‘Special programs’ to support disadvantaged groups allowed by Human Rights Code
In Horne v. Public Service Alliance of Canada, 2024 HRTO 1788, the Ontario Human Rights Tribunal dismissed an application in which a male applicant claimed a job posting for a “qualified woman” was discriminatory.
The tribunal relied on s. 14 of Ontario’s Human Rights Code, which states that a “special program” designed to support disadvantaged groups is not discrimination under the code. In this case, the disadvantaged group was women.
The decision is a good reminder of this oft-forgotten, but potentially beneficial, section of the code that allows an employer to engage in action that might otherwise be prohibited (such as a hiring preference for an under-represented group), so long as the intended purpose of the distinction is to “relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity,” according to the code.
Job posting
The Public Service Alliance of Canada (PSAC) posted for the position of Grievance and Adjudication Officer. The posting stated as follows:
“As a result of the PSAC Workforce and Availability Analysis and in accordance with the PSAC Employment Equity Plan, the successful candidate for this appointment will be a qualified woman.” [emphasis in original]
The applicant – a male lawyer – applied to the position. He was not interviewed or hired for the position and he filed an application at the tribunal alleging discrimination on the basis of sex. The applicant argued that “nothing about the position justified hiring women only and that gender was irrelevant.”
In its defence, PSAC argued the decision to limit the position to women was consistent with its Employment Equity Plan and Gender Equity Task Force Report which sought to address under-representation of women in the workforce – it submitted unchallenged evidence of historic and continuing under-representation of women in the workforce. According to PSAC, this was a “special program” under s. 14(1) of the code, which states as follows:
“A right under Part I is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part I.”
Equity designation
PSAC also explained the process by which it decides whether to apply an equity designation to any position. When a position becomes vacant, PSAC conducts an equity analysis to identify gaps in workplace representation. The analysis considers data collected in the federal census and Canada’s labour market, and compares that with the results of PSAC’s internal employee self-identification intake. PSAC’s human resources personnel then review this data to identify gaps for various equity-seeking groups and, if gaps are identified, add an equity designation for the position. In this case, the equity assessment suggested the position should be designated for a qualified woman candidate.
The tribunal dismissed the applicant’s application, finding PSAC did not discriminate against him on the basis of sex or any other protected ground.
Relying on uncontradicted evidence before it, the tribunal found PSAC’s Equity Plan constituted a “special program” under s. 14(1) of the code, intended to address the fact that women are “underrepresented and disadvantaged in the workforce as compared to men, especially in professional and management roles such as the one at issue in this application.”
The applicant also alleged PSAC’s Self-Identification Questionnaire was discriminatory because it posed several questions about a number of code-protected characteristics, such as race, sexual orientation, and disability. The tribunal found the questionnaire was voluntary – not mandatory – and as such not discriminatory.
Assisting disadvantaged groups, persons not discrimination
As noted above, the decision is a good reminder of this section of the code that allows an employer to engage in action that might otherwise be prohibited, so long as the intended purpose of any distinction based on a protected ground (sex, gender, race, sexual orientation, disability) is to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity.
If you think this type of “special program” might apply in your workplace, consult legal counsel to ensure your policies and programs meet the necessary requirements, including having a defensible rationale supported by compelling evidence.
Connie Cheung is a lawyer at Sherrard Kuzz LLP, a management-side labour and employment law firm in Toronto.
