Discrimination Against Black Canadians in Employment

 DISCRIMINATION AGAINST BLACK CANADIANS IN EMPLOYMENT:

 Historical and Public Policy Underpinnings

 Verlyn F. Francis©

 

 TABLE OF CONTENTS

I. INTRODUCTION 1

II. THE HISTORICAL APPROACH 3

 A. The English Colonial 4

 B. The Colour Divide 6

 C. Race Prejudice and Slavery 7

 D. Blacks in Canada 10

III. RACE AND JOB MATCHING IN WEST INDIAN IMMIGRATION 16

 A. The Explicit Racialization of Immigration 17

 B. The West Indian Domestic Scheme 20

 C. The Railway Porters 24

IV. EARLY COURT DECISIONS ON RACIAL DISCRIMINATION 28

V. ONTARIO'S LEGISLATIVE RESPONSE 35

 A. History of Discrimination Legislation in Ontario 35

VI. WHAT IS DISCRIMINATION 39

 A. Stereotyping 39

 B. Prejudice 41

 C. Discrimination 42

 D. Racial Discrimination 43

 E. Unconscious Racism 46

VII. RACIAL DISCRIMINATION IN EMPLOYMENT 48

 A. The Problem 48

 B. Who Gets the Work 50

 C. Pay Differential 51

 D. The Employer's Role 53

 E. Unions and Race Discrimination 57

 F. Racial Discrimination by Co-workers 62

VIII. HANDLING THE COMPLAINT 65

 A. In-House Treatment 65

 

IX. HUMAN RIGHTS COMMISSION 67

 A. The Intent of the Ontario Human Rights Code 67

 B. The Commission as a Rights Seeking Vehicle 69

 C. The Commission Staff 70

X. CONCLUSION 75

 

 DISCRIMINATION AGAINST BLACK CANADIANS IN EMPLOYMENT:

 Historical and Public Policy Underpinnings

 by Verlyn F. Francis©

  If I were to write a book about Canada and its people, the title would be "Let's Pretend, Let's Deny".  The first line would read, "Canadians are a tolerant and compassionate people ... at least that is what they tell me". 

I. INTRODUCTION

 Is there discrimination on the basis of race and colour in employment?  While Black people claim they have been discriminated against, whites rebut those allegations with denials that race or colour play any part in the treatment that Black people receive in Ontario.  If the segregation that Black people encountered in the southern United States and South Africa and their enslavement in the United States and the West Indies have never been a part of Canadian history, why should colour and race inform the treatment that Black people receive in the labour market?  To counter the suggestion that race and colour play any part in the workplace, it is asserted that Blacks and whites work harmoniously and accusations of discrimination are unfounded. 

 

 Since allegations of discrimination against Blacks in Ontario continue to be raised, however, an exploration of the issue can only provide greater insight into the origins of racial discrimination in employment and provide possible solutions to the problem.

 Why is it that a Black person and a white person looking at the same incident can come to opposite conclusions about whether or not discrimination was involved?   Even though Black slavery did not gain the foothold in Canada that it did in other parts of this hemisphere, this paper will argue that the attitudes which brought about slavery were attitudes which were prevalent in Canada.

 

Those attitudes, in turn, led to the development of laws which restricted Canadian immigration along racial lines.  It will be argued that public policy based on racial discrimination has played a large part in determining the animosity that is felt by Caribbean Blacks especially, when they refused to limit themselves to the menial jobs that they were originally recruited to perform.  In that vein, this paper will look at the immigration policy which only permitted West Indian women entry into Canada as domestics, regardless of their education or qualifications.

 

In keeping with the theme of designated jobs, it would be helpful to look at the experience of Black men, some of whom were Canadian qualified professionals, but who could only find work in Canada as porters on the railroad.

 Against this background, this paper will look at how human rights legislation has developed in Ontario and argue that racial discrimination will not be eliminated through legislation as presently enshrined, if Canadians do not understand how history and public policy serve as a basis for the inability to acknowledge discrimination on the basis of race and colour.

 

The fact that discrimination on the basis of race and colour continues to be an issue after nearly four hundred years indicates an inability to deal with the root causes of this issue.  Even with the enactment of the present human rights legislation, there continues to be allegations of discrimination and denials of same.  Analysis of how history, immigration and attitudes have continued to nourish discrimination is, therefore, in order.   Regina Austin was of the opinion that it is important to include a historical background to discussions of Black racial discrimination because:

  History suggests that Black people's resort to conventional warfare on the legal terrain proceeds more smoothly when the positions underlying their claims or entitlement have achieved some positive visibility via skirmishes in the cultural and political domains. 

This paper will, therefore, look at the history of Blacks in Canada, immigration policy, court decisions that uphold racial discrimination, legislative enactments that address the issue, employment discrimination and the handling of complaints in Ontario to show the development of race and colour discrimination in labour relations.  

 Finally, it will be argued that without education on the genesis and perpetuation of the problem, the appeal to the economic self-interest of employers, discrimination on the basis of race will continue.

II. THE HISTORICAL APPROACH

 It is almost impossible to have an appreciation for the current attitudes towards Blacks in labour relations without understanding the effect of prior experience on present conduct.

  

A comprehension of the past seems to have two opposite advantages in the present:  it makes us aware of how different people have been in other ages and accordingly enlarges our awareness of the possibilities of human experience, and at the same time it impresses upon us those tendencies in human beings which have not changed and which accordingly are unlikely to at least in the immediate future.  Viewed from a slightly different vantage point, an understanding of the history of our own culture gives some inkling of the categories of possibilities within which for the time being we are born to live. 

The historical approach is also important in this context because it helps to explain why Canada which some argue had no experience of Black slavery has the animus for Blacks that is seen in other parts of the former British Empire that have documented histories of the subjugation of Blacks.

 

If there is to be any alleviation of the tensions that continue to permeate the workplace, Canadians have to acknowledge that "too often have we as a society disregarded our legal history to keep from our full consciousness the extraordinary insensitivity and brutality of our past".   What, then, is the history of this hemisphere that continues to inform race relations in Canada?

 A. The English Colonial

 The English colonies established in North America and the West Indies were seen as satellites of Britain.  They were, in effect, overseas components of the mother country.  The assumptions and values of the English person born in the colonies were no different from those of the person born in England.  To ensure the continuation of  English customs, children of "upper-class" English colonists were sent back to England to finish their education, if their families could afford it. In fact, whether because of feelings of inferiority or otherwise, the colonials endeavoured to be more English than Englishmen.   It was this group that would set the moral standards and customs of the day in the colonies.  This connection with Europe was especially important because it differentiated them from the American Indian, the Caribs and Arawaks in the West Indies and the servant class whites.  It was significant, then, that this upper-class group adopt the opinions that were prevalent in England. One of the sentiments gaining credence in Europe at that time was that Africans were not humans because their colour, facial features and religion were not those of Europeans.  The continuation of this type of belief can be seen in the opinions in England, as expressed in the London Times, after the Jamaican uprising was that:

  It seems impossible to eradicate the original savageness of the African blood.  As long as the black man has a strong white Government and numerous white population to control him he is capable of living as a respectable member of society ... But wherever he attains to a certain degree of independence there is the fear that he will resume the barbarous life and the fierce habits of his African ancestors.... 

These were the types of opinions that the colonials were absorbing in England and spreading in the colonies.

 B. The Colour Divide

 

When Englishmen began their forays into Africa for the purposes of trade, the standard of beauty in England was pale white skin.  The shock of meeting Africans who were a different colour, had different features and who did not worship a Christian God was a novelty at first.  These encounters were especially perplexing for English people whose portrayals of the colours were that "white and black connoted purity and filthiness, virginity and sin, virtue and baseness, beauty and ugliness, beneficence and evil, God and the devil."  It soon became obvious that the Africans' preference for colours was inverse to the European's and they showed a preference for Black features.  To the Africans, the devil was to be painted white.   Eventually, those differences were used to justify the white man's debasement of Blacks as slaves in the British colonies.  

 

With the colonization of the North American continent and the West Indies, what was important for the economic well-being of the colonies and their plantation economy was the need for cheap labour in plentiful supply.  The first group that was looked at as a source of cheap labour was the indigenous population but they proved to be uncooperative.  Next came the indentured servant who was recruited from the servile class of Europe.  They proved to be too expensive, they did not work well in the climate and they had a tendency to leave at the end of their contract.  During the term of their service, they had to be physically chastised to encourage them to work.  As Englishmen visiting the colonies spread the word on their return to Europe that the servants were being more brutally treated than servants in England, it became difficult to recruit new servants.

 What was necessary was a more settled, more dependable work force.  Enter the African.  Any concerns about living in close proximity to a people totally foreign in colour, speech, religion and culture were outweighed by the prospect of a generous supply of labour for life. 

 

C. Race Prejudice and Slavery

 

There has been a continuing debate about whether black slavery in the colonies came about because of racism or whether racism came about because of black slavery.  As Robin Winks saw it, slavery in the Caribbean has been too narrowly identified with the Negro. A racial twist has thereby been given to what is basically an economic phenomenon.  Slavery was born of racism:  rather, racism was the consequence of slavery.   Jordan, on the other hand, takes the view that there was a mutual relationship between slavery and unfavourable assessment of Blacks.  As he saw it, rather than slavery causing "prejudice" or vice versa, they seem to have generated each other.  Slavery and "prejudice" may have been equally cause and effect, continuously reacting upon each other and resulting in the degradation and debasement of Blacks.   For her part, Barbara Fields is of the opinion that Blacks were only relegated to inferior status after Africans and their descendants were enslaved. 

 

What is clear, however, is that Blacks came to be associated with slavery.  Slaves, in turn, came to be regarded less as human beings and more as beasts of burden, particularly when they are foreigners who can be treated as biologically inferior.   When it was admitted that Blacks were human beings, they were seen as a race so obviously inferior in race and culture that the English need not trouble to consider their rights.   Even when slavery gradually died out in Canada, stereotypical characterization of Blacks as dependent, lacking in initiative and suitability only for service and unskilled employment were nourished by continued enslavement of Blacks in the British Empire until 1834 and in the United States until 1865. 

 While white servants and Black slaves were both physically mistreated by owners, there were several differences between their situations which have resulted in the perception of their respective places in society today:

 1. Blacks were distinguishable from the rest of the population by their skin colour and facial features.

 2. Blacks were slaves for life.  The white servants' loss of liberty was of limited duration.

 3. Black children took the status of their slave mother.  The white servants' status did not descend to his or her offspring.

 4. The master at no time had the absolute control over his servant that he did over his slaves.

 5. The white servants had limited rights which were recognized by law and written into their contracts.  Black slaves had no rights as they were the property of their slave master. 

 6. Conspicuous by their colour and features, it was difficult for the Blacks to stray too far from the slaveholding without being apprehended as a runaway.  White skin, however, was the servant's passport to escape.

 7. The total moral degradation, the intellectual subjugation, the stripping away of all cultural attributes, the dehumanization, the demonization, the sexual exploitation, the demand for mechanical obedience and the physical abuse applied to Black slaves made slavery possible.  Racial differences made it easier to justify and rationalize the institution of Black slavery.  It was easier to say that the Black slave who received this treatment was not human than to say that the perpetrators were inhumane.

 8. Most important of all, Black slaves are cheaper.  The price of a white man's labour for ten years could buy a Black slave for life. 

 

Most slaves worked in agriculture but there were many who were carpenters, masons, mechanics, shoemakers, cabinet makers, seamstresses, tailors and other skilled trades people who lived in urban areas.   The training of these slaves was not brought by a change in the view of the Black slave's place in society.  Owners realized that they would earn more and, if sold, a skilled slave would bring twice as much as an unskilled slave.  The fact that Blacks were able to learn trades undermined the assertion that they were not capable of being instructed.  The economic benefit for the slave owner, however, outweighed any scruples he might have about Blacks mastering the skilled trades.  The whites who were in the trades were opposed to teaching their skills to the Blacks.   The reasons for the opposition might be found in the conviction that Blacks belonged only in the fields where their work was similar to the beasts that they had been equated to, and in the belief that Blacks in the trades would lower wages, or displace skilled whites altogether.  This was the beginning of what has proved to be an ongoing rivalry between Blacks and whites in labour relations.  In countries with populations of predominantly European background, this was also the foundation for the concept that Blacks belonged in certain occupations.

 

 D. Blacks in Canada

 

The first record of a Black person in what was later to become Canada was the arrival of Mattieu da Costa as the interpreter between Samuel de Champlain and the local Mi’kmaq people in 1606.   By the time the British conquered New France in 1759, between one thousand and fifteen hundred slaves had come into the colony.  They worked mostly as house servants and labourers around the fur-trading posts and hospitals.   

 

It was not until the American Revolution, however, that Canada got its first substantial Black immigration.  In answer to the British entreaty for support in fighting the Americans in return for land in Canada, some 3,500 Blacks joined the other Loyalists in Nova Scotia.  The former Black slaves had been promised they would receive their freedom and would have the same rights and privileges as the other Loyalists.  Few Black Loyalists received the land they were promised and those who did were settled on rocky lots in separate areas outside white centres.  Desperate to find work, they accepted wages below the going rate.  Whether because of their status as former slaves or because of their colour, Black Loyalists were perceived as lowly labourers and incomplete citizens.   When the land they were promised never materialized, the Black Loyalists petitioned the British Government directly setting out their grievances and asking to be settled as free subjects of the British Empire.  By January 1791, approximately 1,200 Black Loyalists sailed from Halifax for Sierra Leone. 

 

The Maroons of Jamaica who were deported to Halifax in 1796 provided the second large group of Black immigrants.  From their free communities in Jamaica, they waged war against the European settlers.  In an effort to provide security for the settlers, the Maroons had been deceived by the British into surrendering and were exiled to Nova Scotia.  They helped to build the Citadel but they were a proud and independent people and they refused to become compliant Nova Scotian settlers.  After repeated appeals to London, they were finally permitted to emigrate to Sierra Leone in 1800. 

 

Word had spread to Black Americans that slaves would be free if they could reach Ontario.  The Underground Railroad brought many to the province at a time when there was a desperate need for labourers.  In fact, one of the arguments used to oppose the passing of Governor Simcoe's anti-slavery bill in 1793 was the contention that the province needed the labourers.  By 1850, it was estimated that Ontario's Black population had grown to approximately forty thousand. 

 

During and after the War of 1812, there was another influx of some 2,000 Black American slaves who, encouraged by promises of complete freedom and settlement on British land, fled to Nova Scotia and New Brunswick.  These Black Refugees, as they were called, "carrying the negative status of former slaves and sharing the colour characteristic of the region's service caste, were expected to perform manual labour at low rates of pay".  

 

By this time, the pattern of Canadian attitudes towards Blacks was beginning to develop.  Blacks were seen as dependent, lack initiative and are suitable only for service and unskilled employment.  White Canada would permit Black people to settle in Canada as long as they lived apart, accepted their status as inferior to the white population, provided cheap labour in good economic times and disappeared in bad economic periods.  The stereotypical role that was being assigned to Blacks is borne out by the resolution that was passed by the Nova Scotia Assembly in 1815 to "ban further black immigration on the grounds that there were already enough `labourers and servants"'.   As will be seen, this propensity to link race, immigration and employment would be a continuing theme in Canada. 

 

If there was any doubt as to which race Canadians felt it should accept as immigrants and under what circumstances, the experience of the Oklahoma Blacks is instructive.

 

In an effort to attract American immigrants to settle and farm on the Canadian Plains (what was to become Alberta and Saskatchewan), the Canadian government started an advertising campaign in the American Midwest.  The intention of the government was that Canada was to remain British and the advertising was directed towards those of Anglo-Saxon background or those who could be easily assimilated.   The advertisements found their way into Black newspapers.  Enquiries about Black immigration were answered by comments such as those by L. M. Fortier, secretary of the Department of the Interior, Immigration Branch, that "... the Canadian Government is not particularly desirous of encouraging the immigration of negroes."     

When Oklahoma became a state in 1907, segregation laws were passed and in 1910, Blacks were disenfranchised.  Oklahoma Blacks started to move into the Canadian Plains.  Blacks became the subject of stereotyped cartoons, jokes which appeared in newspapers and journals.  As the Edmonton Board of Trade opined, the marked increased in Black immigration to the Plains were laying the foundations for a "negro problem" because Blacks were a "most undesirable element", and it urged the authorities to take immediate action to stop Black immigration.  The Board of Trade was so concerned that on 18 April 1911, it sent a petition to Ottawa which read, in part, as follows:

  We cannot admit as any factor the argument that these people may be good farmers or good citizens.  It is a matter of common knowledge that it has been proved in the United States that negroes and whites cannot live in proximity without the occurrence of revolting lawlessness, and the development of bitter race hatred ... We are anxious that such a problem should not be introduced into this fair land at present enjoying a reputation for freedom from such lawlessness as has developed in all sections of the United States where there is any considerable negro element.  There is no reason to believe that we have here a higher order of civilization, or that the introduction of a negro problem here would have different results. 

With those sentiments being expressed, the Saskatoon Daily Phoenix was able to argue that "...there is no inherent unfriendliness towards the black man in this country ...."  But, as a former American woman then living in the Plains pointed out, she found it hard to understand why the people of the north who believed, preached, and practised social equality objected to Black settlers. 

 

The debate about Black immigration was also taking place in the House of Commons.  In 1910, Prime Minister Sir Wilfrid Laurier had the following to say on the issue:

  We see in the United States what grave problems may arise from the presence of a race unable to become full members of the same social family as ourselves. 

The assumption that Canada belonged only to whites was also voiced by others in the House such as William Thoburn, Conservative member for Lanark North in Ontario who questioned the Minister of the Interior as to "whether the government was prepared to stop the developing black influx, and whether it would not be preferable `... to preserve for the sons of Canada the lands they propose to give to niggers?'"    Robert Borden who was the Conservative Leader of the Opposition at the time was of the opinion that it would be unfortunate if Blacks were excluded on the grounds of their colour because the regulations were too strictly applied.  The position of the Liberal government on the issue was outlined by W. D. Scott, Superintendent of Immigration, in 1914,

  

  At no time has the immigration of this race been encouraged by the government, and it must be with regret that students of the immigration problem view the movement of coloured persons from Oklahoma to the western provinces which commenced during 1911.... It is to be hoped that climatic conditions will prove unsatisfactory to those new settlers, and that the fertile lands of the West will be left to be cultivated by the white race only. 

The pervasive feeling among white Canadians was that Black immigration was not to be encouraged.  As was seen, this theory could be suspended when Canada needed workers to perform tasks once closely associated with slaves.  The immigration of West Indian Blacks provides an instructive view of how colour and race pre-determined employment possibilities and have resulted in discord in the workplace today.

III. RACE AND JOB MATCHING IN WEST INDIAN IMMIGRATION

 

Except for the Maroons from Jamaica that were referred to earlier, there were very few West Indian Blacks in Canada until Barbadian Blacks were brought to work in the coal mines of Sydney, Nova Scotia, at the end of the nineteenth century.  During World War I, several hundred more West Indians were recruited as labourers to work in the mines of Cape Breton.  They were displaced at the end of the war by returning soldiers who reclaimed their jobs and many moved to Montreal and Toronto to look for work.  Railway porter had by that time become a Black man's job in North America and Montreal was the hiring centre.  Employment in Toronto was curtailed to the Black jobs of porters, bellhops and maids, the stereotypical service positions.   Even the West Indian medical students at McGill and Queen's University were protesting in 1918 that they were the objects of discrimination.   Although Canada was underpopulated and campaigns were being run in Europe and the United States to attract immigrants, no recruiting was done in the West Indies.  Immigrants coming directly from the West Indies increased the numbers to over 1,200 in Toronto and about 400 in Montreal by 1921.   After that time, West Indian immigration almost ceased.  The pressure to admit more West Indians persisted, however.

 A. The Explicit Racialization of Immigration

 

After World War II, there was another push by Black West Indians to emigrate to Canada.  The prevailing attitude in Canada continued to be that race and colour would determine who was suitable for permanent status in Canada. 

 Close relatives and visitors of Canadian citizens of West Indian background were refused entrance into Canada.  Closer inspection revealed that Black West Indians were refused entry while white West Indians could enter without any difficulties.   That this was not random acts by individual immigration officers was disclosed by Prime Minister Mackenzie King's speech in the House of Commons in 1947 in which he claimed that "the people of Canada do not wish, as a result of mass immigration, to make a fundamental alteration of the character of our population".   The Federal Government's policy was incorporated into the Immigration Act  of 1952 which prohibited entry to Canada on the following grounds:

  (1) nationality, race, citizenship, ethnic group, occupation, class or geographical area of origin;

  (2) peculiar customs, habits, modes of life or methods of holding property;

  (3) unsuitability having regard to the climatic, economic, social, industrial, educational, labour, or other conditions, or requirements existing temporarily or otherwise;

  (4) probable inability to become readily assimilated or to assume the duties and responsibilities of Canadian citizenship within a reasonable time after their entry. 

The effect of this legislation was to exclude Blacks from the post-war industrial boom that was attracting large numbers of immigrants to Canada.  There is a recurring theme, however, in buoyant economic periods:  white Canadians refused to do certain kinds of work and, as was seen from the period of slavery, those jobs were seen as befitting Blacks and their place in society.

 

The Blacks who were in Canada did not meekly accept the status quo, however.  In February, 1951, they formed the Negro Citizenship Association (NCA) in response to the continual appeal of Black men and women "who were experiencing untold indignities and hardships occasioned by the wholesale rejection of their attempts to be legally admitted to Canada."  At that time, not even close relatives were admissible.   After garnering support from 26 of the 200 organizations it had approached, 35 members of the NCA led by Don Moore, in the absence of Prime Minister St. Laurent, presented a brief to Walter Harris, Minister of Citizenship and Immigration, on April 27, 1954.   The brief indicated that the Immigration Act of 1952 was written so as to permit entry into Canada of British subjects from the United Kingdom, Australia, New Zealand or the Union of South Africa and citizens of Ireland while excluding British subjects from the British West Indies, Bermuda, British Guiana, Ceylon, India, Pakistan, Africa, etc.  It pointed out that the effect of this was to instil in Canadians the feeling that there are superior and inferior races and this would tend to raise animosity between people born in different geographical areas.  The brief invoked the pronouncement of the United Nations Universal Declaration of Human Rights that all human beings are born free and equal in dignity and rights and proceeded to debunk the validity of arguments such as climate and assimilation being used to deny entrance to Blacks.  At the same time, the NCA brief pointed out that while there was a provision of immigrants to be admitted to Canada on the basis of exceptional merit, Black nurses, draughtsmen, stenographers, and graduates of Canada's leading educational institutions have been rejected. 

 

This agitation by Black people for racial equality in Canada, the United States and the Commonwealth again pointed the spotlight at the state of race relations in Canada.  The Diefenbaker government passed the Canadian Bill of Rights  which recognized that Canadians had certain human rights and fundamental freedoms which should not be infringed on the basis of race, national origin or colour.  The Immigration Act of 1952 clearly contravened the Bill of Rights.  As a result, the immigration regulations were revised making training, education and skills matched to need in Canada the main conditions of admissibility.  The effect of a system that was not based on race was profound:  between 1960-1969, 46,030 West Indians immigrated to Canada.  The introduction of the "points system" in 1967 which gave credit for education, employment prospects, age, health and language plus the opening of Canadian immigration offices in the Caribbean resulted in a doubling of the number of Caribbean immigrants to Canada between 1966 and 1967.  They were, on average, younger than other immigrants, and their educational and skill background was highest of any immigrant group.   The West Indians came closest to the desired immigrants to Canada in the points system, but it remained to be seen whether the revocation of government policy could reverse centuries of state sanctioned racial discrimination.

 B. The West Indian Domestic Scheme

 

During the 1920s, a small number of West Indians had been permitted into Canada as domestics.  It was in 1955, however, that a formal policy was developed to recruit annually 100 Black women from Barbados and Jamaica between the ages of 18 and 35, in good health and with a minimum of Grade 8 education to work as domestic servants for at least one year.  The inducement was that these women would be granted landed immigrant status at the end of the year and would be eligible for Canadian citizenship after five years in Canada.  Most of the women who applied had not been servants before applying.  "They were secretaries and clerks, teachers and nurses, as well as the unskilled worker."   As Makeda Silvera pointed out, what was never talked about or made clear to the women is the widespread prejudice they would come up against in Canada and the racism imbedded within the system. 

 Why were they recruited and why did they come?  

 

As industrialization progressed during the first half of the twentieth century, domestic service declined in status.  "It was not considered an integral part of the economy ... it involved no significant outlay of capital and produced no profit.  In a society based on the production of commodities for sale and profit, domestic labour was progressively devalued."   Servants were expected to be deferential, passive submissive, clean and sexually virtuous.  Most of all, they were inferior and of low social status.  They were usually from the most vulnerable and desperate sections of society.    These "attributes" were, of course, the same as those thought most desirable in the "Black mammies" who took care of the master's children during slavery.

 The parallels between the introduction of Africans into this hemisphere as slaves and the recruitment of the West Indian Domestic Scheme are striking.  The most desirable domestics were white English and Scottish "girls" who were seen as future wives and mothers in the building of a white Canada.   The West Indian women were recruited because of the inability of Canadians to recruit and retain white servants from Europe.  At the end of their service, the white domestics could procure employment in other areas and thus leave their status behind.  While it was possible for the Black women to leave domestic work after a year, they were often forced to remain for longer periods because they were unable to obtain other types of employment because of their race which was automatically linked to servitude.  Most continued their education and were eventually able to work in other fields.  What they were not able to escape was the attitude of Canadians that they belonged in occupations of a servile nature which were in keeping with their race.  They also had to deal with the animosity of white co-workers who resented working in the same surroundings with Blacks who they felt were their inferiors.  If Canadian whites were uncomfortable with Blacks, the Black domestics were for the most part disappointed with Canadians with whom they came in contact, finding them unfriendly, ignorant and prejudiced.  Canadian whites, they felt, only accepted West Indians superficially and while whites were not overtly hostile, the Black women felt that their reaction to Black people was strained. 

 West Indian domestics were also cheaper.   Under the Scheme, Caribbean domestics were expected to work harder for less pay than their Canadian and European counterparts.   The analogy can be drawn again to the perceived economic benefit of having Blacks work in jobs where white servants were proving too costly.  In order to be assured of a cheap but controlled supply, 

Canada was prepared to tolerate a minuscule number of Black women coming into the country -- provided they were doing work suited to their race.

 The women took part in the domestic scheme first and foremost because it was the only legal opportunity they had to gain entrance to Canada under the immigration system that was existing at that time.  At a time of overcrowding and limited employment opportunities in the Caribbean, it was also a means for the skilled and semi-skilled workers to "further their education and seek other fields of employment." 

 It should not be taken that the Domestic Scheme was in some way an abandonment of the Canadian policy of immigration on the basis of race.  It was still the view of the Director of Immigration that:

  ... It is from experience, generally speaking, that coloured people in the present state of the white man's thinking are not a tangible asset, and as a result are more or less ostracised.  They do not assimilate readily and pretty much vegetate to a low standard of living ... many cannot adapt themselves to our climatic conditions.  To enter into an agreement which would have the effect of increasing coloured immigration to this country would be an act of misguided generosity since it would not have the effect of bringing about a worthwhile solution to the problem of coloured people and would quite likely intensify our own social and economic problems. 

The Scheme came about because of "economic, political and ideological interests".  The Black community was pressuring the Government of Louis St. Laurent to accord the British subjects from the Caribbean equal treatment with other British subjects and for an immigration office in the Caribbean.  At the same time, Canada was trying to further its economic interests through trade and investments in the Caribbean.  Against this backdrop, the Domestic Scheme was put forward as a short-term solution to the chronic shortage of domestics.   To emphasize the temporariness of the arrangement, the Caribbean Domestic Scheme was approved annually by Order-in-Council until its discontinuance in 1968.   It might have achieved its goal in providing cheap domestic workers to Canada but it also reinforced the stereotype of Blacks as belonging in servile occupations.

 

C. The Railway Porters

 

Another example of how the need for cheap labour and stereotyped views on what type of work Black people should be engaged in can be found in sleeping car porters on railroads.

 

From the inception of railroad sleeping cars in 1867 by the Pullman Car Company, Black porters became a North American tradition.  While the practice started in the United States, Canadian Railway companies adopted the custom and it continued until the mid-1950s.  Portering became an occupation that was synonymous with Black men.  In fact, regardless of their education, prior to World War II, the majority of Black men in cities were railway porters.  Men such as Emerson Mahon with a B.Sc. in Zoology from the University of Manitoba, Stanley Clyke who had a B.Sc. from Acadia University and was studying medicine, Clay Lewis who graduated from Morehouse College with a major in Business Administration were porters,  and Earl Swift who graduated from McGill majoring in Economics and Political Science was a cook on the Grand Trunk Railway. 

 

Three reasons have been advanced for the selection of Blacks as porters on sleeping cars.  First, they were paid cheaper wages, and it was felt that Blacks were less likely than whites to form unions to demand improved working conditions and engage in strikes.  Second, since Blacks and whites did not move in the same social circles, the indiscretions of white passengers on the trains would not be exposed.  Third,  the place of Blacks in North America had traditionally been to serve whites and being waited on by them was a status symbol for whites.  As an incentive to ensure the appropriate amount of humility, the porter was paid a low monthly wage and had to depend on passengers to augment his income through tips.   This was buttressed by the fact that a complaint from a passenger could result in demerit marks and even dismissal.   It is worth noting that, again, there are the recurring themes of Black inferiority, suitability only for service and unskilled employment that was first observed during slavery.  The institution might have been abolished in 1834 in the British Empire and 1865 in the United States, but the attitudes continued to dominate white Canadian treatment of Blacks.  In other words, the slaves were free but Black people were not free.

 The role that unions played in maintaining the segregation of Black porters and the acquiring of rights is instructive showing how Blacks sought to overcome the ghetto they were assigned to.

 

The Order of Sleeping Car Porters (OSCP) was formed by the porters on the Canadian National Railways (CNR) in 1918 and the Brotherhood of Sleeping Car Porters (BSCP) was formed in 1925 to represent Pullman porters in the United States and Canada.  Until then, Blacks had been excluded from unions on the railways in North America.  Porters, however, were the lowest paid group of employees, doing the most menial job for extremely long hours with little rest and it would seem natural that they would be organized.  One of the bargaining chips that the railways had, however, was that with the knowledge that portering was concentrated in the Black community, if the men did not take what the railroad offered, they did not have jobs.  

 Another tactic used by Canadian Pacific Railway (CPR) was to hire its regular porters in the southern United States on six-month contracts and hire Black college students from the States for the summer tourist season.  The result was that CPR had a workforce that it could get rid of quickly and, of course, the porters were always unsure of their jobs and were less likely to attempt to unionize.  And, to ensure that there were no loopholes left, CPR required each porter entering its service to sign an agreement that, in consideration for the company hiring the porter, CPR reserved the right to dismiss the porter without notice and without just cause.   Such a clause has the potential for abuse of workers and that was just what happened at CPR.  When the OSCP began organizing the CPR porters in 1919, the company dismissed thirty-six porters without cause.  At a hearing under the Industrial Disputes Investigation Act  of 1907 brought by seven of the men dismissed, CPR argued that it was exercising its rights under the contract and refused to recognize the bargaining rights of the porters' grievance committee.  In a two to one ruling, CPR won its case.

 

The discontent among the porters and their wish to organize themselves into a bargaining unit was not to be ignored, however.  CPR recognized the Porters Mutual Benefit Association and requested that the association form a grievance committee to discuss matters of mutual interest.  The Porters Welfare Committee came into being.   With a committee it could control, CPR then assisted the Association in collecting from workers fees for sickness, funeral, room and recreation on layovers and paying them directly to the treasurer.  New employees were told about the Association and the company provided the use of one of its houses in Montreal to the Association.  While the Association could provide welfare services to porters, it could not address the substantive grievances that they had over hours of work, pay and human dignity.  Finally, in 1939, the Association requested the assistance of  A. Philip Randolph, international president of BSCP in organizing the porters.   The company's campaign of intimidation and manipulation was so successful that it was not until 1945 that CPR's porters were unionized. 

 

The porters were finally assisted in their quest for desegregation of jobs in the railway by the Canada Fair Employment practices Act in 1953 which prohibited discrimination in employment and membership in trade unions on ethnic or religious grounds.  Most of all, the porters kept applying for jobs as conductors while bringing political pressure to bear on CPR.   Finally, in 1955, three Blacks men were hired as conductors on a trial basis and with pressure from the Federal Department of Labour, two other Black porters were hired as conductors.

 

The Black porters also won their fight at CNR for job integration and amalgamation of porters' and dining car locals of the Canadian Brotherhood of Railway Transport and General Workers.  However, part of the original reason for segregation of the locals was to protect the white employees from competition from the Blacks.  The changes brought exacerbated antagonism between Black and white employees and some Black employees reported being called derogatory names. 

IV EARLY COURT DECISIONS ON RACIAL DISCRIMINATION

 

Maintaining that Canadians do not discriminate on the basis of race and assigning the stories of unequal treatment of Blacks to the Southern United States or South Africa does not diminish the fact that Canadian history is as marked as those other countries with racial discrimination.  The refusal to acknowledge the past is having the unfortunate effect of perpetuating racial discrimination today.  The Canadian hypothesis is along these lines:  if what we did in the past was not racial discrimination, then continuing the same conduct today is not racial discrimination.

 

Blacks at the beginning of this century tried to engage the justice system in the fight against racial discrimination without much success.  The striking feature of these cases is that these were the same issues which Canadians deplored in the United States in the 1960s when Blacks demanded to be served in restaurants.  We were also outraged to hear of such occurrences under Apartheid in South Africa into the 1990s.

 

In order to gauge the state of racial discrimination in Canada, it is important to analyze Court decisions to determine what conduct was considered to be against public policy or good morals of this country.

 

Although there were earlier cases such as Johnson v. Sparrow , a good place to begin is with Loew's Montreal Theatres Ltd. v. Reynolds  because the Court of King's Bench cited with approval the Johnson decision.  Briefly, the facts in Loew's Montreal Theatres was that Mr. Reynolds, a Black man, sued the theatre in damages for being denied a seat in the orchestra section of the theatre because of his colour.  The management of the theatre had determined that no Black person would be admitted to the orchestra seats.   The Superior Court found in Mr. Reynolds' favour and he was awarded $10 in damages.  The theatre appealed and the issue before the Court of Appeal was whether or not the rules and regulations were binding and effective as Mr. Reynolds had notice of same.  In a four to one decision, the court held that:

  The management of a theatre could impose such restrictions and make such rules not against public policy or good morals, as it saw fit.  Of course, if it made a firm contract without restrictions to give a patron a special numbered and reserved seat, it could not, in such case, afterwards invoke or impose a condition unknown to the holder of the ticket without violating its contract and exposing itself to damages. 

As the Court saw it then, it was not against public policy or good morals to segregate Blacks in a theatre open to the public as long as management informed Black patrons it was going to restrict their seating.  The Court was careful to point out, however, that:

  While it may be unlawful to exclude persons of colour from the equal enjoyment of all rights and privileges in all places of public amusement, the management has the right to assign particular seats to different races and classes of men and women as it sees fit, but, unless there is a regulation of the theatre assigning particular seats for white people and for coloured people, the management would have no right to eject coloured people who had purchased tickets of general admission. 

The Court was able to condone the theatre's actions while espousing the rights of Black people to all rights and privileges in all public amusement places.  The Court's view was that since Mr. Reynolds knew the theatre's policy at the time he purchased his ticket, he could not contend that his rights to equal treatment were violated.  The judgment of the lower court was reversed, Mr. Reynolds' action was dismissed with costs.

 

Canadians have become known for our peculiar brand of racial discrimination.  Since we consider ourselves genteel folks who patterned our manners on the European customs, it is considered impolite to call a Black person "nigger".  If we ascribe certain attributes to Blacks and treat them differently because of their race and colour, we will not be criticized provided we do so politely.  Illustrative of this type of racial discrimination is the case of Franklin v. Evans .

 

Mr. Franklin, a Black watchmaker from Kitchener was in London, Ontario, on business on July 20, 1923, and asked to be served lunch at the Evans' restaurant.  He was informed by the maid that "they did not serve coloured people".  Mr. Franklin left the restaurant and, after consulting with the police, returned to ascertain the attitude of the defendant Evans.  Mr. Evans confirmed the earlier refusal and, as the court said, 

  

  ... he was certainly not as humane or considerate as he well might have been.  If I said that he was unpardonably offensive, the expression may have been too strong, but not much too strong. 

 Mr. Franklin did not claim any actual financial loss but sued the restaurant on the basis that he had been denied a right as a Canadian citizen.  Mr. Justice Lennon, sitting without a jury, described Mr. Franklin as follows:

  The plaintiff is undoubtedly a thoroughly respectable man, of good address, and, I have no doubt, a good citizen, and I could not but be touched by the pathetic  eloquence of his appeal for recognition as a human being, of common origin with ourselves. 

His Lordship was not sufficiently touched, however, to find in favour of the plaintiff.  The Court held that a restaurant-keeper did not have to serve all who applied for service and he had a right to ask a Black person to leave his restaurant on the basis of his race.  However, since the restaurateur was so impolite in discriminating on the basis of race, the case was dismissed without costs.

 The question of whether the refusal to serve Black persons because of their race was contrary to good morals and public order was revisited in Christie v. York Corp.   This time, however, the matter was before the Supreme Court of Canada as an appeal from the Quebec Court of King's Bench, Appeal Side.  In a four to one decision, the Supreme Court ruled that, in keeping with the doctrine of freedom of commerce, a licensed tavern in Quebec could refuse to serve to a Black man solely on the basis of his colour and the adoption of such a rule was not contrary to good morals or public order.  The majority of the Court reached its decision by applying the decisions in Loew's Montreal Theatre v. Reynolds , examining the License Act  and interpreting the words "restaurant", "food" and "traveller" to determine if food was denied a traveller without reasonable cause.  The majority adopted the view of the learned authors Carpentier and du Saint that,

  (Translation):  The principle of freedom of industry has caused the authors of the Encyclopaedia of law to decide that the hotel keeper is always at liberty to refuse a traveller who presents himself ....  A constant jurisprudence sustains this last view, and the question no longer offers any serious difficulty. 

 

As far as the Court was concerned, the jurisprudence was well established and there was really no need to do a serious analysis of this particular case.  That they were foreclosing on the rights of Black Canadian citizens and British subjects did not enter into their reasoning.

  

The dissent of Mr. Justice Davis put some context to the law as it existed and arrived at the opposite decision.  It is from his decision that we learn that Mr. Christie was a British subject from Jamaica who had lived in Verdun, Quebec for some 20 years.  He was a Black man who worked as chauffeur in Montreal and was a season box subscriber to hockey matches held at the Forum in Montreal where the respondent operated a beer tavern which served some food.  On the evening in question, Mr. Christie and two friends, one white and one Black, entered the tavern before a hockey game.  Mr. Christie, at that time, put 50 cents on the table and asked the waiter for three steins of beer.  The waiter declined to fill the order, stating that he had been instructed not to serve coloured people.  Mr. Christie and his friends verified this with the bartender and manager and then called the police.  The manager repeated the refusal to the police.  Mr. Christie reported that he was humiliated in the presence of some 70 customers and he sued in contract and tort for damages.

  Instead of treating the case as a point of law, Davis, J. looked at Mr. Christie as a human being and applied the law to the facts as they were brought before the Court.  He countered all the analysis that the majority used to reach their decision by pointing out, for example, that where the majority adopted the English decision of Sealey v. Tandy  for the proposition that the occupier and licensee of a licensed premises (not being an inn) has a right to request any person to leave whom he does to wish to remain upon his premises, the editors put a footnote referring to A.-G. v. Capel .  In that case, Chief Justice Hussey said that "a `victualler'  will be compelled to sell his victual if the purchaser has tendered him ready payment, otherwise not".

 As Davis, J. saw it, 

  In the changed and changing social and economic conditions, different principles must necessarily be applied to the new conditions.  It is not a question of creating a new principle but of applying a different but existing principle of law. 

It could hardly be said that Davis, J. was taking an activist stand on this issue.  What he did, however, was to implicitly consider Blacks to be worthy of equal treatment in his analysis of this case.  Having started at that point, he arrived at a different conclusion than the majority who seemed not to have considered Mr. Christie at all.

 

For those who clung to the idea that since Christie was decided under Quebec civil law, it would not apply to the common law provinces, that hope was dashed by the decision of Rogers v. Clarence Hotel Co. Ltd.  where the British Columbia Court of Appeal held that Christie is not based upon the Quebec civil law but upon general principles which are applicable to the common law jurisdictions of Canada.  This meant that a licensed beer parlour operator in British Columbia could refuse to sell beer to a Black person solely because of his or her colour.

V. ONTARIO'S LEGISLATIVE RESPONSE

 

Unfortunate though the decision in Christie might have been, it finally showed Black Canadians that their right to equal treatment was not going to be validated by the Courts.  The other arena in which to fight this issue was to appeal to the legislature to enact laws prohibiting discrimination on the basis of race.

 

A. History of Discrimination Legislation in Ontario

 

In 1944, The Racial Discrimination Act  was enacted in Ontario to prevent the publication of discriminatory matter referring to race and creed.  While prohibiting the publication or display of any notice, sign, symbol, emblem or other representation indicating discrimination or an intention to discriminate, the Act does not outlaw discrimination per se.  As if it were not weak enough, it is further diluted by the provision that the Act should not be deemed to interfere with the free expression of opinions upon any subject by speech or in writing and shall not confer any protection to or benefit upon enemy aliens.  The effect of the Act is to provide no real protection for Ontarians who might need protection on the basis of race or creed.  At a time when Canadians of Japanese descent were interned because of their race, the Act almost seems sinister.  The Government's stated intention was to pass legislation "designed to prevent discrimination against any person or class of persons because of the race or creed of such person or class of persons".   However, keeping in mind the social climate of the day and the fact that Ontario was the first government to pass such legislation, it must have seemed brave indeed to the Honourable Premier Drew and his government.

 

After expressing doubts about the worth of the legislation in March, 1950,  the Ontario government under Premier Frost introduced The Fair Employment Practices Act, 1951  amidst praise for the democratic ideals of the United States and the contribution they had made to the world.  

 The Act specifically excluded domestics employed in a private home; non-profit religious, philanthropic, educational, fraternal or social organizations and employers with less than five employees.  Employers were not to discriminate in employment because of race, creed, colour, nationality, ancestry or place of origin.  Trade unions were not permitted to exclude, expel or suspend a member or discriminate against them on the same grounds.  Finally, employment applications and advertisements in connection with employment were not to discriminate on the prohibited grounds.  The penalty for breach was $50 for an individual and $100 for a corporation, trade union or employers' organization or employment agency.

 It was clear that government had some political conviction about the theoretical need for the legislation but two criticisms can be made of the Act.  First, it gave the Director of the Fair Employment Practices Branch the discretion to decide if an act complained of was done in good faith solely to protect the security of Canada or any allied or associated state.    While this might seem innocuous on its face, this section could allow discrimination in employment against a person or group because they fall within the prohibited groups.  An example of this was the internment of the Japanese-Canadians during World War II on the ground that they were possible enemy agents.  However, the reason they were detained was because of their race and the suspicion that they might behave in a certain way.  

 

Secondly, there was no provision for the education of the public on the reasons for the legislation and on what discrimination was.  In 1951, there were still laws which discriminated on the ground or race, colour or place of origin.  There was no uproar over not hiring a Black woman as a secretary but hiring her as a domestic.  Enacting legislation against discrimination in employment without educating members of the public as to how prejudice and attitudes promote behaviour resulted in the behaviour going underground while resentment grows against attempts to curtail discrimination.

 

The next piece of legislation in Ontario was The Ontario Anti-Discrimination Commission Act, 1958  which established the Commission to advise the Minister in the administration of The Fair Employment Practices Act, 1951 (FEPA) and two others, to make recommendations to the Minister of Labour to improve the administration of the FEPA and to develop and conduct an educational programme to give the public knowledge about the FEPA and to promote the elimination of discriminatory practices.

 

In 1962, all the anti-discrimination legislation that had been administered by the Anti-Discrimination Commission were repealed and the provisions of those Acts were combined into The Ontario Human Rights Code, 1961-62 , amended to the present Human Rights Code  which, in connection with employment, provides that,

  5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap.

     (2) Everyone who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place or origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or handicap.

  6. Every person has a right to equal treatment with respect to membership in any trade union, trade or occupational association or self-governing profession without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or handicap.

  9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

VI. WHAT IS DISCRIMINATION?

 

During the debate on Bill 121, An Act to Promote Fair Employment Practices in Ontario,  Mr. Wismer, the member for Riverdale, displayed a firm grasp of discrimination in general and discrimination in employment in particular.  Having a sound understanding of discrimination and its origins and effects, he was able to discern the shortcomings of the Bill and the effect it would have in the future.  Mr. Wismer saw discrimination as falling into two parts:  discrimination and prejudice.  Without education, he argued, equality of treatment would not be achieved.  

 To develop a complete picture of discrimination and how it works, it is necessary to examine stereotyping, prejudice, discrimination and unconscious discrimination to determine how they determine the treatment that Blacks will receive in the workplace.

 A. Stereotyping

 

Using the printing industry term of "stereotype" which meant a uniform matrix of type which is moulded so that the printing is standard and unchanging, Walter Lippmann coined the term "social stereotype" to indicate:

  The problem of the acquisition of meaning of things, or of forming habits of simple comprehension, is thus the problem of introducing:  1)  definiteness and distinction and 2) consistency or stability of meaning into what is otherwise vague and wavering.  In the great booming, buzzing confusion of the outer world we pick out what our culture has already defined for us, and we tend to perceive that which we picked out in the form stereotyped for us by our culture.  

In other words, it is the passive way to deal with things or people that are different.

 Stereotypes have also been characterized as a highly exaggerated picture, the invention of supposed traits, and the formation of incomplete images leaving little room for change or individual variation.  This raises additional questions of myth versus reality, and the problem of evaluating the content of stereotypes.  Stereotyping may involve categorization (filling information when little is known about the group) or simplifying information if there is too much of it.  The result can be that:

  People form a gestalt which may be fairly accurate or very biased and inaccurate.  The assumption that when we know the facts about another person or group, we will act on those facts is not necessarily true.  Reason does not always prevail:  emotions often impose positive and negative evaluations.  When images of others become rigid, like the printer's stereotype, and when they produce the same reaction automatically without further examination, then we have a social stereotype. 

Through this process, it is possible to see how images of Black people as belonging to the bottom of the social ladder and only fit for servitude that have been passed since the days of slavery can becomes stereotypes which produce the same automatic reaction:  this is not a Black person's job.  In short,

  When stereotypes exist, an individual is judged, not on the basis of his own characteristics, but on the basis of exaggerated and distorted beliefs regarding what are thought to be the characteristics of the group.  All members of the group are falsely assumed to be alike, exceptions being ignored or their existence denied. 

It was this type of thought process that resulted in Black men who had earned degrees from well-known universities working as porters on the railway. The result of stereotypical thinking is prejudice.

 B. Prejudice

 

Stereotypes can take on another tinge which is even more difficult for Black people to combat.  A social or group prejudice is a way of feeling, a bias or disposition consisting of a commonly shared attitude or hostility, contempt, or mistrust, or devaluation of the members of a particular social group, because they belong to that group. 

  Negative evaluations of a group, if they do not reflect reality, indicate prejudice.  It is at this point that stereotypes and prejudice become synonymous.  Too often the distinction between stereotype and prejudice becomes blurred and stereotypes merely become negative attitudes. 

Prejudice can be defined as illegitimate categorization.  It has been argued that the definition of prejudice should be confined to acts of illegitimate differentiation between members of a democratic society that are due solely to ethnicity and that prevent the victims from competing with other aspirants on equal terms.   In a society where one race dominates, the actions and attitudes that are considered legitimate for all may be based on that society's expectation of what should happen to other races or immigrants in that society.  As a result, the non-dominant group may be treated differently and  differential treatment can be a predisposition to discrimination.

 

C. Discrimination

 

Prejudice refers to cognition while discrimination refers to action.  Both phenomena are subject to irrational emotions and often lead to attitudes and behaviours inconsistent with the values of freedom, equality of rights and opportunities and dignity and worth for each person in our community as espoused by the preamble of the Code.  While prejudice is defined as illegitimate categorization, discrimination is the illegitimate differential treatment.  Discrimination comes about when we deny to individuals or groups of people the equality of treatment that they may wish.  When the object of prejudice is placed at some disadvantage not merited by his or her own misconduct, then that is discrimination.  In other words, discrimination may be defined as the effective injurious treatment of persons on grounds rationally irrelevant to the situation. 

 Prejudice and discrimination reinforce each other:  Prejudice breeds discrimination and the vice versa, for discriminatory practices may breed prejudice, since they act, in a way, as a medium of indoctrination. 

 In Andrews v. Law Society of B.C.,   McIntyre, J. described discrimination as:

  ...a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.  Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merit and capacities will rarely be so classed.

The distinction which is made between what can be described as "stereotyped discrimination" and "meritorious discrimination" is important because it forces the employer, for example, to look at the capacity of the individual employee rather than some categorization that is based on group characteristics which might have a negative effect.  In fact, this is the basis on which Blacks have been asking to be judged.

 

D. Racial Discrimination

 

Perhaps no other form of discrimination is so vehemently denied in Ontario as racial discrimination.  The reasons might lie in how repugnant it is to treat members of our society differently because what is the most immutable of all the prohibited grounds:  race and skin colour. Part of the reason might lie in the view Ontarians have of themselves as "good" people who would never treat people differently.  Perhaps it is the conviction that Blacks are indeed inferior and deserve the treatment they receive.  Whether it is admitted or not, Ontarians practice racial discrimination and Blacks are more often than not the victims.  As Stephen Lewis reported to the Premier of Ontario:

  

  First, what we are dealing with, at root, and fundamentally, is anti-Black racism.  While it is obviously true that every visible minority community experiences the indignities and wounds of systemic discrimination throughout Southern Ontario, it is the Black community which is the focus.  It is Blacks who are being shot, it is Black youth that is unemployed in excessive numbers, it is Black students who are being inappropriately streamed in schools, it is Black kids who are disproportionately dropping-out, it is housing communities with large concentrations of Black residents where the sense of vulnerability and disadvantage is most acute, it is Black employees, professional and non-professional, on whom the doors of upward equity slam shut.  Just as the soothing balm of `multiculturalism' cannot mask racism, so racism cannot mask its primary target.

  It is important, I believe, to acknowledge not only that racism is pervasive but that at different times in different places, it violates certain minority communities more than others.  As one member of the Urban Alliance on Race Relations said:  "The Blacks are out front, and we're all lined up behind". 

There is no doubt that Blacks in Canada are the prime victims of racial discrimination.   A large part of the reason is due to the history of Blacks in this hemisphere and the perception that Blacks are inferior and, therefore, incapable of achieving.  If they then do not get a job or a loan or their children are streamed into classes which lead to poverty, there is not much concern because that is seen as their natural place in society.

 

Racism has been especially difficult to deal with in Canada because of the face that has been put on the problem.  In their efforts to be "good" people, Canadians have adopted the type of racism that Lennox, J. advocated in Franklin v. Evans.   Canadians have become polite racists.  The Government of Canada has pinpointed the predicament that Canada must now face up to if it is to come to grips with racial discrimination:

  

  There's clear evidence that a significant number of Canadians have racist attitudes or, as one poll concluded, `are racist in their hearts'.  Such attitudes have resulted in actions ranging from name-calling and threatening gestures to writing hate propaganda directed at a specific racial group, damaging property or physical violence.  More widespread and more difficult to deal with is the existence of what's being called `silent' discrimination or `polite' prejudice in our institutions and in daily Canadian life.   [emphasis added]

Denying racism because racial epithets are not used might make Canadians "feel good" temporarily but it will do nothing about coming to grips with a problem that makes victims of all Canadians -- those who practise racial discrimination in thought or deed and those who look at society from the margins because of prejudice and bigotry.

 If there is still doubt as to validity of the assertion that discrimination is alive and well in Canada and directed primarily at Blacks, the findings of Doherty, J. should settle the matter.  After reviewing the reports, literature and studies in the area, His Lordship concluded:

  Racism, and in particular anti-black racism, is a part of our community's psyche.  A significant segment of our community holds overtly racist views.  A much larger segment subconsciously operates on the basis of negative racial stereotypes.  Furthermore, our institutions, including the criminal justice system, reflect and perpetuate those negative stereotypes.  These elements combine to infect our society as a whole with the evil of the racism.  Blacks are among the primary victims of that evil. 

In light of all the studies and reports that have reached the same conclusion, why then do Canadians continue to deny racism and berate Blacks who claim to have been the victims of it?

 The result of these different forces working together is to permit those who discriminate on racial grounds to deny their actions.  The perpetrator perspective, as this is called, would view the problem thus:  If there is racial discrimination, it is not a social phenomenon but merely the misguided conduct of individuals.  But for the misguided conduct of these individuals, equality of opportunity would work to provide distribution of the good things in life without racial disparities and where deprivations that correlated with race would be "deserved" by those deprived on grounds of insufficient "merit".  This type of ordering would suggest that such things as "vested rights", "objective selection systems", and "adventitious decisions" which serve to prevent victims from experiencing any change in condition, are matters of fate having nothing to do with the problem of racial discrimination. 

 E. Unconscious Racism

 

While Canadian society does not condone overt racist attitudes or behaviour, many of these attitudes have been expressed in other forms which have become symbols to which cultural meanings are attached.  The symbols then become the natural vehicle for the expression of those attitudes that caused them to become identifiable as part of the culture.  Looking at the issue from the context of cognitive psychology, those meanings of value that are most deeply ingrained in the culture are commonly acquired early in life through tacit lessons.  These attitudes are given a cultural meaning which, even though unexpressed, are operating at an unconscious level.  For example:  Even if a child is not told that Blacks are inferior, s/he learns that lesson by observing the behaviour of others.  These tacit understandings, because they have never been articulated, are less likely to be experienced at a conscious level.  Freudian theory tells us that the human mind defends itself against the discomfort of guilt by denying or refusing to recognize those ideas, wishes and beliefs that conflict with what the individual has learned is good or right.   Lawrence called this phenomenon "unconscious racism".  He goes on to illustrate how it operates by  giving the example of an individual who has never known a Black doctor or lawyer or is exposed to Blacks only through a mass media that portrays Blacks in certain stereotyped roles.  That individual is then like to deduce that Blacks as a group are naturally inclined toward certain behaviour and unfit for certain roles.

  But the lesson is not explicit:  It is learned, internalized, and used without an awareness of its source.  Thus, an individual may select a white job applicant over an equally qualified black and honestly believe that this decision was based on observed intangibles unrelated to race.  The employer perceives the white candidate as "more articulate", "more collegial", "more thoughtful", or "more charismatic".  He is unaware of the learned stereotype that influenced his decision.  Moreover, he has probably also learned an explicit lesson of which he is very much aware:  Good, law-abiding people do not judge others on the basis of race.  Even the most thorough investigation of conscious motive will not uncover the race-based stereotype that has influenced his decision. 

It is now easier to see why the divide exists between the Black person alleging racial discrimination and the perpetrator.  The task then is to confront racism openly and honestly.  Learned stereotypes and unconscious racism are especially dangerous because they have become the fabric of the community.  Unacknowledged, they lay festering, to be acted upon as necessary and put away neatly behind a smile and polite platitudes to be passed on to future generations.  In the meantime, the victim is left without the job or promotion and filled with anger or self-doubt but unable to show tangible proof before the Human Rights Commission.

VII. RACIAL DISCRIMINATION IN EMPLOYMENT

 

A. The Problem

 

During the debate on the passing of The Fair Employment Practices Act in 1951, Mr. Wismer said the following:

  The act of discrimination itself -- in keeping a man from a job however much he should be equipped for it -- involves a loss of earnings.  To expand that, the prejudice that exists today in this country against the Negro means that all Negroes, almost to a man and woman, suffer loss of earnings.  They also suffer something I think much worse and that is loss of opportunity.  You or I, as white people, people who do not think in terms of what colour our skin happens to be, forget, I think, that there is a prejudice in the minds of the people of this province.

  This was drawn to my attention when speaking to the general manager of one of the large financial institutions in the city of Toronto.  That great corporation was interviewed as to whether the corporation discriminated against anyone in employment.  He said: "Oh, I do not think so."  He was asked:  "Do you discriminate against Negroes?" and he said, "Oh, no, no".  "Well, have you any Negroes on your staff, have you any Negro stenographers, accountants, clerks?"  "Oh, no." "Well, is it not rather peculiar, if you do not discriminate against Negroes, there should be none on your staff?"  "Oh, we have a Negro janitor."  In the mind of that employer, that was not discrimination. 

I quote Mr. Wismer at length because he showed a profound understanding of what discrimination is and how it can be practised in employment with the employer not even perceiving the problem even when it is pointed out to him.  It is obvious from the comments that that employer had decided on the place of Black people in his institution and that was a job which was in keeping with the menial servile position that Blacks were relegated to.  In relegating Blacks to the bottom of the economic pile, the whole Province loses because we are not using the assets available in the most efficient manner.

 Some of the common forms of racial discrimination in employment are: refusal to hire qualified visible minority workers; allocation of undesirable shifts to visible minority employees; lack of promotions for visible minority employees; unnecessary job requirements (e.g. requiring "Canadian experience"); job segregation or ghettoization -- where workers from one specific group do the same or similar type of jobs in one workplace or throughout several different workplaces; verbal and/or physical abuse; stereotypes suggesting that certain jobs are suited to certain ethnic or racial groups; equating the requirement for "good communication skills" with a Canadian accent.   This paper will not attempt to indicate the workings of all the forms listed but will attempt to give a general understanding of how discrimination on the basis of race operates in the workplace.

 

B. Who Gets the Work 

 

A 1973 study found that Black and Asian groups in Toronto were three times more likely than white groups to report incidence of personal discrimination in employment. 

 In tests conducted ten years later by the Urban Alliance in Toronto to determine whether there was discrimination in employment, it was found there was some form of preference for whites in nearly one quarter of all job contacts; over half of the employers contacted practised some form of discrimination against one or more of the callers and whites have three job prospects to every one for Blacks.  Assessing the data, the researchers concluded that Blacks have to work very much harder and longer in order to secure employment.   

 

A similar study of the extent and character of hiring discrimination in the United States sought to measure differential treatment of white and Black job seekers applying for entry-level positions in Washington, D.C. and Chicago in the summer of 1990.  Both the white and Black candidates were carefully matched on all characteristics that could affect the hiring decision.  The hiring audit demonstrated that unequal treatment of Black job seekers was entrenched and widespread.  In one out of five audits, the white applicant was able to advance farther through the hiring process than his Black counterpart.  In one out of eight audits, the white was offered a job although his equally qualified partner was not.  In summary, differential treatment was three times more likely to favour the white applicant than the Black. The authors concluded that unfavourable treatment of Black job seekers is widespread, and that discrimination contributes to Black male unemployment and nonparticipation in the labour force. 

 Using field tests and studies, it has been shown that, all things being equal, Blacks will receive fewer job interviews and fewer job offers than whites.  This indicates conclusively that racial discrimination plays a part in obtaining employment.

 C. Pay Differential

 

Another means of determining if Blacks are being discriminated against in employment is to look at relative incomes.  If Blacks have similar qualifications, experience and are performing similar tasks as other groups, it would be expected that the rates of pay would be similar.

 In research carried out for the University of Toronto in 1981, it was found that ethnic job segregation was important in determining job rewards.  The study looked at job status, income and job security while analyzing the impact of years and type of education, years of work experience and knowledge of English.  Of Italians, Portuguese, West Indians, Jews, Chinese, Ukrainians and Germans, it was found that West Indians have lower job status and incomes than would be expected on the basis of job qualifications. 

 A further study on MBA graduates done in 1983 showed that Blacks had the lowest salary range of all the composite groups.   Anthony Richmond looked at some factors determining the total income and earnings of Caribbean immigrants compared to Canadian-born and immigrants from other countries and concluded that:

 

An analysis of 1981 total income data for Caribbean immigrants in Canada shows there was a systematic disadvantage compared with other immigrants and the Canadian-born, even controlling for sex, age, period of immigration and educational level ... The analysis of census data alone cannot prove the existence of discrimination against Caribbean immigrants but the evidence does support the view that there was a systematic disadvantage in employment and in income relative to other Canadians and to other immigrants.   

 

While not conclusive, the data showing differential in pay is a good indicator that there is some differential treatment of Blacks compared to all other groups.  This hypothesis is strengthened, however, when it is shown that Black industrial workers are more likely to have the same earnings as whites when both are paid under an incentive scheme.  When productivity is used as the measure of earnings, Blacks will achieve equal pay. 

 D. The Employer's Role

 In a 1985 survey of personnel managers in 199 Metropolitan Toronto organizations, it was found that employers were doing very little about racial discrimination in employment.  The surveyors concluded that:

  The large majority of Toronto employers have no policies to prevent discrimination or promote employment equity.  They do not want such policies, and claim that they are unneeded.   

The employer is the main gate through which workers must pass into the workforce and it is, therefore, important to examine how they contribute to or quell racial discrimination in the workforce.

 The first step in the process is the recruitment of employees.  At this stage, the interaction of attitudes and behaviour can be critical to who gets hired.  The interviewer can eliminate persons on the basis of their race or colour when they would otherwise be excellent employees.  Discrimination in this case can be result of individual bias based on prejudicial attitudes or stereotypes.  The prejudicial attitude might manifest itself in a thought process that arrives at the conclusion that Black immigrants, regardless of their education and experience, should have to start at the bottom of the pile just like my father did. 

 

On the other hand, generalizations might produce stereotypes such as: West Indians, during job interviews, are arrogant, having a chip on their shoulder, cocky and sarcastic, slow to talk and walk, sprawling in their chairs and laid back.  Jamaicans were thought to have an accent, having a lot of "bite" and more "pep".  One personnel manager even decided that he did not trust West Indians and was afraid of them because they may go to the Human Rights Commission.  These stereotypes should be combined with the fact that people tend to prefer those most like themselves in appearance, dress, values and in body language.   

 At the same time, how the organization attracts potential employees can have a crucial impact on the development of racial equality in the workforce.  In Toronto, it was found that employers frequently use informal recruitment methods, particularly for finding applicants to fill more senior, higher paid positions.   Word of mouth was used most often to find casual workers and outside referrals were also used extensively to supply general labourers.  These methods of recruitment provide potential for limiting Blacks and other people of colour on the basis of race.  The following comment by a personnel director of a large manufacturing facility indicates the possibility for discrimination:

  Our referrals are mainly sons and daughters of (white) employees - sometimes two or three generations of the same family.  They would feel that their friend or relative had been left out if we started recruiting racial minorities. 

A method of recruitment was having the effect of excluding potential employees because of their race or colour.

 Formal outside recruitment sources such as newspapers and educational institutions are used to draw a large response and new talent.  This might seem to be an opportunity for Blacks to get into the door but several of the employers who responded to the study indicated they advertised in newspapers that are less likely to draw non-white applicants than others.  On the other hand, in unskilled labourer positions where non-whites were much more likely to be represented than whites, they are least likely to be filled by informal recruitment.   

 

The selection process is another area where there is potential for differential treatment.  In the Social Planning Council's 1985 study, possession of requisite skills, education, ability to read, write and speak English, physical characteristics, appearance, manner or attitude, maturity and work experience, references, ability to fit in with current employees, ability to meet organizational goals and health or medical background are criteria for selection of employees.  It was found that there was an emphasis on subjectively measured qualities such as communication skills, manner or attitude and ability to fit in.  There was a consistent relationship between the number of criteria considered important and the prestige of the position.  However, there was a broad use of criteria other than those specifically listed in the interview to make selection choices.  While the use of subjective criteria provides the opportunity for discrimination against Blacks in recruitment and selection, it does not necessarily mean that Blacks are discriminated against.   The potential for discrimination is decreased, however, when those making the selection are aware of any biases or prejudice they might bring to the process.  This is why it is necessary for Canadians to have at least a working knowledge of the historical and immigration underpinnings of discrimination.

 

The other aspect of the employer's involvement in potential racial discrimination problems is in the workplace itself once Black persons have been hired.  The problems in this area can be of three types:  Black worker and white worker conflicts, white supervisor and Black worker conflict, Black supervisor and white worker conflict, and Black worker and non-white worker conflict.  

 

In the 1985 Billingsley and Muszynski study, it was found that almost all of the complaints by non-whites involved perceived racially discriminatory behaviour on the part of whites.  These complaints primarily involved decisions by white superiors in hiring, pay, promotion, termination or working conditions.  Secondarily, there were complaints of demeaning remarks or harassment by either white superiors, co-workers or subordinates.   

 

Part of the difficulty in ferreting out the racial problems in the workplace is the emphatic denials of employers claiming "no problems here".  Billingsley and Muszynski suggested that this might a defensive reaction to their questions.  Some employers, however, stated openly that they feared that what they might say would be conveyed to human rights commissions.  Some respondents did not associate the general racial problem queries with more specific queries but would later acknowledge one or two complaints from Blacks.  Most intriguing of all, even when employers admitted that certain occurrences that were termed discrimination by the authors and the Black worker had taken place, they did not necessarily view the situations as racial problems.  Incidents, including complaints of racial slurs being used and discriminatory treatment, were explained as "personality clashes".  It was only in organizations that had conducted in-depth race-relations training for management that any complaint or situation with a racial component was deemed worthy of serious consideration.   Employers might find some incentive in promoting and dealing with race relations issues in an appropriate manner if they wish to avoid being found vicariously liable for the harassing conduct of their employees.  Human rights commissions have gone so far as to find that the employer speaking to a worker about harassing conduct towards a co-worker did not relieve the employer of liability for the harassment.  It was found that the subsequent employer conduct was relevant to the remedial consequences. 

 

E.  Unions and Race Discrimination

 

There are four ways in which unions can restrict the access of Blacks to jobs and control their work conditions.  First, union membership and, therefore, effective representation can be denied to Blacks.  Second, Blacks can be segregated into separate or auxiliary unions.  Third, trade unions can restrict the entrance of Black workers into training programs.  Finally, unions can engage in discrimination when negotiating and administering collective bargaining agreements. 

 As was indicated earlier in looking at the railway workers, denial of union membership in a union shop was one method used to ensure that all jobs but porters were exclusively white.  To preserve that status quo and to quell the insistent calls by the porters for representation, the all white Canadian Brotherhood of Railway Transport and General Workers at one time had a Black advisor to the  union.  However, the Black workers remained without real union representation and segregated in the most menial of jobs on the railroad until Blacks unions were recognized by the porters.  As a result, the pay of  Black railroad workers differed from that of whites not only because of the racial differences in the occupational distribution of workers, but also because of wage differences that would result therefrom.   The significance of union representation is not to be under-estimated for Blacks because it was not until the formation of Black unions and their political action that Blacks were able to gain entrance into other trades such as conductor on the railroad.

 

One of the ways in which Blacks sought to improve their economic status was to enter the skilled trades and unions could ease their passage or impede it.  While in the past the entrance of Blacks was impeded by exclusionary clauses on the basis of race and colour, it is now possible to maintain the colour divide by giving priority in admission to the sons and relatives of present and former members, all of whom are white.    The construction industry is a good example of how Blacks have been excluded from skilled jobs as a result of the formal and informal arrangements that connect skilled workers to one another and to their employers and through which construction workers and their unions control access to the trade.  By creating a structure that channels the flow of entrants into the industry and regulating the characteristics of new workers accepted into the training system, apprenticeship fulfils the basic needs of the core, skilled workforce. The industry relies on informal social networks for both recruitment and training, even in the unionized sector.  However, this informality creates natural barriers to outsider groups and impedes public policies which are designed to counter discrimination.  Thus, if apprenticeships are controlled by groups from which Blacks are excluded and those groups have used family and kinship as selection criteria, then few if any Blacks will gain entrance to the industry.  Even if the skills are learned in a formal apprenticeship training program, it is still necessary for the Black worker to gain entrance into that informal program in order to secure work in the industry.  The Black worker is further stymied by the requirement that workers be recruited from among union members.  They may register at the hiring halls but union officials, in all likelihood, will be drawn from the insider groups which looks after its own first -- in essence, going back to the informal network from which Blacks are excluded.   The end result is that Blacks are excluded from or grossly under-represented in the skilled trades (and usually higher-paying jobs) and relegated to the unskilled trades, even when the industry is unionized.  Because of the dynamics outlined, this will continue in the construction industry, despite the duty of fair referral which rests upon trade unions. 

 The Ontario Legislature, over the years, has enacted legislation which attempted to banish racial discrimination in the workplace.   There was no doubt that racism in trade unions was a contributing factor.  It was recognized at a very early stage that the goal could not be achieved without including a specific section dealing with trade unions.

Hence, The Fair Employment Practices Act, 1951 contained the following section:

  No trade union shall exclude from membership or expel or suspend any person or member or discriminate against any person or member because of race, creed, colour, nationality, ancestry or place of origin. 

A similar but expanded version of this section can be found in the present Human Rights Code.   However, notwithstanding a union's theoretical commitment not to discriminate on the basis of race or colour, old habits die hard and there are other means of not upholding the spirit of the law.

 

Once there is a collective agreement, if complaints are made of racial discrimination in the workplace, the union makes the decision as to whether the complaint will be pursued.  This is done initially by deciding whether or not to file a grievance.  However, to file a grievance, the person making the decision has to decide whether there are grounds.  The discretion as to whether it should file a grievance is based on the union's assessment of whether there is merit in the complaint.  While a complaint can be made even though the union does not regard the incident or incidents as constituting racial discrimination, it is trite to say that it is human nature to fight harder for the things we believe in.  In order to believe in an issue and advance its cause, it is helpful if the advocate understands the issue and does not seek to deny the very existence of discrimination on the basis of race and colour in society at large.  Union officials are, of course, products of the societies in which they live.  

 The Labour Relations Act  outlines the duties of the union in representing employees in disputes within the workplace as follows:

  A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be. 

 

 The Ontario Labour Relations Board has ruled  that a union which fails to take a stand against racial harassment is not in violation of the section.  For the union to be in breach of its duty to act fairly, it must have failed to act when called upon by the complainant to render assistance in opposing the harassment.  In obiter dicta, the Board pointed out that the allegation by the Black complainant that the union was not sincere in its attempts to secure redress on his behalf is very easy to make and difficult to disprove.  The bargaining agent that is a respondent on this type of complaint has to be judged first and foremost by its actions.  In the view of the Board, "it is quite possible for a union to provide excellent representation to an employee even though its officers bear personal ill-will towards him". 

 

Given the continued denial of racism in Canada, can Black employees depend on their union officials to discern racial discrimination in the workplace?  The question has to be answered in the context of a country that has, over centuries, mastered the art of unconscious racism.  Most union officials, it could be ventured, would not condone racial epithets hurled at Black workers in the workplace by either a co-worker or management but they must also understand the subtle face that racism has taken in Canada today.  

To be able to comprehend it, they must look at Canadian history to grasp that subtlety that has suffused racial discrimination in Canada.

 

F. Racial Discrimination by Co-workers

 

Once the Black worker is in the workplace, they can be faced with co-workers whose behaviour can be said to be discriminatory.  The complaints can start with the white employee making comments which indicated resentment when a non-white worker is hired.  This can escalate to harassment and sabotage of the Black worker.  The discrimination can be in the form of racial epithets or demeaning comments.  While most of the complaints in this area are between workers on the same level in the organization, incidents of name-calling have been directed at Black supervisors by white subordinates.  An example of this is the case of a Black West Indian supervisor who criticized the work of a white worker; the worker turned around and called him "a little Black son-of-a-bitch". 

 

Worker-to-worker discrimination can be illustrated in the following cases.

 

A Black woman had been promoted through seniority and bidding for jobs in Colgate Palmolive until she reached the position of an operator in the factory.  She was one of two Black workers in the department and the only woman on her shift.  From the time she started she was harassed by a "handful of dominant workers" in the plant.  The harassment consisted of verbal slurs, dirty hand-drawn pictures of Black women masturbating men, sabotage of her locker, ink was thrown in her purse, co-workers refused to co-operate with her in jobs that required their doing so and a penis carved out of soap was thrown at her.  She endured all those occurrences until a penis carved out of soap was put on the assembly line in full view of the woman and the other workers.   Surprisingly, in this case, the complaint that was lodged with the Workers' Compensation Board by legal counsel was framed only in terms of sexual harassment and not racial discrimination.   The facts would seem to indicate that the worker was not being harassed only because she was a woman but because she was a Black woman.   Without in any way minimizing the debilitating effects of discrimination on the basis of sex, it must be recognized that:

  

The racial insult remains one of the most pervasive channels through which discriminatory attitudes are imparted.  Such language injures the dignity and self-regard of the person to whom it is addressed, communicating the message that distinctions of race are distinctions of merit, dignity, status, and personhood. 

It is important, therefore, that those advising the complainant or those with carriage of the case understand and be alert to the different forms of discrimination that can poison the working environment for Black workers.

 

In Daisley v. Cypress Equipment Co. , the British Columbia Council of Human Rights, with the basic understanding of the effects of racial insults, found that Patrick Daisley, who is Black, was subjected to racial harassment by co-workers who referred to Blacks as "niggers" and "boys" and by a sticker with the letters "KKK" which one of his co-workers affixed to his toolbox.  Another co-worker once asked Mr. Daisley, "why  don't you do that like a white man?".  The complainant was asked questions about whether the woman he was going out with was white.  On another occasion, Mr. Daisley was asked where he got an Irish name like Patrick.  After having a conversation with a fellow worker about the development of AIDS, another co-worker said, "I hope Jack Calberry did not insult your heritage."  When he asked for an explanation of the remark, he was told, "Well, you know, it is a fact that black people came out of monkeys.  So when Calberry was talking about AIDS and monkeys, I hope he didn't insult your heritage because your heritage is that of a monkey."

VIII. HANDLING THE COMPLAINT

 Complaints based on race may be handled within the organization, through union-management negotiations or by an outside organization such as the Worker's Compensation Board or the Human Rights Commission.

 A. In-House Treatment

 When a worker complains of discrimination either against the organization, a supervisor or co-worker, there are three approaches that may be followed.

  

(i) Management may ignore the complaint, decide it is not worth pursuing or take a subtle approach that does not openly involve either party.   Examples of this is the case of a Black worker who said his performance appraisal was racially discriminatory.  Nothing was done.  Another Black worker made the same complaint.  The company decided not to take any action because any time a Black gets a poor performance rating, he will claim discrimination.  In another case, whites were resentful when a non-white was hired but the management did nothing because they thought the comments would die down, and they did.   While doing nothing might seem to be the path of least resistance in the beginning, it might appear to workers that management is condoning the conduct complained of.  

 

 (ii) Another avenue open to management is to initiate an investigation or joint discussion involving all the parties.   This approach has the most potential for a satisfactory conclusion.  In the case of Daisley , for example, Mr. Daisley complained to management and was told that the reference to his heritage being that of a monkey was a misunderstanding.  However, if management is unable to comprehend the perception of the Black worker that some conduct might be founded in Canadian history of subtle racism, they might unfairly label the complainant as a troublemaker.  In that case, the Black worker could be disciplined, terminated or s/he could resign as a result of management's response.  

 

 (iii) In trying to resolve the complaint, management may talk to, discipline, fire or accept the resignation of one party.  For example, the employer's response to Mr. Daisley who had been hired as a specialist to operate the cut-off saw or drill press, after his initial complaints, he was assigned to sweeping floors, cutting weeds in the yard, and was eventually laid off before his junior co-worker.   Management's decision to lay him off might have been appropriate in this case, but the perception of Mr. Daisley as to how he was being treated would no doubt be tinged by the poisoned atmosphere of the workplace.  It is not surprising, therefore, that he filed a human rights claim.

 In the Billingsley study, in 49 percent of non-white complaints brought to management's attention, the non-white was disciplined, fired, or quit as a result of management's response.  This was illustrated by the case of a non-white against whom management took disciplinary action for her negative attitude because she complained that she was being racially discriminated against in her pay cheque and vacation. 

 

For those workers who are not satisfied with the resolution of their claim after dealing with management and the union, they may resort to the Human Rights Commission.

IX. HUMAN RIGHTS COMMISSION

 A. The Intent of the Ontario Human Rights Code

 The intent of the Code can be ascertained from the preamble which recognizes the inherent dignity, equality and inalienable rights of everyone, in accordance with the United Nations Declaration of Human Rights.  It also asserts that the public policy in Ontario is to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law.   At the same time, the Code aims to create a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community.   While the Legislature might have had lofty ideas about what the Code was intended to do, the real test is in its application to remedy discrimination and bring about the equality that Ontario has declared is the right of every person.

 In order to determine how the Code will be applied to achieve the stated goals, it is necessary to look at how human rights legislation should be interpreted.  Chief Justice Dickson outlined the principle of interpretation to be applied as follows:

  Human rights legislation is intended to give rise, amongst other things, to individual rights of vital importance, rights capable of enforcement, in the final analysis, in a court of law.  I recognize that in the construction of such legislation the words of the Act must be given their plain meaning, but it is equally important that the rights enunciated be given their full recognition and effect.  We should not search for ways and means to minimize those rights and enfeeble their proper impact.  Although it may seem commonplace, it may be wise to remind ourselves of the statutory guidance given by the federal Interpretation Act which asserts that statutes are deemed to be remedial and are thus to be given such fair, large and liberal interpretation as will best ensure that their objects are attained. 

The Court was here recognizing that the words alone were not to drive the interpretation given to the Code but the intent of the legislation should also be kept in mind.  It should be added to that the intent of the legislation cannot be ascertained in a vacuum.  A sound knowledge of the history which gave rise to the enactment is also important in determining that intent.

 Considering the history of Blacks in Canada, the importance of human rights legislation to them should not be minimized.  The commentary of Sopinka, J. on the issue then is worth noting:

  

  Human rights legislation is amongst the most pre-eminent category of legislation.  It has been described as having a `special nature, not quite constitutional but certainly more than the ordinary' ... One of the reasons such legislation has been so described is that it is often the final refuge of the disadvantaged and the disenfranchised. 

While the dominant group might perceive human rights legislation as a nuisance which stands in the way of acting on their instincts, the history of Canada indicates that those instincts are not always engorged with principles such as equality and mutual respect for the dignity and worth of Black persons.

 B. The Commission as a Rights Seeking Vehicle

 

A person who complains of human rights infringement has no recourse to the courts to sue at common law.  There is no right of action that can be founded on an alleged breach of the Human Rights Code.  They must bring the matter before to the Human Rights Commission.   The Commission has a mandate to investigate claims, try to settle them and, if this is not possible, either dismiss the claim or send them to hearings before Boards of Inquiry. 

 It has been found that, if a complaint who alleges discrimination on the basis of race or colour resorts to the Human Rights Commission to attempt to resolve the issue, there is a low probability that it will be resolved in their favour.   The tendency to dismiss complaints based on race and colour, amongst others, resulted in severe criticism of the Commission which resulted in more than forty community groups forming the Coalition for Human Rights Reform in 1991.  

 

There are three possible explanations for the low number of successful complaints in favour of the claimant:  (1) the complaints are groundless;  (2) the investigators and staff at the Commission do not have an understanding of the subconscious racism that is seen in Canada or racism is so much a part of the society that it is accepted as normative and, therefore, excusable; and (3)  Boards of Inquiry fall victim to the same malaise.

 While it is possible that Blacks lay complaints that are unfounded, the number of unfavourable outcomes seem contrary to the findings of Stephen Lewis , The Marshall Inquiry  and other reports and studies mentioned before.  For that reason, I will look at the other two explanations to attempt to shed some light on why a process that was meant to protect Blacks from discrimination is not doing so.

 

C. The Commission Staff

 

All decisions as to whether to refer a case to hearing or dismiss it are made by Commissioners.  The Commissioner are advised by different levels of staff who conduct the investigation into the complaint.  The claimant is not present when a decision is made.  In fact, the claimants have no say in the disposition of their claim.  Many claimants feel pressured to accept settlements that they consider unsatisfactory and unfair. 

 In the course of the reorganization of the Ontario Human Rights Commission which took place in 1988, a number of senior management positions were created.  None of those positions were filled by members of a "visible minority".   As a result of the concerns of individuals, interested groups and the community at large, a review by Karim Amin and Roger Gordon was launched of the Commission's hiring practices in 1989.  Amin and Gordon reported that for some positions, the successful candidate was not a member of a visible minority notwithstanding the fact that there were visible minority candidates identified in the screening process with equal or superior qualifications who were not even interviewed.  In other situations, the Chief Commissioner encouraged what turned out to be the successful candidate to apply and that candidate's name was added to the interview list after initial screening.  In any event, Amin and Gordon found no evidence of discrimination, favouritism or competition-rigging in the staffing of senior positions.  They did find that some of the practices employed might have resulted in the inequitable treatment of some candidates for the positions, and the Commission neither took appropriate steps to find candidates from visible minority groups nor made reasonable efforts to identify qualified visible minority candidates who did apply.  The Commission, instead, had as its highest priority the hiring of women to senior positions. 

 

There were concerns, however, that there was a need to develop strategies for eliminating racism from the policies and operating procedures of the Commission, the Anti-Racism Committee was created.   To assist the Anti-Racism Committee in obtaining the information necessary to develop an effective anti-racism strategy, the Commission hired Arnold Minors as Planning Assistant to the Committee.  His mandate was to review, report on, and make recommendations about the Commission's policies and procedures with respect to its employees.   In approximately 85 hours of interviews with racial minority and Aboriginal men and women, Mr. Minors reported comments such as, "It was here that I found what it was like to be Black down South", "I overheard someone fairly high up describe employment equity as `all that nonsense'", "No one is looking at the pattern of complaints of racism", "We complained about a manager's racism for two years before anything was done", "When I was hired, there were 4 positions to be filled.  Three went to white people who were hired permanently.  I was hired on contract; the only one hired on contract.  I don't know why."  "They tell us we're not qualified.  Then they expect us to teach the people who get promoted over us.  Then they keep asking us to take over when the person's away." "When I joined the Commission, I was pleasantly surprised at the racial diversity.  Things changed quickly.  I became aware of differential treatment and a poisoned environment for racial minorities, lesbians and women."   On the other hand, in describing relationships with co-workers, there were comments such as "Racism is exaggerated.  In any conflict between racial minority and white employees, some will say it's racism.  That overlooks the usual conflict among employees", "There's no sense of any exclusion based on race". 

 These comments are mentioned to illustrate that the Commission has the same problems of racial discrimination that is found in other workplaces.  The Commission probably reflects the prejudices of the rest of society.   However, the Commission is the place that workers who have been discriminated against turn to for help.  It is imperative that the employees of the Commission understand the unconscious racism which is a part of Canadian society.  In order to determine whether a worker has been discriminated because of colour or race, the Board of Inquiry should take into consideration that:

  Discrimination on the grounds of race or colour are frequently practised in a very subtle manner.  Overt discrimination on these grounds is not present in every discriminatory situation or occurrence.  In a case where direct evidence of discrimination is absent, it becomes necessary for the Board to infer discrimination from the conduct of the individual or individuals whose conduct is at issue.  This is not always an easy task to carry out.  The conduct alleged to be discriminatory must be carefully analyzed and scrutinized in the context of the situation in which it arises. 

 However, to be able to recognize the discrimination, the Board needs to understand the historical subtext which informs race and colour discrimination in Canada.  To gain that comprehension is not an easy process.  It is not enough to recognize discrimination in others, it is also important to recognize it as pervasive in the society and a part one's own psyche.  This is not a simple matter because:

  Much of one's inability to know racial discrimination when one sees it results from a failure to recognize that racism is both a crime and a disease.  This failure is compounded by a reluctance to admit that the illness of racism infects almost everyone.  Acknowledging and understanding the malignancy are prerequisites to the discovery of an appropriate cure.  But the diagnosis is difficult, because our own contamination with the very illness for which a cure is sought impairs our comprehension of the disorder. 

Without this type of analysis of how each individual fits into the scheme of unconscious racism, Boards of Inquiry are likely to continue to make decisions that explains a worker's complaint as "subjective" belief rather than discrimination.  The attitudes which culminate in action which is perceived by the complainant to be racial discrimination are held to be unrelated. 

X. CONCLUSION

 Racism has been a part of Canada for hundreds of years.  It comes from a history which resulted in Canadian government passing explicit laws based on differential treatment of Canadian citizens on the basis of race and colour.  It was nurtured by the courts which condoned discrimination as part of Canadian life, on the basis that it was public policy.  Attempts to deal with the problem through legislation have not succeeded.  This is partially because Canadians have come to view race and colour discrimination as the bizarre behaviour of a few malcontents.  However, the studies show that discrimination is not an aberrant or deviant way of acting  in Canada.

 While there is discrimination towards Blacks that is based on ill will or malice, the more insidious form is unconscious discrimination because it is practised by basically good people whose actions towards Blacks are governed by assumptions and negative stereotypes.   This results in Black Canadians receiving differential treatment on the basis of their colour or race in the workplace.

 Economics was the main reason that Black slavery was introduced into this hemisphere.  The need for cheap labour brought about a system that resulted in people being treated unequally because of their colour and race.  This unequal treatment continued in the designated jobs for Black people that was part of Canadian public policy and law.  Continuation of these attitudes is a waste of Canadian resources because it excludes or under-utilizes Black people in the workforce.  There is a reservoir of educated, talented, productive and willing people that is available to improve the economic well-being of Canada.  Overlooking them because of their race or colour is not only economically inefficient, it is socially and legally wrong. 

 There is a need for the Human Rights Code to deal with those who will not recognize the equality of all persons.  The Employment Equity Act, 1993  which entitles all people to equal treatment in employment in accordance with the Human Rights Code is a piece of positive legislation because it recognizes that there is racial discrimination in employment and seeks to remedy the situation.   However, these statutes have not eliminated discrimination on the basis of race and colour and it is unlikely that they will achieve that goal without changes in attitude brought about by education that looks at the historical and public policy underpinnings for the unequal treatment of Black people in Canadian workplaces.

 Mr. Wismer, as a part of his speech on the Fair Employment Practices Act in 1951, foretold the outcome of the lack of education in the area:

  It has no provision for educating the public generally about prejudice, about the lack of need for prejudice, and more particularly to create a general atmosphere in the province of Ontario in which people will live, and work, and employ, and be employed, with the feeling that discrimination and prejudice is wrong, in order to break down the need for conciliation procedure not to say that a discriminatory Act will not take place.  If we had that sort of thing, you would have a gradually changing attitude on the part of the employers and on the part of employees, which would gradually remove discriminatory actions from our province. 

Even though education components were added to the statutes at a later time, it has not proven to be satisfactory because the historical and immigration underpinnings of discrimination on the basis of colour and race have not been emphasized.  This education should not be a means of salving guilty consciences, but a means of looking into the Canadian psyche to eliminate unconscious racism.  Honest explorations of Canadian history combined with comprehension of how that history has imbued the present climate of discrimination on the basis of colour and race will bring about real changes in attitude towards Blacks in employment.  Without this education, change in the attitude underlying actions, and accountability, legislation alone will not eliminate discrimination on the basis of race and colour in employment.