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Equity

Affirmative action | Pay equity | Accommodation for disability Recognition of diverse families | Discrimination, harassment & violence

Affirmative action

How does YUFA affirmative action work?

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:

  • In units with at least 40% women, a candidate who is a member of a 'designated group' - a visible / racialised minority group member, an Aboriginal person, or a person with a disability - will be recommended;
  • In units with less than 40% women, the top priority is to recommend a woman from a 'designated group', followed by men from such groups or other women;
  • If two women from 'designated groups' tie for top rank, and one is a long-serving contract faculty member from CUPE 3903, she'll be the recommended candidate.

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?

Job candidates' sex has been a tie-breaker in new appointments in units with less than 30% women since 1987, with the threshold percentage rising to 40% by 1999. Affirmative action for self-identified Aboriginal persons, members of visible / racialised minority groups, and persons with disabilities was not implemented until the 1999-2003 Collective Agreement.

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:

  YUFA 1 2006 Census National Availability
Women 44.9%   41.0%
Aboriginal Peoples 0.8% 3.1% 1.0%
Members of Visible Minorities 16.6% 15.3% 14.9%
Persons with Disabilities 6.0% 4.9% 4.5%
1 The cumulative response rate is now just over 90%.

 

Is diversity recognized in any way in the T&P process?

The T&P procedures include the following principle: 

In keeping with the University's commitment to foster a climate of respect for equity and diversity, standards for tenure & promotion must recognise research and professional contributions in an equitable way. This includes acknowledging diverse career paths, traditions, and values, ways of knowing and forms of communicating knowledge.

File Preparation Committees are especially enjoined to present diverse career paths fairly and effectively.

 

Pay equity

How did the pay equity settlement affect the gender gap in salaries?

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.

Table 4. Trends in median YUFA salaries for males and females in 1996/97 - 2009/10, by age group

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.

 

Accommodation for disability

Am I eligible for accommodation for my disability?

Yes, according to the Ontario Human Rights Code, if you:

  • meet the definition of 'disability'; and
  • the disability prevents you from performing the 'essential requirements' of your job without accommodation.

The Code defines a 'disability' as having, having had, or being believed to have / have had:

  • any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, including diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
  • a condition of mental impairment or a developmental disability,
  • a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
  • a mental disorder, or
  • an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997.

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.

 

How do I obtain campus medical parking?

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.

 

Recognition of diverse families

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: 

  • legally married to you, or 
  • living with you in a conjugal relationship continuously for at least 3 years, or 
  • living with you in a conjugal relationship of some permanence, in which you are the natural or adoptive parents of a child.

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:

  • give birth to a child, or
  • adopt a child, or
  • come into care, custody, and control of a child under 12.

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.

 

Discrimination, harassment & violence

What is discrimination?

The Ontario Human Rights Code guarantees the right to equal treatment in employment without discrimination based on the following factors, which are called prohibited grounds:

race sex
ancestry sexual orientation
place of origin age
colour record of offences
ethnic origin marital status
citizenship family status
creed disability
gender identity gender expression

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):

  • family relationship,
  • number of dependants,
  • nationality,
  • place of residence,
  • political affiliation or belief,
  • religious affiliation,
  • non-conforming personal behaviour (excluding failure to fulfil job responsibilities),
  • membership or non-membership in the Association,
  • previous or impending exclusion from the bargaining unit,
  • lawful activity or lack of activity in the Association.

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.

 

What is workplace violence?

Recent Bill 168 amendments to the Occupational Health & Safety Act now define workplace violence as:

  • exercising physical force against a worker, in a workplace, that causes or could cause physical injury to him or her,
  • attempting to do the above, or
  • making a statement or behaving in a way that a worker could reasonably interpret as a threat to do the above.

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:

  • incidents of physical force that don’t actually cause injury,

  • threats of physical violence that aren’t acted upon, or

  • failed attempts at assault.

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.

 

What does the Employer now have to do as a result of recent amendments to the Occupational Health & Safety Act?

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.

 

Whom do I contact about discrimination, harassment, or workplace violence?

It depends on the nature(s) of the concern:

  • If it’s related to a prohibited ground, file a complaint with York's Centre for Human Rights in accordance with Appendix Q. You also have the right to file a complaint with the Human Rights Tribunal of Ontario - in addition to the Appendix Q process. YUFA will provide advice and representation, upon request.

  • If it’s related to one of the other grounds barred in the Collective Agreement, file a complaint with York’s Centre for Human Rights in accordance with Appendix Q. YUFA will provide advice and representation, upon request.

  • If it’s a workplace harassment concern, contact your Dean / Principal / University Librarian and YUFA. The specifics of the workplace harassment program are being developed.

  • If it’s a workplace violence concern, call the police. You should then contact your Dean / Principal / University Librarian and YUFA. The specifics of the workplace violence program are being reviewed. You have the right to refuse work because of workplace violence, but you can’t just walk away. For the formal process, see section 43 of the Occupational Health & Safety Act. In summary, the right to refuse work is available in cases of workplace violence but not in cases of workplace harassment. Further, you have the right to refuse work only if the workplace violence is likely to endanger you. Under the Act, you must promptly report the circumstances of the refusal to the Employer or your supervisor, so that the matter is investigated immediately; we suggest that you also contact YUFA. The Act says your responsibility is to remain in a safe place near your work station and stay available for investigation.

 

How many complaints to York’s Centre for Human Rights involve instructors?

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.

Year Complainants Respondents
2006/07 14 63
2007/08 10 63
2008/09 13 54
2009/10 5 19
2010/11 30 54

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."

 

More info?

Version: October 2012