Anti-discrimination legislation in the USA, Canada and the Netherlands
door Jacky W. Nieuwboer - 17.03.2004
The first comprehensive legislative measures against discrimination on the ground of race were taken in Northern America: the USA and Canada. This article focuses on the development of these measures, which have been an example for many other countries. It also considers measures taken in the Netherland which have been inspired by examples form Northern-America.
From its earliest existence the USA knew slavery. During the American Revolution, in the 1770s and 1780s, freedom and equality were important issues. Some blacks were freed, but in the South of the USA slavery remained. In the Constitution (1787) slavery is not mentioned, but the ten Amendments, added in 1791 gave some constitutional rights to slaves. However, federal legislation did not have the strength it has today and in many, especially southern, states slaves were considered to be things rather than persons. They were not seen as citizens, so legislation was not supposed to apply to them.
The situation for the slaves improved during the Civil War (starting in 1860). The Emancipation Proclamation was issued freeing all slaves. In 1865 Congress issued the 13th Amendment, in which slavery was forbidden. In 1866 the 14th Amendment proclaimed the principle of equal protection. In 1869 the 15th Amendment laid down the right to vote for everyone. All this was due to the influence of the Republican Party. However, in the south the Democrats achieved power and they often reduced the rights given to the blacks to nothing. For example, in order to be able to vote one had to a pay poll tax, own property and/or be able to write - conditions that blacks often did not meet. Towards the end of the 19th century, given the restrictive interpretations applied by the courts, particularly the US Supreme Court, the Amendments had little practical effect.
At the beginning of the 20th century the right of blacks to vote was limited or non-existent in practice in many places. Schools were segregated and the black schools were of inferior quality. The lynching of blacks was common in the south. Blacks migrated from the south to the north. They ended up in ghettos, and in the north, as well, discrimination increased. In 1909 the National Association for the Advancement of Coloured People (NAACP) was established in New York. It achieved success in several fields, such as equal pay for black and white teachers and the admission of black students to white universities. The Supreme Court decision allowing the "separate but equal" doctrine, which claimed that segregation was all right as long as the facilities provided to students were equal, was challenged time and again by the NAACP. Thurgood Marshall, who would become the first black Supreme Court Justice, was very active in the early days of the organisation. During and after the World War II several state laws were adopted banning discrimination.
In 1954 the landmark case of Brown v. Board of Education of Topeka was decided. The Supreme Court decided that the separate but equal doctrine violated the 14th Amendment of the constitution, and that therefore segregation (legal) at schools should be ended, . However, implementing this decision has taken many years. In fact, by the end of the 1980s there was more segregation in practice in most large cities than in 1968, because whites lived in other areas than blacks and the system of bussing which was used to transport white and black children to different areas in order to achieve a mixture, was limited. During the late 1950s and early 1960s Martin Luther King came to the head of the civil rights movement. Protests as well as other actions finally led to the passage of a comprehensive Civil Rights Act in 1964 that was proposed by President Lyndon B. Johnson saw to it that a was passed in Congress.
In addition, it was during the Johnson era that affirmative action in employment was made into an issue. Since the 1960s all federal contracts require contractors to not discriminate. If they do they risk a variety of sanctions including cancellation of their contracts. In addition, all larger federal contractors must also set affirmative action goals for the company which the company must in good faith attempt to achieve through the use of non-discriminatory means. Usually by ensuring that the company is not discriminating itself and by reaching a greater pool of potential employees. Here it is important to note that the use of quotas would result in the same potential sanctions. It is the Labour Department's Office of Federal Contract Compliance Programs that is the supervisory authority.
Nonetheless, by the end of the 20th century there were still many problems left, among other things in the area of employment. Affirmative action as a government policy has been under attack for many years. The issue of so-called reverse discrimination has been brought to the forefront. The most serious issues here have been in fields other than employment – e.g. university admissions and special benefits for minority and women owned businesses. But these have had an affect on the entire field. In spite of all the measures, and an expanding black middle class, unemployment and poverty grew among blacks in the 1970s and 1980s. Moreover, conservative Presidents and Governors have been in power which has undermined much of the work done earlier. Thus, in spite of all the laws and other measures, much remains to be done in terms of equal opportunity in the US.
Constitution of the United States, esp. Article IV, section 2 (1), Amendments XIII, XIV, XV and XXIV.
R. Jakoubek, Martin Luther King, Jr., civil rights leader, Chelsea House Publishers, Philadephia, 1989
D.G. Nieman, Promises to Keep, African-Americans and the Constitutional Order, 1776 to the Present, Oxford University Press, 1991
J. Williams, Thurgood Marshall, American Revolutionary, Times Books, a division of Random House, Inc., 1998
Title VII of the Civil Rights Act of 1964, Equal Employment Opportunity Act 1972
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, colour, religion, sex and national origin by employers, employment agencies and labour organisations. Discrimination can take the form of unlawful employment practices. It is not an unlawful employment practice to take into account religion, sex or national origin where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of a particular business or enterprise. Religion may also be taken into account by schools, colleges, universities, or other educational institutions or institutions of learning, based on a certain religion. It is allowed to use a seniority or merit system and to use tests. Nothing shall be interpreted to require a party to grant preferential treatment to any individual or to any group (sec. 2000e-2).
The Act creates an Equal Employment Opportunity Commission (sec. 2000e-4). The Commission tries to end unlawful employment practices by informal methods of conference, conciliation and persuasion (sec. 2000e-5). Initially, the Commission could not sue. Now, if other procedures do not work, the Commission may bring a civil action against the party involved, or, if this party is a government, governmental agency, or political subdivision, it shall refer the case to the Attorney General who may bring a civil action in the appropriate US district court (sec. 2000f). The court may enjoin the respondent from engaging in an unlawful employment practice, and order such affirmative action as may be appropriate, however, only if the respondent has intentionally engaged in these activities (sec. 2000g).
When the bill was originally discussed it was made very clear that there was nothing in it that would give any power to the Commission or to any court to require hiring, firing, or promotion of employees in order to meet a racial "quota" or to achieve a certain racial balance. The section against preferential treatment was introduced to make sure that there would be no question of quotas (sec. 2000e-2). In order to limit the scope of the act, the words "intentionally" were introduced as well (sec. 2000g). On the whole, this Act turned out to be much weaker than hoped.
The EEOC therefore decided to put aside the intent test and apply an effect test: Practices would be judged on the basis of their impact on minorities, regardless of the intent of the actor. It also found forms which made clear that there were great disparities in employment patterns, for example, although blacks constituted 11.2 per cent of the population of Kansas City, they made up only 2.1 per cent of the population of Kansas. This gave rise to the use of statistics by the EEOC, and although the Commission could not brings suits, it used publicity and held hearings targeted at specific industries in specific areas.
A similar transformation took place at the Office of Federal Contract Compliance (OFCC), created by executive order in 1965 to enforce affirmative action among businesses working for the federal government. It required each federal contractor to agree that it would not discriminate and to take affirmative action. This Office had teeth, because it could cancel, terminate, or suspend any contract or portion thereof that violated the order. In 1969 the so-called Philadelphia Plan was signed. The plan set specific percentage "ranges" for blacks and other minority groups. There was a lot of criticism, because this seemed to introduce the quota system which had been so clearly denounced. By the end of the first Nixon administration, a significant part of the "civil rights" being enforced by the federal government could be described more plainly as a system of compensatory preferences for racial and ethnic groups.
In the meantime, the expanded EEOC interpretation of Title VII made African-Americans challenge practices they believed were discriminatory. The Supreme Court agreed that "effect" should be looked at rather than "in-tent" (Griggs case, 1971, "disparate impact" in the present Act). Affirmative action programmes benefiting minorities and women in the mid-1970s spread. There was also a backlash. White men claimed there was reverse discrimination. Until the end of the 1970s, the Supreme Court was in favour of affirmative action. However, in the 1980s and following several judges were replaced and the decisions became more conservative. In some places affirmative action has been abolished. This may have negative unintended consequences, though. In California and Texas, for example, racial preferences have been banned in college admissions. This led to a 57 per cent drop in the number of black applicants at the University of California at Berkeley in 1998, and a 40 per cent decline in the number of Hispanic high school seniors who had been accepted for admission. In general, the use of affirmative action is still being allowed.
It can be concluded that the original Civil Rights Act had very few teeth. However, through the efforts of the EEOC, the OFCCP and the Supreme Court, affirmative action has been recognised and has led to some positive changes in American society.
Title VII of the Civil Rights Act of 1964.
Equal Employment Opportunity Act 1972.
"Employment Discrimination Law", in F. Bloch, Antidiscrimination Law and Minority Employment, Recruitment Practices and Regulatory Constraints, Chicago and London: The University of Chicago Press, 1994, pp. 48-74.
"The Strange Career of Affirmative Action: The Civil Rights Act of 1964", in S.M. Gillon, "That's Not What We Meant to Do", Reform and Its Unintended Consequences in Twentieth-Century America, New York, London: W.W. Norton & Company, 2000, pp. 120-162.
Canadian Human Rights Act
The purpose of the Canadian Human Rights Act is that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated . . . without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted (sec. 2). Discriminatory practices may arise in the following fields: the provision of goods, services, facilities or accommodation (sec. 5), the provision of commercial premises or residential accommodation (sec. 6) and employment (sec. 7). It is necessary to pay equal wages (sec. 11) and discriminatory notices (sec. 12), hate messages (sec. 13), and retaliation (sec. 14) are prohibited.
Exceptions are practices based on a bona fide occupational requirement (sec. 15 (1a)), practices that are reason-able as they are prescribed by guidelines, issued by the Canadian Human Rights Commission (sec. 15 (1e)), or if, in the case of sections 5 or 6, there is a bona fide justification (sec. 15 (1g)). For any practice based on a bona fide occupational requirement or for any practice which is excused by a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost (sec. 15 (2)). Affirmative action is allowed (sec. 16).
To enforce the Act, the Canadian Human Rights Commission is established (sec. 26). Individuals or groups of individuals may file a complaint with the Commission (sec. 40). No complaint may be dealt with by the Com-mission if, for example, the complaint is based solely on statistical information that purports to show that members of one or more designated groups are underrepresented in the employer's workforce (sec. 40.1 (2b)). The next step is, that the complaint may be investigated (sec. 43 and following) and/or a conciliator may be appointed (sec. 47), for the purpose of attempting to bring about a settlement of the complaint. A settlement may be made an order of the Federal Court on application to that Court by the Commission or a party to the settlement (sec. 48(3)).
In accordance with sec. 48.1 (1) the Canadian Human Rights Tribunal is established. Proceedings before the Tribunal shall be conducted as informally and expeditiously as the requirements of natural justice and the rules of procedure allow (sec. 48.9 (1)). There may be inquiries into the complaint filed with the Tribunal (sec. 49) and all parties involved may appear in person or through counsel (sec. 50). If the complaint is substantiated, an order may be made against the person who engaged in a discriminatory practice. Compensation to the victim not exceeding 20,000 dollars may have to be paid (sec. 53 (3)).
Canadian Human Rights Act, lois.justice, gc.ca/en/H-6/26172.html, 26281.html and 26421.html.
1995 Employment Equity Act
The purpose of the 1995 Employment Equity Act is to achieve equality in the workplace and to correct the con-ditions of disadvantage experienced by women, aboriginal peoples, persons with disabilities and members of visible minorities (sec. 2).
Employment barriers must be identified and eliminated (sec. 5 (a)) and positive policies and practices must be instituted (sec. 5 (b)). Thus employment equity must be reached. However, the employer should not suffer undue hardship as a result (sec. 6 (a)). For the purpose of implementing employment equity, every employer shall col-lect information and conduct an analysis of his workforce, in order to determine the degree of the underrepre-sentation of persons in designated groups in each occupational group in that workforce and conduct a review in order to identify employment barriers (sec. 9 (1)). Employees are asked to identify themselves as belonging to the designated groups (sec. 9 (2)). The employer shall then prepare an employment equity plan outlining meas-ures to be taken by him, together with, for example, a timetable (sec. 10). Employers shall consult employees and private employers shall report to the Government on or before 1 June in each year details about their workforce: the industrial sector in which its employees are employed, the location of the employer and its em-ployees and the number of those employees who are members of designated groups; the occupational groups in which its employees are employed and the degree of representation of persons who are members of designated groups in each occupational group; the salary ranges of its employees and the degree of representation of persons who are members of designated groups in each range and in each prescribed subdivision of the range; and the number of its employees hired, promoted and terminated and the degree of representation in those numbers of persons who are members of designated groups (sec. 18(1)). The President of the Treasury Board shall file re-ports in respect of the public service (sec. 21).
The Canadian Human Rights Commission is responsible for the enforcement of this Act. It shall be guided by the policy that, wherever possible, cases of non-compliance be resolved through persuasion and the negotiation of written undertakings (sec. 22). The Commission may give directions in the course of the course of the events. There may be reviews by an Employment Equity Review Tribunal (sec. 27 and following). As a result, the Tribunal will make an order which is final (sec. 30). Any order of a Tribunal made under section 30 may, for the purposes of its enforcement, be made an order of the Federal Court and is enforceable in the same manner as an order of that Court (sec. 31). If the Act is violated by an employer, for example because he does not file an employment equity report, he may have to pay a monetary penalty (sec. 36).
1995 Employment Equity Act, lois.justice.gc.ca/en/E-5.401.
Comparison of American and Canadian law
Chapter VII of the Civil Rights Act of 1964, in which the Equal Employment Opportunity Act is incorporated, deals with discrimination in the USA. It is limited to employment practices and only prohibits discrimination on the basis of race, colour, religion, sex and national origin. The language of the Act is very careful; it does not re-quire affirmative action to straighten out certain situations, for example. However, in practice affirmative action has been recognised and it has been regularly used.
An Equal Opportunity Commission has been established that first worked by means of conciliation; however, now it can sue parties who are in breach of the Act.
The Human Rights Act in Canada is much wider in scope. It prohibits discrimination in more fields: the provision of goods, services, facilities or accommodation, the provisions of commercial premises or residential accommodation, and employment. It also recognises more grounds for discrimination: race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted. Affirmative action is explicitly allowed.
The Canadian Human Rights Commission has been established to enforce the Act, together with the Canadian Human Rights Tribunal. Complaints may result in settlements or in orders; compensation to a victim may have to be paid.
In addition to the Human Rights Act, the 1995 Employment Equity Act is in force. The purpose of the Act is to achieve equality in the workplace and to correct the conditions of disadvantage experienced by women, aboriginal peoples, persons with disabilities and members of visible minorities. Barriers must be eliminated, reports must be made about measures taken: affirmative action plays an important part here.
The Canadian Human Rights Commission is responsible for the enforcement of this Act, too. There may be re-views by an Employment Equity Review Tribunal, which may make orders which become legally binding. In the event of non-compliance with the Act an employer may have to pay a monetary penalty.
All in all, Canadian legislation is more comprehensive than American legislation. In the United States, much seems to depend on the current political situation and the interpretation of the Civil Rights Act that goes with it. At the moment, Canada, given the relevant laws and programs in place, seems to be more progressive than the USA in the field of discrimination.
Legislation Equal Treatment Act 1994
The Equal Treatment Act 1994 prohibits discrimination on the grounds of religion, belief, political opinion, race, sex, heterosexual or homosexual orientation or civil status, in order to promote equal participation in the life of society. Both direct and indirect discrimination are prohibited (sec. 1). Indirect discrimination may be objectively justified, though (sec. 2 (1)). Affirmative action is allowed (sec. 2(3)).
It shall be unlawful to discriminate in or with regard to public advertising of employment and procedures leading to the filling of vacancies; the commencement or termination of an employment relationship; the appointment and dismissal of civil servants; terms and conditions of employment; permitting staff to receive education or training during or prior to employment; and promotion (sec. 5(1)). In some circumstances this subsec. does not apply to, for example, religious institutions (sec. 5(2)). It shall also be unlawful to discriminate with regard to the conditions for and access to the liberal professions and opportunities to pursue the liberal professions or for development with them (sec. 6), or in offering goods or services, in concluding, implementing or terminating agreements on the subject, and in providing advice or information regarding the choice of educational establishment or career if such acts of discrimination are committed in the course of carrying on a business or exercising a profession; by the public service; by institutions which are active in the field of housing, social services, health care, cultural affairs or education or; by private persons not engaged in carrying on a business or exercising a profession, in so far as the offer is made publicly (sec. 7(1)). Private educational establishments are, however, to some extent exempted (sec. 7(2)).
In sec. 11 the Equal Treatment Commission is established, which is supposed to enforce the Act. The Commission has to be approached by means of a request in writing, upon which the Commission may conduct an investigation, after which its findings may be published. The Commission may also conduct an investigation on its own initiative and publish its findings (sec. 12(1)). The Commission cannot make binding judgements itself, but it may bring legal action before the Court (sec. 15(1)).
Equal Treatment Act
SAMEN Act (Act on the Promotion of Minority Groups in the Labour Market)
In the beginning of the 1990s, the government and other social actors felt that the participation of minorities in the labour market should be increased, because they were lagging behind in this field. In 1994, the "Wet BEAA", the Act on the Promotion of a Proportional Partipation of Allochthones, came into effect. The aims of the Act were to improve the position of minorities in the labour market and combat factors such as discrimination.
The crux of the Act was that employers had to register the number of members of minority groups in their service and formulate policies to get more minorities in their employment and keep them in their service as well in an internal plan. However, this Act was hardly complied with. Only a small number of the employers (half of them) registered the number of minorities in their service and (one eighth) deposited a report at the Chamber of Commerce. Interest groups could ask the Public Prosecutor to prosecute, on the basis of stipulations in the Penal Code. This has never happened, as far as we know.
The conclusion was drawn that the Act was too much of an administrative matter, which resulted in too little ac-tion. Therefore, the Act was adapted and changed, resulting on 1 June 1998 in the SAMEN Act.
The Act will be in force until 1 January 2002 and it may have further effect until 2004.
The Act governs enterprises (the government included) in which at least 35 persons are employed. The entrepreneur has to try and reach a representation of minorities within the enterprise which is proportional to their share in the regional population. Qualifications and skills are taken into account. The government lists percentages that should finally be reached for each region. The entrepreneur registers those who belong to the minorities. A public annual report shows the number of persons from the target group and the measures for the coming year to reach a better proportional representation of minorities. The annual report is submitted to the Works Council. It has to be deposited with the Regional Employment Agency on 1 June of the next year at the latest. The Labour Inspectorate checks this and informs the Works Council and organisations of employees and employers, if necessary. A copy of this information is available at the Regional Employment Agency, among other things for the benefit of interest groups. Interest groups may now sue the employer, after they have appealed to him first. Compliance with the Act may be claimed, possibly with a penalty, on the basis of tort law.
In practice, the Act works better than its predecessor. About one third of the employers deposits an annual report, which is still too little, though. Interest groups do not, in general, take action. Moreover, the reports which are deposited are often not up to standard. Many employers feel they meet the requirements, whereas they do not (for example when they have not used the right proportional percentages).
It must be concluded that the Act is not sufficiently complied with. The number of reports will have to increase considerably. It turns out that activities by the Labour Inspectorate often lead to such an increase. Appeals by other organisations, too, might have the same effect. More information on a structural basis and more guidance should be given to lead to a better quality of the reports as well.
Jacky W. Nieuwboer was working as legal advisor at the National Bureau against Racial Discrimination, Rotterdam, Netherlands.