Addressing concerns about special programs

A special program is in line with the values of the Code if it meets the criteria described above. However, some questions and concerns may arise about an organization’s decision to set up a special program. One question that an organization may be asked is, “Will the special program lead to ‘reverse discrimination’ where less qualified people are employed or assisted?” 

It is common to see resistance to special programs based on the perception they just change who is being discriminated against. Special programs must respond to a proven need and real disadvantage. Systemic discrimination is often hidden. People from historically disadvantaged groups (for example, people from racialized groups, women and people with disabilities) often do not have access to the same opportunities as others. Special programs help level the playing field.

Organizations should clearly communicate the purpose and goals of a special program. Organizations may also wish to invite questions and get feedback from people inside and outside the organization to encourage support.

Example: A school board has collected data and found that very few of its teachers have First Nations, Métis or Inuit heritage, as compared to its student body. It creates an employment equity program, aimed at building a large pool of candidates of teachers with Aboriginal ancestry it can hire into available positions. In designing the program, the board consults with many different groups, including unions, teachers’ colleges, parents, staff and people in the local Aboriginal and non-Aboriginal communities. It sets clear short- and long-term goals to improve representation of Aboriginal teachers. It provides regular updates on the progress of the program through school board meetings and its annual report.

Another question an organization may encounter is, “Can a special program be designed for some people within a Code-protected group, and not others?” 

Yes. Special programs should be designed to meet the specific and pressing needs of particular groups. A program may be especially needed in a certain context. An organization has the right to choose which special program will work best, depending on the needs of the people it is trying to serve. This may mean designing a program for just some of the people within an already marginalized Code-protected group.[11]

Example: A community centre serving people who are lesbian, gay, bisexual and transgender (LGBT) wants to set up a support group for bisexual people and people questioning their sexuality to talk about issues of biphobia (the irrational fear of people who are bisexual). The community centre is responding to concerns from its bisexual clients that they feel invisible and face stereotypes within both the heterosexual and LGBT communities.

As noted earlier, restrictions on who is eligible for the program must be supported by the evidence and the rationale. Special programs cannot leave out, without reason, people from a group who may benefit from the program.[12]

An organization can overcome objections to special programs by following the elements of this guide: developing a good rationale, providing evidence of a problem, setting requirements that do not unnecessarily exclude individuals, and tracking how well the program is working. Organizations should clearly communicate the rationale, explain the benefits, and provide updates on the progress being made. 

[11] Larromana v. Director of ODSP, 2010 ONSC 1243 at para 6 (CanLII). The Court in this case affirmed that when the government elects to provide a benefit to a group identified by a prohibited ground of discrimination (such as disability), it is not required to extend that benefit to every conceivable member of that broad class. In this case, the Court found that the program was designed to benefit a smaller disadvantaged group – people with more serious degrees of impairment. See also Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 SCR 670 (CanLII).

[12] See XY v. Ontario (Government and Consumer Services) (2012), HRTO 726 at 41-45 (CanLII)