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CAUT Bulletin Archives

May 1999

Fighting Systemic Discrimination - What Are the Options?

CALL Conference in Toronto

"Where Do We Go for Equity?" was the subject of a panel presentation by CAUT staff lawyer Shaheen Hirani at the annual meeting of The Canadian Association of Labour Lawyers held in Toronto from April 30 to May 2. The conference heard a number of panel presentations on how changing economic and political environments were affecting a number of labour issues.

Hirani's presentation was one of the highlights on the first day's discussion of equity and the choice of forums for bringing forward cases of discrimination. Hirani focused on the choice of forums for systemic discrimination complaints. She examined the advantages and disadvantages of taking such cases to grievance arbitration and to human rights tribunals. An overview of Ms. Hirani's presentation is reproduced below.

In the university context, recent developments at MIT (see note) have focussed mainstream media attention on systemic problems that women face in academia. Cases from Canadian universities continue to challenge both faculty associations and administrators. Questions include where to seek remedial measures, and how to achieve the broadest and most effective results to counteract years of inequality experienced by members of equity-seeking groups in hirings, promotions, tenure and other "climate" issues.

Hirani's comments focussed primarily on the remedies available in each legal forum, the jurisdictional problems likely to be encountered, and the practical realities of evidence and time limits.

Hirani emphasized that the reason behind the relative few numbers of cases litigated on systemic discrimination grounds is largely due to the complexity and broad scope such cases necessarily involve. For example, systemic complaints require a large volume of statistical and other expert evidence that often can be difficult to collect and difficult to have considered properly by an expert panel or tribunal.

Another important concern is the ability of various decision-makers to award the far-reaching remedies that systemic discrimination complaints require. This, Hirani explained, is a function both of the perceived abilities of arbitrators as well as Human Rights Tribunals to award broad remedies, combined with the practical realities of achieving systemic relief through processes that were intended and designed for individualized complaints and remedies.

The time delays and taxing emotional toll on those involved in such cases is also important to weigh in choosing a forum in which to bring these complaints, Hirani acknowledged. Often it takes years for systemic cases to reach hearing, and even then the outcomes are not guaranteed.

However, she also reiterated that systemic discrimination complaints, despite the hurdles of time and resources, can provide the most lasting and substantial changes that benefit staff.

In the few cases that have been litigated successfully, it is exciting and challenging to see the demonstrated abilities of employment equity and other broad remedies to subvert the continuing effects of systemic discrimination, Hirani noted.

Hirani concluded by encouraging advocates for equity to seek initiatives and alternatives other than just legal routes to achieve changes in their workplaces, including direct action, media campaigns and using the collective bargaining process to push forward the equity agenda.

The Massachusetts Institute of Technology recently acknowledged the existence of systemic barriers to women faculty members in the School of Science in a report which outlines both temporary and long term solutions for achieving equity at the university. The full report, A Study on the Status of Women Faculty in Science at MIT, is available at