Compelling diversity through discrimination

Academic Questions Spring 2003, Vol. 16, No. 2, 46‑54

Clive Seligman

0n 13 July 1999, members of a Canadian scholarly society called Brain, Behaviour and Cognitive Sciences received an e‑mail message advertising an opening for a faculty position in developmental psychology at Wilfrid Laurier University (WLU) in Waterloo, Ontario. The ad included the following words: “The department is attempting to address a gender imbalance in its depart­ment, and therefore will hire a woman for this position, as allowed by the Spe­cial Program of the Ontario Human Rights Commission.”  Less than a month later, and after the woman‑only ad had generated some controversy in the media,’ Professor Angelo Santi, chair of the psychology department, appeared on a radio talk show (station CHML) in nearby Hamilton, Ontario to explain his department’s and university’s hiring procedure. Professor Sand was asked directly by tile show’s host, Roy Green, “If a man were the best qualified for the position, you wouldn’t hire him, is that right” Professor Santi replied, “Yes, not for this position.”

Wilfrid Laurier University‘s open admission of blatant discrimination against hiring men illustrates many of the themes that are present in the diversity de­bates in Canada. I will discuss this story in detail, and, as much as possible, quote the words used by faculty and administrators at Wilfrid Laurier Univer­sity to demonstrate my points.

Legal Context

Before continuing tile story of Wilfrid Laurier University‘s hiring discrimi­nation, it is necessary to provide some legal context for their actions. In Canada, like elsewhere, human rights codes have been created as anti‑discrimination laws, and human rights commissions have become the official government bodies that are responsible for administering and enforcing these codes. The Ontario Human Rights Code (Code)² covers Wilfrid Laurier University. The Code is clear in its purpose: In its preamble the Code states, “[I] it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination.”

For our purposes, the most relevant section of the Code that I believe was violated is Part 1, section 5 (1) , which states,   “Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex  (emphasis added), sexual orientation, age, record of offences, marital status, family status or handicap.” Thus it would appear that discrimination on the basis of sex is illegal. Unfortunately, a later section allows exception to section 5 (1) in some circumstances, the key one involving special programs. Part 2, Section 14 (1) states, “A right under Part 1 is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringe­ment of rights under Part 1”.

One special program that is pertinent to this discussion is the Federal Con­tractors Program (FCP) which was initiated by a Cabinet Decision in 1986. The FCP, consistent with other employment equity legislation, aims to increase the representativeness of four so‑called underrepresented groups, specifically, women, visible minorities, aboriginal peoples, and persons with disabilities. Universities fall under the jurisdiction of the FCP, and failure to commit to a plan of action that ultimately results in increased representations of the four specified groups in the workforce may result in the loss of the right of the university and its faculty to bid on federal contracts, including research grants. Universities take the FCP seriously.⁴

Clearly, there is a potential conflict between providing rights to individuals that protect them from discrimination and compelling universities (and em­ployers generally) to increase the representation of some groups. One can read, in the various relevant statutes and regulations, words and sentences that imply that measures to increase representation do not mean establishing quo­tas, trashing the merit principle, or harming the rights of others, but instead are aimed at removing discriminatory practices and barriers, and increasing the opportunity of all people and groups to compete on an equal footing. That’s theory. In practice, special programs to increase representativeness have actually increased discrimination against some groups while unfairly advantaging others. In some cases, increasing the representativeness of some groups has become an end in itself, independent of the criteria specified in section 14(1) of the Code, which are concerned with increasing equal opportu­nity. I believe this has happened at WLU, and I now return to a discussion of the case.

Arguments to Defend Sex Discrimination against Men at WLU

He answered as follows: “In response to your questions, I would like to note that there are 4 female faculty in our Department and 18 male faculty mem­bers. The University is a federal contractor for purposes of the Federal Em­ployment Equity Act. This act requires that we have an Employment Equity Plan. A draft of Laurier’s Employment Equity Plan that was published in De­cember 1998 noted that Psychology had a serious under‑representation by gen­der over the previous 5 years (14.3‑18 percent women). The department has had “recommendations” from faculty members within the department, from administrators, and from an external review committee consisting of psycholo­gists from other institutions (including U of T) to do something about the under‑representation of women. We decided to address this issue openly rather than covertly in our search process.”

Santi continued, “The Department initiated this program with the firm be­lief that it could address the gender imbalance in the department without com­promising our policy of hiring first‑rate researchers and teachers. The Employment Equity Officer at Laurier checked with the Ontario Human Rights Commission and assured us that we were following all applicable requirements for a special program. Laurier also took extensive legal advice before approv­ing a special program in Psychology under article 14 of the Human Rights Code, and the advice the university was given was that the situation in the Psychology Department, if uncorrected, could leave the institution liable to a chal­lenge of systemic discrimination under section 5 of the Human Rights Code.”

With regard to Santi’s comment that the Ontario Human Rights Commis­sion (OHRC) approved the department’s special program to advertise a woman­ only position, Stewart Page, a colleague at the University of Windsor, wrote to the OHRC specifically about this. Ms. Pearl Eliadis of the OHRC was adamant in her response:  “the Commission does not pre‑approve special programs. We do provide technical information and assistance (as I am doing in this Email) but not approvals (August 4, 1999).”

Note that nowhere in Professor Santi’s answer did he comment that WLU’s special program is designed to relieve hardship or economic disadvantage or achieve equal opportunity for the female applicants for a faculty position in psychology ─ the essential criteria outlined in section 14(1). Additionally, Santi did not claim that the department had been discriminating against women in the past. I wrote to Professor Santi again, saying, “My understanding is that your department has not discriminated against women in the past; indeed, has interviewed women for faculty positions and has offered positions to women.” He did not deny my assertions.

Margaret Wente, a columnist for the Globe and Mail ─ one of Canada‘s na­tional newspapers ‑ after talking to Professor Santi, came to conclusions simi­lar to mine. She wrote, “But it became obvious that the gender imbalance in the department has absolutely nothing to do with discrimination. In fact, the university has turned flipflops to recruit female professors . . . . Laurier’s real problem is that good female candidates are scarce, and they have their pick of jobs. For several legitimate reasons, Laurier isn’t at the top of their list.”

A second person I contacted (this time by phone) to learn about the ratio­nale behind WLU’s job ad was Ms. Fr an Manson, the Employment Equity Of­ficer at WLU. I asked her if I could have a copy of the special program document to see the rationale and the evidence for myself. Initially, she said, “Sure, I don’t see why not, but I’ll check with the Vice‑President.” I asked if the Vice ­President she was referring to was Rowland Smith. She said it was. Several days later I received an e‑mail response from Ms. Manson which stated, “Concern­ing your request to receive a copy of our Special Program, I have made some inquires and have been informed that this is not a public document.”

Although Rowland Smith, the provost and academic vice‑president, declined to engage in an e‑mail correspondence with me, he did respond publicly in the Globe and Mail⁶ to the scathing article by Margaret Wente referred to earlier. Smith, in his response, agreed that there had been no intentional discrimina­tion at WLU. He said, “No one has claimed that the situation in the Laurier psychology department has been caused by intentional discrimination.” In­stead, Smith offered a novel and different justification for reserving the faculty position for women. He wrote, “Why is the need for women an educational need. The context in which humans learn is important to the learning process, and a university faculty that reflects the diversity of the population is an important part of that context. Of course women can learn from men and vice versa; of course men can mentor women and price versa; but there is evidence that many people of both genders respond more readily to teachers and men­tors of the same gender.”

It is important to note that Smith, in his article, changed the focus of the group that is to benefit from WLU’s special program from the women who might apply for a faculty position to the female students who might benefit from same‑sex teachers. Regardless o£ what evidence might exist on the al­leged benefits of learning from a teacher of the same sex (and Smith provided none, then or subsequently), the purported educational benefits for the stu­dents are not covered by section 14 of the Code.  Smith has imagined it a hu­man right to be taught by a university professor of the same sex! Clearly, as Murray Miles has noted, the role model argument advanced by Smith is weak.   You have to be a woman to model the role of a mother or sister. But a professor’s role is different. Professors are effective to the extent that they demonstrate teaching skills, innovative thinking, open‑mindedness, research expertise, and so on. Professors of either sex can be successful models of these attributes. Indeed, WLU, like most universities, has seen its female student enrollment increase to over 50 percent in recent years, even as the male faculty remained at well over 50 percent. So the presence of male faculty clearly has not been a deterrent to female enrollment.Did WLU or its Psychology Department Discriminate against Women?

Additional information about whether the psychology department had en­gaged in prior discrimination against women was provided in an article pub­lished in the school newspaper about the woman‑only ad by Barry Ries.⁸ For example, psychology professor Linda Parker said the situation in the psychol­ogy department “is not the result of discrimination . . . Having sat on the hiring committees for the past seven tenure‑stream hires, I would defend every one of them .  .  Four of those positions went to men and three to women, and each hire was based on excellence, pure and simple.” According to Reis, “From 1993 to 1997, the Department hired 10 limited‑term and tenure‑track faculty members. Seven were males and three were women, `about the same ratio as the applications received,’ Santi notes.” Santi goes on to say, “we have been turned down by females we’ve offered positions to, but not males, in the last 10 years.”

Data provided to me by the university confirm the conclusion that there was no discrimination against women at WLU. For the academic year s 1992‑93 to 1997‑1998 and 1999‑2000, WLU hired 197 faculty members and 44.7 percent of them were women. In that same period, women represented only 25.6 per­cent of the applicant pool and 34.4 percent of those interviewed. Thus, women were hired in greater percentages throughout the 1990s than they were  represented  in either   the applicant or interview pool. A similar picture emerges if we examine only the new faculty positions in social sciences, the category to which the psychology department is assigned. Here, for the same academic years as before, sixty people were hired as faculty, 46.7 percent of them women. During the same period, women comprised 29.2 percent of the applicant pool and 41.2 percent of those interviewed. Thus, whether we examine the recent hiring record of the psychology department, faculty of social science, or the university as a whole, we find that relative to the pool of actual applicants, there is no evidence that women have been treated in a discriminatory man­ner. To the contrary, women were more likely to have been hired than men. Therefore women cannot be considered a group requiring relief from hard­ship or economic disadvantage, or assistance in achieving equal opportunity, which are the criteria of section 14 of the Code.

This analysis of WLU’s hiring pattern is not unique. For example, Grant Browns has demonstrated empirically that women are much more likely than men to be hired relative to their numbers in the applicant pool for faculty positions. Brown found this to be the case in universities throughout Canada, including: Victoria, Simon Fraser, British Columbia, Alberta, Manitoba, Windsor, Western, Ryerson, Queen’s, and Concordia. Likewise, Andrew Irvine,” in his review of Statistics Canada data, found that, despite common misconceptions, claims of significant, sustained, widespread discrimination in hiring against women in Canadian universities remain unsupported by the available statisti­cal data.

I agree with Professor Parker’s analysis that “special programs for women, that have been in place for a number of years . . . that guarantee tenure­ stream appointments for women, are skimming off the cream of the female PhD pool. These women, with strong research interests, may not be interested in working at a smaller university without a PhD program and the attendant lab facilities, although Laurier has been successful in hiring some excellent women in Psychology lately.”

Despite her denial of discrimination and, in my view, correct understanding of the reason for Laurier’s lack of success in hiring as many women as they would like, Parker makes a startling admission in the Reis article: “It’s a hard decision to come to but we just got to the point where we decided hiring solely on the basis of excellence wasn’t working anymore.” In fact, this observation was put into action. Santi further commented, “Members directed the Chair to look into doing something, such as an ad specifically directed to women.” According to Reis, the department voted to search only for women for three years or until the department consisted of 35 percent female faculty members.

In short, the available evidence suggests that the department of psychology did not discriminate openly against male applicants in order to redress previ­ous human rights violations against female job applicants or faculty , but because they wanted more women in the department to meet an arbitrary goal of diversity.

Enablers of WLU’s Sex‑Based Preferential Hiring

When I first learned of WLU’s woman‑only ad for the psychology position, I contacted the Canadian Association of University Teachers (CAUT), an orga­nization of university faculty associations across Canada. CAUT publishes a monthly Bulletin that advertises university faculty positions. The Bulletin is the major outlet for job aspirants to check for new faculty listings. In the belief that CAUT already had in hand, or would shortly have, a request from WLU to print their woman‑only ad, I asked them if they would do so.

The CAUT Bulletin’s stated advertising .policy says, “The publisher will not accept advertisements of academic positions restricting applications on grounds of race, national origin, religion, colour, sex (emphasis added), age, marital status, family status, ethnicity, disability, sexual preference, social origin, or political beliefs or affiliation. CAUT expects that all positions advertised in the Bulletin are open to both men and women. Advertisements using restrictive language will not be accepted except when the language has been Mandated (emphasis added) by Human Rights legislation.” The executive director of CAUT, Jim Turk, answered me that the CAUT would follow its published job advertising policy.

What could be clearer; the ad would certainly be rejected for publication, or so I thought. But one month before WLU’s woman ‑ only ad appeared in the CAUT Bulletin, CAUT changed its advertising policy by substituting the words “1S consistent with” for the earlier phrase “has been mandated” by Human Rights legislation, in the statement shown above. Thus apparently to accommodate WLU, in the fall o£ 1999 CAUT weakened its own criteria for judging discrimi­nation. Discrimination on the grounds of sex is permissible to Canada‘s larg­est professorial organization, so long as the discrimination is against men.

Additionally, WLU’s own contract”¹¹ with its unionized faculty, in its article¹¹ employment equity (article 22), includes the following goal: “The Parties agree that it is desirable for the University’s employee complement to change over time to reflect the evolving composition of Canadian society, including appropriate representation of the designated groups” (article 22.2.3). The trans­lation of this goal into action occurs through the authority given to deans to direct a department’s hiring process. For example, “where there are no appli­cants from any of the designated groups for a position . . . or where the Depart­ment Appointment . . . Committee. . . recommends a short‑list for interview which does not include a candidate from one of the designated groups, the Dean . . . shall review the process and the recommendation of the Department Appointment . . . Committee and may, in light of the Employment Equity Plan, decide to continue with the existing short‑list . . or to take other measures needed to widen the applicant pool” (article 22.2.3d). Thus, depending on the particular dean, there could be considerable institutional pressure on a department to hire a woman.Conclusions

There are many implications of giving hiring preferences to groups desig­nated by employment equity legislation, but let me highlight only a few that are most salient in the Wilfrid Laurier example.

First, hiring preferences reflect a view of the university as a parliament rather than an intellectual meritocracy. From this perspective, the merit principle of choosing the best person for the job is weakened, while at the same time the epistemological purpose of the university gives way to social engineering goals.

Second, diversity is seen as necessary and, perhaps, sufficient for excellence. Thus an individual’s ideas or merit are tied to and confused with biological background. This used to be called sexism and racism.

Third, there is an inability on the part of hiring‑preference proponents to perceive, accept, or deal with the injustice caused to a man who was excluded as a candidate for a job simply on the basis of his sex. Regrettably, the irony is completely lost on such proponents. What matters, apparently, is which group won a benefit rather than which individual lost an opportunity.

In sum, the WLU case illustrates that employment equity at the university level has little to do with human rights in the sense of repairing the damage of past or current discriminatory practices. Employment equity is all about in­creasing the representativeness of some groups at the expense of others, sim­ply as a goal in itself. Sadly, the WLU events are not atypical of these trends in Canadian higher education (see Fekete and the website of the Society for Aca­demic Freedom and Scholarship).¹²

Postscript

In response to the WLU’s discriminatory job ad, I filed a complaint of sex discrimination against the university with the Ontario Human Rights Commis­sion. After several months, the Commission accepted the argument by the university’s lawyers that I did not have legal standing to make the complaint, and therefore dismissed it. The Commission also declined to investigate the complaint on its own, as is allowed under the Code. As of this time, there has not been a decision by the courts regarding the legality of the special programs used by Canadian universities to discriminate against men.
 
However, my complaint helped generate numerous critical commentary in the media across the country. For example, The Record, the hometown newspa­per of WLU, commented in an editorial (11 May 2000) on the discriminatory, hiring policy by noting, “That so‑called solution has damaged the reputation of the department and the university”¹³.

Let me end this story on a positive note. Despite their original intention to exclude men from consideration in faculty hiring for three years, the department voted to end this shameful practice after one year. To his credit, Professor Santi, the chair of the department, cast the deciding vote. There is additional reason for hope. In December 2002, a COMPAS poll found that 85 percent of Canadians rejected the idea that a person should be hired on the basis of sex or race.

Notes

1:     Margaret Wente, ‘On When Men Need Not Apply,” Globe and Mail, 27 July 1999, A22.
2.     Ontario Human Rights Code, <http://192.75.156.68/DBLaws/Statutes/English/.
3.     Federal Contractors Program, http://ilifo.load‑otea.hrdc‑drl‑ic.gc.ca/worl‑,place equity/fcp/
4.     Tracy Isaacs, “Compliance with FCP Is Everyone’s Concern,” Western News, University of Western Ontario, 14 November 2002, 4.
5.     Margaret Wente, “On When Men Need Not Apply,” Globe and Mail.
6.     Rowland Smith, “Why Men Are Asked Not to Apply,” Globe anal Mail, 10 August 1999, All.
7.       Murray Miles, “The Laurier Affair,” The Record, 17 August 1999, A7.
8.     Barry Ries, “Employment Equity or Discrimination?° Laurier News, WLU, 23 September, 1999, 6‑8.
9.     Grant Brown, “Discrimination in Hiring: The Statistical E‑%2dence,” in In Defence ofAcademic Freedom and Scholarship‑‑Critical Issues Bulletin 3, ed.             M. Walker (Vancouver, BC: Fraser Forum, 1993), 40‑48.
10.    Andrew D. Irvine, ‘Jack and Jill and Employment Equity,” Dialogue, 35 (1996): 255‑91.
11.    Collective Agreement, Wilfrid Laurier University, Article 22, Employment Equity <http:/ & /www.wlu.ca/‑wwanwlufa/FTCA02‑05/Article percent
2022.html>.
12.     John Fekete, Moral Panic: Biopolitics Rising (Montreal, Quebec: Robert Davies Publishing, 1995). See also Society for Academic Freedom and
Scholarship, www.safs.ca.
13.    Editorial, “Laurier Wisely Ends Biased Hiring Plan,” The Record (Kichener, Ontario), 11 May 2000, A10.

Note: This paper is adapted from remarks delivered at a conference, cosponsored by the New York Association of Scholars, titled “Academic Freedom and Intellectual Pluralism: U. S. and Canadian Perspectives.” The conference took place at Medaille College in Buffalo, NY, on 21 and 22 September 2002.