Fa l l 2020
HR INSIGHTS
newsletter
Welcome
Issue 10
fall 2020
In this issue, consultants dive into conversations around inclusion and diversity in the workplace.
HR Insights Welcome to SARC’s Human Resources and Labour Relations Newsletter. Join SARC Consultants each quarter as we explore topics important to managing employees and HR/LR risk.
CONTENTS Unconscious bias exists everywhere.
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In this article, SARC HR Consultant, Leanne Zacharias, discusses how certain biases occur—even unconsciously—in the workplace.
UNCONSCIOUS BIAS
leanne zacharias
DIVERSITY IN THE WORKPLACE
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What does a diverse workforce look like? SARC LR Consultant, Marrion Wolff, addresses how Boards and senior management can improve diversity at an organization.
marrion wolff
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BALANCING THE SCALES: EQUITY PROGRAMS FOR SASKATCHEWAN EMPLOYERS
amy gibson
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Creating equal opportunities. Amy Gibson, lawyer with MLT Aikins, discusses how organizations play an important role in addressing systemic inequalities as employers and community leaders.
About the consultants About Marrion Marrion can assist SARC’s Regular and Associate Members with a variety of LR/HR issues, including progressive discipline, performance management, and duty to accommodate for unionized and non-unionized organizations. She can also provide specific
support in collective bargaining for unionized organizations. Accessing this service is free of charge and can minimize organizational risk. Having a quick check-in or a review done before decisions are made can save you time and money in the end.
Marrion Wolff SARC Labour Relations Consultant
About Leanne Leanne is available to assist SARC’s Regular and Associate Members who would like to have additional expertise on a variety of HR topics. Whether you have an internal HR professional or not, organizations can contact Leanne for best practices in the sector
to strengthen your workforce. Areas of service include recruitment and retention, organizational structure analysis and workforce planning, job descriptions, HR policies and procedures, compensation and total rewards, and succession planning. Leanne Zacharias SARC Human Resources Consultant
About Amy
Amy Gibson L a w y e r , M LT A i k i n s
Amy Gibson carries on a general labour and employment law practice. She advises employers on a variety of labour issues, including union certification drives, collective agreement interpretation, labour disputes, workplace policies, discipline and discharge, employment contracts,
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OH&S, workers’ compensation, labour standards and human rights. She has experience with a variety of court and administrative proceedings as well as representing clients before the Saskatchewan Labour Relations Board and in Canada Labour Code unjust dismissal adjudications.
Unconscious Bias Leanne Zacharias
SARC Human Resources Consultant
A
s diversity and inclusion is currently at the heart of many conversations around the world, it’s important to be thoughtful and intentional about diversity and inclusion in our workplaces. This includes both organizational policies and practices, but also our own personal biases as leaders. Biases are tendencies that we have in favour of or against someone or something, and can be conscious (explicit) or unconscious (implicit). Biases come from shortcuts our brain forms based on our own experiences, culture, external influences in school, work, social media, etc. These mental maps help us classify different situations and people we are faced with, and then create automatic associations that we assign to other people and groups. Not surprisingly, our assumptions and perceptions based on these automatic associations
are not always accurate or correct. Unconscious biases create beliefs and feelings that impact our attitudes and actions even when we are not aware of it. We all have biases. In the workplace, biases can impact everything from recruitment, to pay and promotion, and everything in between. Because our unconscious biases tend to be ingrained, it can take education and awareness, active reflection, and practice to adopt more diverse and inclusive behaviour. In recruitment, our biases are what sometimes prevents us from hiring a diverse group of talent. For example, if you hired someone of a particular age or race in the past, and the employment ended poorly, would you unconsciously avoid interviewing or hiring another employee of that particular age or race in the future? As
“Biases don’t always lead to discrimination, but it can lead to less diversity, and the business case for diversity has been made many times over.”
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leaders, it’s healthy to be aware of our assumptions and the judgements we make about prospective and current employees, because if our biases turn into discrimination, then we have a problem. And if the outcome was discriminatory, it doesn’t matter if it was unconscious or not. There are examples of bias that directly relate to discrimination of protected grounds in The Saskatchewan Human Rights Code, 2018 (the “Code”). According to the Saskatchewan Human Rights Commission (the “Commission”), discrimination is an unfair action taken against others because they belong to a certain group. Some examples of this include: •
Gender related bias (including sex, sexual orientation, and gender identity). • Race related bias (including colour, ancestry, nationality, place of origin, race or perceived race) • Age bias • Language bias • Disability bias • Religious bias
For a full list of protected grounds covered in the Saskatchewan Human Rights Code, visit www. saskatchewanhumanrights. ca. Saskatchewan businesses can also call the Commission with questions at (306) 9338274. Note: you do not have to disclose your name or organization when making general inquiries.
Other biases that are not specifically related to a protected ground in the Code include: weight bias, political bias, and bias related to socioeconomic status. There are also many other types of biases that can impact our decisions as leaders. A couple examples are: •
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Confirmation bias. This happens when we look for information that’s consistent with our existing beliefs, and overlook information that’s conflicting. Similar-to-me bias. This happens when we treat someone more favourably if they share some attribute with us; for example, both are fans of the same sports team, went to the same school, enjoy the same music, etc. Watch for this bias in areas other than recruitment, such as in meetings, determining promotions, and performance management.
Biases don’t always lead to discrimination, but it can lead to less diversity, and the business case for diversity has been made many times over. In the nonprofit and disability service sector, we know the value that people experiencing disability can have in the workplace. Because of this, we have the potential to be champions of workplace diversity in all forms.
Test your own biases; check out the Implicit Awareness Test (IAF) developed by Project Implicit: Click Here
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B
DIVERSITY in the Workplace
oards and Executive Directors play a critical role in creating an organization that values diversity and inclusion in their hiring practices, policy development, mission and day to day work, and there are some very real benefits to this. Some may think diversity is a slogan or buzz word that really has little tangible benefit in the workplace, yet the opposite is true. Diversity in recruitment and hiring, whether it’s amongst your board members or your staff, draws on the perspectives, talents and skills of a broader range of leaders. These different perspectives originate from different cultural backgrounds and life experiences and help ensure that our decisions reflect an inclusive viewpoint. This is so important for communitybased organizations whose goals are to support and advocate for individuals who may have often been excluded from opportunities. Without diversity in creating policies, we may not even recognize when inequities are occurring and road blocks are preventing our workplace from being truly welcoming to different cultures.
Marrion Wolff
SARC Labour Relations Consultant
What does a diverse workforce look like? It includes people from all walks of life and from different backgrounds. Each of these people will bring unique personal experiences and perspectives to the workplace, which will be reflected in how they react to different situations. These different reactions help the organization see how their work is impacting a wider audience and would ensure that their work is relevant and positively impacts as many different people as possible. How your organization moves toward a more diverse workplace can affect the success of your initiative. While support from the senior management is vital, be sure that the message is not dictated from the top down. You may wish to create a team or committee to spearhead this, and, if so, be sure to include representation from every HRLR NEWSLETTER
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facet of your organization. When you are considering policies and changes you may wish to seek input from relevant organizations that represent people identifying with a certain group, such as multicultural groups, LGBTQ2S organizations, and Indiginous groups in order to ensure that the people most affected are consulted and provided opportunity for input. And as always, deciding on a strategy and plan with short and long-term goals and deciding how you will achieve them will help ensure success. It will also form a basis for determining budget allocations and some means of measuring whether or not the organization has achieved their goals towards a diverse workplace. Not every idea will work, and some failures along the way are to be expected. Remember, you are wading into unknown waters here by being open to trying new things that will fundamentally change your organization. Keep a very open mind of what diversity can mean. The Saskatchewan Human Rights code lists religion, creed, marital status, family status, sex, sexual orientation, disability, age, colour, ancestry, nationality, place of origin, race or perceived race, receipt of public assistance and gender identity as prohibited grounds under which you cannot discriminate. Diversity can mean more than making sure you aren’t discriminating against any person(s), but can also include different economic backgrounds or age groups. The following are some tips to consider when striving for a more diverse workplace: •
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how diverse and inclusive the organization is and share ideas on what can be done to foster a more inclusive environment. •
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• • •
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Engage staff in exercises and discussions toward the development of a Diversity Policy. Remove gendered language from your job postings, policies, etc. Ensure that promotional material such as brochures, posters and websites reflect a diverse culture where your employees feel connected and represented by the organization. Implement zero tolerance to discrimination and harassment. Make sure your workplace is accessible to everyone. Be up front about your plans for diversity and include it in your job postings. Use a hiring committee made up of a diverse group of employees. Conduct exit interviews to find out why people have left your organization.
Creating a diverse workplace means stepping away from the traditional and familiar that many of us have grown comfortable with over the years, and this can be unsettling for some. Creating opportunities within your organization that encourage diversity should not create apprehension for current employees, so make sure that your message is clear and your actions are transparent during this process.
Try recruiting from a wide variety of places, such as posting your jobs on community bulletin boards, in gyms or libraries. Provide opportunities for current staff to share their viewpoints on HRLR NEWSLETTER
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BALANCING THE SCALES: Equity Programs for Saskatchewan Employers Amy Gibson
Lawyer with MLT Aikins
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ecent events in the United States have pushed racial equality and diversity to the forefront of public consciousness. These issues are not confined to the United States. Canadians and Saskatchewanians are becoming increasingly aware of the systemic inequalities faced by racial, ethnic, religious, and gender minorities and people experiencing disability. Organizations play a key role in ameliorating the inequalities faced by these groups as employers and community leaders. Provincially regulated Saskatchewan employers are governed by The Saskatchewan Human Rights Code, 2018 (the “Code”). Section 16 of the Code prohibits employers from discriminating with respect to employment on the basis of a protected ground, including, among others, race, nationality, age, religion, sex, sexual orientation, gender identity, family status, and disability. This section also prohibits selective hiring of people on the basis of any of
the protected grounds, regardless of whether the employer’s goal is to counter systemic and historical inequalities faced by the class of people, as such hiring indirectly discriminates against people of other classes. As a result, hiring a more diverse workforce is not as simple as just deciding to hire more individuals of a certain ethnicity, for example. This in and of itself could be seen as discriminatory as race, nationality, ancestry and place of origin are all protected grounds under the Code. Section 16(10) of the Code provides a limited exception to the prohibition on preferential hiring practices. An exclusively non-profit charitable, philanthropic, fraternal, religious, racial or social organization or corporation that is primarily engaged in serving the interests of persons identified by their race, creed, religion, colour, sex, gender identity, sexual orientation, family status, marital status, disability, age, nationality, ancestry, place of origin or receipt of public assistance is not prohibited from only employing, or from giving preference in employment to, persons similarly identified if the qualification is a reasonable and bona fide qualification given the nature of the employment. This means that being a member of a protected class in these circumstances is reasonably required for the job. Examples of where preferential hiring practices have been upheld under similar sections include religious schools preferentially hiring teachers with the same religious affiliation as the school or women’s shelters preferentially hiring women. This section, however, only provides for preferential hiring where being a member of the class is reasonably necessary for the person to perform the job. It does not allow employers to preferentially hire to counter systemic inequalities. As a result, in all other circumstances, employers have two options. One is to have an equity program in place in order to participate in preferential hiring HRLR NEWSLETTER
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in accordance with section 55 of the Code. Section 55 permits an employer to submit an equity program to the Saskatchewan Human Rights Commission (the “Commission”) for approval and ongoing monitoring. This process tends to be somewhat complicated and bureaucratic, resulting in delay or additional hurdles before the program can be approved and operational. As a result, it is more common for employers to choose the second option, namely to implement an informal equity program in accordance with section 56 of the Code, which permits an employer to implement an equity program on its own volition, so long as it is implemented for a reasonable and justifiable measure that is designed to prevent, reduce or eliminate disadvantages that are likely to be suffered by a group of individuals if the disadvantages would be or are based on or related to one or more prohibited grounds as contained within the Code. Such a program must also achieve, or be reasonably likely to achieve, this objective. There is no formal application or approval process required for an equity program implemented pursuant to section 56 of the Code. That being said, in the event an employee or prospective job applicant
ever challenges the practices of an employer’s preferential hiring program with the Commission, it is important for an employer to ensure that their equity program can be seen as just and reasonable in the circumstances. The Commission’s “Policy on Equity Programs” provides some assistance for employers in this regard. There are two important components to an equity program. The first is that the equity program must be designed to prevent, eliminate, or reduce disadvantages for a protected group. In the event an employer’s equity program is ever challenged, the employer should be prepared to demonstrate that the protected group in which the program is designed towards is a recognized “equity group” or that it is otherwise appropriate to recognize the entity as an equity group. To date, the Commission has only recognized four categories as an “equity group”: Aboriginal people, people with disabilities, visible minorities and women in underrepresented occupations. As a result, a program that targets one of these equity groups is more likely to be seen as reasonable by the Commission. The second, very important component of the program is the reason for having an equity
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program. Employers must be able to demonstrate the existence of a disadvantage within their own organization for the equity group addressed by its program in order for the equity program to be seen as reasonable. For example, a program which targets hiring Aboriginal people because of the reason they are underrepresented in the workplace would likely be an acceptable equity program. The employer will need to be able to justify the reason for having the program in place. Organizations have a prominent role to play in addressing systemic inequalities as employers and community leaders. SARC member organizations have historically been front runners in addressing systemic inequalities and are poised to continue to lead the way. In addressing systemic inequalities, organizations must be aware of their human rights obligations and should consider establishing an equity program to avoid any potential inadvertent liability in the event such hiring practices are ever challenged.
THE SARC WEBSITE HAS A NEW LOOK! Check out the fresh new Members Career page at sarcsarcan.ca/careers today.
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