Affirmative Action in Women's Employment: Lessons from Canada
| Date | 01 March 2006 |
| DOI | http://doi.org/10.1111/j.1467-6478.2006.00346.x |
| Author | Nicole Busby |
| Published date | 01 March 2006 |
JOURNAL OF LAW AND SOCIETY
VOLUME 33, NUMBER 1, MARCH 2006
ISSN: 0263-323X, pp. 42±58
Affirmative Action in Women's Employment:
Lessons from Canada
Nicole Busby*
The use of affirmative action to increase women's representation in
employment is recognized under European Community law. The Euro-
pean Court of Justice has identified affirmative action permissible
under EC law and what constitutes reverse discrimination, deemed
incompatible with the equal treatment principle. Despite these develop-
ments, gendered occupational segregation ± vertical and horizontal ±
persists in all member states as evidenced by enduring pay gaps. It is
widely argued that we now need national measures which take
advantage of the appropriate framework and requisite political will
which exists at the European level. Faced with a similar challenge, the
Canadian government passed the Employment Equity Act 1986 which
places an obligation on federal employers to implement employment
equity (affirmative action) by proactive means. Although subject to
some criticism, there have been some improvements in women's
representation since its introduction. This article assesses what lessons
might be learned from Canada's experience.
INTRODUCTION
It has long been recognized that the mere legal prohibition of discrimination
will not lead to significant changes in the socio-economic position of
historically disadvantaged groups. In the employment context, this is
illustrated by the persistence of gendered pay gaps
1
despite the existence of
42
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* Department of Accounting, Finance and Law, University of Stirling,
Stirling FK9 4LA, Scotland
n.e.busby@stir.ac.uk
This paper is dedicated to the memories of Tom Busby, a proud Canadian, who encouraged
me to look at the jurisdiction of his birth, and Doug Vick who helped me to get started.
1 In Great Britain, full-time female workers earn 18 per cent less than their male
counterparts; this rises to 40 per cent for part-time workers ± Equal Opportunities
Commission, Facts about Men and Women in Great Britain (2005).
specific legislation targeted at eliminating inequalities in pay and associated
terms and conditions.
2
Differences in aggregate pay levels between the sexes
are not only attributable to the discriminatory acts of employers, but also
arise due to the complex interrelationship between supply and demand
factors. These lead to high levels of labour market segregation so that
women generally work in different occupations from men and at different
levels within occupational hierarchies. The reasons why individual members
of particular groups work in particular jobs are manifold and it is beyond the
scope of this article to provide any meaningful analysis of this issue.
However, it is widely accepted that many women experience a lack of free
choice and control over their career development due to barriers to both
employment a nd promotion .
3
In the United Ki ngdom, curren t anti-
discrimination measures are at their most effective in dealing with the less
favourable treatment of one sex compared with the other.
4
However, where
access to employment or career progression is thwarted by covert institu-
tional factors, it can often go undetected and untouched by the law. Even in
circumstances where the law might usefully be employed, many women are
effectively excluded from its provisions because they do not have a suitable
male comparator on whom to base a case. What is needed to ensure a more
effective operation of current equality law is the redistribution of men and
women across sectors of employment and occupations so that both sexes
work alongside each other.
The federal government of Canada has introduced legislation
5
intended to
assist the members of specific groups to overcome barriers to equality in
employment. The legislation is targeted at improving the distribution of
members of the designated groups across employment sectors, with the
ultimate aim:
To achieve equality in the workplace so that no person shall be denied
employment opportunities or benefits for reasons unrelated to their ability and
. . . to correct the conditions of disadvantage in employment experienced by
[members of the designated groups] by giving effect to the principle that
employment equity means more than treating persons in the same way but also
requires special measures and the accommodation of differences.
6
The `designated' groups are women, aboriginal peoples, persons with dis-
abilities, and members of visible minorities. The legislation applies manda-
tory affirmative action measures to employers in the federal jurisdiction. The
purpose of this article is to assess the effectiveness of those measures in
43
2 Such as the United Kingdom's Equal Pay Act 1975 and Sex Discrimination Act 1976
(SDA).
3 Based on factors such as access to education, training, and affordable childcare,
restrictive working practices, and employers' assumptions about female workers.
4 For example, the prohibition of direct discrimination by s. 1(1)(a) SDA.
5 Employment Equity Acts of 1986 and 1995 (EEA).
6 EEA 1995, id., s. 2.
ß2006 The Author. Journal Compilation ß2006 Cardiff University Law School
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