Guidelines are not law. These guidelines reflect the Newfoundland and Labrador Human Rights Commission’s interpretation of the provisions of the Newfoundland and Labrador Human Rights Act 2010 (“the Act”) and various legal decisions from across Canada with respect to special programs. They are subject to decisions by Boards of Inquiry (called Tribunals in some provinces) and the Courts and should be read in conjunction with such decisions and with the specific language of the Act. Readers should be aware that as with all areas of law, legal obligations may evolve as new decisions emerge. If there is any conflict between these guidelines and the Act, the Act will prevail. Any questions regarding these guidelines should be directed to Commission staff. These guidelines should not be substituted for legal advice.
Introduction
The fundamental purpose of human rights legislation is to protect the rights of all persons to be treated as individuals, to be judged on their own merits and to have equality of opportunity. The Human Rights Act specifically states that the Commission shall forward the principle that every person is equal in dignity and rights. The Commission is also charged with the responsibility of educating the public and helping to eliminate discrimination in society.
Unfortunately, not all groups enjoy the equality of opportunity that is promoted in the Act. Disadvantages often continue in areas such an employment, housing and public services. These disadvantages are often based on or related to factors such as race, religion, sex, disability, age etc. The disadvantages have resulted from past discrimination and from stereotypes that surround particular groups. Some discrimination can result not only from intentional acts of discrimination, but also by seemingly neutral policies or practices throughout our society, particularly in the employment setting. In response to this, human rights legislation recognizes the need for “affirmative action” or Special Programs to help address these historical disadvantages.
Special programs are one way in which the Commission can help traditionally disadvantaged groups. The approval of such a program can help address specific needs of targeted groups and help reduce discrimination. To assist people who wish to apply to the Commission for approval of such a program, the Commission has developed these Guidelines on Special Programs.
The Act
Section 8 of the Act governs the implementation of Special Programs. These are programs which seek to eliminate barriers which have resulted in limited access to services and under-representation of certain groups in particular areas or levels of employment. Special Programs give preference or special consideration to disadvantaged groups or individuals in a group. Section 8 of the Act permits approval of these programs. It states:
8. (1) On the application of a person the commission may approve programs designed to prevent, reduce or eliminate disadvantages respecting services, facilities, accommodation or employment that may be or are suffered by a group of individuals where those disadvantages would be, or are based on or related to a prohibited ground of discrimination of members of that group.
(2) Before or after the commission approves a program, the commission may
- make inquiries concerning the program;
- vary the program;
- impose conditions on the program; or
- withdraw approval of the program as it thinks appropriate.
(3) Nothing done in accordance with a program approved under this section is a violation of this Act.
Based on this section, in order to qualify as a Special Program, the program must be designed to prevent, reduce or eliminate disadvantages faced by individuals that are based on one of the protected grounds in the Act, i.e. sex, disability, religion, race etc. the program must also deal with disadvantages respecting services, facilities, accommodation or employment.
One specific type of Special Program is an “affirmative action” plan or “employment equity” plan. These programs are intended to identify and eliminate systemic discrimination in an organization’s employment policies, practices and procedures and to remedy the effects of past or historical discrimination. Remedial measures, including preferential training and hiring of target group members, is one aspect of such programs. These measures are intended to ensure progress is achieved in correcting the under-representation or concentration of target groups in particular areas or levels.
Some examples of Special Programs are:
- Training programs targeted to women to help them better compete for positions in a male dominated workplace;
- Creating new positions for people with disabilities in a company which in the past had unintentionally created barriers in hiring, which resulted in under-representation of people with disabilities;
- The allocation of training spaces in programs in non-traditional trades for women;
- Special counseling services for groups facing a common disadvantage;
- Employment positions offered specifically for women to increase their representation in a certain field, i.e. policing.
Evaluation of the Program
Section 8 of the Act provides the Commission with the ability to approve these Special Programs and to impose conditions on their implementation. It is the responsibility of the Commission to ensure that when a program provides for differential treatment on the basis of a group factor, i.e. sex, disability, race, etc. that it is meeting the conditions required to be a Special Program under the Act. It is also important to ensure that any such program does not unreasonably restrict the rights of other persons who do not belong to the targeted group. The following factors will be considered by the Commission in determining whether or not to grant a Special Program or to place limitations on that program.
- Program Objective
The objective of the Special Program must be designed to prevent, reduce or eliminate disadvantaged conditions of the target group as determined by the information submitted to the Commission. The applicant must clearly set out the goal of the program. Where the purpose of the program is to increase numbers of a designated group, the goal should be expressed in numbers and percentages. Goals and timetables should also be identified. These goals should be based on the extent of the under-representation identified and on the availability of members of the target or protected groups who are qualified or can become qualified. - Definition of the Target Group
The target group must be clearly defined to ensure there is no ambiguity as to who is eligible for participation in the program. Broad definitions would likely extend the program to unintended groups or could result in restrictions on the rights or opportunities of others. For example, a service targeted to individuals with disabilities could potentially encompass both physical and mental disabilities, while the program may have been originally designed to assist only those with physical disabilities. It could in reality be ineffective in assisting those with mental disabilities if it was not created with that goal in mind. The intended target group must therefore be clearly specified. - Method of Identification
There must be a suitable method for determining eligibility to participate in the program. Identification may be voluntary i.e. self-declaration on an employment application, or mandatory i.e. presentation of an identification card indicating age etc. - Analysis of the Disadvantaged Status
In order to determine if the requested program will meet the goals of prevention, reduction or elimination of disadvantages of a target group, data will be required. The Commission will use this data to determine the nature and degree of the disadvantaged status of the target group. Data on socio-economic indicators such as unemployment rates, labour force participation rates, occupational representation, levels of income, education levels and other relevant data which demonstrates the disadvantages of the group, should be provided to the Commission. - Program Content
There must be a well designed plan to ensure the program is delivered and that the goal is attained. The program must be implemented in a manner which recognizes and maintains the dignity and self-respect of the participants or target groups. The applicant should provide information regarding how the program will be implemented. - Evaluation Procedures
Section 8 of the Act specifically authorizes the Commission to make inquiries of the program, vary or impose conditions on the program or withdraw its approval of the program. In order to ensure the objectives are met, it is important to have criteria which can measure the effectiveness of the program. Program reviews or evaluations should be conducted. The Commission can impose timelines on the operation of the program i.e. for a one year period. The Commission will also often require the applicant to report back to the Commission with respect to the effectiveness of the program and how it impacted the target group.
Special Programs can play an important part in achieving equality in society for those groups that have suffered and continue to suffer from discrimination. The Commission urges all members of society to become more familiar with the principles of the Act and their rights and responsibilities provided therein.