Committing to anti-racism: Creating special programs
Thursday, August 06, 2020 @ 1:57 PM | By William Goldbloom
These positive steps to combat racism inevitably exclude certain people from jobs or programs. So what happens when those who are excluded seek legal recourse?
Consider Miller v. Union of BC Performers  B.C.H.R.T.D. No. 133, a recent case from the B.C. Human Rights Tribunal, wherein the complainant, a member of the Union of B.C. Performers, decided not to apply for a position in one of the union’s writing workshops because the workshop’s advertisement said, “Preference will be given to Indigenous, LGBTQ+ and diverse members.”
The complainant, a heterosexual cisgender woman with Middle-Eastern ancestry who identified as white, claimed that the application process for this workshop was discriminatory. She argued that the workshop’s advertisement implied that applications from men of certain racial minorities would be given preference over hers even though, as a woman in the film and television industry, she too had experienced discrimination.
The tribunal determined that the purpose of the workshop was to address the fact that diverse members of the union, including LGBTQ+ and Indigenous individuals, had historically been excluded from the film and television industry. The tribunal pointed out that as a white woman, the complainant had many advantages over individuals of racial minorities, including members of those minorities who are men. The tribunal found that preferential treatment for these individuals furthered, rather than detracted from, the purpose of human rights legislation. It dismissed the complaint.
This case should put organizations’ fears about the legality of setting hiring targets for certain groups to rest. Nevertheless, this case may be unsettling to some because it shows how these initiatives can instigate human rights complaints, even if they prove to be unsuccessful. One way to prevent these types of complaints is to apply to a provincial human rights commission, which can be done in British Columbia and Ontario, to designate a program intended to improve the conditions of specific disadvantaged individuals or groups as a “special program.” By doing so, the program is immunized from discrimination complaints.
In this case, the tribunal noted that the Union of B.C. Performers did not apply to the B.C. Human Rights Commission to designate its writing workshop as a “special program.” Although it was not necessary, obtaining such a designation could have communicated the purpose of the union’s workshop in a more meaningful way, and appeased those like the complainant who felt excluded from it. More importantly, it would have given the union an opportunity to create a robust, evidence-based framework to address a lack of diversity in its industry and target specific under-represented groups.
Creating a special program requires a series of steps:
First, examine internal data or data from your organization’s industry to see what groups are under-represented. When collecting this data, ensure that any internal stakeholders from under-represented groups are given a chance to participate and consult on the program.
Second, using the collected data, explain the problem that the program will address. If the data suggests that a particular group of people are under-represented, ensure that the program seeks to have greater representation from that group by addressing specific barriers to working at your organization. This allows the program to target these groups instead of merely demonstrating an interest in “diverse applicants,” as is often found on job postings.
Third, determine the eligibility criteria for the special program. For example, does the program target anyone from a specific group, or low-income members of that group? This decision will also affect what information is needed from applicants — are they required to self-declare their membership to a specific group, or must they provide more substantial information?
Finally, design a program evaluation process with specific timelines and benchmarks. A program is only worthwhile if it produces positive results or provides information to create a better one. If a program is designed to recruit minorities into a workforce, but the retention rate is lower for those individuals than non-minorities, the program needs to change to ensure it has a real impact.
If an organization uses this framework to design a program to enhance diversity, it may be wise to apply for the program to be designated as a “special program.” Not only would this prevent discrimination complaints in relation to these programs, it would demonstrate the organization’s willingness to go beyond a rushed anti-racism statement by implementing a tangible action to combat discrimination.
We are now in a world where if you know that there is a lack of diversity in your organization, whether by casual observation or a formal workplace assessment, you must take action. If you are concerned about the consequences of imposing diversity targets, consider going through the process of creating a special program with appropriate advice so you can convince your organization of what you already know — things need to change.
William Goldbloom, principal and founder of WG Resolutions is an experienced workplace investigator, trainer and mediator. He provides clients with effective and affordable resolutions to workplace conflict and misconduct.
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