An International Comparison of the Racial Discrimination Act 1975 (2008) Chapter 7: Positive Duties
An International Comparison of the Racial Discrimination Act 1975
Chapter 7: Positive Duties
7.1 Positive Duties in the United Kingdom
7.1.1 The General Duty
7.1.2 Organisations Covered by the Duty
7.1.3 Specific Duties and Codes of Practice
7.1.4 Enforcement Mechanisms
7.2 Positive Duties in Canada
7.2.1 Organisations Covered by the Duty
7.2.2 Nature and Content of the Duty
7.2.3 Enforcement Mechanisms
7.2.4 Procurement Strategy for Aboriginal Businesses
7.3 Positive Duties in the United States
7.3.1 Organisations Covered by the Duty
7.3.2 Nature and Content of the Duty
7.3.3 Enforcement Mechanisms
7.4 Positive Duties in Australia
7.4.1 Organisations Covered by the Duty
7.4.2 Nature and Content of the Duty
7.4.3 Enforcement Mechanisms
In recent years, some jurisdictions have displayed a shift away from laws
which merely prohibit discrimination and racial vilification, moving towards
those which place a positive burden on particular sectors of society to promote
racial tolerance and equality. These new, positive duties have been described as
‘fourth generation’ race discrimination laws, which “move
beyond the fault-based model of existing discrimination law, where legal
liability only rests on those individuals who can be shown to have actively
discriminated, whether directly or indirectly, and the remedy is to compensate
the individual victim.”[1] In contrast, these new types of racial equality duties recognise racial
discrimination as a pervasive social problem, rather than an offence which can
be attributed to a single individual or group, and place the onus of redressing
inequality on those who have the greatest power to achieve social change, rather
than on those who are most at fault.
7.1 Positive Duties in the United Kingdom
In 1999, the Lawrence Report was released in the United Kingdom in
response to the failed police investigation into the racially motivated murder
of Stephen Lawrence.[2] The report
found that a culture of institutional racism was present in the Metropolitan
Police Force, and acknowledged the failure of existing race discrimination laws
to eliminate systemic racism from British public
institutions.[3] In response, the
British Government instituted a wide ranging reform of the Race Relations
Act.[4] Laws prohibiting racial
discrimination, which had previously applied to many public authorities only in
their capacity as employers, were extended to cover all public functions. More
significantly, a new positive obligation was imposed on a wide range of public
authorities to have ‘due regard’ to both “the need to
eliminate unlawful racial discrimination” and “the need to
promote equality of opportunity and good relations between persons of different
racial groups” when carrying out their public
functions.[5]
7.1.2 Organisations Covered by the Duty
The general duty, set out above, now applies to a long list of specific
government authorities and public institutions, including government ministers,
the National Health Service, the armed forces, police and educational
bodies.[6] It also applies to
authorities carrying out immigration and nationality functions, although such
authorities are only obliged to eliminate unlawful racial discrimination and
promote good relations, and are not required to promote equality of
opportunity.[7] One unfortunate
feature of this approach, which lists specific organisations covered by the
duty, is that it has required frequent and detailed amendments, and now lists
several hundred individual organisations in a long and complex schedule to the
Act. More recent laws extending this duty to sex and disability discrimination
have avoided this problem by relying upon a general definition of what
constitutes a ‘public authority’, based on whether the body
exercises functions of a public
nature.[8]
The British regime of positive duties is confined to public institutions and
those carrying out public functions, and does not impose duties upon the purely
private sector. Private organisations may, however, be affected to the extent to
which they do business with public authorities, since the general duty obliges
public authorities to have regard to racial equality issues when making
procurement decisions and working in partnership with private
enterprise.[9] In a 2002 survey
examining preliminary responses to the duty, the Commission for Racial Equality
noted that this was an area, which had received little attention in policy
development, and consequently “represents a significant lever for
change that is currently
underutilised.”[10]
7.1.3 Specific Duties and Codes of Practice
In addition to the general duty to have ‘due regard’ to
eliminating racial discrimination and promoting equality of opportunity and good
relations, the Secretary of State is also empowered to impose specific duties,
in consultation with the Commission for Equality and Human Rights on some
or all of the listed
authorities.[11] Some of the duties
that have so far been imposed include the obligation to publish a Racial
Equality Scheme, setting out publicly the means by which the organisation
intends to comply with its general duties, and the obligation to collect data
and monitor the racial background of staff, applicants for employment and
recipients of training.[12] Educational establishments are also subject to specific duties regarding
monitoring the attainment levels of pupils and the impact of policies on staff
and students of different racial
groups.[13]
Further guidance for public authorities is provided by statutory codes of
practice prepared by the Commission and approved by
Parliament.[14] The current code
sets out in detail the steps which public authorities need to take in order to
meet the general and specific duties, including the need to identify and
prioritise relevant functions, assess their impact on equality and race
relations and make appropriate changes where
required.[15] While a failure to
comply with the code is not necessarily a breach of a statutory duty, the code
of practice is admissible as evidence in court, and will be taken into account
in any legal proceedings.[16]
The emphasis of both the general and specific duties is on proactively
removing barriers to participation and policies or practices which adversely
affect particular racial groups. Public authorities have a duty to take positive
steps to eliminate unlawful discrimination, rather than passively responding to
complaints and legal challenges, as well as an obligation to promote
‘equality of opportunity’, which goes beyond the duty not to
unlawfully discriminate. At the same time, the duty to promote ‘equality
of opportunity’ need not equate to a duty to achieve substantive racial
equality. The code of practice emphasises the need to avoid policies which,
while falling short of unlawful discrimination, adversely affect equality of
opportunity or race relations, but notes that only a limited range of
‘positive’ measures (such as targeted training and recruitment) are
permissible under U.K. law in order to redress persistent racial
imbalance.[17] This restriction,
which is described above (Chapter 5) is in marked contrast to the Canadian
approach, which will be discussed further below.
A crucial feature of the new British regime is that it puts in place
enforcement mechanisms to ensure that both the general and specific positive
duties are implemented, transforming them from aspirational statements into
enforceable legal obligations.
The general duty may be enforced by either the Commission or an affected
individual, either of whom may seek judicial review of the actions (or inaction)
of a government authority.[18] While
initially assumed to be quite a weak duty, recent cases such as Secretary of
State for Defence v Elias[19] have demonstrated that “the duty contained in s 71 (is) a salutary
requirement in default of which public law decisions (can) be successfully
judicially reviewed.”[20] In Elias, the court held that “(i)t is the clear purpose of
section 71 to require public bodies to whom that provision applies to give
advance consideration to issues of race discrimination before making any policy
decision that may be affected by
them”.[21] The failure of
the department to give any consideration at all to the potential discriminatory
impact of its policies meant that it was clearly in breach of this duty, and
made it much more difficult for it to defend its indirectly discriminatory
policy on the grounds of
necessity.[22] As Burnham notes,
however, it remains unclear to what extent courts will be willing to find a
breach of the general duty in cases where an agency has given superficial
‘regard’ to the impact of its policies on racial inequality, but
otherwise failed to take any appropriate action to minimise or avoid negative
effects.[23]
In contrast to the general duty, specific duties are only enforceable by
the Commission.[24] Where an
authority is found by the Commission to be in breach of one of its specific
duties, the Commission has the power to issue a compliance notice requiring the
organisation concerned to fulfil its obligations, or to provide information in
order to demonstrate that the duties have been complied
with.[25] Where the other party
fails to respond, the Commission may go before the court to obtain an order
forcing the authority to comply.[26] These enforcement measures are lengthy and resource intensive, and remain steps
of final resort after cooperative attempts to assist public authorities to meet
their responsibilities have been unsuccessful, but they provide an ultimate
legal sanction with which to ensure that compliance is compulsory for all the
agencies concerned.
7.2 Positive Duties in Canada
In Canada, the concept of a positive duty to promote equality dates back to
the first Employment Equity Act of 1986, which imposed certain positive
obligations upon federally regulated private
employers.[27] This Act was replaced
in 1995 by the current Employment Equity Act, which extended the duty to
include the federal public service, and instituted a more effective system of
monitoring and enforcement.[28]
7.2.1 Organisations and Functions Covered by the Duty
The scope of the Canadian Employment Equity Act is both broader and
narrower than the equivalent U.K. legislation. It is broader because, unlike the
British legislation, it applies to both public and private organisations. In
addition to the Federal Public Service and other large public sector employers,
the Canadian legislation also applies to all private organisations with more
than 100 employees that operate in federally regulated industries such as
banking, transportation and communications. In addition, the Federal
Contractors Program for Employment Equity imposes equivalent obligations on
all organisations with more than 100 employees who bid on or receive federal
contracts valued at $200,000 or
more.[29]
At the same time, the Canadian Act is considerably narrower in scope, since
it imposes positive duties only in the area of employment, unlike the British
legislation which applies to ‘all functions’ of public authorities,
including law enforcement, administration and service delivery. To some extent,
this approach may be problematic since it seeks to address racial inequality at
the relatively ‘late stage’ of employment outcomes, rather than
addressing factors, such as economic or social disadvantage and access to
education, which ultimately contribute to this disparity.
7.2.2 Nature and Content of the Duty
Unlike the British law, which focuses on the need to promote ‘equality
of opportunity’ and eliminate unlawful discrimination, the Canadian Employment Equity Act targets the more substantive goal of achieving “equality in the workplace” and explicitly acknowledges that “employment equity... also requires special measures and the
accommodation of
differences.”[30] Under
the Canadian legislation, employers must not only seek out and remove barriers
that are preventing women, those with disabilities and ‘visible
minorities’ from having equal access to employment, but must also
institute “such positive policies and practices... as will ensure that
persons in designated groups achieve a degree of representation in each
occupation group in the employer’s workforce that reflects their
representation in the Canadian workforce...” (or the relevant
workforce as defined by geographic location and level of
qualification).[31]
All employers covered by the Canadian legislation are required to prepare and
regularly review an employment equity plan. This plan must establish both short
and long term goals for increasing minority employment in areas in which they
are underrepresented, and set out positive plans and policies for achieving such
goals.[32] Such policies may include
some types of ‘positive discrimination’ which would be unlawful
under the U.K. regime, such as taking race into account as a factor when making
individual hiring or promotion decisions, as well as practices such as targeted
recruitment and training which would be permissible in both
jurisdictions.[33] Employers will
not be required, however, to create new positions, hire unqualified individuals
or take steps which involve ‘undue hardship’ in order to achieve
racial equality.[34]
Since 1996, the Canadian Human Rights Commission has been responsible
for monitoring and enforcing the Employment Equity Act. The Commission
receives copies of yearly reports submitted by each employer covered by the Act,
and has special powers to conduct compliance
audits.[35] Where an organisation is
found to be in breach of its obligations, the Commission will notify the
organisation concerned, and attempt to negotiate a written undertaking to take
measures to comply with the Act.[36] Where the employer refuses to voluntarily make such an undertaking, or fails to
fulfill the agreement, the Commission may issue a direction ordering the
organisation to take specific measures to remedy the non-compliance. Where the
issue is still in dispute, the Commission or the organisation concerned can take
the matter before the Employment Equity Review Tribunal, which can
confirm the direction, or make an alternative order, which will be enforceable
as an order of the Federal
Court.[37] Throughout the process,
the Commission’s primary goal is to work cooperatively with organisations
to assist them to achieve their obligations, with applications before the
Tribunal being used only as a means of last
resort.[38]
Private sector employers may also be subject to financial penalties under the
Employment Equity Act if they fail to provide information that is required in
the annual report, or provide information that they know to be false and
misleading. These penalties, which may amount to up to $50,000 for a continuing
violation, are issued by the Minister, and may be appealed to the Employment
Equity Review Tribunal.[39]
The Federal Contractors Program for Employment Equity is enforced
separately by Human Resources Development Canada-Labour. All
organisations with more than 100 employees who receive federal contracts worth
$200,000 or above must sign a ‘Certificate of Commitment’, agreeing
to be bound by obligations equivalent to those set out in the Employment
Equity Act. The HRDC-Labour conducts compliance audits of these contractors,
and may declare non-complying contractors ineligible for future federal
contracts.[40]
7.2.4 Procurement Strategy for Aboriginal Businesses
In addition to these positive duties targeting ‘visible
minorities’, federal agencies also have specific duties designed to
promote the economic participation of Indigenous Canadians. The Procurement
Strategy for Aboriginal Businesses is a response to a recognised
under-representation of Indigenous businesses amongst federal government
contractors. It creates a special category of federal contracts which are worth
more than $5,000 and involve the procurement of goods and services destined
primarily for the Aboriginal population. These contracts must, where practical,
be awarded to Aboriginal suppliers, defined as businesses where at least 51% of
the owners and a third of employees are Aboriginal
people.[41] In addition to these
kinds of ‘set-aside’ contracts, large government agencies (which
award over $1 million in federal contracts annually) must also set performance
objectives for increasing the overall proportion of contracts awarded to
Aboriginal suppliers, and promote initiatives such as joint ventures and
Aboriginal sub-contracting plans which provide avenues for Indigenous
participation in this area of the federal
economy.[42]
7.3 Positive Duties in the United States
7.3.1 Organisations Covered by the Duty
Positive duties in the United States stem from two separate sources. Title
VII of the Civil Rights Act of 1964 (as amended) applies to federal
public sector employers (such as executive agencies, military departments and
the United States Postal
Service).[43] At the same time, Executive Order 11246 requires all federal government contracts exceeding
$10,000 in value (individually or over a 12 month period) to contain an
affirmative action clause, thus placing a duty on federal contractors and
subcontractors to avoid discrimination and take affirmative action to ensure
equality of opportunity in
employment.[44]
7.3.2 Nature and Content of the Duty
Federal Government Agencies covered by the Civil Rights Act provisions
are required to put in place an ‘equal opportunity plan’ to promote
equality of opportunity for women, people with disabilities and minority groups.
As in Canada, this duty is limited to the field of employment, and does not
extend to other public functions.
Employment equity plans must be submitted annually for approval by the Equal Employment Opportunity
Commission.[45] The required
content of this plan is set out, partly in the Act itself, and partly in
regulations and guidelines which are produced by the
Commission.[46] Government agencies
are required to proactively prevent discrimination, and identify and remove
barriers to workplace diversity. Specifically, where self-monitoring reveals
that people of a particular group are being recruited at a rate of less than 80%
of their representation in the labour force, this is to be regarded as prima
facie evidence that the selection procedures involved are indirectly
discriminatory, and must be assessed to determine if alternative, less
discriminatory, processes are
available.[47]
All federal contractors with contracts exceeding $10,000 must accept certain
responsibilities regarding the elimination of discrimination and the promotion
of affirmative action in the workplace. Those employers with more than 50
employees, and who receive non-construction contracts to the value of $50,000 or
above, must also put in place a written Affirmative Action Program. Similarly to
the Employment Equity Plans described above, these programs require a process of
self-analysis of employment procedures, combined with good faith efforts to
avoid discrimination and remove barriers to employment for minority groups.
Where evidence of the continuing impact of past discrimination is identified,
they may also involve taking steps to counter this effect through hiring and
promotional ‘goals’ based on the labour market availability of
relevantly qualified minority
groups.[48]
As emphasised above in the chapter on special measures, there are strict
constitutional limitations on the types of ‘positive discrimination’
which may be carried out by the U.S. Government. Thus, while agencies and
contractors have an obligation to redress underrepresentation of minority
groups, they must do so through indirect means such as targeted recruitment
programs and the promotion of training opportunities, and cannot utilise fixed
quotas or racial preference in individual hiring
decisions.[49] There is still some
degree of doubt, however, as to whether even these indirect types of positive
measures can withstand the constitutional requirements of strict scrutiny if
they are ever subject to challenge in the Supreme
Court.[50]
The duties applicable to federal contractors are enforced by the Office of
Federal Contractors Compliance Program (OFCCP), which conducts compliance
evaluations either on its own initiative or in response to specific complaints.
Where the office finds that a contractor is not in compliance, they may bring an
administrative complaint against the employer before an administrative law
judge, with recourse on appeal to the Department of Labor’s Administrative
Review Board. A range of sanctions may be imposed for non-compliance with the
duty, including suspension or termination of the federal contract or debarment
from access to future contracting opportunities, as well as specific penalties
and compensation in cases where the breach amounts to unlawful
discrimination.[51]
In contrast, the enforcement mechanisms available under the Civil Rights
Act, applicable to federal government employers, are much less well
developed. Such agencies must make yearly reports to the Equal Employment
Opportunity Commission, which evaluates and assesses the programs put in place.
There are no specific penalties or enforcement mechanisms, however, for agencies
which fail to take positive measures as required by the Act, except where such a
failure amounts to unlawful
discrimination.[52] Instead, the
Commission must report any failure to implement an effective ‘equal
employment opportunity program’ to the President and congressional
committees, who then have executive discretion to respond as they see
fit.[53]
7.4 Positive Duties in Australia
While it would not be true to say that positive duties do not exist in
Australia, they are much more narrowly framed than those in other jurisdictions
(particularly in comparison to the United Kingdom and Canada) and, like the U.S. Civil Rights Act, rely primarily on executive discretion, rather than
enforcement through the judicial system or quasi-judicial administrative
tribunals.
7.4.1 Organisations Covered by the Duty
The two key pieces of federal legislation in the Australian context are the Public Service Act 1999 and the Equal Employment Opportunity
(Commonwealth Authorities) Act 1987 (The EEOCA Act). The former act
applies to the Federal public service, while the latter encompasses larger
organisations (with more than 40 employees) which have been created for a public
purpose under federal (or territory) legislation. They therefore apply to the
federal public sector, but do not extend to federal contractors or the private
sector.
7.4.2 Nature and Content of the Duty
As in the U.S. and Canada, the Australian legislation imposes positive duties
only in the area of employment. The EEOCA Act is also further restricted
by the fact that it applies only to ‘designated groups’. These
include Aboriginal and Torres Strait Islanders and first and second generation
migrants from non-English speaking countries, but do not apply more broadly to
racial and ethnic minorities. The Public Service Act historically
contained a similar requirement to prevent discrimination against
‘designated groups’, which was replaced in 1999 by a more general
requirement to ‘establish a workplace diversity program to assist in
giving effect to the APS
Values’.[54] The Public
Service Commissioner’s Directions, which set out in greater detail what
this, rather vague obligation entails, require agencies to ensure “measures are taken to eliminate any employment-related disadvantage...
on the basis of... race or
ethnicity”.[55] As the
most recent State of the Service Report demonstrates, however, public service
agencies continue to collect data and assess diversity programs on the narrower
category of first generation migrants, rather than focusing more broadly on race
and ethnicity.[56]
Both pieces of legislation require the agencies concerned to draw up
‘employment opportunity programs’ (under the EEOCA Act) or
‘workplace diversity programs’ (under the Public Service Act)
which set out the agency’s plan for eliminating discrimination and
promoting equality of
opportunity.[57] Strategies to
improve workplace diversity may (at the discretion of the agency involved)
involve a wide range of positive measures, including some, such as positions
restricted to Indigenous applicants and targeted scholarships, which would be
invalid under the U.S. and U.K. (but not the Canadian) legislation.
Under both the EEOCA Act and the Public Service Act, agencies
are required to produce annual reports which are publicly submitted before
parliament.[58] Reports produced
under the Public Service Act are scrutinised by the Public Service Commissioner,
who may also undertake inquiries into any breach of the Act. Ultimately,
however, the Commissioner can only make recommendations to the minister
concerned, and has no recourse to judicial or administrative penalties to
enforce compliance with the Act.[59] Similarly, while the Commissioner has the power to issue
‘Directions’, which are binding on both APS employees and agency
heads, these Directions cannot be used to create offences or impose
penalties.[60]
Authorities covered by the EEOCA Act are likewise not subject to any
threat of sanctions or judicial enforcement of their obligations under the Act.
The reports made by these organisations are assessed by the responsible
minister, who may make written recommendations or issue directions to an
authority which is failing to comply. The minister is also responsible for
tabling the authority’s report in parliament. Both Acts thus rely on the
effects of public and parliamentary scrutiny to place pressure on agencies to
comply with their obligations, along with the potential for direct executive
intervention by government ministers. They do not, however, provide for the kind
of judicial and administrative enforcement, or monitoring by independent human
rights bodies, which is a key feature of both the British and Canadian
schemes.
[1] Fredman S, ‘Equality
– A New Generation’ (2001) 30(2) Industrial Law Journal 145
at part D.
[2] Machpherson W, The Stephen Lawrence Inquiry: Report Of An Inquiry By Sir William Macpherson
Of Cluny Advised By Tom Cook, The Right Reverend Dr John Sentamu, Dr Richard
Stone (1999).
[3] For further
discussion of the impact of this report see Smyth M and Falk A, Addressing
Systemic Discrimination in the Public Sector (2003) at
33.
[4] Race Relations
(Amendment) Act 2000 (UK) c
34.
[5]Race Relations Act
1976 (UK) c 74 s 71.
[6]Race Relations Act 1976 (UK) c 74 Schedule
1A.
[7]Race Relations Act
1976 (UK) c 74 s 71A.
[8] See Sex Discrimination Act 1975 (UK) s 21A(2) and Disability
Discrimination Act 1995 (UK) c 50, s 21B(2), as noted in Pigott C,
‘Strands of Opportunity’ (2007) 157 New Law Journal 242.
[9] Commission for Racial
Equality, Statutory Code of Practice on the Duty to Promote Equality (2002)
http://www.cre.gov.uk/downloads/duty_code.pdf (accessed 28/9/07) at 2.9 - 2.13.
See also; Commission for Racial Equality, Public Authorities and Partnerships: A guide to the duty to promote race
equality (2004), http://www.cre.gov.uk/downloads/duty_partnership.pdf (accessed 28/9/07) and Commission for Racial Equality, Race Equality and
Public Procurement: A guide for public authorities and contractors (2003), http://www.cre.gov.uk/downloads/duty_proc_pa.pdf (accessed 28/9/07).
[10] Commission for Racial Equality, Towards Racial Equality: An evaluation of the
public duty to promote race equality and good race relations in England and
Wales (2002) at 6.
[11]Race Relations Act 1976 (UK) c 74, s
71(2).
[12]Race Relations Act
1976 (Statutory Duties) Order 2001 ss 2 and
5.
[13] Ibid s
3.
[14]Race Relations Act
1976 (UK) c 74, s 71C.
[15] Commission for Racial Equality, Statutory Code of Practice on the Duty to
Promote Equality (May 2002), http://www.cre.gov.uk/downloads/duty_code.pdf (accessed 28/9/07).
[16]Race
Relations Act 1976 (UK) c 74, s
71C(11).
[17] Commission for
Racial Equality, Statutory Code of Practice on the Duty to Promote Equality (May 2002), http://www.cre.gov.uk/downloads/duty_code.pdf (accessed 28/9/07) esp. 5.11 and
5.12.
[18] The Commission for
Racial Equality The Race Equality Duty: Compliance and Enforcement http://www.cre.gov.uk/duty/compliance.html (accessed 28/9/07).
[19] R (on
the application of Elias) v Secretary of State for Defence [2006] EWCA Civ
1293.
[20] Burnham U,
‘Public Law Update’ 15 New Law Journal 429 at para
4.
[21] Arden LJ, R (on the
application of Elias) v Secretary of State for Defence [2006] EWCA Civ 1293 at
para 274.
[22] Mummery LJ, R (on
the application of Elias) v Secretary of State for Defence [2006] EWCA Civ 1293
at para 133.
[23] Burnham U,
‘Public Law Update’ 15 New Law Journal 429 at para
13.
[24]Race Relations Act
1976 (UK) c 74, s
71E(4).
[25]Race Relations
Act 1976 (UK) c 74, s
71D.
[26]Race Relations Act
1976 (UK) c 74, ss 71D and
71E.
[27]Employment Equity
Act, SC 1995, c. 44. For more information on the historic context in which
this Act arose, see: Employment Equity Act Review: A Report to the Standing
Committee on Human Resources Development and the Status of Persons with
Disabilities (December 2001) chapter 2 http://www.hrsdc.gc.ca/en/lp/lo/lswe/we/review/report/main.shtml#1 (accessed 1/10/07).
[28]Employment Equity Act, SC 1995, c. 44.
[29] Treasury Board of
Canada Secretariat, Contracting Policy: Appendix D “The Federal
Contractors Program for Employment Equity” (July 1 2003)
http://www.tbs-sct.gc.ca/pubs_pol/dcgpubs/Contracting/contractingpol_d_e.asp (accessed 1/10/07).
See also the Employment Equity Act, SC 1995, c. 44
s 42(2), which specifies that the Minister is responsible for ensuring that the
Federal Contractors Employment Equity Program imposes requirements which are
equivalent to those imposed by the
Act.
[30]Employment Equity
Act, SC 1995, c. 44 s 2.
[31]Employment Equity Act, SC 1995, c. 44 s
5.
[32]Employment Equity
Act, SC 1995, c. 44 s
10.
[33] Note however that the Public Service Employment Act may in some cases require that hiring or
promotion be based solely on merit, without regard to other factors. See Employment Equity Act, SC 1995, c. 44 s 6(c) and Public Service
Employment Act 2003 c.
22.
[34]Employment Equity
Act, SC 1995, c. 44 s 6.
[35]Employment Equity Act, SC 1995, c. 44 s 21(7) and s
22.
[36]Employment Equity
Act, SC 1995, c. 44 s
25.
[37]Employment Equity
Act, SC 1995, c. 44 ss
30-31.
[38]Employment Equity
Act, SC 1995, c. 44 s
22(2).
[39]Employment Equity
Act, SC 1995, c. 44 ss
35-39.
[40] Treasury Board of
Canada Secretariat, Contracting Policy: Appendix D “The Federal
Contractors Program for Employment Equity” (July 1 2003)
http://www.tbs-sct.gc.ca/pubs_pol/dcgpubs/Contracting/contractingpol_d_e.asp (accessed 1/10/07).
[41] Treasury
Board of Canada, Secretariat, Procurement Strategy for Aboriginal Business:
Guidelines for Buyers/Government Officials (1997)
http://www.tbs-sct.gc.ca/Pubs_pol/dcgpubs/ContPolNotices/97-6_e.asp#prom (accessed 4/10/07).
[42] Indian
and Northern Affairs Canada, Promoting Aboriginal Economic
Development
http://www.ainc-inac.gc.ca/saea-psab/pub/polinf/ifps_e.html (accessed 4/10/07).
[43] 42 USC
§ 2000e-16. Covered organisations are listed in this section, and include;
military departments, executive agencies, United States Postal Service, federal
judiciary, Government of the district of Columbia, Smithsonian, Government
Printing Office, Government Accountability Office and the Library of Congress.
[44] Exec Order 11246 3 CFR
§ 339 (1964-5) as amended and implemented by 41 CFR 60-1 et seq.
See
also U.S. Department of Labor, Employment Law Guide (2007) at Chapter
G
http://www.dol.gov/compliance/guide/discrim.htm (accessed 3/10/07).
[45] 42 USC
§ 2000e-16(b)(1).
[46] See
legislative provisions at 42 USC § 2000e-16 (b); Exec Order 11478, 3 CFR
§ 803 (1966-1970); Regulations 29 CFR § 1614 et seq. and Equal
Employment Opportunity Commission Management Directive 715 (EEO MD-715), http://www.eeoc.gov/federal/eeomd715.html (accessed 3/10/07).
[47] 29 CFR
§ 1607.4.
[48] US Department
of Labor, Employment Law Guide (2007) at Chapter G, http://www.dol.gov/compliance/guide/discrim.htm (accessed 3/10/07).
[49] See, for
example, 41 CFR § 60-2.16 (regarding placement goals for federal
contractors), which state that: “Quotas are expressly forbidden” and
“Placement goals do not provide the contractor with a justification to
extend a preference to any individual, select an individual, or adversely affect
an individual’s employment status, on the basis of that person’s
race...”. Similar provisions appear in the regulations regarding federal
government employers, such as 29 CFR § 1614.601
(e).
[50] See especially the
discussion of caselaw in Millenson D, ‘Whither Affirmative Action: The
Future of EO 11246’ (1999) 29 University of Memphis Law Review 679
at 704-717 and Appel A N, Gray A L and Loy N ‘The 40th Anniversary of Title VII of the Civil Rights Act of 1964 Symposium: Affirmative
Action in the Workplace: Forty Years Later’ (2005) 22 Hofstra Labor
& Employment Law Journal 549 at
555-557.
[51] Exec Order 11246 3
CFR § 339 (1964-5) s
209.
[52] The only penalties
applicable are criminal sanctions for making willfully false statements in the
report to the Commission (29 CFR § 1602.8 and 18 USC § 1001) and civil
complaints mechanisms where unlawful discrimination has occurred (29 CFR §
1603).
[53] Equal Employment
Opportunity Commission Management Directive 715 (EEO MD-715), part C
“where annual reports or information otherwise obtained by EEOC suggest
that an agency is giving insufficient attention to its obligations under this
Directive, EEOC will inform the President and appropriate Congressional
committees.”
http://www.eeoc.gov/federal/eeomd715.html (accessed 3/10/07).
[54] Compare Public Service Act 1922 (Cth) s 7(1) and s 22B and Public Service Act
1999 (Cth) s 18.
[55] Australian Public Service Commission, Public Service Commissioner’s
Directions: Consolidated Version (1999) at 2.13
http://www.apsc.gov.au/publications/directionsConsolidated.htm (accessed 7/10/07).
[56] Australian Public Service Commission, State of the Service Report 2005-2006 (2006) at 113.
[57]Equal
Employment Opportunity (Commonwealth Authorities) Act 1987 (Cth) s 5 and Public Service Act 1999 (Cth) s
18.
[58] Australian Public
Service Commission, Public Service Commissioner’s Directions:
Consolidated Version (1999) s 3.5, Public Service Act 1999 (Cth) s 44
and Equal Employment Opportunity (Commonwealth Authorities) Act 1987 (Cth) s 9.
[59]Public Service
Act 1999 (Cth) s 41.
[60]Public Service Act 1999 (Cth) s 42.
