The Struggle for Equality in the Job Market Goes On: CHRC declines to enforce Supreme Court order against CN

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In 1984, in response to a complaint filed by Action travail des femmes (ATF), the Canadian Human Rights Tribunal (CHRT) ordered Canadian National Railways (CN) to put an end to its discriminatory practices against women in blue-collar positions. In 1987, in a stunning victory for women’s rights, the Supreme Court upheld this order.

Under its terms, CN must hire one woman for every four non-traditional positions until such time as “the desired objective of having 13% non-traditional positions filled by women is achieved.” The order mandates the Canadian Human Rights Commission (CHRC) to receive quarterly progress reports from CN during this period.

But on April 2, the CHRC notified ATF that given the “significant passage of time” and, in particular, a conflict of interest with respect to its obligation to audit CN under the terms of the Employment Equity Act (EEA), it is closing the file for once and for all.

Yet the 13% objective is far from having been from reached. Despite the 1988 order, women’s under representation in blue-collar positions at CN is as glaring as ever: their share of these positions has risen only one-tenth of a percentage point, from 2.4% in 1987 to 2.5% in 2000. At that rate, the 13% target will not be attained for another 1365 years!

Not only does the CHRC decision contravene the Supreme Court order, the allegation of a conflict of interest contradicts the Commission’s own recommendations in the context of the legislative review of the EEA. As it states on its website, “There would be little difficulty in integrating any Tribunal decision requiring remedial action into the context of a compliance audit.” Easy in theory, but impossible at CN?

Undeniably, CN’s grudging cooperation has often made the work of following up on the court order arduous. For example, in 1997, women candidates referred by ATF reported that CN uses a selection test closely resembling the Bennett Mechanical Comprehension Test. Given the prejudicial effect of the Bennett Test on women, and since it has not been validated, the order forbids the use of this test as well as any other mechanical aptitude test having similar effects. But in response to formal and repeated inquiries from the CHRC about these tests and other issues, CN blithely repeats the same laconic response: “CN assures that all selection tools are directly related to the job requirements.”

CN has now stopped producing quarterly reports. In fact, for several years now, these reports have left much to be desired in terms of their regularity and content as well as the accuracy of the data they contain. For example, to name but a few of the problems with the reports, ATF has received an annual report containing six photocopies of an incomplete list, no information on the changes to the status of certain women employees (information known since it concerns members of ATF), not to mention recruitment by CN’s hiring office in collaboration with ATF but not mentioned anywhere in the report. And while in 2001, in its last analysis, the CHRC timidly expressed the hope that CN would provide more information on its compliance with the order, today it has simply decided to close the file.

The CHRC’s decision amounts to sanctioning the flippant attitude displayed by CN management for the last several years. Without the support of a public institution like the CHRC, how are women supposed to ensure that an employer like CN will hire them to non-traditional positions and provide them with harassment-free work conditions? And what about the principle that no one is above the law, regardless of whether he or she is an ordinary citizen or represents a powerful corporation?

Part of the problem is that the Canadian Human Rights Act does not currently contain any mechanism enabling the parties to go back to the Tribunal for clarification or amendment of an order. So what will it take for ATF to keep up the campaign against CN’s discriminatory hiring system? Does the group have to go back to Square One and file yet another complaint? Unfortunately, since 1995, the CHRT no longer even has the power to issue a similar order (see CHRA, par. 54.1(2)). Should the CHRC be accused of contempt of court? Is this really the only recourse open to ATF at this point?

In 1999, in a brief submitted to the CHRA review committee, NAWL, ATF, and the Table Féministe called for amendments to the CHRC in order to remedy some of its shortcomings. For the time being, however, the review of the Act is at a standstill. The recent announcement by the new President of the CHRC, Mary Gusella, to the effect that the Commission will focus on mediation and prevention and will distance itself from a litigation-based model does not augur well for amendments to the CHRA in the near future.

If you want the Canadian Human Rights Commission to continue to respect the terms of the order and to require CN to do the same, write an e-mail to the president of the CHRC, Ms. Mary Gusella, at info.com@chrc-ccdp.ca. Tell her that:

• CN’s hiring system has been at the root of serious violations of women’s rights;
• women are not willing to wait another 1,365 years to achieve equality;
• while awaiting amendment of the CHRA so that the Tribunal can update the terms of the order, the CHRC must continue to oversee it.
  

Rachel Cox is a lawyer specializing in human rights and labour laws from Montreal, and is a member of NAWL.