentoring, literacy -- there is a whole gamut of positive measures that can be used to help increase the representation of designated groups.
One of those measures is the limited eligibility competition. In my mind, the limited eligibility competition is an exceptional measure, and that measure could be decided upon by the workplace depending upon the circumstances, their experience, the involvement of the employees, the climate setting, the education, the information. I would think that it would be an exceptional measure.
The question of the exclusion of white able-bodied males has been raised repeatedly in the debate around employment equity. The need to have inclusive programs is important. I believe that if you look into the employment equity bill and its regulations, you will see that goal-setting is foreseen as the use of opportunities according to certain proportions to be determined in the workplace. Those proportions would be based either on population, the composition of the population concerning the designated groups, skills in the designated groups, the rites of graduation and leaving of educational and training institutions, many different factors that would be chosen by the workplace partners according to their relevancy in the particular circumstance.
That process, I think, is meant to say that certain opportunities which in the past have been denied should now be available to all workers, including the designated group workers. But I do not believe that process is meant to be an exclusive or an exclusionary process. I really don't. I believe that when setting positive measures, it must be done in a reasonable way and in a way that takes into account the rights of all workers.
We know that already in the Ontario Human Rights Code there are provisions which prohibit constructive discrimination. If there is constructive discrimination, the employer is obliged to remove it. Restrictions in the workplace are considered constructive discrimination unless they are bona fide and reasonable requirements.
Mr Bradley: One of those requirements that we spoke of earlier this week was a requirement for employers to accommodate disabled employees, or potentially disabled employees. You will correct me if I'm wrong, but I think I heard in the committee that the only reason an employer could use to not undertake to spend money to accommodate a disabled person in the workplace was bankruptcy. I think that was what was stated in this committee.
Do you agree with that, that the only way an employer can avoid this is by saying, "I'm gonna go into bankruptcy if I do," and do you think that will enhance the opportunity for all Ontarians to get a job when we put requirements in that force an employer, at perhaps great expense, to accommodate a disabled person on his or her own, the employer on his or her own, to the point of bankruptcy?
Ms Westmoreland-Traoré: I can't tell you today what the interpretation of the regulations or Bill 79 will be by the Employment Equity Tribunal or the courts. I think that, yes, accommodation as it's specified under our bill, Bill 79, and under the regulations is a concept which is also included in the Human Rights Code. Indeed, there's reference to the Human Rights Code in the draft regulations. The real regulations have not yet been circulated. So I think there will be some consistency, but I can't tell you what the interpretation of "accommodation" and, as you're referring, "accommodation short of undue hardship" will be under Bill 79 and the relevant regulations.
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Mr Bradley: One reason that employers may tend to discriminate, and I want to know how we can overcome this possibility, is an employer's fear that if the employer hires a person from one of the groups which has been traditionally unrepresented in the workforce, that employer cannot fire that person if that person does not work out as an employee. In other words, if an employer were to hire me, it may be easier to fire me as a white male who is unlikely to be able to make much of a case before the Human Rights Commission than it is for a person from one of the designated categories.
How do we overcome that? Because I see then employers starting to unconsciously, or perhaps in some cases consciously, avoid hiring people who have been unrepresented before because of that fear of being taken to the Human Rights Commission if that employer wants to fire or reprimand that employee in any way. How do we overcome that?
Ms Westmoreland-Traoré: You and I know that fear is sometimes well founded. Often it's not well founded. Fear is subjective, it is sometimes the object of a person's perceptions, and I would think it is our experience that is going to assist us in overcoming some of the fear. I know that many times when people are not familiar with a circumstance -- working with people of other genders, for instance, working with people of other cultures, of other religions -- they do have certain stereotypes and certain apprehensions as to how this would work out. Once in the workplace, where the diversity becomes a part of the everyday working culture and the reality, these fears are overcome.
I know now that in many of the industrial relations schools, in the schools of industrial psychology, social work and what not, there are special programs designed on managing diversity, and this because it is recognized that the new acceptance of difference, accommodation of difference, also brings with it very important benefits for the workplace in designing new products and reaching new clients, but at the same time in providing a workforce which is more motivated, which has less absenteeism, which has a lower cost of training because of the retention rates. There are all types of benefits, and I think when employers become more exposed to this, more cognizant, and it becomes their way of doing business, it will be easier.
I don't deny that there are fears. I believe the fears would probably be different in different parts of the province because of the different composition of the workplace. There are workplaces where there are significant concentrations of people with different backgrounds, different designated groups. But the difficulty has been that they have been concentrated in one area of the workplace and their mobility has been seriously impeded. So I think by more education, information, more expertise on managing diversity, more insistence on and understanding of the benefits that this brings, we will help to overcome this. I do believe the process that we have begun, which is to organize the workshops with trainers who themselves will then go out and train and adapt their materials to the specific circumstances, these forums will allow for more discussion, more hands-on communication.
This question of exclusion of white men has been the subject, I'm sure you've noticed, of recent publications, Business Week included. In these discussions it has been shown that where there is communication among the different groups because persons from designated groups have been excluded, marginalized, and persons from other groups have not had that experience but are now beginning to be apprehensive, there has been a better understanding of the objectives and the means that we can use to achieve employment equity.
Mrs Witmer: Thank you very much for making your presentation today, Ms Westmoreland-Traoré. I would say at the outset that our party is opposed to Bill 79. We are opposed to Bill 79 because we do believe in equal opportunity and we believe very strongly that unfortunately this employment equity policy is aimed at achieving equality of outcome and it is attempting to legislate the makeup of the workforce. As you know, it's going to be enforced and there's going to be an administrative monitoring procedure in place to do that.
We're concerned that distinctions which employers have been prohibited from making under the Ontario Human Rights Code, such as race, are now going to become distinctions which employers are required to make for the purpose of achieving employment equity goals. We believe very strongly that the focus of government should be to create an environment where there is equality of opportunity, and unfortunately we just don't see this happening. In fact, it's unfortunate, but I have to tell you that in recent years in this province I see a preoccupation with people looking at individuals differently because of their race and their gender. There's a preoccupation, and I think it's most unfortunate, because we're no longer all Ontarians: We're judged on the basis of our sex and our race, not so much our ability or our disability, but I really think there is too much focus on the other issues.
It's apparent in the preamble, and I'm very concerned about the preamble because I think it could have eliminated some of the concerns. The preamble states that the "people of Ontario recognize that eliminating discrimination in employment...." That's the part that I have a problem with. I believe if the government had not dealt exclusively with discrimination over and over again but was willing to also acknowledge that this underrepresentation in some respects is due to the historical and the social and the demographic factors as well -- I know there was some acknowledgement, but there's this overpreoccupation with discrimination. I think we all know that because of other things, simply because of changing immigration patterns, which means that we now have a different racial makeup in our communities, as well as the pre-existing workforce that we had -- let's face it: people such as my parents, if you had a mother, your mother usually stayed at home. These are all things that have influenced the makeup of the workforce in the past.
Certainly I think the biggest barriers to the four designated groups are education and training. I'm pleased to see, for example, that the University of Western Ontario now is encouraging, for example, the aboriginal community to become participants. I personally believe that's where our focus needs to be. We need to be providing equal opportunity, and I don't think we've done it. I wish we wouldn't focus so much on discrimination. People are feeling uncomfortable constantly.
I guess I'd like your reaction to that preamble. Why was it not more positive? Why do we always focus on the discrimination rather than recognizing there are the historical, there are the social and there are the demographic factors as well that have contributed to the underrepresentation of the four designated groups in the workforce?
Ms Westmoreland-Traoré: I appreciate your comments, Mrs Witmer, because I do know that employment equity aims to bring about fairness for all workers, employees, in Ontario, and the legislation sets out a process whereby that is to be achieved. At the same time, I think that process will be more successful to the extent that it's understood and that the objectives are shared.
I do think the amendments to the preamble were to include some of the comments and observations that you've made. I noted when I was quoting, and I selected parts of the preamble deliberately, that they mentioned the provision of opportunity for the people in these groups to fulfil their potential in employment and to contribute in the workplaces, and that this will benefit all of the people of Ontario. So the question of the denial of opportunity has a double face. It is a denial for the individuals and the individual in that group, but it's also a denial for society in general. I think we're beginning now to recognize and realize more the burden, the costs, the loss to the general society from some of the denial and marginalization that has taken place.
You asked me what my opinion was. I would just like to mention to you that I understand the recommendations, the position of many people in designated groups. As I was listening to you, you mentioned that in the past, many mothers stayed home. I would just like to state that in my family, mothers didn't stay home. Mothers were required to work, and mothers were required to work as domestics. They were not given the liberty of working in the position of their choice. I know that in my family, and this may be unusual, my grandmother was a teacher and my grandfather was also a teacher, but when both my grandmother and my mother came to Canada, they were forced to work as domestics despite their qualifications. So I think sometimes we have a general approach to what was the tradition and what were the realities in the society and it wasn't universally shared.
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I know that a long tradition in the protection of human rights has been to prohibit the consideration of certain characteristics that are fixed at the time of birth. It can be race, it can be gender, it can be in some instances disability. Because of the evolution of the concept of equality as it is recognized in international conventions as well as our own Ontario Human Rights Code, special programs are permitted, and these special programs are designed to take into account, to identify and to eliminate the barriers, to put special measures for persons who are designated on the grounds of these characteristics.
This is because experience has shown that, true, we would like not to take these physical characteristics fixed at birth into consideration, but the fact is that they are taken into consideration. That is why it is not fortuitous that we have the type of economic profiles and labour market profiles that we have.
While I agree with you that we need to look more to the objectives and understand the objectives and the positive aspect of the objectives and the fact that we are looking for fairness for all in the workplace, at the same time I believe we do have to take proactive measures in order to achieve this.
Mrs Witmer: It may interest you to know, Ms Westmoreland-Traoré, that you and I do share something in common. Although I said to you that most people of my mother's generation did stay at home, I can also tell you, from the time that our family landed on the shores of this country, my mother did exactly what yours did for 30 years. She worked as a domestic and she was always embarrassed to share that information with the family that she had left behind in Europe, because it was rather a humiliating experience, but it was the only way she could earn money to support the family. So I'm aware of the hardships.
I think part of the problem that people like my mother and my father faced was the fact that they were handicapped as far as their language skills were concerned. I think that is still a large part of why people sometimes are not able to enter the job market in the area they'd like to go into, simply because we don't provide them with the language training.
I think of immigrants who come into my own office who feel they've been discriminated against. Oftentimes it's because they don't have the oral or the written skills to communicate effectively and do the job. I guess I'd like your comments as to what the government can do to ensure that people coming to this country do have those skills. I don't think we do the best job available that we can at the present time.
Ms Westmoreland-Traoré: In response to the last part of your question, I think again that I would be remiss, because I know this is an area of vast policy development, discussion, negotiation and I think it is a very important subject for the continued development of our country.
On the preliminary remarks that you made, I think exchange does help us and I'm pleased that you shared the experience of your family with me. I understand more now what you're saying. I will say that the discrimination experienced by my parents was on the basis of race. There was no other reasonable requirement, bona fide or other. This was not something restricted to my family. It was for many others. There was no linguistic impediment, there was no diploma missing, there was experience and so forth. So I mention this to you. I know that you can find documentation on the continuing presence of race as a marginalizing factor.
I do know that for persons of other than British or francophone and sometimes European descent, there has been discrimination in Canada. There have been studies as to the nature, extent and pattern of that discrimination. As a result of those studies, it has been identified that race is a factor in our society which has had a historic and a continuing negative effect on the opportunity of members in our community.
Mrs Witmer: And it will always be there.
I guess on another note, when do you see the employment equity legislation being proclaimed? I'm getting a lot of questions as to when it will become effective.
Ms Westmoreland-Traoré: My executive director has accompanied me. He may be the person to answer this question.
Mr Kumar Singh: There is lots of speculation in this regard.
Mrs Witmer: That's right. I've heard June 1994.
Mr Singh: Perhaps you should look on the government bench. Perhaps they will be able to give us a better understanding. We heard April 1. We also heard the minister, Elaine Ziemba, make a statement that June 1 is not unreasonable.
Mrs Witmer: That's the latest one I heard.
Mr Singh: Yes. That's the latest that we've got.
Mrs Witmer: I appreciate that. What about the Employment Equity Tribunal? It will be an adjudication body. Who will be able to bring the complaints to that body? How is that going to work? What's the process?
Ms Westmoreland-Traoré: Again, I understand my role to be at this point to prepare for the establishment of the Employment Equity Commission. The policy and decisions concerning the Employment Equity Tribunal are being developed at another level, in another section, if you wish, of the Ministry of Citizenship, because of the arm's-length relationship which must necessarily exist between the future commission and the future tribunal. So I think there may be a more appropriate person to answer that.
Mrs Witmer: You've had no involvement in that particular tribunal?
Ms Westmoreland-Traoré: No. It was felt that it would be inappropriate, and I agree at this point, for the office of the commissioner to be involved in that, just for what may be the perception and what persons have a right to expect, that the processes will be entirely credible and that there will be a real protection for both parties.
Mrs Witmer: Are you involved in the regulations defining the subgroups?
Ms Westmoreland-Traoré: I'm not involved in defining the subgroups. We make recommendations to the Minister of Citizenship and those recommendations are then used by the minister and other policy units and authorities within government to make decisions.
Mrs Witmer: Are those going to be put in place at the same time as the proclamation comes into effect?
Ms Westmoreland-Traoré: I understand yes, the government intends for the regulations to be present. This is one of the reasons why the bill has not yet been proclaimed, as well as the other assistive materials that are being developed.
Mrs Witmer: There's been some suggestion that we could have the Employment Equity Commission established, but then as far as dealing with the complaints, we could use the Ontario Human Rights Commission to funnel the complaints through that particular body. Have you given any thought to that proposal at all, as opposed to setting up a separate adjudication body, the tribunal?
Ms Westmoreland-Traoré: I believe there has been serious consideration given to this question of the effective functioning of the tribunal, but again, I think this is a question that could be appropriately answered by other parties.
Mrs Witmer: By the government.
Ms Westmoreland-Traoré: Yes.
Mrs Witmer: I hear you saying you've been primarily involved in the work of the commission but you haven't necessarily been involved with the other bits and pieces surrounding the employment equity legislation.
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Ms Westmoreland-Traoré: That's correct. Public education, preparing for the setup of the commission, and we have given advice to the government on certain policy issues.
Mr Allan K. McLean (Simcoe East): I would have a final question: How many are in your office staff now?
Ms Westmoreland-Traoré: How many persons are in my office staff? Four?
Mr Singh: We have a total of 38 people.
Mr McLean: Could you give me the breakdown on the types of people that you have, of the groups that are represented?
Mr Singh: First of all, we've got 11 permanent staff, about seven seconded staff from other ministries and the remainder are unclassified staff or temporary agencies. On the question of breakdown by subgroup, I do not have that information at this time.
Mr McLean: You have four groups identified in your brief: aboriginal, women, minorities and disabled. How many of those are on staff?
Mr Singh: I know we have representation from all these groups, but in terms of actual numbers, I don't have that information available at this point.
Mr McLean: Eighty-three per cent would be women?
Mr Singh: Possibly, but women right across the other designated groups.
Mr McLean: Thank you. I have no further questions at this time. In fact, I'd like to get into some deeper ones.
The Chair: All right. Ms Witmer.
Mrs Witmer: Are we not allowing time for the government?
The Chair: Well, we're doing 23-minute rotations.
Mrs Witmer: I thought you were going to designate five minutes.
The Chair: You have five minutes left.
Mr Rosario Marchese (Fort York): The government members are in effect giving up their time, the way the Chair has structured.
The Chair: No.
Mrs Witmer: I just wanted to be fair. I thought the commissioner was leaving at a quarter to four.
Mr Marchese: They should continue, Madam Chair.
Mrs Witmer: All right, if you don't have questions, then --
Mr Marchese: We have questions, but we'd rather give the time to you to ask yours.
Mrs Witmer: What about the survey that the employer community is going to be put in a position of carrying out? There's a lot of concern about the fact that people might not identify themselves as they should. At the present time there's no responsibility on the part of the employee to do that. They can be encouraged, obviously. There's the danger that the survey might not adequately represent the designated groups accurately. Have you looked at anything that you can do besides education?
Ms Westmoreland-Traoré: I believe that we do expect the principle of self-identification to be respected. It is set forth in the legislation, and the regulations will probably be consistent with this. However, the regulations to my knowledge have not yet been completed.
I also know that in the work in preparing the guidelines, the question of the effective ways of going about the administration of the workforce survey will be presented, best practices will be presented to employers, and we have had some very instructive information from employer communities and their experience. For instance, the banking community has given statistics of response, rate of response.
Mrs Witmer: Yes. I've seen those.
Ms Westmoreland-Traoré: It's very high, 95%, 96%; OPS 95%. So we know that it is possible, and the most determining factor is the effective communication.
Mrs Witmer: I know certainly I've been contacted by some people who obviously do have some objections to the legislation, and it's in some of the workforces where you have a high number of white males. There's the inclination that perhaps they may not identify themselves correctly. So obviously there will be problems and those problems will have to be resolved.
Ms Westmoreland-Traoré: I think there is something rather unique, well, something that is built into the legislation, which is the joint development and joint administration of the programs. So where you have a workforce survey that is being managed jointly by union and managers, or managers in consultation with employees, I think the context is going to be very different.
I know that in the past there have been incidents of misuse of the workforce survey. I believe the examples are also there that when the union was a part of the process and the union agreed to the process and the union was a part of the determination and so forth, the results of the workforce survey were much more accurate.
Mrs Witmer: Just one point. I hope you will take into consideration what I have said, because I do believe it's important that we don't focus on attempting to legislate equality of outcome. I believe very strongly in equality of opportunity, and I think it's absolutely imperative that the government assume some responsibility for ensuring that people do have equal opportunity and that they not dump this legislation on the backs of the employers. It is an expensive -- another expensive -- cost on top of all the other costs of doing business in this province that we have to take into consideration. It's like pay equity. Jobs were lost. It's like the minimum wage increase. Jobs were lost. I think we really have to stop focusing on discrimination in talking about equal opportunity. I'd like to see us be much more positive, rather than continuing to blame people.
Ms Westmoreland-Traoré: Can I just say, if you wish a response -- I realize it was not all a question, and as I said, I respect your position and your opinions -- I think we have been trying in our educational program to communicate that the objective of the legislation is to remove barriers, is to achieve greater representativity of the community in a planned process, and at the same time the standard for compliance is, has the employer used all reasonable efforts? So it's not a question of, once goals have been set, has the employer reached or not reached those goals, but it is a question of, has the employer used all reasonable efforts? I think to some extent this meets a part of your concern, but indeed there is a perception, which we are working to overcome, that this legislation is a quota-driven legislation.
The other question is that the government and the office of the commissioner are preparing materials so this process that employers will be required to carry out jointly will be a process supported by certain materials and so employers will have the option of managing this process themselves with the materials that are available to them, including the data, including some of the software, when it is available, and so this process will be a process over a certain period of time, which will allow them to perform and to achieve their objectives without being unnecessarily burdened.
As I mentioned in my initial presentation, I do think the benefits of employment equity far outweigh the costs. Sometimes employment equity is made to pay the price of an economic recession, which at this point is practically worldwide. In talking to different audiences, I do have to exchange so the concern of people can be properly distributed on the different difficulties we are facing in our society.
Mr Marchese: There are only a few moments, and I respect the fact that you obviously have another commitment. I will make a few comments and leave you with a statement to reflect on as opposed to a question.
I wish I could believe in this idyllic world that Ms Witmer describes, because when she says we are preoccupied with issues of race and issues of colour, perhaps gender and all the other issues around which there is so much discrimination, and that's why the Human Rights Commission is dealing with all of these issues, the fact of the matter is that discrimination is there. It isn't disappearing on its own. It hasn't disappeared. It will not disappear by and of itself. What it means is that governments and people all over have to make a strong commitment to eliminate discrimination wherever it exists. The fact that there is evidence that this is so means that we as governments and we as politicians of all stripes need to act on that. I wish I could believe that we had equality of opportunity. The fact of the matter is that we don't. That's why we speak of equality of outcome, in order to arrive at some fairness and some equality.
I wanted to make that statement. I know there's so much more that can be said with respect to that, but I would leave you with a comment to reflect on, and that is, the Pay Equity Commission and the Human Rights Commission exist and all these commissions are there. My hope is that, based on their experiences, you would be able to take all of that into account and create a commission that will be the most effective it can be in order to be able to do this great job of dealing with systemic changes that many of us support, including Mr Curling, who supports systemic changes and speaks about that greatly. I often wish that in stating those remarks, his own government would reflect it on those systemic changes.
Mr Curling: We do that now.
Mr Marchese: Of course, when you have another opportunity again. But I would leave you with that statement, Ms Juanita Westmoreland-Traoré, and I hope you will be able to effectively create a commission that you want and that we want.
The Chair: Okay, now we have to see what the wishes of the committee are in terms of rescheduling the commissioner. If it is the wish of the committee to have the commissioner back, 10 o'clock on Thursday morning would work, because we could do an hour then and then do the report-writing, starting at 11.
Mr Curling: Yes, 10 is fine.
Ms Westmoreland-Traoré: If you don't mind, I need to consult.
The Chair: The writing is only a direction to prepare the draft, so it wouldn't take very long. It's only one agency.
Ms Westmoreland-Traoré: I will have to consult my agenda. Perhaps I can communicate with the Chairperson or with the clerk to inform you.
The Chair: All right. Thank you. If you would call the clerk's office and let us know. The difficulty is that we are only given certain days and those days are assigned to us by the Legislature. Originally we asked you to come at 2, and the idea would be that you would have been here from 2 till 5. We're an hour and a half out of the time frame you would have been scheduled for, so we would appreciate your accommodating the committee.
Ms Westmoreland-Traoré: I appreciate your indulgence and I shall communicate with the clerk before the end of the day.
The Chair: All right. Thank you. Thank you for your appearance today and we'll look forward to seeing you on Thursday at 10.
Mr McLean: I appreciate Rosario's speech.
Mr Curling: His lecture.
The Chair: Is there any other business for the committee this afternoon? If not, then the committee will be adjourned until 10 o'clock tomorrow.
The committee adjourned at 1555.