Affirmative action principles are to be implemented throughout the hiring process - in advertising, in searches, and in recommendations for appointment.
Affirmative action in YUFA's Collective Agreement works primarily as a 'tie-breaker' amongst qualified and substantially equal candidates:
Each unit has affirmative action representatives, who must attend a workshop on employment equity and the relevant Collective Agreement provisions. Representatives help to develop affirmative action plans, monitor the hiring process, and report on whether the plan has been followed. Their reports are considered by a joint YUFA-Employer committee, which makes recommendations to the President.
Units with 40% or more women shall review their affirmative action plans to seek to proactively increase their representation of members from the other 'designated groups' using Canadian workforce diversity as a guideline (2006 Census info: visible racial minorities 15.3%, Aboriginal people 3.1%, persons with disabilities 4.9%).
Is there a 'Canadians-first' rule?
Human Resources and Skills Development Canada (HRSDC) states that search committees can, from the outset, consider all candidates' applications, regardless of nationality. However, foreign nationals can be hired only if there are no qualified Canadian citizens / permanent residents. That's why advertisements must state, 'All qualified candidates are encouraged to apply; however, Canadian citizens and permanent residents will be given priority.'
The exception is for CLA hirings; owing to NAFTA, citizens of Mexico and the US fall in the same category as Canadian citizens / permanent residents under HRSDC guidelines.
The VP Academic's Office provides documents on HRSDC policy.
How effective has affirmative action been?
In the 2010 CAUT Almanac, YUFA ranked fourth among full-time faculty groups at 70 Canadian universities in its representation of women. In 2010, 46.1% of YUFA members were women, with 35 of 56 units meeting the 40% threshold, 15 units between 20% and 39.9%, and 6 units (mostly in the Sciences) falling below 20%. The percentages of women among graduate students and undergraduates at York were most recently reported to be 55.7 and 60.0, respectively (York University FactBook, 2009/2010).
In 2000, the York Centre for Human Rights and Equity found that 0.4% of YUFA members self-identified as Aboriginal, 10.3% as members of visible / racialised minority groups, and 7.8% as persons with disabilities. The majority of today's YUFA members (713 out of 1393) have been hired since then, so there has been considerable opportunity to improve the representation of equity-seeking groups.
In Spring 2009, the Employer conducted an equity survey, updating the self-identification data. Below, from the Employer’s report, the YUFA numbers compared to the 2006 Census numbers – which Article 12.21 says are to be used as a guideline for affirmative action in units with over 40% women – and to the national availability numbers for the Canadian professorial workforce:
Is diversity recognized in any way in the T&P process?
The T&P procedures include the following principle:
File Preparation Committees are especially enjoined to present diverse career paths fairly and effectively.
The 1997-98 pay equity settlement had given women faculty $1.1 million to reduce the gap between them and male faculty of comparable age and professional experience. These raises went some distance toward making salaries more rational, but gender gaps in salaries have been widening again.
The recapture agreement concluded in 2008. (According to this agreement, as women faculty who received pay equity raises retired or left York, their raises were redistributed among remaining women who were eligible.)
However, the librarians' pay equity review continues. In this process, every three years, librarians' salaries are reviewed to determine whether they still comply with the librarian pay equity settlement. If not, individual librarians receive additional raises. (Unlike faculty, librarians qualified as a 'female job class' under the Pay Equity Act.)
What happened with the Employment Standards Act grievance?
In January 2000, a group of women faculty had filed grievances under the Employment Standards Act 'equal pay for equal work' provisions, alleging that they were inequitably paid relative to male comparators. In August 2008, these women received a mediated settlement.
Yes, according to the Ontario Human Rights Code, if you:
The Code defines a 'disability' as having, having had, or being believed to have / have had:
An Employer's failure to accommodate a person with a disability is defined under the Code as discrimination based on disability.
How do I arrange accommodation?
Contact your Dean / Principal / University Librarian; it's then their role to facilitate contact between the Employee Well-Being Office (EWO) and you. Together, the EWO, your Dean / Principal / University Librarian and you consult confidentially to identify the most appropriate form of accommodation that meets your needs, as set forth in the Employee Accommodation Process, available from York Human Resources.
Contact YUFA if you anticipate or experience obstacles. YUFA is often involved in this process - at your request - especially if the accommodation changes your job responsibilities.
If you're requesting that your Dean / Principal / University Librarian provide a workplace accommodation (e.g., specific equipment / furniture or other supports) and you're in a unit with a Chair / Head, then copy your request to that individual too.
Whose responsibility is it to pay for accommodation?
It's the Employer's ... so no one should tell you to fund your own accommodation using your PER or use the unit's budget as an excuse not to fund your accommodation.
The Ontario Human Rights Commission specifies that employers are obliged to provide forms of accommodation that allow employees to perform the essential responsibilities of their positions, with respect for dignity, individualisation (i.e., each person much be considered, assessed, and accommodated individually), integration and full participation (requiring barrier-free and inclusive design and removal of existing barriers). See the Commission's Policy & Guidelines on Disability and the Duty to Accommodate.
The Commission states that employers must satisfy these principles to the point of 'undue hardship.' This means that the only grounds considered for discriminating are: costs so great that they would alter the fundamental nature of the enterprise, lack of outside funding sources to alleviate costs, and countervailing health & safety requirements. Employers can't plead inconvenience or effects on employee morale; the burden to prove that there's 'undue hardship' is theirs.
The Employer may recommend a form of accommodation that wouldn't be your first choice. If it would allow you to complete the essential duties of your job without pain or further damage to your health or dignity, you're obligated to work with it. The Employer is obligated, however, to reassess the situation should you provide new information about your needs.
Can I return to work gradually after being on LTD?
Yes, if your physician supports it, you can arrange this through the Employee Accommodation Process. Contact with your Dean / Principal / University Librarian throughout your LTD will help toward planning for your return.
The Employer must provide parking that is 'satisfactorily proximate to the offices of faculty / librarians who are physically challenged'. Contact York Parking Services for information; note that they'll require you to have been issued a current Ontario Disabled Parking Placard.
How is 'spouse' defined for pension and benefits?
For pensions, an 'eligible spouse' is a person of the same or opposite sex, living with you at the time of pension commencement, and who is:
For benefits, 'spouse' includes an individual of the same or opposite sex with whom you've been living for at least one year.
Who is eligible for parenting leaves?
The Collective Agreement recognises a wide array of parenting arrangements. You're eligible if you or your partner:
For more information, click here.
Besides leaves for new parents, what clauses could provide me with time for care-giving responsibilities?
For circumstances such as bereavement, emergencies, and extraordinary elder or child care, you can request a short-term leave of up to one month. Arrange such leaves with your Dean / Principal / University Librarian. For emergencies of a week or less, short-term leaves can be arranged with your Chair. If you have a gravely ill family member, you may want to find out about the Employment Insurance 'compassionate care' benefits.
For other useful clauses, click here.
What is discrimination?
The Code also prohibits harassment in employment based on the same prohibited grounds. (More on harassment in the next question!)
In addition, the Collective Agreement bars discrimination and harassment based on several additional grounds (which may not be included clearly, or at all, amongst the prohibited grounds under the Ontario Human Rights Code):
The Collective Agreement also prohibits abuse of authority, i.e., use of a person's position or role within the University to harass others, sexually or otherwise.
Besides barring discrimination and harassment on all the grounds listed above, the YUFA Collective Agreement specifically reiterates YUFA's and the Employer's commitments to non-discrimination in hiring, T&P considerations and other assessments of colleagues, and merit pay decisions.
What is harassment?
The Ontario Human Rights Code defines harassment as 'engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.' However, the prohibition in the Code against harassing behaviour extends only to harassment based on the prohibited grounds listed in the Code.
In June 2010, the Occupational Health & Safety Act was amended in Bill 168 and now focuses on the prevention of workplace harassment. Workplace harassment is defined as, ‘engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonable to be known to be unwelcome.’ The difference between workplace harassment under the Occupational Health & Safety Act and harassment under the Code is that workplace harassment is not based on the prohibited grounds set out in the Code. The recent amendments respond to how human rights legislation had only offered harassment protection in relation to prohibited grounds, and not dealt with harassment as a health & safety issue.
Workplace harassment is a new concept, so case law is only now emerging. Workplace harassment may include a course of conduct such as bullying or psychological abuse.
But, a single incident that offends or upsets a worker – and that doesn’t constitute a ‘course of vexatious comment or conduct’ – might not be counted as workplace harassment. Similarly, co-workers’ personality conflicts that create tension or bad feeling in most cases would not amount to workplace harassment.
Recent Bill 168 amendments to the Occupational Health & Safety Act now define workplace violence as:
The recent amendments respond to how legislation hadn’t dealt with violence as a health & safety issue, and to high-profile murders in Ontario workplaces that might have been preventable.
Workplace violence is a new concept, so case law is only now emerging; it may include:
But, it wouldn’t include psychological violence or emotional abuse; the focus is on physical violence or the threat of it.
In addition, there are new provisions about domestic violence. If an employer becomes aware, or ought reasonably to be aware, that domestic violence that would likely expose a worker to physical injury may spill over into the workplace, the employer is required to take every precaution reasonable in the circumstances for the protection of the worker.
Employers now have to go beyond dealing with workplace harassment solely on prohibited grounds (though the YUFA Collective Agreement had already required more). The Employer now has a workplace harassment policy and must develop a prevention program.
Similarly, the Employer now has a workplace violence policy, and must develop a prevention program. This must include a process for informing employees who are at risk of physical injury from a person with a history of violent behaviour whom they are likely to encounter in the workplace. However, the Employer is permitted to disclose only as much personal information as is necessary to protect workers from physical injury. It remains to be seen whether or to what extent this will entail disclosing personal information about YUFA members to their colleagues without their knowledge or consent.
It depends on the nature(s) of the concern:
According to York's Centre for Human Rights, in 2010/11, 30 faculty members from either YUFA or CUPE 3903 were complainants and 54 were respondents to complaints.
York's Centre for Human Rights (CHR) explains the jump in faculty members who filed complaints in 2010/11 as follows: "A significant increase was recorded in the number of faculty complaints and consultations, which totalled 30 files (16.6%) compared to only five files (3.5%) last year. This combination of data was viewed as a positive statistic by the CHR. Since 2009, serious efforts have been made to engage community members who would not normally access the CHR and its resources, including faculty, through committees and outreach initiatives. It is encouraging that more faculty members felt safe enough to take advantage of the information and assistance available through the CHR, and such targeted outreach activities to enhance the CHR’s range and reach will continue."
Version: October 2012