Judging Supreme Court Justice Rosalie Abella
By Dr. Martin Loney
Written in 2004, following Rosalie Abella’s appointment to Canada’s Supreme Court

The appointment of Rosalie Abella to the Supreme Court has precipitated much celebration among the progressive chattering classes. Globe and Mail correspondent, Michael Valpy, enthused that Abella would bring ‘an unassailable and much needed expertise and vision on equality law’ to the court.

Well, not quite “unassailable”. I have spent many years researching and writing on employment equity, the subject of Abella’s 1984 Royal Commission Report. What stands out is how much Abella’s work is driven by feminist ideology and how little it is concerned with evidence.

Abella’s 1984 report made sweeping claims about labour market discrimination but found it unnecessary to back them with hard data. According to her report, women’s progress in the labour force was ‘chimerical’; ‘dramatic changes’ were needed to allow women to participate in a full range of educational opportunities.

This was a curious conclusion since by 1982 women were already the majority of university graduates and no less than 58 per cent of community college graduates. Today women are 40 per cent more likely to obtain an undergraduate degree than their male counterparts.

Much of the report reflects nothing more than the search for any evidence that will support the preconceived conclusion that women and other so-called designated groups experience disadvantage.

Feminists see any earnings differentials or disparity in employment as prima facie proof of injustice. What is required in contrast is the careful comparison of those with similar profiles. Comparing the earnings of men and women is meaningless unless we take into account such factors as age, hours worked, qualifications, length of service and type of employment. The Royal Commission preferred instead to make more sweeping comparisons.

According to the report, women, in 1982, made a mere 64 per cent of male earnings. However, the report does not say that the rapid change in female labour force participation saw large numbers of young women enter the labour force. To compare their earnings with a group which contains a large number of older men or to claim that their relative absence in senior positions is evidence of discrimination is simply polemics.

The inclusion of visible minorities in the Royal Commission’s mandate owed much to the American experience though the marked difference in the history of the two countries should have suggested more careful reflection.

In the U.S., affirmative action programs have been driven by the desire to redress the legacy of slavery. Canada, in contrast, had few slaves and largely abolished the institution of slavery by the end of the eighteenth century. The overwhelming majority of visible minorities in Canada are free migrants. It is inconceivable that the U.S would have instituted a costly and divisive preferential hiring program to address the temporary adjustment difficulties of new immigrants, but that is precisely what the Abella report ushered in.

The Royal Commission might have urged caution; after all as one of its researchers warned, the absence of any definition of ‘visible minority’ and of related data prevented any assessment of the ‘social indicators of discrimination’.

Abella was not to be deterred. Racism, she reported, ‘though sometimes inadvertent, is nevertheless pervasive’. The inadvertent racism was no doubt a fashionable reference to that mysterious virus ‘systemic discrimination’ which remains as widespread as it is ill defined. Pervasive racism must, however, have demonstrable consequences. It must result in visible minorities, with similar characteristics to other Canadians, earning markedly less. If those who have the same educational background, the same years of experience and the same language capacities as other Canadians fare just as well, what need is there for a costly and divisive preferential hiring program?

Subsequent analysis of 1986 census data by demographer Monica Boyd, an avowed feminist, found little difference in earnings of Canadian-born visible minorities and other Canadian-born workers. The famously “doubly-disadvantaged visible minority women” earned a little more than their singly-disadvantaged sisters; visible minority men earned an insignificant amount less.

A later analysis of Statistics Canada data by University of Manitoba economists Hum and Simpson also found little difference in the earnings of Canadian-born visible minorities.

Such findings have been ignored. The Abella report fuelled a growing industry of diversity trainers, preferential hirers, anti-harassment officers and others whose occupational success means the endless search for yet more evidence of discrimination. Canadian universities were hijacked by radical feminists who used federal employment equity legislation to hire others who shared their biology and ideology.

Today, qualified women are twice as likely to secure academic appointment as their male competitors.

Abella will bring to the Supreme Court a vision of equality rights rooted not in careful analysis, but radical feminism. To Abella, as she made clear in a later essay, equality does not mean being ‘chained to the civil libertarian pedestal of equal treatment of every individual’. Those with a prior claim of victim status (however dubious) are entitled to be treated differently and advantageously. This is the philosophy that Abella will bring to her new job, one that offers little chance of justice to those with no claim on the feminist conscience.
Judging Supreme Court Justice Rosalie Abella
By Dr. Martin Loney
Written in 2004, following Rosalie Abella’s appointment to Canada’s Supreme Court

The appointment of Rosalie Abella to the Supreme Court has precipitated much celebration among the progressive chattering classes. Globe and Mail correspondent, Michael Valpy, enthused that Abella would bring ‘an unassailable and much needed expertise and vision on equality law’ to the court.

Well, not quite “unassailable”. I have spent many years researching and writing on employment equity, the subject of Abella’s 1984 Royal Commission Report. What stands out is how much Abella’s work is driven by feminist ideology and how little it is concerned with evidence.

Abella’s 1984 report made sweeping claims about labour market discrimination but found it unnecessary to back them with hard data. According to her report, women’s progress in the labour force was ‘chimerical’; ‘dramatic changes’ were needed to allow women to participate in a full range of educational opportunities.

This was a curious conclusion since by 1982 women were already the majority of university graduates and no less than 58 per cent of community college graduates. Today women are 40 per cent more likely to obtain an undergraduate degree than their male counterparts.

Much of the report reflects nothing more than the search for any evidence that will support the preconceived conclusion that women and other so-called designated groups experience disadvantage.

Feminists see any earnings differentials or disparity in employment as prima facie proof of injustice. What is required in contrast is the careful comparison of those with similar profiles. Comparing the earnings of men and women is meaningless unless we take into account such factors as age, hours worked, qualifications, length of service and type of employment. The Royal Commission preferred instead to make more sweeping comparisons.

According to the report, women, in 1982, made a mere 64 per cent of male earnings. However, the report does not say that the rapid change in female labour force participation saw large numbers of young women enter the labour force. To compare their earnings with a group which contains a large number of older men or to claim that their relative absence in senior positions is evidence of discrimination is simply polemics.

The inclusion of visible minorities in the Royal Commission’s mandate owed much to the American experience though the marked difference in the history of the two countries should have suggested more careful reflection.

In the U.S., affirmative action programs have been driven by the desire to redress the legacy of slavery. Canada, in contrast, had few slaves and largely abolished the institution of slavery by the end of the eighteenth century. The overwhelming majority of visible minorities in Canada are free migrants. It is inconceivable that the U.S would have instituted a costly and divisive preferential hiring program to address the temporary adjustment difficulties of new immigrants, but that is precisely what the Abella report ushered in.

The Royal Commission might have urged caution; after all as one of its researchers warned, the absence of any definition of ‘visible minority’ and of related data prevented any assessment of the ‘social indicators of discrimination’.

Abella was not to be deterred. Racism, she reported, ‘though sometimes inadvertent, is nevertheless pervasive’. The inadvertent racism was no doubt a fashionable reference to that mysterious virus ‘systemic discrimination’ which remains as widespread as it is ill defined. Pervasive racism must, however, have demonstrable consequences. It must result in visible minorities, with similar characteristics to other Canadians, earning markedly less. If those who have the same educational background, the same years of experience and the same language capacities as other Canadians fare just as well, what need is there for a costly and divisive preferential hiring program?

Subsequent analysis of 1986 census data by demographer Monica Boyd, an avowed feminist, found little difference in earnings of Canadian-born visible minorities and other Canadian-born workers. The famously “doubly-disadvantaged visible minority women” earned a little more than their singly-disadvantaged sisters; visible minority men earned an insignificant amount less.

A later analysis of Statistics Canada data by University of Manitoba economists Hum and Simpson also found little difference in the earnings of Canadian-born visible minorities.

Such findings have been ignored. The Abella report fuelled a growing industry of diversity trainers, preferential hirers, anti-harassment officers and others whose occupational success means the endless search for yet more evidence of discrimination. Canadian universities were hijacked by radical feminists who used federal employment equity legislation to hire others who shared their biology and ideology.

Today, qualified women are twice as likely to secure academic appointment as their male competitors.

Abella will bring to the Supreme Court a vision of equality rights rooted not in careful analysis, but radical feminism. To Abella, as she made clear in a later essay, equality does not mean being ‘chained to the civil libertarian pedestal of equal treatment of every individual’. Those with a prior claim of victim status (however dubious) are entitled to be treated differently and advantageously. This is the philosophy that Abella will bring to her new job, one that offers little chance of justice to those with no claim on the feminist conscience.
Judging Supreme Court Justice Rosalie Abella
By Dr. Martin Loney
Written in 2004, following Rosalie Abella’s appointment to Canada’s Supreme Court

The appointment of Rosalie Abella to the Supreme Court has precipitated much celebration among the progressive chattering classes. Globe and Mail correspondent, Michael Valpy, enthused that Abella would bring ‘an unassailable and much needed expertise and vision on equality law’ to the court.

Well, not quite “unassailable”. I have spent many years researching and writing on employment equity, the subject of Abella’s 1984 Royal Commission Report. What stands out is how much Abella’s work is driven by feminist ideology and how little it is concerned with evidence.

Abella’s 1984 report made sweeping claims about labour market discrimination but found it unnecessary to back them with hard data. According to her report, women’s progress in the labour force was ‘chimerical’; ‘dramatic changes’ were needed to allow women to participate in a full range of educational opportunities.

This was a curious conclusion since by 1982 women were already the majority of university graduates and no less than 58 per cent of community college graduates. Today women are 40 per cent more likely to obtain an undergraduate degree than their male counterparts.

Much of the report reflects nothing more than the search for any evidence that will support the preconceived conclusion that women and other so-called designated groups experience disadvantage.

Feminists see any earnings differentials or disparity in employment as prima facie proof of injustice. What is required in contrast is the careful comparison of those with similar profiles. Comparing the earnings of men and women is meaningless unless we take into account such factors as age, hours worked, qualifications, length of service and type of employment. The Royal Commission preferred instead to make more sweeping comparisons.

According to the report, women, in 1982, made a mere 64 per cent of male earnings. However, the report does not say that the rapid change in female labour force participation saw large numbers of young women enter the labour force. To compare their earnings with a group which contains a large number of older men or to claim that their relative absence in senior positions is evidence of discrimination is simply polemics.

The inclusion of visible minorities in the Royal Commission’s mandate owed much to the American experience though the marked difference in the history of the two countries should have suggested more careful reflection.

In the U.S., affirmative action programs have been driven by the desire to redress the legacy of slavery. Canada, in contrast, had few slaves and largely abolished the institution of slavery by the end of the eighteenth century. The overwhelming majority of visible minorities in Canada are free migrants. It is inconceivable that the U.S would have instituted a costly and divisive preferential hiring program to address the temporary adjustment difficulties of new immigrants, but that is precisely what the Abella report ushered in.

The Royal Commission might have urged caution; after all as one of its researchers warned, the absence of any definition of ‘visible minority’ and of related data prevented any assessment of the ‘social indicators of discrimination’.

Abella was not to be deterred. Racism, she reported, ‘though sometimes inadvertent, is nevertheless pervasive’. The inadvertent racism was no doubt a fashionable reference to that mysterious virus ‘systemic discrimination’ which remains as widespread as it is ill defined. Pervasive racism must, however, have demonstrable consequences. It must result in visible minorities, with similar characteristics to other Canadians, earning markedly less. If those who have the same educational background, the same years of experience and the same language capacities as other Canadians fare just as well, what need is there for a costly and divisive preferential hiring program?

Subsequent analysis of 1986 census data by demographer Monica Boyd, an avowed feminist, found little difference in earnings of Canadian-born visible minorities and other Canadian-born workers. The famously “doubly-disadvantaged visible minority women” earned a little more than their singly-disadvantaged sisters; visible minority men earned an insignificant amount less.

A later analysis of Statistics Canada data by University of Manitoba economists Hum and Simpson also found little difference in the earnings of Canadian-born visible minorities.

Such findings have been ignored. The Abella report fuelled a growing industry of diversity trainers, preferential hirers, anti-harassment officers and others whose occupational success means the endless search for yet more evidence of discrimination. Canadian universities were hijacked by radical feminists who used federal employment equity legislation to hire others who shared their biology and ideology.

Today, qualified women are twice as likely to secure academic appointment as their male competitors.

Abella will bring to the Supreme Court a vision of equality rights rooted not in careful analysis, but radical feminism. To Abella, as she made clear in a later essay, equality does not mean being ‘chained to the civil libertarian pedestal of equal treatment of every individual’. Those with a prior claim of victim status (however dubious) are entitled to be treated differently and advantageously. This is the philosophy that Abella will bring to her new job, one that offers little chance of justice to those with no claim on the feminist conscience.

Fact and Fiction

Preferential Hiring in Canada: Fact and Fiction

(Submission to the Standing Committee on Human Resources, Feb 7, 02)

Martin Loney Ph.D.

The principal evidence that I want to bring to the committee’s attention is the book I published with McGill-Queen’s University Press in 1998 : Race, Gender and Preferential Hiring in Canada . I provided 3 copies to the Privy Council Office at my own expense soon after publication in the (na?e) belief that rational discussion might ensue. I am afraid I have no further free copies to offer.

The book provides a critique of the sloppy research and flawed thinking which has underpinned Canada’s adventures in preferential hiring. Globe and Mail reviewer Sandra Martin, who had studied employment equity for a year on an Atkinson fellowship, described it as a a cogent and lethal attack on preferential policies. It is more than three years since the 400-page study was published. No civil servant working in the employment equity area has contacted me. There have been numerous conferences and consultations on the issue organised by the Canadian Human Rights Commission and others. I have never been approached to contribute. You might excuse me for thinking that the preferential hiring movement and the related diversity training industry have more in common with a religious cult than rational policy making.

Sandra Martin observed that the strength of the book lay in its intellectual rigor he studies identity politics and equity legislation intellectually, as a scholar. Others – far too many others have endorsed preferential policies from the stand of unquestioning advocacy. The Committee will hear a great deal from this quarter. One of the many legacies of preferential hiring legislation is that it brings into existence a rapidly growing constituency that thrives on the regulatory framework which is created. The result is the endless, often government-funded search for evidence of grievance. Information that indicates that Canada is a successful multiracial society is ignored, any claim, no matter how spurious, that points to a pandemic of discrimination is eagerly reported.

I offer two more recent illustrations of a less than careful use of data to support claims of racism and discrimination, to supplement the many examples I provide in the book.

(1) The Canadian Race Relations Foundation

Established in 1996 with a $24-million government endowment and a board of directors handpicked by then multiculturalism minister Hedy Fry, the Canadian Race Relations Foundation (CRRF) proclaims its aim is to bring about a more harmonious Canada. In practice this laudable goal takes second place to the Foundation’s commitment to encouraging Canadians to recognize the pervasiveness of racism today. The Foundation’s report Unequal Access published last year purports to provide overwhelming evidence of discrimination. Given its publisher the report should be taken seriously, the more so since the research was conducted by the Canadian Council on Social Development (CCSD), an influential think tank which is also dependent on tax funding.

The CRRF and the CCSD authors claim that analysis of educational and labour market data provide unequivocal evidence of discrimination, visible minorities have lower earnings and higher levels of unemployment. The chief researcher, Dr. Jean Kunz, believes there is clear evidence of systemic discrimination. This is one of many reports to reach a similar conclusion, indeed after reading a number of these it is possible to identify a pattern.

The most important characteristic is the endless cherry picking of statistics that support the preconceived conclusion. Any doubts about CCSD’s biases are quickly answered by the designation of white Canadians by the fashionably politically correct label non-racialized group. This confirms at the outset what might be thought to be the object of the research, that Canada is a society in which some groups, by virtue of race are victims or racialized.

CCSD’s researchers accompany their assiduous selection of suitable statistics with an equally selective literature search. The claims of others who share their myopic perspective are eagerly reported, no matter how dubious their research, while those of critics are carefully ignored. There is no reference to my own work, though my study is the largest of its kind in Canada.

There are many factors that need to be taken into account in comparing visible minorities and other Canadians. Two stand out as central; visible minority Canadians are overwhelmingly first generation immigrants, many fluent in neither French or English and lacking Canadian qualifications. They are also on average younger than other Canadians; age is a key predictor of labour market income.

If systemic discrimination is widespread it must affect Canadian-born visible minorities. CCSD’s authors claim that their findings show that visible minorities have poorer outcomes with respect to employment and income. This is true overall but if Canadian-born visible minorities are compared with other Canadian-born a very different picture appears. The authors make the usual references to the failings of the school system with its supposed Eurocentric curriculum, approvingly quoting the report that issues of inequity in schools are becoming increasingly racialized.

If true this will result in visible minority students born in Canada doing less well than their counterparts. Do they? 1996 census data reproduced in one of the report’s tables indicates that a stunning 47.5 per cent of Canadian born visible minorities, in the 25-34 age group, had university education compared to only 26.6 per cent of other Canadian-born. Canadian born visible minorities also had the lowest level of high school non-completion. If the figures on graduation rates were reversed it would be presented as conclusive discrimination, what then are we to conclude?

The authors suggest that occupation can be viewed as the single best indicator of success. How then do Canadian-born visible minorities fare? 1996 census data indicate that Canadian-born visible minorities are disproportionately successful in securing employment in the top occupational status groups, 22 per cent are professionals nearly 40 per cent more than their Canadian-born counterparts.

None of this points to pervasive discrimination, but instead of drawing the obvious conclusion, a conclusion that might be thought to both reflect and contribute to racial harmony, the report’s authors prefer to seek ever more imaginatively for evidence of grievance. The report compares the numbers in the highest and lowest income quintiles in a desperate attempt to retrieve their thesis and are able to report that Canadian-born visible minorities are less likely to be in the top quintile. Wisely the age group selected is 25-64 which helpfully conceals the impact of age on earnings. In effect the lower number of Canadian-born visible minorities in the higher income group is attributed to discrimination; in reality it reflects the fact that the group is notably younger.

Generally the report prefers to present its evidence by conflating the Canadian-born and the foreign-born, no doubt with a view to securing the right kind of non-harmonious media coverage. The report of The Toronto Star , in Canada’s most ethnically diverse city, was typical. Not a single positive finding was reported. Instead, The Star’s readers were told that immigrants earned 78 cents on the dollar, that among university graduates regardless of immigration status visible minorities earned $7,000 less than whites. In case The Star’s readers had any further doubts about the dire picture, the paper reported the views of author Jean Lunz that even with post-secondary education, job opportunities may still be out of reach for visible minorities. Predictably CRRF director, Moy Tam, endorsed the call for yet more draconian employment equity legislation.

The only explanation for this inflammatory report is that it justifies the claims of the race industry for yet more public subsidy. A review of 1986 census data by Monica Boyd, conducted as Canada embraced the costly folly of employment equity, found no evidence of any earnings penalty for Canadian-born visible minorities. The committee will be familiar with the widely publicised claims of radical feminists to the effect that visible minority women are doubly disadvantaged.

In fact Professor Boyd, a supporter of preferential hiring, found visible minority women born in Canada more successful than their white counterparts. More recently a report from two University of Manitoba economists, Hum and Simpson, found little difference in the relative earnings of Canadian-born visible minorities and other Canadians. Neither study is referenced by CCSD’s authors. This is a field in which good news must be suppressed for the greater good of the industry.

(2) The Task Force on Visible Minorities in the Federal Public Service

Last year the Task Force on Visible Minorities in the Federal Public Service reported. The government quickly endorsed its recommendation that visible minorities constitute 20% of all new public service hires and 20% of all promotions to executive level. Such quotas exceed labour market representation and clearly violate the merit principal. They have encouraged the designation of an increasing number of positions as open only to members of preferred racial groups.

Frequently such recruitment leads to a reduced emphasis on formal qualification as managers seek to fill quotas. A recent Public Works advertisement in the communications area offered a salary up to $80,191, candidates without a degree could simply offer an acceptable combination of education, training and/or experience, leaving considerable discretion to the department.

One qualification was not discretionary: only members of a visible minority were eligible for application. We have come full circle: in the name of fighting alleged discrimination we have institutionalised it and given it legislative sanction.

What was the quality of the research on which the Task Force based its case? The Task Force was greatly troubled by the fact that 30% of applicants to post-secondary public service recruitment and 20% of general applicants were visible minorities they secured respectively only 13.9% and 4.1% of appointments. The figures are indeed remarkable. In a context in which the public service has clearly committed to increasing visible minority hiring discrimination appears to be pervasive. Surely these figures merited further investigation? Well not exactly, the Task Force simply concluded, the principle of merit is not being meaningfully applied.

It required considerable effort to extract the original data on which this claim was based. The post secondary recruitment figures were drawn, it turns out, from a Public Service Commission study of its 1998 post-secondary recruitment campaign. That report, however, offered a figure of 22% of appointees being visible minorities (not 13.9%). The report suggested no evidence of discrimination but observed that one reason for the lower success rate was that 16% of the visible minority applicants lacked Canadian citizenship, compared to 2% of other applicants.

What of the general applicants? The Public Service Commission advised me good data is not currently available. And the Task Force’s data? This was taken from different non-comparable sources which make reference to different reporting periods. The PSC data lack the detail to facilitate quantitative analysis.

In short the Task Force data were worthless, its conclusion egregious. I published this critique in the Ottawa Citizen last August. It brought no response.

The Committee could seek its own answers; certainly preferential hirers have a lot to answer for