Can job postings in Canada exclude white people? Short answer: yes

In two recent job postings for Canada Research Chairs in computer science at the University of Waterloo, applications are restricted for those who identify as “women, transgender, gender-fluid, non-binary, or Two-spirit” in the first case, and to members “of a racialized minority” for the second.

From Hooters to banks to airlines, here’s why Canada has long allowed employers to hire based on gender and race.

What laws are there around this?

The big one is the Employment Equity Act of 1987, brought in by then Progressive Conservative prime minister Brian Mulroney.

It identified four equity-seeking groups: visible minorities, Indigenous people, women and those with disabilities. The act requires federally regulated industries — the public service, banks and airlines, for example — to target these groups to get better representation within the workforce.

The federal government also has the Federal Contractors’ Program, created by a Mulroney government cabinet order in 1986. This obliges businesses with more than 100 employees doing business worth $1 million with the federal government to work towards more equitable hiring.

So, do all businesses need to have equity targets?

No, they don’t. It is only businesses under federal equity programs that are required to have equity targets.

“You don’t have to close any gaps,” said Eddy Ng, the the Smith Professor of Equity and Inclusion in Business at Queen’s University.

“But you may not discriminate.”

Provincial human rights codes vary by province, but they all prevent discrimination in hiring based upon various characteristics, such as sex or race.

However, businesses may choose to have diversity targets or hire to improve the composition of a company. Legally speaking, this would not be considered discrimination.

What do the human rights codes say?

These vary province by province, but they typically say something like this, which is what Alberta’s Human Rights Act says: “No employer shall … discriminate against any person with regard to employment or any term or condition of employment, because of the race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or of any other person.”

Are there exceptions to this rule?

There are.

There’s something called a bona fide occupational requirement that is, essentially, an exception to human rights code rules.

“The bona fide occupational requirement allows you to legally overwrite human rights considerations,” said Ng.

Take, for example, a restaurant that hires only conventionally attractive women as waitresses: this would screen out men, perhaps no matter how attractive they are. But this could be a bona fide occupational requirement if the entire business model requires a certain sort of employee.

Another example would be a mandatory retirement age of 65 for airline pilots that discriminates against seniors or an airline that insists pilots have good vision.

But, a business can’t just be willy-nilly about this. The Supreme Court of Canada has a three-step test to determine whether these are legitimate restrictions. An employer would need to prove that the purpose of the requirement is “rationally connected to performing the job,” that it was “adopted in good faith, in the belief that it is necessary to fulfill a legitimate work-related purpose” and that the “standard is reasonably necessary” to fulfill that purpose.

Can a business hire just one sort of person?

Sort of. Technically, a business might get away with hiring only men or only women or only people of a certain race, at least until someone complains to a human rights tribunal about it.

“It’s complaint based,” said Ng.

So, if there was a complaint made to a provincial human rights body about these hiring practices, the business could get in trouble for its hiring practices.

What about targeting certain people for diversity hiring?

This is allowed.

“It’s the basic acceptance for affirmative action as a way of combating discrimination,” said Eric Adams, a law professor at the University of Alberta.

This basically tracks what the Charter of Rights and Freedoms says. Section 15 prohibits discrimination on various grounds, but Section 15(2), ” immediately after that … exempts affirmative action programs from a claim of discrimination,” said Adams.

“‘No blacks, no women’s need apply,’ is always going to be found to run contrary to the prohibition on discrimination in the human rights code, but seeking to diversify the workforce because of an under representation of individuals, within your setting, it’s going to come under the exemptions for taking active steps to combat discrimination through targeted hires,” said Adams.

Can a job ad post for a certain sort of employee?

Certainly, if they’re an employer covered by the federal equity rules. It’s a bit stickier at the provincial level.

Ng said that a posting that, say, says only women will be hired for a position would violate provincial human rights codes, unless there’s a bona fide occupational requirement that only women can do the job.

Still, a posting could be open to everyone, even if there’s the internal understanding at the company that this job is, in fact, only going to go to a woman.

But not everyone agrees on what exactly the rules are. Adams said his read is “that you can be explicit in your advertising” when it comes to hiring to improve workplace diversity.

For example, the Alberta Human Rights Act prohibits “any advertisement in connection with employment or prospective employment or make any written or oral inquiry of an applicant that expresses either directly or indirectly any limitation, specification or preference indicating discrimination on the basis of the race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or of any other person.”

Seems pretty clear, right?

Well, not really. Because a little later, the act says “it is not a contravention of this Act to plan, advertise, adopt or implement a policy, program or activity that has as its objective the amelioration of the conditions of disadvantaged persons or classes of disadvantaged persons.”

Ng said the basic rule is this: A job ad cannot exclude any person or group unless it’s under the federal equity rules, but the posting can say preference will be given to underrepresented groups to advance diversity goals.

Why are Canada Research Chair positions restricted?

There are 2,285 Canada Research Chair positions across the country. They’re prestigious jobs, funded by the federal government.

In 2017, the Tri-agency Institutional Programs Secretariat, which administers the Canada Research Chair program, adopted diversity requirements because the positions weren’t especially diverse.

By December 2029, women and gender minorities must make up 50.9 per cent of all Canada Research Chairs across the entire program. Twenty-two per cent must be visible minorities; 7.5 per cent must be people with disabilities and 4.9 per cent must be Indigenous.

These statistics correspond roughly to population statistics.

As of September 2023, 47.8 per cent of positions were held by women and gender minorities, 28.6 per cent by racial minorities, seven per cent by people with disabilities and 4.1 per cent by Indigenous scholars.

The program as a whole has diversity targets, but individual institutions also set their own diversity targets. If individual institutions don’t meet diversity requirements by the deadlines, they’re obliged to only hire from the four designated groups until that gap is closed.

Three deadlines to address underrepresentation — the next two being in December 2025 and December 2029 — were adopted in response to human-rights complaints that white men were overrepresented in the positions.

What do critics say?

In the university setting, many critics argue that hiring should be based exclusively on merit — the best person for the job.

David Millard Haskell, a professor in the faculty of liberal arts at Laurier University, has argued that Canada has “embraced this false notion that discrimination can be good and it simply cannot.”

“In general when immutable characteristics become the bar by which someone is offered a job, well, of course, you’re going to have people who are not as qualified,” Haskell told National Post in 2022. “And, the thing that concerns me is … it’s suggesting that they could not make it on their own merit. This is the height of racism. This is an incredibly racist policy, to say that someone who was a person of colour could not compete on their own competency and merit.”

Others, such as economists Cristina Echevarria and Mobinul Huq, argued in 2001 that the way diversity hiring has worked in Canada until that point has largely focused on getting women into male-dominated workforces and has done little to get men into more traditionally female-dominated workplaces.