Part 3 – guidelines for implementation: monitoring and combating racism and racial discrimination

6. Collection and analysis of numerical data

It is a common misperception that the Code prohibits the collection and analysis of data identifying people based on race and other Code grounds. Many individuals, organizations and institutions mistakenly believe that collecting this data is automatically antithetical to human rights.

In fact, the OHRC has stated that not only does the Code permit the collection and analysis of identity data based on enumerated grounds for Code legitimate purposes, but also appropriate data collection is necessary for effectively monitoring discrimination, identifying and removing systemic barriers, ameliorating historical disadvantage and promoting substantive equality.^[152] It is the collection or use of data for improper purposes that further contributes to discrimination or stereotyping that is antithetical to human rights.

All individuals, organizations and institutions in Ontario are responsible for upholding human rights within their respective environments. Individuals, organizations and institutions can be held liable for actions that are discriminatory or harassing but also for failing in their duties to take appropriate action to address human rights issues of which they are aware, or ought to be aware. In other words, in keeping with the preventative and remedial purpose of the Code, there is a positive duty to take corrective action to ensure that the Code is not being and will not in future be breached. Just as organizations and institutions have an obligation to conduct an investigation once aware of an allegation of racial harassment, awareness that racial discrimination may exist may call for an investigation that involves the collection of data.

In the context of racial discrimination, data collection is a necessary and in some cases essential tool for assessing whether rights under Part I of the Code are being or might potentially be infringed and for taking corrective action. It is therefore the OHRC’s position that data collection and analysis should be undertaken where an organization or institution has or ought to have reason to believe that discrimination, systemic barriers or the perpetuation of historical disadvantage may potentially exist.

Whether an organization or institution has or ought to have reason to believe data collection is necessary will be assessed on a subjective and objective basis. First, the organization or institution’s actual knowledge of a problem will be considered. Second, from the point of view of a reasonable third party, whether the organization or institution should have been aware of a problem necessitating data collection will be considered. The concept of the reasonable third party will take into consideration both the perspective of the organization or institution and racialized communities.

Some situations in which there will be a reasonable basis to believe that rights under Part I of the Code are being or might potentially be infringed and a determination can best be made through data collection and analysis include:

• persistent allegations or complaints of discrimination or systemic barriers; for example, an organization that receives multiple claims under an internal human rights policy, through applications to the Tribunal or using another process that deals with human rights issues such as labour arbitration
• a widespread public perception of discrimination or systemic barriers; for example, public concern with the phenomenon of racial profiling
• observed unequal distribution of racialized persons; for example, a clear discrepancy in the number of racialized persons holding low-level positions as compared with those in senior positions
• objective data or research studies demonstrating the existence of discrimination or systemic barriers; for example, studies that show increased drop-out rates in education
• evidence from other organizations or jurisdictions that a substantially similar policy, program or practice has had a disproportionate effect on racialized persons; for example, evidence that “zero tolerance” school discipline policies have adversely affected racialized students in the United States and United Kingdom.

There are other situations where an organization or institution may not have reason to believe that a problem exists within its own area of responsibility but may nevertheless wish to voluntarily collect data for the purposes of advancing the objectives of the Code.

• census data demonstrating under-representation of Aboriginal persons in a profession is used as the basis of a special program to encourage Aboriginal persons to pursue the profession
• a survey of its clientele allows an organization to better ensure that their needs are being met, for example by issuing brochures in multiple languages, providing cross-cultural training to staff and tailoring its services to recognize the diversity of needs of its clientele
• an organization that is instituting a new policy or program or embarking on significant organizational change wants to monitor the impact of this initiative on racialized persons to ensure that no adverse effects occur

6.1. Consequences of a failure to collect and analyze data

A failure to collect and analyze data does not, in and of itself, form the basis for an application to the Tribunal. Rather, the collection and analysis of data may be a component of the duty to take action to prevent violation of the Code. Therefore, where a prima facie complaint of discrimination is made out, the a decision-maker should consider the failure to collect and analyze data as part of its analysis of whether the respondent has met its duty to ensure it is not in violation of the Code.

Example: School discipline policies appear to be having a disproportionate impact on racialized students and students with disabilities, and to be further exacerbating their already disadvantaged position in society. Empirical research from the United States and United Kingdom demonstrates that racialized students and students with disabilities are disproportionately affected by the application of suspensions and expulsions. The responsible authorities’ failure to take this into account and to take steps to monitor for and prevent a disproportionate impact, in part, forms the basis of a human rights claim.

Moreover, in cases where the collection of data was clearly warranted, the failure to collect accurate and reliable data may foreclose a respondent from making a credible defence that it did not discriminate. In addition, where systemic discrimination is alleged and the organization or institution has chosen not to collect data, the Tribunal may need to rely on qualitative evidence of disproportionate representation to determine whether racialized groups are experiencing disadvantage. Finally, where appropriate, the OHRC will seek, and the Tribunal may order, data collection and analysis as a public interest remedy in litigation and settlements.

Conversely, if an organization or institution collects and analyzes data it may also show that discrimination or systemic barriers do not exist. As well, efforts to monitor for discrimination or systemic barriers will assist an organization or institution to show that it has met its duty to protect and uphold human rights.

Example: A perception exists that a program is having a disproportionate effect on racialized persons. However, data reveals that racialized persons are affected the same as others.

Example: An organization is concerned that its workforce is not representative of the population it serves. It collects data to monitor whether its policies could be having a discriminatory effect as well as conducting an employment systems review to remove any barriers that may exist.

6.2 Data collection and analysis methodology

In order to fulfill its purpose, data collection should be done in good faith with the purpose of producing accurate, good-quality data rather than attempting to achieve a particular outcome. Efforts should be made to collect data that will shed meaningful light on the issues and to gather it in a way that is consistent with accepted data collection techniques.

How data collection and analysis should be conducted is dependant on the context, including the issue that requires monitoring, the purpose of the data collection and the nature and size of the organization. Effective data collection and analysis in complex situations will generally require the use of proper research and design methodologies as well as training of staff who are collecting the data. Unless an organization has the relevant internal expertise, it is likely to require assistance from an expert such as a social scientist.

Example: A police force concerned about the perception that racial profiling is a problem initiates a project to collect data about police stops. Through consultation with an expert who has a background in research methodologies and data analysis, a data collection program is designed. Officers are required to record all stops on a standard form, including the reason for the stop, the outcome and the perceived ethno-racial identity of the person stopped. A copy of the form is given to the person stopped and he is asked to verify the information recorded.

Conversely, a small organization that has basic data collection needs may be able to rely on existing resources.

Example: A non-federally regulated company sees a problem in its staffing and decides to use existing employment equity resources as a resource to implement its data collection and analysis program.^[153]

It is important to note that special studies where data is only collected for a limited period of time may be less accurate. Firstly, the data may only provide a snapshot of a situation and not assess changes over time. Moreover, short-term studies may be affected by the normal human tendency to modify behaviour while under scrutiny. Data gathered in a time-limited study will, therefore, have to be considered with this in mind.

As stated earlier, data should only be used for Code legitimate purposes and should not be used to perpetuate discrimination or stereotyping about a group. Public disclosure of the data should be carefully considered to ensure that adverse consequences will not result.

The individuals involved in the collection of data must be informed why such information is being collected and the use to which it will be put. The reason for data collection, as well as how the collection and use of such data will assist to relieve disadvantage or discrimination and achieve equal opportunity, should be explained. This will help alleviate the concern that may exist about being asked to self-identify. Privacy of individuals must be assured and data collection, storage, access and disclosure must be carefully controlled.

As stated earlier, numerical data can be a strong indicator of inequitable practices. Therefore, if the data reveals that there is a problem an organization or institution must be prepared to act.

Please consult the OHRC’s publication Guidelines for collecting data on enumerated grounds under the Code for further information about data collection and analysis methodologies.

7. Preventing and responding to racism and racial discrimination

Organizations and institutions operating in Ontario have an obligation to have in place measures to prevent and respond to breaches of the Code. They have a duty to take steps to foster environments that are respectful of human rights. This takes commitment and work. However, this is part of the cost of doing business in a jurisdiction that is committed to the goal of equality, as a matter of public policy expressed through the Code.

Measures to respond to racism and racial discrimination have been referenced throughout this policy. To summarize, a solid organizational anti-racism^[154] program will contain the following components:

1. a comprehensive anti-racism vision statement and policy
2. proactive, ongoing monitoring
3. implementation strategies
4. evaluation.

7.1. Anti-racism vision statement and policy

In addition to addressing obligations under the Human Rights Code, the adoption and implementation of an effective anti-racism vision statement and policy has the potential of limiting harm and reducing liability. It also promotes the equity and diversity goals of organizations and institutions and makes good business sense.

A clear, concrete and comprehensive anti-racism vision statement and policy is critical to the success of any anti-racism program. The OHRC’s publications Guidelines on Developing Human Rights Policies and Procedures and Human Rights at Work discuss what should be contained in a general anti-discrimination and anti-harassment policy which covers all the grounds in the Code. However, there are some additional measures that are important to address the specific complexities of racism and racial discrimination.

It is essential that all key stakeholders in an organization be involved in and committed to the development of a strong anti-racism vision statement and policy. In addition, strong support from key leadership, such as senior management, the head of a union, etc. is essential for the policy to be successful. The membership of the team responsible for developing the policy should be diverse. Ideally, a consultative process involving all persons within an organization should be used, for example by surveying all staff, holding staff discussion groups or circulating a draft policy to staff for comment.

A strong anti-racism policy should have a strong vision statement. The absence of a vision statement shaped by anti-racism principles and goals can result in an inadequate framework for an anti-racism program. Vision statements should be concrete, address racism specifically and demonstrate the organization’s leadership in and commitment to addressing racism.

In addition to a list of prohibited grounds of discrimination under the Code, an explanation of racism and racial discrimination will assist everyone within an organization to understand what constitutes racism and racial discrimination and how they manifest and operate. In addition, definitions of harassment and a poisoned environment should be provided.

Examples of racial discrimination, harassment and a poisoned environment that are meaningful in that organization’s particular context will be helpful in illustrating the types of behaviour that will not be tolerated. The consequences for engaging in harassing or discriminatory behaviour, up to and including termination, should be clearly indicated.

The policy should contain an effective internal complaint resolution procedure. It should indicate how internal complaints will be handled with details regarding:

• to whom a complaint is made
• confidentiality and protection from reprisal
• assistance that is available for parties to a complaint
• the availability of Alternative Dispute Resolution, such as mediation to resolve a complaint
• how the complaint will be investigated
• how long the process will take
• disciplinary measures that will be applied if the complaint is substantiated
• remedies that will be available to the person who complained
• the right to file an application with the Tribunal , along with an explanation of the one-year time requirement under the Code.

In practice, it is very important that all human rights claims be taken seriously, the complaint mechanism be applied, and that persons making complaints not be subjected to discipline or reprisal for raising the issue of racial discrimination.^[155] It is often the experience of persons raising claims of racial discrimination, in particular, to be told that the allegation is inappropriate and unfounded without any investigation taking place. There may be a tendency to want to protect persons against such allegations because of their perceived seriousness, rather than to consider the perspective of the person making the claim.^[156] Persons alleging racial discrimination may even be accused of “reverse discrimination.”

Example: A group of racialized employees nominates a spokesperson to raise concerns that they have that a particular manager is treating them in a discriminatory fashion. When she speaks to the head of human resources, she is told not to “go there” and that what she is raising is going to “damage the reputation of a good man.”

7.2. Proactive, ongoing monitoring

An important measure in addressing discrimination relates to simple awareness and monitoring. All too often, policies and programs are put into place without due consideration of the effect that they may have on racialized persons. Even where information comes to the attention of the responsible organization or institution that would suggest that the program is perpetuating disadvantage or causing discrimination, the organization may choose not to act, adopting instead a “head in the sand” approach.

This is neither productive nor acceptable from a human rights perspective. It is the OHRC’s expectation that where there is concern expressed that policies or practices are having a discriminatory effect on racialized persons or groups, the responsible organization or institution will take steps to assess whether this is, in fact, the case.

Monitoring will often involve the collection of data and production of statistics. However, other measures such as consulting with affected communities, systems reviews and research, including reviewing research available in other jurisdictions, are also important aspects of monitoring. Monitoring will consider the effects of the past, i.e. historical disadvantage, the effect of systems currently in place and the potential impact of new initiatives.

Of course, monitoring alone is not sufficient. Steps must be taken to change policies and practices that are perpetuating historical disadvantage. Therefore, if a problem is revealed through monitoring or otherwise comes to the attention of an institution or organization, steps should be taken to remove systemic barriers, ameliorate disadvantage and promote substantive equality.

Example: A school board recognizes that its discipline policies are having an adverse impact on racialized students. It revises its policies so that there is more room for an assessment of the individual circumstances of each student. In addition, it assigns support persons who can assist racialized youth at risk, establishes programs that emphasize conflict resolution and peer mediation and takes steps to ensure there is no loss of education where there is no alternative to suspension.

7.3. Implementation strategies

Anti-racism requires fundamental changes to the structures and systems of organizations. For an anti-racism policy and program to be effective, attention, priority and resources must be given to implementation strategies.^[157] A variety of measures may be needed, such as:

• organizational change initiatives such as the formation of new organizational structures, the introduction of new cultural norms, implementation of new systems, removal of old practices or policies that give rise to human rights concerns, use of more formal, less discretionary processes, focus on more inclusive styles of leadership and decision-making
• special programs, corrective measures or outreach initiatives to address inequity or disadvantage
• internal and external surveying to receive feedback on issues of racism and racial discrimination; for example, exit interviews or surveys help determine whether racial discrimination or harassment was a factor in a person’s decision to leave; employee or client satisfaction surveys can help assess whether employees or clients believe they are receiving equal treatment;
• empowerment of racialized persons within an organization or institution and outside it, for example, through formal mentoring arrangements, internal committees to address equality issues, community consultation, etc.
• anticipating resistance to change and developing strategies to overcome any opposition that may arise
• seeking partnerships with others, including other institutions of a similar nature, to identify best practices
• mandatory education, training and development initiatives, including effective training of all staff on the anti-racism vision statement and policy and developing specific skills and knowledge of those with additional responsibilities for human rights including any part of the “directing mind” of the organization, human resources staff and human rights advisors. Additional training should also be made available to those in the organization responsible for proactive, ongoing monitoring or implementing organizational change
• dissemination of information about the anti-racism vision statement and policy, human rights decisions and new OHRC publications to existing and new staff
• retaining outside expertise to assist with any of the above.

It is important to set specific timelines and identify an individual within the organization with accountability and responsibility for each measure as well as for the overall anti-racism goals of the organization. This person should have full powers, backing and resources to make sure that the measures can be effectively carried out. Progress in implementation should be tracked and reported back to senior management.

7.3.1. A Word about training

Training is often seen as a panacea to all human rights problems. However, training in isolation from other initiatives is unlikely to succeed in fostering a non-discriminatory environment. Similarly, inadequate training is not likely to be effective in bringing about a change in attitudes or behaviour. Training that emphasizes “cultural sensitivity,” “race awareness” or “tolerance” or that only seeks to deal with issues through promoting the value of “multiculturalism,” such as through potluck lunches, does not lead to meaningful change as it fails to address the dynamics of racism and reduces racial discrimination to “cultural misunderstandings.”

Effective training should not avoid the use of anti-racism terminology. Anti-racism training implies a goal of producing an understanding of what racism is and how it can be challenged. Anti-racism training aims to achieve not only a change in individual attitudes, but also a transformation of individual and collective practices.

It is therefore important to take steps to ensure that training will be effective, appropriate and timely. It helps to engage experts, do research into effective anti-racism training techniques, set goals for the training and then evaluate people’s learning against those goals. For example, a training program for an organization that is seeking to address the phenomenon of racial profiling might include the following specific goals:

• that local racialized communities be involved in the design and delivery of the training
• that training is conducted by trainers with sufficient expertise in the subject area
• that training will develop a full understanding that good community relations are essential to the organization’s mandate
• that training will develop a full understanding of what racism is and how it can be challenged
• that training will develop a full understanding of what constitutes racial profiling, racial discrimination and harassment or any other violations of the Ontario Human Rights Code
• that training will develop a full understanding that racial profiling, racial discrimination and harassment or any other violations of the Ontario Human Rights Code are unacceptable and will be dealt with seriously by the organization
• that training will develop a full understanding that a respect for human rights is aligned with and not contrary to the organization’s objectives
• that negative reactions to perceived racial profiling by racialized persons are contextualized so that employees of the organization understand why racialized persons may react negatively and how to respond to such reactions in a manner that is professional and not contrary to the Human Rights Code.

Ideally, the organization would also engage in regular, independent monitoring to assess whether the training program is adequate, effective, appropriate and timely to meet the objectives described above. The monitoring could include consultation with local racialized communities as well as a survey of the attitudes of staff receiving the training to assess whether the training has been effective in increasing understanding or changing attitudes about racial profiling, racial discrimination and racial harassment.

7.3.1. Special programs

The Code recognizes the importance of addressing pre-existing hardship and disadvantage in the section dealing with special programs. Section 14 of the Code allows for programs to alleviate hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve, or attempt to achieve, equal opportunity.^[158]

Therefore, it is the OHRC’s position that organizations and institutions should endeavour to undertake special programs where hardship or disadvantage exist. To clarify how section 14 of the Code works, the OHRC has adopted Guidelines on Special Programs.

Some examples of the types of special programs that alleviate historical disadvantage for racialized persons include:

• Hiring - special programs that address under-representation of racialized persons in an organization, profession, or job category
• Housing - programs that assist communities which have historically had difficultly finding housing, such as Aboriginal persons and new immigrants
• Health - special strategies to improve mental health outcomes for racialized and Aboriginal communities^[159]
• Education - initiatives which support racialized persons in school or in gaining admittance to programs from which they have been historically excluded^[160]
• Contracting - schemes which assist community businesses and businesses run by racialized persons to have access to business opportunities, contracts and procurement by governments.

7.4. Evaluation

Ongoing evaluation of an organization’s or institution’s anti-racism program is important to ensure its effectiveness. As with the other aspects of an anti-racism program it is important to devote resources to ongoing assessment. An internal review committee can be appointed for the purposes of conducting ongoing evaluation. However, the use of independent consultants or outside expertise can be particularly helpful in conducting this type of review and reporting back to senior management.

A review, evaluation and revision of an organization or institution’s vision statement and policy should occur on a periodic basis, with input from those affected by it. It is also prudent to conduct a review of situations in which complaints have been raised under the policy, how they were handled and where improvements can be made.

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^[152] See Paying the Price: The Human Cost of Racial Profiling, supra, note 8 at 70-71, Ontario Human Rights Commission, Guidelines on Accessible Education, (September 2004) at 33, and Ontario Human Rights Commission, Guidelines for Collecting Data on Enumerated Grounds Under the Code (September 2003), online: www.ohrc.on.ca.
^[153] For example, Human Resources Development Canada has numerous resources on workplace equity, online: Human Resources Development Canada www.hrsdc.gc.ca/en/gateways/topics/wzpgxr.shtml. Policy and Guidelines on Racism and Racial Discrimination, Ontario Human Rights Commission 75 June 2005
^[154] Anti-racism is an action-oriented approach to identifying and countering the production and reproduction of all forms of racism. It addresses the issues of racism and the interlocking systems of social oppression. Anti-racism implies a goal of producing an understanding of what racism is and how it can be challenged; C. Tator, “Advancing the Ontario Human Rights Commission’s Policy and Education Function” (2004) 3:3 Canadian Diversity 29 at 30.
^[155] Section 8 of the Code prohibits reprisal for asserting a human rights claim:

8. Every person has a right to claim and enforce his or her rights under this Act, to instituteand participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

^[156] Decision-makers have sometimes even tended to place a greater emphasis on the effect of a finding of discrimination on a respondent’s reputation than on the effect of racism on an individual. See Gaba v. Lincoln County Human Society (1991), 15 C.H.R.R. D/311 at para. 37 (Ont. Bd. Inq.), Smith v. Mardana Ltd.(Ont. Bd. Inq.), supra, note 79 at para. 39 and R. v. Brown in which the trial judge in a criminal case in which racial profiling had been raised as a defence stated that the defence raised “very serious allegations” that he found “a little troubling.” The Court of Appeal noted that the allegation of racial profiling was serious but just as serious as the impact of the racial profiling in question on the accused, if such were the case. The proper judicial attitude should have been one of detachment rather than one which appeared to show only concern respecting the impact of the defence allegations on the police officer; R. v. Brown (Ont. C.A.), supra, note 66 at para. 60.
^[157] For a discussion of some of the barriers to anti-racism change initiatives see C. Tator, “Advancing the Ontario Human Rights Commission’s Policy and Education Function,” supra, note 155.
^[158] For a discussion of the purposes of section 14 of the Code see Ontario (Human Rights Commission) v. Ontario (Ministry of Health) 21 C.H.R.R. D/259 (Ont. C.A.). The majority of the Court stated that s. 14(1)has two purposes. One is to protect affirmative action programs from being challenged as violating the formal equality provisions contained in Part I of the Code. The second purpose is the promotion of substantive or concrete equality. Affirmative action programs are aimed at achieving substantive equality by assisting disadvantaged persons to compete equally with those who do not have the disadvantage. Section 14(1) is also an interpretive aid that clarifies the full meaning of equal rights by promoting substantive equality.
^[159] See K. Kafele, “Racial Discrimination and Mental Health: Racialized and Aboriginal Communities” (2004) 3:3 Canadian Diversity 43.
^[160] See for example, C.C. Smith, “Tuition Fee Increases and the History of Racial Exclusion in Canadian Legal Education” (2004) 3:3 Canadian Diversity 32.