Anti-Discrimination Law at Work Policy in Canada and Australia
I. INTRODUCTION
In an online news article, Elien (2009) reported that 14 percent of Canadians feel they have been discriminated against in the workplace during the past year. This is based on a survey conducted by Ipsos Reid, which included 50,000 interviews with workers from all over the globe during July and August, including 4,100 Canadian employees. This is the largest employee survey ever conducted until now and findings showed that the level of discrimination reported in Canadian workplaces is similar to that in the U.S. and Europe, but better than South American and Asian workplaces and that foreign employees (24 percent) and members of visible minority groups (21 percent) in Canada felt a higher percentage of discrimination. This news article shows that despite the existence of equal employment opportunities laws and programs, employment discrimination, in its many forms, have continued to plague Canadian businesses and that even at present, workplace discrimination endures in varying degrees.
On the other hand, another news article reported about gender workplace discrimination in Australia. The University of Melbourne conducted a survey on 165 women expecting their first child and working in different sectors and findings showed that these respondents felt varying kinds of discrimination, from overt remarks to not being promoted. Because of feelings of discrimination, these women felt more distressed and irritable. This article also indicates discrimination against gender and maternity condition and how it impacts the wellbeing of, not only women, but their children, as well. Apparently, for Canada and Australia, workplace discrimination continues to persist and damage workplace morale, and consequently, performance and organizational loyalty.
This research paper determines policy responses to employment discrimination in Canada and Australia, the impacts of these policy responses, and key characteristics of effective policy frameworks. It also compares the policy responses and their impacts on employment discrimination. This paper also wants to find out if policy practices may be a source of systemic discrimination and, as a result, they perpetuate its existence. The paper starts with the review of literature that identifies patterns of employment discrimination that emanates from structural foundation, empirical values, and organizational culture, and impacts of employment discrimination. It is followed by the methodology that details the data collection methods. The next section is the findings, which compares policy responses and impacts between Canada and Australia. The last two sections are the key characteristics of effective policy frameworks and conclusion.
II. REVIEW OF LITERATURE
A. Patterns of employment discrimination
This section defines the concepts of structural foundation, empirical values, and organizational culture and provides examples of workplace discrimination based on these definitions. It is considered that defining these concepts involve contradicting beliefs, because of the different viewpoints from which these concepts can be derived from.
1. Structural Foundation
Structural foundation can refer to shared experiences, based on categorical beliefs and attributes. Baldassarri and Bearman (2007) argued that people have conflicting categorical and attributes, which leads to differences in attitudes and behavior. This means that it is possible for organisations to say that they respect pluralism at work, and yet they display contradicting actions. Another journal article stressed that in order to incorporate pluralism in society, structural foundations must be based on acceptance of racial differences and similarities. This article defines structural foundations as institutional to the society and tends to have a more positive view of structural foundations. This paper uses structural foundation as referring to both the conflicting and positive conceptualization of structural foundations, because of the hope placed on policy making and civic action to address employment discrimination.
In Canada, human rights statutes and equal opportunities laws, which began with the 1986 Employment Equity Act, seek to eliminate workplace discrimination. Surveys and research studies, however, demonstrate the gap between employment equity policies and actual discrimination. The 1988 survey of Blakelyand Harvey at Ontario, with 50 per cent of the sample (29 of 58 organizations) coming from Metropolitan Toronto, showed a low level of commitment among employers to EE policy, especially where it pertained to minorities other than women. It gave the example 33.3 per cent of respondents reported having written policies on the recruitment and hiring of women, only 21.6 per cent had similar policies for visible minorities. Reitz (1988) insisted that case studies and surveys are not enough to determine the true level and nature of workplace discrimination, because of differences in understanding verbal statements. He argued for behavioural studies that can reveal discriminatory behaviours. For instance, he said that in Toronto, discrimination field trials could measure discrimination behavior and some were conducted by the Social Planning Council of Metropolitan Toronto (SPC) in cooperation with the Urban Alliance on Race Relations.
Results showed that discrimination does exist in Canada. Another article reinforces the existence of racial discrimination. In 1992, the National Capital Alliance on Race Relations (NCARR) filed a case against Health and Welfare Canada, before amendments were made in the Canadian Human Rights Act (CHRA) and the Employment Equity Act (EEA). This case showed the existence of systemic racial discrimination in Health and Welfare Canada, through public input of evidences. Thus, anti-discrimination laws did not sufficiently dismantle systemic racial discrimination prevailing in organisations like Health and Welfare Canada.
Other examples showed the weaknesses of Canadian policies on protecting citizens with disability from employment discrimination. Atkins (2006) reviewed judicial, tribunal and arbitration decisions in Canada regarding disability rights. He compared Canadian law and judicial, tribunal and arbitration decisions with American counterparts and concluded that the former is more universal in approach in defining disability, and yet disabled Canadians must bargain accessibility on their own, which produces widely unattainable social and physical Canadian opportunities. This article pointed out that access to housing, transportation, education and retail and public spaces remains a fundamental problem for disabled Canadians. This article stresses that structural foundations of the law on Canadian disability are also weak in providing equal opportunities for the disabled. The laws that are present cannot provide adequate protections for people with disability from discrimination at various dimensions in their lives.
Australia also shows cases of discrimination arising from structural foundations, even when anti-discrimination laws existed also since 1986, the same year that Canada passed its 1986 Employment Equity Act. An article analyzed the hindrances to active engagement of older Australian workers. One of the primary barriers to actively being engaged at work is the double standard on women to perform both work and caring duties. Caring for the family is one of the most common reasons that women leave paid work. The preponderance of individual workplace contracts (Australian Workplace Awards or AWAs) also reinforces ageism and work intensification practices, because workers have to individually bargain for their pay and work conditions with their employers, instead of bargaining jointly through the union. AWAs tend to disadvantage older workers as they individually compete with younger workers. This article demonstrates that structural foundations in the workplace can contradict the intentions of AWAs to empower workers individually. AWAs have been greatly criticized to have increased discrimination at work, because the shift to individual bargaining has not been a source of strength for Australian workers, who came from a historically collective industrial relations sector.
Another form of discrimination at work can be argued as emanating from issues of racial discrimination that has been tackled by Windle (2008). He has been concerned by the racialization of African youth in a series of media coverage. He cited the Melbourne tabloid Herald-Sun, which stresses racial conflicts in several violent incidents involving attacks on African teenagers and riot problems from the same racial group. The tabloid said
We are in the grip of a violence epidemic, fuelled by four persistent factors alcohol, groups of young males, illegal weapons and, increasingly, cultural differences involving immigrant youths (A stab in the darkness, 2007)
This statement shows how the media covers the African youth in a negative viewpoint, which resulted to racialising narrative events. Racial discrimination can be one of the reasons of high unemployment rates among African youth. Hence, these studies depicted that discrimination remains widespread in Canada and Australia, and that it intersected issues of race, gender, class, age, and even other dimensions of life.
2. Empirical Values
Empirical values can be defined in relation to empirical law. Empirical law can be defined as a positive general condition that occurrences of singular conditions of a certain category cause occurrences of singular conditions of another category. Information can have empirical values through the establishment of the empirico-causal relationship based on empirical law. Georgakopoulos (2005) stressed the importance of empirical research in determining empirical values. He indicated the importance of qualitative and quantitative research in proving conditions relevant to matters of the law. Several case studies and researches done on employment discrimination show the prevalent practices of discrimination in Canada. An empirical study of labour migration in Canada shows that the state favours high-skilled labour based on empirical studies of immigration and state management. This results to state-based discrimination, although the article argued that this discrimination is crucial to to overcome new fiscal and structural crises related to economic, social and demographic transitions.
Another empirical study showed that based on the research by the Canadian Council on Social Development (2000) that used both 1996 census data and panel data on post-secondary graduates from the National Graduate Survey, Canadian-born visible minorities are still less probable than foreign-born and Canadian-born whites to be in the top twenty per cent of the income distribution and it concluded that There is then a clear pattern of apparent disadvantage in the labour market for visible minority workers that is reflected both in patterns of employment and in earnings. Employment disadvantages, however, can also be rooted on fundamental systemic racial discrimination. Helly (2004) empirically analysed the rise in violence against Muslims after the September 11, 2001 attacks on American soil. Canadian Islamic Congress (CIC) statistics indicated a 1,600 percent increase in hate crimes against Muslim individuals or places between September 2001 and September 2002. These actions can indicate racial prejudice from fear and paranoia, which translates to workplace discrimination. Helly (2004) noted a study, wherein there were three categories of people who had difficulties finding jobs Blacks, people of Arabic origins and visible Muslims. These articles show that empirical values point out the pervasive discrimination in the workplace.
Australia also shows empirical values that depict workplace discrimination. One study explored three years of data to examine the incidence and patterns of gender discrimination at work. The study examined 9015 cases reported to Queensland Working Womens Service (QWWS) between 1st July 2001 and 30th June 2004, and it studied the frequency of reporting in each category of supposed discrimination (age, race, disability, sex, pregnancy, family responsibilities) and harassment (sexual or workplace harassment, also known as bullying). This study revealed that women experience common discrimination issues that revolve around their life cycle stages. Results showed
Younger women in the 18 to 25 year age bracket were significantly more likely to report sexual harassment and pregnancy discrimination, and significantly less likely to report workplace harassment. In contrast, older women over 45 were more likely to report age, race and disability discrimination and workplace bullying. Women in the 25 to 44 age group, consistent with the prime childbearing and rearing years, were over-represented in cases related to family responsibilities discrimination.
Young women can suffer more from sexualized and genderized discrimination, while older women commonly experience workplace bullying and the glass ceiling to employment opportunities. These figures demonstrated the overwhelming diversity that Australian female employees experience because of their gender and gender-related responsibilities. Kidd and Shannon (1996) also computed gender wage gap in Canada and Australia and findings showed that women earn lower than men in counterpart jobs.
3. Organizational Culture
Organizational culture can be defined as how reality is perceived (what is important), beliefs (how things are done around here), and norms of acceptable behavior (how we deal with issues) existing unquestioned and unchallenged This definition provides a more static understanding of organizational culture. Another definition of organizational culture asserts the inherent conflicts within and around it, and it defines organizational culture as primarily composed of a particular configuration of rules, enactment and resistance. This is one of the approaches to defining organizational culture that some feminist studies of gender discrimination pursue. Organizational culture provides a detailed understanding of workplace discrimination occurring for various issues, including gender. Wilson (2001) stated
Organizational culture is generally written about as if it were gender neutral . . . However the gendered nature of organizational culture is demonstrated daily by a multitude of differences and differentiations predicated on gender, for instance, job segregation, pay, promotion and status.
Organizational culture is not gender neutral, because it can also depict various gender conflicts, which can affect HR practices and attitudes.
Busby (2006) studied organizational culture and its impact on gender discrimination in Canada. Findings showed that gendered pay gaps persisted, despite the existence of multiple international and federal laws. There are organizations whose culture imbibed discriminatory practices against women, as several case studies showed.Some of these discriminatory actions intensified after the 911 attacks. These cases show discrimination that happens when employers or HR heads refuse to consider the resumes of people from Arab origin or of the Islamic faith under the pretext that, if hired, they will not take part in the life of the company, and that their habits are too distant from those considered Quebecois ones. Such discriminatory attitudes exemplify a kind of acculturation, which can be essentially discriminatory because it does not integrate cultures, but results to the domination of one culture over weaker cultures, in hegemonic terms.
Australian cases also showed discrimination arising from organizational culture. One journal article explored diverse manifestations of workplace racial discrimination. In Anti-discrimination Laws, Islamophobia, and Ethnicization, Bloul (2008) explored the inconsistencies between anti-discrimination laws and religious discrimination at work. Some examples mentioned are cases in New South Wales, such as the case of an IT worker who was threatened with discharge for praying, in his own time, at work and other cases of discrimination against Islamic practices at work. The courts have dismissed these cases as not supported by anti-discrimination laws. They stated The main objections have been that Islam covers different cultures, ethnicities, races, nationalities and so could not be defined as an ethno-religion. Bloul (2008) challenged the interpretation of racial and ethnic issues under Australian anti-discrimination laws. She asks Does it take into account the specific character of Muslim identity in Western countries where Muslims are brought to adopt a minority collective identity as Muslims These examples from Canada and Australia specify how organizational culture can also be prejudiced against diversity, instead of truly embracing pluralistic values and beliefs.
B. Impacts of employment discrimination
The impacts of employment discrimination are financial, psychological, and political in nature. Financial impacts are some of the most direct repercussions of employment discrimination. Gender pay inequity is one of the financial consequences of workplace discrimination and section 11 of the Canadian Human Rights Act aim to address the low pay that women earn from their jobs. Section 11 had two structural components it accepted job evaluation as the mechanism for measuring the value of jobs and it was complaint based. Section11, however, did not provide specific details on how to measure the value of jobs or how to compare them. The vagueness of the law made it possible to reinforce gender pay inequity.
In 1990, Bell and the Communication Energy and Paperworkers Union (CEPU) consented to creating the joint Pay Equity Committee, which broadened the following year to integrate the Canadian Telephone Employees Association (CTEA), which has members of 14,500 clerks, whom were women, in general. The study in 1992 showed that predominantly female-dominated jobs were remunerated at a much lower level than predominantly male jobs and which resulted to the case Canadian Telephone Employees Association v. Bell Canada (1997). This cased lagged for more than a decade, with the Liberal government unable to speedily protect workers. Bell also complained that the unions were already accountable because they already agreed to the discriminatory wages and that the joint committee could not prove a section 11 complaint, because it did not use the right methodology to assess equal pay for work of equal value. This case showed the conflict between economic efficiency and pay equity and that the government could not even use the same laws to protect women from gender pay inequity.
Discrimination also has psychological effects on the disadvantaged parties. These negative attitudes against those who are categorically called the others result to stigmatizations that delimit workplace opportunities. The introduction to this research also noted how pregnant women felt more stressed and irritable because of feeling employment discrimination. Other psychological impacts are feelings of insecurity and organizational disloyalty, because of the lack of perceived fairness in the workplace.
Political consequences refer to access to power. Because of discrimination, marginalized groups are less likely to access power in decision-making and are more likely to be discriminated in various aspects of their work. Anti-discrimination laws aim to equalize political power in organizations by empowering the disadvantaged sectors, although reality shows the common trade off between economic efficiency and anti-discrimination laws, and that in real life, there are still many cases of prejudice and discrimination at work.
METHODOLOGY
Data and information are retrieved from cases, legislation and studies on systemic discrimination in the workplace. Online books and articles are also used, where appropriate, to show latest and specific examples of employment discrimination. The cases, legislation and studies are obtained from the library and electronic databases, such as JSTOR, Emerald, ProQuest, LexisNexis and EBSCO.
IV. FINDINGS
This section compares policy responses and impacts between Australian and Canadian anti-discrimination laws.
A. Comparison
1. Policy responses of systemic discrimination issues
Since the 1960s, Canada already has human rights statutes that prevent employment discrimination. These human rights statutes provide human rights guidelines, while the Canadian Constitution and employment equity laws are provided at the federal level. Every jurisdiction in Canada (ten provinces) also has separate anti-discrimination laws statutes that ban and endeavour to eliminate employment discrimination on frequent prohibited grounds such as race, nationalethnic origin, colour, religion, age, sex, marital status, disability, sexual orientation, etc. The provisions of these statutes compel employers to embark on voluntary employment equity programmes for members of underprivileged groups that, according to Agocs (2002), include women of any race or ethnicity, visible or racial minorities (self-identified as black, Asian or South Asian), aboriginal peoples (Indians or members of First Nations, Metis and Inuit) and persons with disabilities.
Why should there be a need for anti-discrimination laws One of the main justifications is that Canada and Australia, as well as other developed countries are becoming increasingly diverse, and diversity issues in employment could no longer be overlooked, without creating chaos and promoting violence in society. In 1996, visible minorities made up 11.2 per cent of the Canadian population and are a growing percentage of the population in Canadas foremost cities. Women constitute more than 46 per cent of the labour force in Canada and are projected to be fifty per cent of the work force in the coming years. Furthermore, Canadas population and workforce continue to be more diverse From 1991 to 1996, 78 per cent of new entrants into Canada were from Asia, CentralSouth America the Caribbean and Africa, providing a multicultural mosaic. The report also added In the period 1971 to 1980, immigrants from these regions comprised 57 per cent of all new entrants into Canada. Because of this diverse population, Canadian federal and local governments passed diverse laws that support anti-discrimination at work.
Employment equity is supported by the Canadian Charter of Rights and Freedoms, under the Constitution Act of 1982 and the Federal Employment Equity Act enacted in 1986 and revised expansively in 1995. The Canadian Charters provisions are to be executed to all federal, provincial and municipal government agencies across Canada. Furthermore, the federal government has made the Contractors Programme, which is applied to all large and medium-sized provincially regulated employers who provide goods and services to federal government units. The Employment Equity Act and the Contractors Programme provide anti-discrimination policies for the four disadvantaged groups. The Federal Contractors Programme also includes more employers than the Employment Equity Act because it applies to all businesses with transactions with the government.
It will also be useful to explore further that Canada has constitutional pre-commitments to gender affirmative action, including that under the European Convention on Human Rights. Section 15 of the Canadian Charter, Canadas principal constitutional document handles gender equality and affirmative action, as well as individual rights and freedoms. It states Every individual is equal before the law and under the law and has the right to the equal protection and equal benefit of the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. Section 15 (2) states
Subsection (1) does not preclude any law, program or activity that has its object the amelioration of conditions of disadvantaged individuals or groups, including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
The Supreme Court of Canada has not yet made any decision that has been based on section 15(2), which ostensibly permits and encourages gender affirmative action programs. There have been some recent case that involved section 15 (1) and one non-Charter case, which promote a substantive notion of equality and illuminate ideas for future inquiries regarding gender affirmative action.
An article reviewed Canadian disability policy in relation to the workplace using model of mental illness. This article emphasized the diverse policy statements about employment. The authors stressed that the power to create disability policy, particularly for people with psychiatric disabilities, is not guided by people who do have authority regarding this disability. Instead, it is the jurisdiction which dictates anti-discrimination policies with people with psychiatric disabilities. Canadian Parliament and provincial legislatures have authority over employment and labour, as provided by the Constitution. The courts affirmed, however, that majority of the authority lies on the provincial jurisdictions, because they are derived from the property and civil rights section of the Constitution Act 1967. Entering into a contract has then become part of a civil right, and so all labour legislation, which imposes restrictions on employment contracts, must fall centrally within provincial jurisdiction. Due to the shared jurisdiction over employment, there are 14 different kinds of administrative structures managing industrial relations, employment conditions, occupational safety and health, and workers compensation. There is also no clear representation for people with psychiatric disabilities in any of these jurisdictions.
In Australia, federal legislative amendments were made in 1993-1994 to address gender equal pay. The legislative dedication to equal remuneration had not been included formerly in federal legislation as the Constitution successfully excluded the federal Parliament from establishing conditions of employment. These provisions were only included through the federal governments dependence on its external affairs powers and its status as signatory to a suite of international anti-discrimination conventions. Furthermore, the federal government created several forms of minimum entitlement provisions in the domains of minimum wages, termination of employment and parental leave, all which all relined on Australias signatory to several International Labour Organisation Conventions.
The international anti-discrimination policies included the following
1951 ILO Convention 100 Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, the United Nations Convention on the Elimination of all Forms of Discrimination against Women, the 1958 ILO Convention 111 Concerning Discrimination in Respect of Employment and Occupation and Articles 3 and 7 of the International Covenant on Economic, Social and Cultural Rights) and 1951 ILO Recommendation 90 Equal Remuneration Recommendation.
The detailed acknowledgement of ILO Convention 100 took place because the federal government used its external affairs powers to integrate the terms of the Convention in the legislation. These provisions supplied the Australian Industrial Relations Commission (AIRC) the authority to provide equal remuneration orders, successfully increases in pay so that the test of equal remuneration was attained. These provisions gave the terms of equal remuneration for work of equal value pertaining to the rates of remuneration established without discrimination based on sex.
Because of the inability of the 1993 federal legislative amendments to produce effective jurisprudence, state industrial jurisdictions initiated several actions. Five states pursued anti-discrimination policy reforms- New South Wales, Queensland, Tasmania, Western Australia and Victoria. New South Wales was the first state to conduct an inquiry, where the impetus for the Inquiry arose not only from the plateau in gender pay equity ratios but also the significance of the state system of industrial awards for women in paid work in that state (McCallum, 1998). Industrial tribunals of New South Wales, Queensland and Tasmania conducted inquiries on equal pay. The principles are different from the provisions in the federal Workplace Relations Act, because they implicitly reject the test of discrimination as the threshold for an equal remuneration claim. The principles employ a test of undervaluation as the basis of equal remuneration applications and there is no presumption that proper assessments have been conducted in previous assessments of the work at the subject of the application. There are also no requirements for comparison. These are the same problems of Canadian anti-discrimination policies for mental and psychiatric disability. The vagueness of terminologies and lack of specific guidelines provide space for employment discrimination to occur in Canada and Australia.
2. Impacts of policies on employment discrimination
This section answers the question Does the plurality of laws because of diverse jurisdictions provide complementing impacts on preventing and punishing employment discrimination One article showed that Canada may have less racial conflict, but not necessarily less racial discrimination. Reitz (1988) warned that there is a difference between laws that prohibit racial discrimination, and actual workplace racial conflict that leads to employment discrimination. In one study, field trials, including telephone applications by actors with different accents, and walk-in applications that were done by black and white actors with equivalent qualifications, showed similar results in the two countries. The British and Canadian studies showed that whites more often received positive responses to telephone applications than did non-whites. In Toronto, whites also obtained positive responses in 86.9 per cent of applications, whereas non-whites received positive responses in only 60.1 per cent of applications, a difference of 26.8 per cent. Walk-ins showed that racial discrimination persists, because by showing the colour of their skin and language accents, there is a greater tendency for them to not be considered for the position, even if non-whites have comparable qualification with white applicants.
People with disabilities and older people are also not widely better off after the enactment of anti-discrimination laws. Disabled Canadians must bargain accessibility on their own, resulting in a largely inaccessible social and physical Canadian environment. Having access to workplace opportunities is still a challenge for disabled Canadians. The Roeher Institute, which examines the impact of public policy on people with disabilities, states that people with disabilities in Canada have twice the unemployment rate of those without disabilities. In addition, disabled adults survive on incomes of CDN10,000 (approx. US8,900) or less annually. The institute also stresses that the poor employment rate of Canadians with disabilities are produced by several factors lack of accessible housing, transportation, inadequate training and education programs and ongoing discrimination in the workplace. The same problems also occur for people with psychiatric disabilities, because they also have problems finding and maintaining work. People ages 65 and above are also experiencing ageism. In Dickason v. University of Alberta (1992), the appellant is a tenured full professor at the University of Alberta, but she was forced to retire at the age of 65. She filed a complaint with the Alberta Human Rights Commission arguing that her forced retirement breached s. 7 of the Individuals Rights Protection Act by discriminating using the basis of her age. Section 11.1 of the Act states, that discrimination on a proscribed ground will be permitted, if the employer can demonstrate that the discrimination was reasonable and justifiable in the circumstances. The board of inquiry decided in her favour and ordered that she be employed again. The Court of Queens Bench upheld that decision, but the Court of Appeal reversed the decision. This case shows how laws can be overridden by common institutional policies.
Racial discrimination also continues, especially for non-Christians in Canada. Model and Lin (2002) examined racial discrimination at work for African-born employees and results showed strong discrimination against Sikhs. Pendakur and Pendakur (1998) also found gender and racial pay inequity in their empirical study. Their report showed Aboriginal women face an earnings gap of 7 per cent in comparison with Canadian-born white women. These reports show racial discrimination at the workplace, which cannot be effectively mitigated by employment equity laws.
Constitutional pre-commitments of Canada to gender affirmative action also do not assure that the affirmative action can redress gender discrimination. The Court in Law qualified its findings, which undermined the inquiry whether ameliorative legislation would always comport with section 15. Judge Iacobucci wrote for the majority and stressed that ameliorative legislation that exclude individuals from a historically disadvantaged group will not commonly be permitted under section 15. The Court also did not overlook the possibility that a statute that ameliorates the position of one group might infringe on the social rights of another group. The Court then creates opportunity to consider novel types and forms of discrimination, which may contradict gender affirmative policies.
Busby (2006), nevertheless, noted that there had been improvements in womens conditions because of gender affirmative action. In the federal public service, there has been statistical improvement in the representation of the selected groups, which are modest but sound for the past ten years. From the four designated groups, women have improved their conditions, closing the representation gap most quickly, by about 1 per cent per year. This took place during large layoffs in the Canadian labour market so that, even when the number of women in the public sector decreased by about 10 per cent during the 1990s, their comparative representation improved from 46.1 per cent in 1993 to 50.5 per cent in 1998. The case of Brooks, Allen and Dixon et al. v. Canada Safeway Ltd. (1989) also demonstrated that the law can protect pregnant women from discrimination of disability payments. Furthermore, gay and lesbian rights also improved in some provinces, such as Toronto and Ontario. Several cases showed gay and lesbian employees suffering from discrimination, such as Vriend v. Alberta (1998) and Ramirez v. Canada (Minister of Citizenship and Immigration) (2008). These cases depict that anti-discrimination laws can also be used to avert workplace discrimination.
Australian Constitution, unlike, Canadian Constitution, do not explicitly provide for sex equality free from government discrimination. Canadian Constitution provides gender equality statutes that have been interpreted to mean substantive equality based on equal human dignity and full membership in society. Studies on the impacts of Australian laws on gender and age discrimination also depicted that they are unable to remove systemic sources of discrimination. Mcdonald and Dear (2008) pointed out that discrimination continue to affect women across their life cycle stages. Their findings showed that young and older women face different predominant forms of workplace discrimination that concern sexualisation and glass ceilings. Another study also pointed out conflicts between State, Territory, and Federal anti-discrimination laws that result to inconsistent interpretations of worker compensation for people who reach 65 years old.
Gender pay equity has improved, but remains inequitable. Smith and Lyons (2007) scrutinized the impact of Workplace Relations Amendment (Transition to Forward with Fairness) Bill 2008 (Cth) to gender pay equity. They noted that the amendment lead to further gender pay inequity because of the loss of industrial awards that collectively fought for equal pay. This suggests that minorities and women were not politically prepared to advance their equity rights in the workplace. In addition, they noted that even when laws promise the advancement of gender pay equity, only one case has arrived at final arbitration. This concerned an unsuccessful claim by the Australian Manufacturing Workers for equal remuneration orders at the electrical component manufacturer, HPM Industries. Smith (2009) also pointed out problems in advancing gender pay equity because of the promotion of individual awards versus industry awards.
In addition, there has been emerging issues of genetic discrimination. Taylor et al (2007) conducted a survey on perceptions and experiences of genetic discrimination. Findings showed that there are some people who experienced coercion to genetic testing for employment purposes. This shows that discrimination is even evolving to that which is not initially covered or even considered by anti-discrimination laws. Racial discrimination also persists, even with government attempts to reduce it.
B. Key characteristics of effective policy frameworks
Based on the review of literature and the findings, there are several references that recommend for the key characteristics of effective policy frameworks. They are key characteristics because they aim to deal with the systemic sources of discrimination. They will be summarized as the following
Effective policy frameworks develop comprehensive and inclusive policy documents. Comprehensive and inclusive policy documents have clear guidelines in measuring the effectiveness of numerous anti-discrimination laws. They also promote communities and workplaces that are widely and universally accessible and would not exclude people with disabilities from being able to bargain for customized access to physical and workplace environments. Communities and workplaces must work together to eliminate systemic discrimination, by analyzing sources of prejudice in their domains. After identifying these sources, they can create solutions to dismantle them. It is possible to change work conditions to have room for individual needs and support greater social and economic independence. It must be noted that even when businesses will complain about the financial burden of accommodation, similar objections happened when occupational health and safety laws were first provided hundred years ago but, businesses adapted and survived, while maintaining and improving equipment and safety features. Thus, organizations can also be pressured to provide inclusive facilities and policies at work that can promote anti-discrimination laws.
Effective policy frameworks are grounded on empirical values and qualitative discourse. This means that evaluation of policy effectiveness must be independent and empirical in approach. It is important to empirically determine policy effectiveness for target recipients, in order to amend policies accordingly. It is also critical to understand the qualitative depth of experiences of target groups. It is possible that some statistics show improvement of their conditions, but interviews and case studies (and the like) that dive into specific conditions can reveal more depth of their actual perceptions and experiences.
Effective policy frameworks seek for equality and reasonable accommodation. Equality can be conceptually achieved, even between disadvantaged and majority groups, if they engage in discourse about true equality, which is equitable equality. This means arriving at laws that allow the disadvantaged groups to catch up and level the playing field. Reasonable accommodations should also be provided for people with disabilities, which should not be seen as cost centers alone, but as sources of revenues, because people with disabilities can also improve productivity and performance at work, provided they are given reasonable accommodations.
V. CONCLUSION
The effective policy frameworks defined in this research paper are not the only appropriate policy model suggestions for all conditions. They are only based on the existing gaps and weaknesses of anti-discrimination laws in Canada and Australia. Effective policy frameworks will be even more effective if they are subjected to inquiries and evaluations from various stakeholders. These stakeholders must continuously evaluate and improve policies depending on their lack of or improving conditions, so that they can ensure the dialectical relationship between policymaking and eradication of discrimination at work. Furthermore, the dialectical process can ensure an active engagement for addressing emerging discrimination issues. Effectiveness today does not ensure effectiveness at all times, and so policies must also adapt to changing social, technological, economic, and political conditions.
In an online news article, Elien (2009) reported that 14 percent of Canadians feel they have been discriminated against in the workplace during the past year. This is based on a survey conducted by Ipsos Reid, which included 50,000 interviews with workers from all over the globe during July and August, including 4,100 Canadian employees. This is the largest employee survey ever conducted until now and findings showed that the level of discrimination reported in Canadian workplaces is similar to that in the U.S. and Europe, but better than South American and Asian workplaces and that foreign employees (24 percent) and members of visible minority groups (21 percent) in Canada felt a higher percentage of discrimination. This news article shows that despite the existence of equal employment opportunities laws and programs, employment discrimination, in its many forms, have continued to plague Canadian businesses and that even at present, workplace discrimination endures in varying degrees.
On the other hand, another news article reported about gender workplace discrimination in Australia. The University of Melbourne conducted a survey on 165 women expecting their first child and working in different sectors and findings showed that these respondents felt varying kinds of discrimination, from overt remarks to not being promoted. Because of feelings of discrimination, these women felt more distressed and irritable. This article also indicates discrimination against gender and maternity condition and how it impacts the wellbeing of, not only women, but their children, as well. Apparently, for Canada and Australia, workplace discrimination continues to persist and damage workplace morale, and consequently, performance and organizational loyalty.
This research paper determines policy responses to employment discrimination in Canada and Australia, the impacts of these policy responses, and key characteristics of effective policy frameworks. It also compares the policy responses and their impacts on employment discrimination. This paper also wants to find out if policy practices may be a source of systemic discrimination and, as a result, they perpetuate its existence. The paper starts with the review of literature that identifies patterns of employment discrimination that emanates from structural foundation, empirical values, and organizational culture, and impacts of employment discrimination. It is followed by the methodology that details the data collection methods. The next section is the findings, which compares policy responses and impacts between Canada and Australia. The last two sections are the key characteristics of effective policy frameworks and conclusion.
II. REVIEW OF LITERATURE
A. Patterns of employment discrimination
This section defines the concepts of structural foundation, empirical values, and organizational culture and provides examples of workplace discrimination based on these definitions. It is considered that defining these concepts involve contradicting beliefs, because of the different viewpoints from which these concepts can be derived from.
1. Structural Foundation
Structural foundation can refer to shared experiences, based on categorical beliefs and attributes. Baldassarri and Bearman (2007) argued that people have conflicting categorical and attributes, which leads to differences in attitudes and behavior. This means that it is possible for organisations to say that they respect pluralism at work, and yet they display contradicting actions. Another journal article stressed that in order to incorporate pluralism in society, structural foundations must be based on acceptance of racial differences and similarities. This article defines structural foundations as institutional to the society and tends to have a more positive view of structural foundations. This paper uses structural foundation as referring to both the conflicting and positive conceptualization of structural foundations, because of the hope placed on policy making and civic action to address employment discrimination.
In Canada, human rights statutes and equal opportunities laws, which began with the 1986 Employment Equity Act, seek to eliminate workplace discrimination. Surveys and research studies, however, demonstrate the gap between employment equity policies and actual discrimination. The 1988 survey of Blakelyand Harvey at Ontario, with 50 per cent of the sample (29 of 58 organizations) coming from Metropolitan Toronto, showed a low level of commitment among employers to EE policy, especially where it pertained to minorities other than women. It gave the example 33.3 per cent of respondents reported having written policies on the recruitment and hiring of women, only 21.6 per cent had similar policies for visible minorities. Reitz (1988) insisted that case studies and surveys are not enough to determine the true level and nature of workplace discrimination, because of differences in understanding verbal statements. He argued for behavioural studies that can reveal discriminatory behaviours. For instance, he said that in Toronto, discrimination field trials could measure discrimination behavior and some were conducted by the Social Planning Council of Metropolitan Toronto (SPC) in cooperation with the Urban Alliance on Race Relations.
Results showed that discrimination does exist in Canada. Another article reinforces the existence of racial discrimination. In 1992, the National Capital Alliance on Race Relations (NCARR) filed a case against Health and Welfare Canada, before amendments were made in the Canadian Human Rights Act (CHRA) and the Employment Equity Act (EEA). This case showed the existence of systemic racial discrimination in Health and Welfare Canada, through public input of evidences. Thus, anti-discrimination laws did not sufficiently dismantle systemic racial discrimination prevailing in organisations like Health and Welfare Canada.
Other examples showed the weaknesses of Canadian policies on protecting citizens with disability from employment discrimination. Atkins (2006) reviewed judicial, tribunal and arbitration decisions in Canada regarding disability rights. He compared Canadian law and judicial, tribunal and arbitration decisions with American counterparts and concluded that the former is more universal in approach in defining disability, and yet disabled Canadians must bargain accessibility on their own, which produces widely unattainable social and physical Canadian opportunities. This article pointed out that access to housing, transportation, education and retail and public spaces remains a fundamental problem for disabled Canadians. This article stresses that structural foundations of the law on Canadian disability are also weak in providing equal opportunities for the disabled. The laws that are present cannot provide adequate protections for people with disability from discrimination at various dimensions in their lives.
Australia also shows cases of discrimination arising from structural foundations, even when anti-discrimination laws existed also since 1986, the same year that Canada passed its 1986 Employment Equity Act. An article analyzed the hindrances to active engagement of older Australian workers. One of the primary barriers to actively being engaged at work is the double standard on women to perform both work and caring duties. Caring for the family is one of the most common reasons that women leave paid work. The preponderance of individual workplace contracts (Australian Workplace Awards or AWAs) also reinforces ageism and work intensification practices, because workers have to individually bargain for their pay and work conditions with their employers, instead of bargaining jointly through the union. AWAs tend to disadvantage older workers as they individually compete with younger workers. This article demonstrates that structural foundations in the workplace can contradict the intentions of AWAs to empower workers individually. AWAs have been greatly criticized to have increased discrimination at work, because the shift to individual bargaining has not been a source of strength for Australian workers, who came from a historically collective industrial relations sector.
Another form of discrimination at work can be argued as emanating from issues of racial discrimination that has been tackled by Windle (2008). He has been concerned by the racialization of African youth in a series of media coverage. He cited the Melbourne tabloid Herald-Sun, which stresses racial conflicts in several violent incidents involving attacks on African teenagers and riot problems from the same racial group. The tabloid said
We are in the grip of a violence epidemic, fuelled by four persistent factors alcohol, groups of young males, illegal weapons and, increasingly, cultural differences involving immigrant youths (A stab in the darkness, 2007)
This statement shows how the media covers the African youth in a negative viewpoint, which resulted to racialising narrative events. Racial discrimination can be one of the reasons of high unemployment rates among African youth. Hence, these studies depicted that discrimination remains widespread in Canada and Australia, and that it intersected issues of race, gender, class, age, and even other dimensions of life.
2. Empirical Values
Empirical values can be defined in relation to empirical law. Empirical law can be defined as a positive general condition that occurrences of singular conditions of a certain category cause occurrences of singular conditions of another category. Information can have empirical values through the establishment of the empirico-causal relationship based on empirical law. Georgakopoulos (2005) stressed the importance of empirical research in determining empirical values. He indicated the importance of qualitative and quantitative research in proving conditions relevant to matters of the law. Several case studies and researches done on employment discrimination show the prevalent practices of discrimination in Canada. An empirical study of labour migration in Canada shows that the state favours high-skilled labour based on empirical studies of immigration and state management. This results to state-based discrimination, although the article argued that this discrimination is crucial to to overcome new fiscal and structural crises related to economic, social and demographic transitions.
Another empirical study showed that based on the research by the Canadian Council on Social Development (2000) that used both 1996 census data and panel data on post-secondary graduates from the National Graduate Survey, Canadian-born visible minorities are still less probable than foreign-born and Canadian-born whites to be in the top twenty per cent of the income distribution and it concluded that There is then a clear pattern of apparent disadvantage in the labour market for visible minority workers that is reflected both in patterns of employment and in earnings. Employment disadvantages, however, can also be rooted on fundamental systemic racial discrimination. Helly (2004) empirically analysed the rise in violence against Muslims after the September 11, 2001 attacks on American soil. Canadian Islamic Congress (CIC) statistics indicated a 1,600 percent increase in hate crimes against Muslim individuals or places between September 2001 and September 2002. These actions can indicate racial prejudice from fear and paranoia, which translates to workplace discrimination. Helly (2004) noted a study, wherein there were three categories of people who had difficulties finding jobs Blacks, people of Arabic origins and visible Muslims. These articles show that empirical values point out the pervasive discrimination in the workplace.
Australia also shows empirical values that depict workplace discrimination. One study explored three years of data to examine the incidence and patterns of gender discrimination at work. The study examined 9015 cases reported to Queensland Working Womens Service (QWWS) between 1st July 2001 and 30th June 2004, and it studied the frequency of reporting in each category of supposed discrimination (age, race, disability, sex, pregnancy, family responsibilities) and harassment (sexual or workplace harassment, also known as bullying). This study revealed that women experience common discrimination issues that revolve around their life cycle stages. Results showed
Younger women in the 18 to 25 year age bracket were significantly more likely to report sexual harassment and pregnancy discrimination, and significantly less likely to report workplace harassment. In contrast, older women over 45 were more likely to report age, race and disability discrimination and workplace bullying. Women in the 25 to 44 age group, consistent with the prime childbearing and rearing years, were over-represented in cases related to family responsibilities discrimination.
Young women can suffer more from sexualized and genderized discrimination, while older women commonly experience workplace bullying and the glass ceiling to employment opportunities. These figures demonstrated the overwhelming diversity that Australian female employees experience because of their gender and gender-related responsibilities. Kidd and Shannon (1996) also computed gender wage gap in Canada and Australia and findings showed that women earn lower than men in counterpart jobs.
3. Organizational Culture
Organizational culture can be defined as how reality is perceived (what is important), beliefs (how things are done around here), and norms of acceptable behavior (how we deal with issues) existing unquestioned and unchallenged This definition provides a more static understanding of organizational culture. Another definition of organizational culture asserts the inherent conflicts within and around it, and it defines organizational culture as primarily composed of a particular configuration of rules, enactment and resistance. This is one of the approaches to defining organizational culture that some feminist studies of gender discrimination pursue. Organizational culture provides a detailed understanding of workplace discrimination occurring for various issues, including gender. Wilson (2001) stated
Organizational culture is generally written about as if it were gender neutral . . . However the gendered nature of organizational culture is demonstrated daily by a multitude of differences and differentiations predicated on gender, for instance, job segregation, pay, promotion and status.
Organizational culture is not gender neutral, because it can also depict various gender conflicts, which can affect HR practices and attitudes.
Busby (2006) studied organizational culture and its impact on gender discrimination in Canada. Findings showed that gendered pay gaps persisted, despite the existence of multiple international and federal laws. There are organizations whose culture imbibed discriminatory practices against women, as several case studies showed.Some of these discriminatory actions intensified after the 911 attacks. These cases show discrimination that happens when employers or HR heads refuse to consider the resumes of people from Arab origin or of the Islamic faith under the pretext that, if hired, they will not take part in the life of the company, and that their habits are too distant from those considered Quebecois ones. Such discriminatory attitudes exemplify a kind of acculturation, which can be essentially discriminatory because it does not integrate cultures, but results to the domination of one culture over weaker cultures, in hegemonic terms.
Australian cases also showed discrimination arising from organizational culture. One journal article explored diverse manifestations of workplace racial discrimination. In Anti-discrimination Laws, Islamophobia, and Ethnicization, Bloul (2008) explored the inconsistencies between anti-discrimination laws and religious discrimination at work. Some examples mentioned are cases in New South Wales, such as the case of an IT worker who was threatened with discharge for praying, in his own time, at work and other cases of discrimination against Islamic practices at work. The courts have dismissed these cases as not supported by anti-discrimination laws. They stated The main objections have been that Islam covers different cultures, ethnicities, races, nationalities and so could not be defined as an ethno-religion. Bloul (2008) challenged the interpretation of racial and ethnic issues under Australian anti-discrimination laws. She asks Does it take into account the specific character of Muslim identity in Western countries where Muslims are brought to adopt a minority collective identity as Muslims These examples from Canada and Australia specify how organizational culture can also be prejudiced against diversity, instead of truly embracing pluralistic values and beliefs.
B. Impacts of employment discrimination
The impacts of employment discrimination are financial, psychological, and political in nature. Financial impacts are some of the most direct repercussions of employment discrimination. Gender pay inequity is one of the financial consequences of workplace discrimination and section 11 of the Canadian Human Rights Act aim to address the low pay that women earn from their jobs. Section 11 had two structural components it accepted job evaluation as the mechanism for measuring the value of jobs and it was complaint based. Section11, however, did not provide specific details on how to measure the value of jobs or how to compare them. The vagueness of the law made it possible to reinforce gender pay inequity.
In 1990, Bell and the Communication Energy and Paperworkers Union (CEPU) consented to creating the joint Pay Equity Committee, which broadened the following year to integrate the Canadian Telephone Employees Association (CTEA), which has members of 14,500 clerks, whom were women, in general. The study in 1992 showed that predominantly female-dominated jobs were remunerated at a much lower level than predominantly male jobs and which resulted to the case Canadian Telephone Employees Association v. Bell Canada (1997). This cased lagged for more than a decade, with the Liberal government unable to speedily protect workers. Bell also complained that the unions were already accountable because they already agreed to the discriminatory wages and that the joint committee could not prove a section 11 complaint, because it did not use the right methodology to assess equal pay for work of equal value. This case showed the conflict between economic efficiency and pay equity and that the government could not even use the same laws to protect women from gender pay inequity.
Discrimination also has psychological effects on the disadvantaged parties. These negative attitudes against those who are categorically called the others result to stigmatizations that delimit workplace opportunities. The introduction to this research also noted how pregnant women felt more stressed and irritable because of feeling employment discrimination. Other psychological impacts are feelings of insecurity and organizational disloyalty, because of the lack of perceived fairness in the workplace.
Political consequences refer to access to power. Because of discrimination, marginalized groups are less likely to access power in decision-making and are more likely to be discriminated in various aspects of their work. Anti-discrimination laws aim to equalize political power in organizations by empowering the disadvantaged sectors, although reality shows the common trade off between economic efficiency and anti-discrimination laws, and that in real life, there are still many cases of prejudice and discrimination at work.
METHODOLOGY
Data and information are retrieved from cases, legislation and studies on systemic discrimination in the workplace. Online books and articles are also used, where appropriate, to show latest and specific examples of employment discrimination. The cases, legislation and studies are obtained from the library and electronic databases, such as JSTOR, Emerald, ProQuest, LexisNexis and EBSCO.
IV. FINDINGS
This section compares policy responses and impacts between Australian and Canadian anti-discrimination laws.
A. Comparison
1. Policy responses of systemic discrimination issues
Since the 1960s, Canada already has human rights statutes that prevent employment discrimination. These human rights statutes provide human rights guidelines, while the Canadian Constitution and employment equity laws are provided at the federal level. Every jurisdiction in Canada (ten provinces) also has separate anti-discrimination laws statutes that ban and endeavour to eliminate employment discrimination on frequent prohibited grounds such as race, nationalethnic origin, colour, religion, age, sex, marital status, disability, sexual orientation, etc. The provisions of these statutes compel employers to embark on voluntary employment equity programmes for members of underprivileged groups that, according to Agocs (2002), include women of any race or ethnicity, visible or racial minorities (self-identified as black, Asian or South Asian), aboriginal peoples (Indians or members of First Nations, Metis and Inuit) and persons with disabilities.
Why should there be a need for anti-discrimination laws One of the main justifications is that Canada and Australia, as well as other developed countries are becoming increasingly diverse, and diversity issues in employment could no longer be overlooked, without creating chaos and promoting violence in society. In 1996, visible minorities made up 11.2 per cent of the Canadian population and are a growing percentage of the population in Canadas foremost cities. Women constitute more than 46 per cent of the labour force in Canada and are projected to be fifty per cent of the work force in the coming years. Furthermore, Canadas population and workforce continue to be more diverse From 1991 to 1996, 78 per cent of new entrants into Canada were from Asia, CentralSouth America the Caribbean and Africa, providing a multicultural mosaic. The report also added In the period 1971 to 1980, immigrants from these regions comprised 57 per cent of all new entrants into Canada. Because of this diverse population, Canadian federal and local governments passed diverse laws that support anti-discrimination at work.
Employment equity is supported by the Canadian Charter of Rights and Freedoms, under the Constitution Act of 1982 and the Federal Employment Equity Act enacted in 1986 and revised expansively in 1995. The Canadian Charters provisions are to be executed to all federal, provincial and municipal government agencies across Canada. Furthermore, the federal government has made the Contractors Programme, which is applied to all large and medium-sized provincially regulated employers who provide goods and services to federal government units. The Employment Equity Act and the Contractors Programme provide anti-discrimination policies for the four disadvantaged groups. The Federal Contractors Programme also includes more employers than the Employment Equity Act because it applies to all businesses with transactions with the government.
It will also be useful to explore further that Canada has constitutional pre-commitments to gender affirmative action, including that under the European Convention on Human Rights. Section 15 of the Canadian Charter, Canadas principal constitutional document handles gender equality and affirmative action, as well as individual rights and freedoms. It states Every individual is equal before the law and under the law and has the right to the equal protection and equal benefit of the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. Section 15 (2) states
Subsection (1) does not preclude any law, program or activity that has its object the amelioration of conditions of disadvantaged individuals or groups, including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
The Supreme Court of Canada has not yet made any decision that has been based on section 15(2), which ostensibly permits and encourages gender affirmative action programs. There have been some recent case that involved section 15 (1) and one non-Charter case, which promote a substantive notion of equality and illuminate ideas for future inquiries regarding gender affirmative action.
An article reviewed Canadian disability policy in relation to the workplace using model of mental illness. This article emphasized the diverse policy statements about employment. The authors stressed that the power to create disability policy, particularly for people with psychiatric disabilities, is not guided by people who do have authority regarding this disability. Instead, it is the jurisdiction which dictates anti-discrimination policies with people with psychiatric disabilities. Canadian Parliament and provincial legislatures have authority over employment and labour, as provided by the Constitution. The courts affirmed, however, that majority of the authority lies on the provincial jurisdictions, because they are derived from the property and civil rights section of the Constitution Act 1967. Entering into a contract has then become part of a civil right, and so all labour legislation, which imposes restrictions on employment contracts, must fall centrally within provincial jurisdiction. Due to the shared jurisdiction over employment, there are 14 different kinds of administrative structures managing industrial relations, employment conditions, occupational safety and health, and workers compensation. There is also no clear representation for people with psychiatric disabilities in any of these jurisdictions.
In Australia, federal legislative amendments were made in 1993-1994 to address gender equal pay. The legislative dedication to equal remuneration had not been included formerly in federal legislation as the Constitution successfully excluded the federal Parliament from establishing conditions of employment. These provisions were only included through the federal governments dependence on its external affairs powers and its status as signatory to a suite of international anti-discrimination conventions. Furthermore, the federal government created several forms of minimum entitlement provisions in the domains of minimum wages, termination of employment and parental leave, all which all relined on Australias signatory to several International Labour Organisation Conventions.
The international anti-discrimination policies included the following
1951 ILO Convention 100 Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, the United Nations Convention on the Elimination of all Forms of Discrimination against Women, the 1958 ILO Convention 111 Concerning Discrimination in Respect of Employment and Occupation and Articles 3 and 7 of the International Covenant on Economic, Social and Cultural Rights) and 1951 ILO Recommendation 90 Equal Remuneration Recommendation.
The detailed acknowledgement of ILO Convention 100 took place because the federal government used its external affairs powers to integrate the terms of the Convention in the legislation. These provisions supplied the Australian Industrial Relations Commission (AIRC) the authority to provide equal remuneration orders, successfully increases in pay so that the test of equal remuneration was attained. These provisions gave the terms of equal remuneration for work of equal value pertaining to the rates of remuneration established without discrimination based on sex.
Because of the inability of the 1993 federal legislative amendments to produce effective jurisprudence, state industrial jurisdictions initiated several actions. Five states pursued anti-discrimination policy reforms- New South Wales, Queensland, Tasmania, Western Australia and Victoria. New South Wales was the first state to conduct an inquiry, where the impetus for the Inquiry arose not only from the plateau in gender pay equity ratios but also the significance of the state system of industrial awards for women in paid work in that state (McCallum, 1998). Industrial tribunals of New South Wales, Queensland and Tasmania conducted inquiries on equal pay. The principles are different from the provisions in the federal Workplace Relations Act, because they implicitly reject the test of discrimination as the threshold for an equal remuneration claim. The principles employ a test of undervaluation as the basis of equal remuneration applications and there is no presumption that proper assessments have been conducted in previous assessments of the work at the subject of the application. There are also no requirements for comparison. These are the same problems of Canadian anti-discrimination policies for mental and psychiatric disability. The vagueness of terminologies and lack of specific guidelines provide space for employment discrimination to occur in Canada and Australia.
2. Impacts of policies on employment discrimination
This section answers the question Does the plurality of laws because of diverse jurisdictions provide complementing impacts on preventing and punishing employment discrimination One article showed that Canada may have less racial conflict, but not necessarily less racial discrimination. Reitz (1988) warned that there is a difference between laws that prohibit racial discrimination, and actual workplace racial conflict that leads to employment discrimination. In one study, field trials, including telephone applications by actors with different accents, and walk-in applications that were done by black and white actors with equivalent qualifications, showed similar results in the two countries. The British and Canadian studies showed that whites more often received positive responses to telephone applications than did non-whites. In Toronto, whites also obtained positive responses in 86.9 per cent of applications, whereas non-whites received positive responses in only 60.1 per cent of applications, a difference of 26.8 per cent. Walk-ins showed that racial discrimination persists, because by showing the colour of their skin and language accents, there is a greater tendency for them to not be considered for the position, even if non-whites have comparable qualification with white applicants.
People with disabilities and older people are also not widely better off after the enactment of anti-discrimination laws. Disabled Canadians must bargain accessibility on their own, resulting in a largely inaccessible social and physical Canadian environment. Having access to workplace opportunities is still a challenge for disabled Canadians. The Roeher Institute, which examines the impact of public policy on people with disabilities, states that people with disabilities in Canada have twice the unemployment rate of those without disabilities. In addition, disabled adults survive on incomes of CDN10,000 (approx. US8,900) or less annually. The institute also stresses that the poor employment rate of Canadians with disabilities are produced by several factors lack of accessible housing, transportation, inadequate training and education programs and ongoing discrimination in the workplace. The same problems also occur for people with psychiatric disabilities, because they also have problems finding and maintaining work. People ages 65 and above are also experiencing ageism. In Dickason v. University of Alberta (1992), the appellant is a tenured full professor at the University of Alberta, but she was forced to retire at the age of 65. She filed a complaint with the Alberta Human Rights Commission arguing that her forced retirement breached s. 7 of the Individuals Rights Protection Act by discriminating using the basis of her age. Section 11.1 of the Act states, that discrimination on a proscribed ground will be permitted, if the employer can demonstrate that the discrimination was reasonable and justifiable in the circumstances. The board of inquiry decided in her favour and ordered that she be employed again. The Court of Queens Bench upheld that decision, but the Court of Appeal reversed the decision. This case shows how laws can be overridden by common institutional policies.
Racial discrimination also continues, especially for non-Christians in Canada. Model and Lin (2002) examined racial discrimination at work for African-born employees and results showed strong discrimination against Sikhs. Pendakur and Pendakur (1998) also found gender and racial pay inequity in their empirical study. Their report showed Aboriginal women face an earnings gap of 7 per cent in comparison with Canadian-born white women. These reports show racial discrimination at the workplace, which cannot be effectively mitigated by employment equity laws.
Constitutional pre-commitments of Canada to gender affirmative action also do not assure that the affirmative action can redress gender discrimination. The Court in Law qualified its findings, which undermined the inquiry whether ameliorative legislation would always comport with section 15. Judge Iacobucci wrote for the majority and stressed that ameliorative legislation that exclude individuals from a historically disadvantaged group will not commonly be permitted under section 15. The Court also did not overlook the possibility that a statute that ameliorates the position of one group might infringe on the social rights of another group. The Court then creates opportunity to consider novel types and forms of discrimination, which may contradict gender affirmative policies.
Busby (2006), nevertheless, noted that there had been improvements in womens conditions because of gender affirmative action. In the federal public service, there has been statistical improvement in the representation of the selected groups, which are modest but sound for the past ten years. From the four designated groups, women have improved their conditions, closing the representation gap most quickly, by about 1 per cent per year. This took place during large layoffs in the Canadian labour market so that, even when the number of women in the public sector decreased by about 10 per cent during the 1990s, their comparative representation improved from 46.1 per cent in 1993 to 50.5 per cent in 1998. The case of Brooks, Allen and Dixon et al. v. Canada Safeway Ltd. (1989) also demonstrated that the law can protect pregnant women from discrimination of disability payments. Furthermore, gay and lesbian rights also improved in some provinces, such as Toronto and Ontario. Several cases showed gay and lesbian employees suffering from discrimination, such as Vriend v. Alberta (1998) and Ramirez v. Canada (Minister of Citizenship and Immigration) (2008). These cases depict that anti-discrimination laws can also be used to avert workplace discrimination.
Australian Constitution, unlike, Canadian Constitution, do not explicitly provide for sex equality free from government discrimination. Canadian Constitution provides gender equality statutes that have been interpreted to mean substantive equality based on equal human dignity and full membership in society. Studies on the impacts of Australian laws on gender and age discrimination also depicted that they are unable to remove systemic sources of discrimination. Mcdonald and Dear (2008) pointed out that discrimination continue to affect women across their life cycle stages. Their findings showed that young and older women face different predominant forms of workplace discrimination that concern sexualisation and glass ceilings. Another study also pointed out conflicts between State, Territory, and Federal anti-discrimination laws that result to inconsistent interpretations of worker compensation for people who reach 65 years old.
Gender pay equity has improved, but remains inequitable. Smith and Lyons (2007) scrutinized the impact of Workplace Relations Amendment (Transition to Forward with Fairness) Bill 2008 (Cth) to gender pay equity. They noted that the amendment lead to further gender pay inequity because of the loss of industrial awards that collectively fought for equal pay. This suggests that minorities and women were not politically prepared to advance their equity rights in the workplace. In addition, they noted that even when laws promise the advancement of gender pay equity, only one case has arrived at final arbitration. This concerned an unsuccessful claim by the Australian Manufacturing Workers for equal remuneration orders at the electrical component manufacturer, HPM Industries. Smith (2009) also pointed out problems in advancing gender pay equity because of the promotion of individual awards versus industry awards.
In addition, there has been emerging issues of genetic discrimination. Taylor et al (2007) conducted a survey on perceptions and experiences of genetic discrimination. Findings showed that there are some people who experienced coercion to genetic testing for employment purposes. This shows that discrimination is even evolving to that which is not initially covered or even considered by anti-discrimination laws. Racial discrimination also persists, even with government attempts to reduce it.
B. Key characteristics of effective policy frameworks
Based on the review of literature and the findings, there are several references that recommend for the key characteristics of effective policy frameworks. They are key characteristics because they aim to deal with the systemic sources of discrimination. They will be summarized as the following
Effective policy frameworks develop comprehensive and inclusive policy documents. Comprehensive and inclusive policy documents have clear guidelines in measuring the effectiveness of numerous anti-discrimination laws. They also promote communities and workplaces that are widely and universally accessible and would not exclude people with disabilities from being able to bargain for customized access to physical and workplace environments. Communities and workplaces must work together to eliminate systemic discrimination, by analyzing sources of prejudice in their domains. After identifying these sources, they can create solutions to dismantle them. It is possible to change work conditions to have room for individual needs and support greater social and economic independence. It must be noted that even when businesses will complain about the financial burden of accommodation, similar objections happened when occupational health and safety laws were first provided hundred years ago but, businesses adapted and survived, while maintaining and improving equipment and safety features. Thus, organizations can also be pressured to provide inclusive facilities and policies at work that can promote anti-discrimination laws.
Effective policy frameworks are grounded on empirical values and qualitative discourse. This means that evaluation of policy effectiveness must be independent and empirical in approach. It is important to empirically determine policy effectiveness for target recipients, in order to amend policies accordingly. It is also critical to understand the qualitative depth of experiences of target groups. It is possible that some statistics show improvement of their conditions, but interviews and case studies (and the like) that dive into specific conditions can reveal more depth of their actual perceptions and experiences.
Effective policy frameworks seek for equality and reasonable accommodation. Equality can be conceptually achieved, even between disadvantaged and majority groups, if they engage in discourse about true equality, which is equitable equality. This means arriving at laws that allow the disadvantaged groups to catch up and level the playing field. Reasonable accommodations should also be provided for people with disabilities, which should not be seen as cost centers alone, but as sources of revenues, because people with disabilities can also improve productivity and performance at work, provided they are given reasonable accommodations.
V. CONCLUSION
The effective policy frameworks defined in this research paper are not the only appropriate policy model suggestions for all conditions. They are only based on the existing gaps and weaknesses of anti-discrimination laws in Canada and Australia. Effective policy frameworks will be even more effective if they are subjected to inquiries and evaluations from various stakeholders. These stakeholders must continuously evaluate and improve policies depending on their lack of or improving conditions, so that they can ensure the dialectical relationship between policymaking and eradication of discrimination at work. Furthermore, the dialectical process can ensure an active engagement for addressing emerging discrimination issues. Effectiveness today does not ensure effectiveness at all times, and so policies must also adapt to changing social, technological, economic, and political conditions.
