 Wonderful to see everybody. Welcome. Good afternoon. I am Sarah Harding. I am the new me here. I've been here all about four and a half weeks. So I'm still glowing with the joy of being here. And that's what we all just to say about that. So I want to begin by acknowledging that Dacauzi is located on McMarie. The ancestral and unceded territory of McMarie. We are all pretty people. I also want to recognize that African Nova Scotians, our distinct people, whose histories, legacies and contributions have enriched that part of McMarie, known as Nova Scotia, for over 400 years. So it's my pleasure to welcome all of you and to introduce this 12th in his Christie lecture in Labor and Employment Law. I know Professor Vicky Russell will be introducing our speaker, Professor Indella Plackett, but I do want to extend a very, very warm welcome to her. I'm looking forward to hearing her lecture on Beyond the Boundary of Systemic Black Racism in the Workplace in Canada. My job here is to say a few words about Professor Innis Christie. So Professor Christie was born here in Nova Scotia. He started his academic career at Queens in 1964. In his time there, he completed his book, The Liability of Strikers and the Law of Torts, a comparative study of the law in England and Canada. In 1971, he returned to Nova Scotia and took up a post here at Dalhousie Law School where he taught full-time until 2003 and then part-time until 2007. He served as our dean from 1985 to 1991. He was my dean when I was here. So Professor Christie's teaching interests were wide. Labor and employment law, poverty law, municipal law, administrative law, contracts, commercial law, and professional ethics. He had a leading role in law reform. He was engaged in the Woods Task Force on Labor Relations in Canada in 1967. He drafted the Nova Scotia Trade Union Act in 1973 with former dean Reed and the Nova Scotia Labor Standards Code in 1972. He also changed the way employment law was taught in law schools, in part through his influential law employment law in Canada. Professor Christie served in the 1970s as a member of the Canadian Anti-Inflation and Appeal Tribunal, was counsel to the Nova Scotia Labor Standards Tribunal, and was chair of the Nova Scotia Labor Relations Board. In addition, he was deputy minister in the Nova Scotia Department of Labor and served as a member and chair of the Nova Scotia Workers' Compensation Board. He also served as a part-time member of the Federal Public Service Staff Relations Board and of the Canadian Human Rights Commission Tribunal. Professor Christie's career was of the sort that perhaps we all aspire to. He taught, he mentored, and he inspired generations of labor law students across Canada. His contributions to academic labor law, to public policy formation and administration, to labor arbitration and adjudication, and to legal education are broad, deep, and injuring. I mentioned a few months ago that he was deemed during my time here as a law student. It's worth noting that was a rather difficult time. It coincided with the 1985 Weldon Fighter and four years of building renovation and construction. Despite these challenges, I remember him as a strong, effective, optimistic, and compassionate leader. He was, in short, a really truly remarkable role model. The Innisfree City Lecture on Labor and Employment Law honors his life and his work. I would like to thank Professor Liam McHugh-Russell for making this lecture happen and for the absolutely indispensable assistance provided by Elizabeth Sander. So Professor McHugh-Russell will now introduce Professor McHugh-Russell. If I might, I'd just like to recognize Sean Christie, who has continually supported the Christie Lecture and Symposium series and has been very supportive of the work that I'm proud to do to bring his legacy to the Halifax, the Nova Scotia, and the Canadian community since I started here in the middle of the pandemic. Thank you so much to Sean and your family for your support. And thank you to Dean Hartman for your introductions of Christie and his legacy. It's my distinct pleasure to introduce Adele Blight, Professor of Law at McGill University, and the Research Chair in Transnational Labor Law, and this year's Innis Christie Distinguished Visiting Professor in Labor and Employment Law. I have some long formal remarks that it's important for me to put on a table regarding her accomplishments and clients that she's received, but I did want to give a moment informally because of the length of our relationship. Professor Blight was my master supervisor and my post-doctoral supervisor, and I was resistant to putting myself at the beginning of these remarks, but as I thought to myself, and excuse the dad joke, it's my party, and I'll close it. See, it doesn't work! I'll say a bit more about how important our relationship has been in a moment, but let me point to just some of the reasons that I did ask Professor Blight to come and serve as the Visiting Professor in Labor and Employment Law. As a candidate research chair, as Trudeau Scholar, and as an advertising team of multiple other research awards, Professor Blight has done ground-breaking research within and beyond the boundaries of labor law, national and international. Her contributions to scholarship, trying to understand the linkages between global trade and matters of working conditions, in her contributions to that scholarship, she helped us as scholars and as lawyers appreciate how that relationship turns in part on colonialism and its legacies and on the structural divide between the global part and the global so. She was a pioneer in scholarship that has begun to think through the continuing relevance of historical African slavery on present-day working relationships and patterns of work. In part through her research handbook on the topic, she conceived and assembled with her co-editor, Andrew Bilko, she has made indispensable contributions to the growing field of transnational labor law, and what does that mean? Well, she has, in through that work, shed light on how labor norms, domestic, regional, and international help shape working conditions across borders. Not only through the actions of domestic courts and international processes, but also through corporate codes of conducts, global protest movements, and everyday law, including inside the household. And on that note, in her 2019 book, Everyday Transgressions, which was an award winner for 2020, that book was not only a chronicle of her work alongside domestic workers and domestic worker activists to make domestic work visible, valued, and recognized as work that is worthy of protection, but it was also a case study in what international labor law can and should do. She's an innovative teacher. My favorite moment in her history of teaching was of course that I actually participated in. It was called Transnational Futures of International Labor Law. It integrated her teaching into a series of 12 panels and lectures featuring close to 50 global experts in labor law working conditions, international labor standards, and human rights. If you go on the McGill University website, you can still find YouTube videos of all 12 of those lectures from 2019. Beyond her research and her teaching, very much in line with the well-in-tradition of unselfish public service that we sell right here at Duff as a university in the Schulach School of Law, and in ways that very much parallel Professor Christy's own career, Professor Blackett, has continually successfully translated her forms of expertise directly into projects with real-world impact. She serves, for example, as one of 10 part-time members overseeing the Sien des Droits de la Personne, des Droits de la FNS, which is responsible for rights policymaking and for really giving rights violations in the province of Quebec. She was the lead expert in international labor organizations and processes that led to the promulgation in 2011 of the Fantastic Workers Convention, and she is currently serving as chair of the federal government's task force reviewing the Canada Employment Equity Act. The scale, and scope, and impact of her work and her staff as an expert have earned her numerous accolades. She is recipient of the Queen Elizabeth II, has gotten a jubilee medal, the Christine 12th In-Need Award of America from the Gulf of Quebec, and the Pathfinder Award from the Canadian Association of Black Foliers. And in 2020, she was elected a fellow of the Royal Society of Canada in the Academy of Social Sciences. Let me say, return to that personal relationship. There's a perception, I think, of academic stars that they succeed in part by leaving certain forms of care work to others. Faculty committee work, student mentorship, community leadership, that's for people who aren't stars. And if that's how we define academic stars, then I have to admit that Adele is nothing of the sort. At McGill, she headed faculty recruitment for five years and helped convene the university's caucus of black faculty. And my direct experience, Professor Blackett, is that she exercises a fun characteristic that is not common patience, generosity, and thoughtfulness in her role as a mentor and teacher, and I'm personally grateful for the contribution she's made to my own legal career. And I know there is a host of other students who can say the same. So given how much I have learned from her and the support that I've received from her, I'm so glad we have the opportunity to learn from her today as she delivers the annual Christi Lecture and the keynote of her symposium. Christi's symposium in law will be on the topic of Beyond a Boundary of Systemic Anti-Black Racism in a Workplace in Canada, after which we will have some time to knock on wood or questions from the audience before our reception. So please join me in giving a warm welcome to... Thank you. Thank you, Professor Lee Q. Russell. Thank you dear of you for that far too generous introduction. And I can only begin to express how much it means to see someone who I've so admired exercising this role as a professor, as a convener, as a reader and as a researcher. Thank you very much, Dean Hardin, for that introduction, for characterizing so effectively the incredibly inspiring contributions of Dean and Christi. And Elizabeth Sand, but I'm glad you're still here. Your support has been absolutely outstanding and I'm deeply grateful to you for all that you've done to get me here. It's not obvious where you've become. So it's a tremendous honor to be back in Halifax and end up as a university to deliver deliberately lectured in honor of a true giant in Canadian labor and employment law. In this Christi's contributions to teaching, mentoring, scholarship, other policy are quite simply inspiring. And regrettably for me, I did not have the opportunity to get to know Innis Christi personally. So when Professor McQ Russell issued the generous invitation to me to come and speak about the Federal Employment Equity Act, I thought perhaps Innis Christi's role in the Woods Commission task force on labor relations would be my most immediate lead, or maybe his past role at the Canadian Human Rights Tribunal, or maybe even the attention that he placed on the rights of unorganized workers and migrant workers early in his career. And in his pathway in his book and on Canada would be my focus. But then I happened upon an August 2014 of the Employment Equity Guidelines Committee, on which he also served. Alongside key members of the African Nova Scotian animated communities, including Dalhousie's Professor Cal Ellwood and the esteemed late Rocky Jones, the report begins powerfully by stressing the importance of learning from history. So let me share just a small paragraph. The committee writes, history has clearly shown that ignoring the problems or pretending we do not exist has never served as a means of resolution. The historical patterns of exclusion and differential treatment serve as one of the most significant hurdles to capitalizing on the strength of our grown diversity. The answer to the problem is not to be found in catchy phrases under wishful wishing for change. Private and public businesses and institutions must do more than simply state we support equal opportunity. The barriers will not be removed as a consequence of simple pronouncements or one-time cultural awareness progress. In Nova Scotia we need to only look at our history to see that equal rights have never been provided voluntarily. Repeatedly it has been shown that progress has only been achieved through enforced mechanisms. So this prescient affirmation could very much have been written today and review the report also reminded me that Ines Christi was deemed also when the historic Indigenous and Black and Ling Ma program was introduced here at Shuling School, fundamentally reshaping the face of the legal profession in Nova Scotia and in Canada to foster equitable inclusion. So last I won't be able to speak about my own task force report you will have gotten that because it is not yet public but despite our excessive optimism I will take up Dean Christi and the Employment Equity Guideline Committee's invitation to look closely at our history. So I want to start therefore by thanking Dean Harding for the acknowledgement of the land and adding that I solemnly acknowledge the history of settler colonialism built on the so-called doctrine of discovery out of which notions like teramillus, discovery, sovereignty emerged. As labour law scholars there is much work to do to engage the challenge that truth and reconciliation presents from our field. Gratting with the history of our field is perhaps also a point of continuity between this talk and a previous talk that I had the distinct privilege to give in 2019 around the time of the ILO Centenary. So as now I wish to underscore that when we look at our history we can see just how transnational it has long been and not only in the sense understood by the justice of all law that violates actions or events that transcends national frontiers. The interest of the transnational includes a part of our history that as Canadians we do want so that we allow ourselves to recall that if we are to move beyond the boundary of anti-black racism rooted in our own shared history of those slavery and racial segregation we must. Yes, Canada has a history of slavery on our soil was caught up in the traitors of slavery as a global institution that enabled the emergence of industrialization including distinctly Canadian industries like cod fisheries and sectors like banking. In this lecture I will not focus on that however I will focus on one of the legacies of slavery and that is the largely untold story of racial segregation in the world of work in Canada. We have come simultaneously and rightly to focus on the effects of discrimination that we may have inadvertently walked past our history. Reclaiming this history is therefore the first part of my talk. The second part will reference the emergence of the duty of their representation and I'll seek to illustrate that the weight of the erasure of anti-black racism in this duty is not a peculiar U.S. law that failed to travel well when we imported the notion via the steel and Louisville and National Railway in decision. But rather it is foundation and presents us with choices in the form of inherent tension that we need to take very seriously. And so third and finally I'll cause it that the paradox of the undissolved choice at the heart of the majoritarian frame of the background law is something that we should refuse to individualize to cook. Instead I think that paradox steers us to a choice that we should take that is the necessary justification for proactive commitment to embracing societal transformation by achieving and sustaining substantive equality implemented. So I acknowledge that there are good reasons why some will walk past the so-called history wars. I acknowledge that there are more conventional approaches that will of course focus on statistical underrepresentation. Our 2021 census data begin just to show the depth of underrepresentation in work from which black workers in Canada are at once overrepresented in work for which they are overqualified underrepresented in work for which they are overqualified. I believe we need to engage in this work but we also need to deal with the wave of past. And so our engagement in Canada with truth and reconciliation has been, I believe, an important part of recognizing the importance of dealing with history for its own sake. And let me point out again that the 2000 Implemented Guidelines Committee in which Innisfree and Christie took part recalled that it is not only difficult to talk about these issues, to talk about race, sometimes it's difficult to listen and the committee encouraged our profession to learn in particular how to understand and then to move from that understanding to action. So I'm in concourse in labor rights here with Reverend Dr. Martin Luther King Jr.'s deep understanding of the links between substantive equality and labor law. And so in a deliberate act of freedom I remind our class of why so much of what we talked about in labor law is also the equality law. And so I turn to the speech that he delivered the evening before he was assassinated, his very famous up into the Mountain Tall Speech which was a deep solidarity with Memphis striking sanitation workers. Those workers were striking for human recognition and their claim could hardly have been more fundamental. It was literally, I am again, encompassing so much of what as labor workers we understand to be at home doesn't mean for recognition, voice, dignity. Dr. King reminded us in his earlier speech in Solidarity that all labor has dignity. So it's in this spirit that I truly start. So Professor Cecil Walker, my apologies, Cecil Foster's class-breaking 2019 book They Call Me George, the Untold Story of the Black Training Portraits and the Roof of Modern Canada alongside complimentary archival research are central to the act of memory as part of my presentation. Animated by the question of why we do not know more about the struggle of black people who fought gym, hostile, laws, and political policies, here in Canada is an act of claiming, as an act of claiming full humanity and citizenship, Foster then posits that Canada became an officially multicultural state and I quote because of the pioneering work of the real labor workers if they were men and in home domestics if they were workers, if they were women. Foster's beautiful book repeatedly underscores the porter's dignified refusal centering the pride of the black workers and how they held it in their way of being, in their way of presenting themselves in the community institutions that they built including historic churches in supporting community learning but also and perhaps primarily in claiming full citizenship through collective organizing. So I'm going to offer three examples of the kind of segregation in the realities in Canada that they addressed. First, black men from Nova Scotia were specifically recruited as quilters alongside black men from the southern United States, British colonies in the Caribbean and of special interest to this crowd is that the first and only black chief justice of the federal court of appeal the honorable Julius Isaac was one of them. We might have thought of that segregation as merely the factor of occupational segregation that left them working such long hours still willing to stay away always at the service of passengers. The porters were the good housekeepers that barely paid a living wage. However, it was formalized by law. To start, a 1926 memorandum of agreement emerged from a report of a Board of Consoliation and Investigation of Time in the face of its dispute over colored dining employees, dining families, and immigrant clients. They were being replaced by White House in the Canadian national relays. And so the Board, unhesitantly concluded that there was no race prejudice then received the memorandum that it described as signed by representatives of the company and the employees. There's no mention of whether those employees included the white employees but the executive of the Canadian Relative for the way employees which was formed in Mountain in 1908 and was in Bureau rivalry with the U.S. initially restricted members to whites. The memorandum of agreement ensured that segregation would be enshrined and legally sanctioned. And for example, the segregation was part of the 1944-1945 agreement between CN and the Canadian Relative of Railway Employees. The segregation continued well into the 1960s. Second, the segregation was reflected in labor law cases. It ranged from 1921 Board of Conservation heard a case involving the dismissal of seven porters for union activity in the order of sleeping care porters. And CPR won its case based on a clause unique to the porters that enshrined the at-will doctrine. And it was justified on the basis well that the porters work on the trains was akin to domestic work in the homes. It could be dismissed at will. It included cases that occurred even after the Fair Employment Practices Act was introduced in 1953. And of course, after the introduction of the 1985 U.S. Viper Act to model in Canada in 1944. And I underscore this point because the late direct framework is often expressed as having moved workers past the unbridled freedom of contract with whoever one way choose that emerges from our Supreme Court of Canada's Christie and York decision. That, Mr. Christie, Fred, was a black Montrealer. He was refused service in Tabard on the basis of his race and with the support of the black community fought the case all the way to the Supreme Court of Canada. Through the decision rendered faithfully in December 1939 after World War II had just started, our Supreme Court entrenched racial segregation in Canadian law. As the cases I can best show you are ensuing labor law framework did not then operate the same movement for black workers that it did for other women as workers. So third is the speed with which in Canada we passed from specifically discriminatory provisions to the absence of any discrimination at all. The cases provide glimpses of the interaction of labor law frameworks with racial neutrality and racial innocence even in the midst of ongoing segregation. So in 1961, included by the National Committee for Human Rights found that although the dining car employees were all the way except for one and the sleeping car partners were not the way except for about 12%. This was not racial discrimination the inability to promote reporters to the ranks of conductors was just a quote peculiarity of the structure. Why? Well, because the employment conditions were governed by elected agreement and that collective agreement contained no provisions that were racially discriminatory. So the committee did not deny the history of human rights segregation. It didn't need to because there was no there was legal magic in the 1953 fair employment practices at it outlawed discrimination. So we know this to be the long precursor of an approach to equality that only emerged with the advent of Section 15 of the Charter. So substantive. But I wish to tease out three elements of the reasoning of the time that are all too familiar in the contemporary responses to intense, to redress discrimination proactively. First pay attention to how the legal conclusion is framed in the same commissioning only. So the complaint is framed in regard to the black quarters who sought the access to positions that allowed them to be promoted as, quote, an attempt by one group of employees to obtain jobs belonging to another group of employees. And it's not about interpretation this much. But prescientist is possession. Perhaps today we might substitute a word like merit. Legitimacy claims justifying an order too often too immediately stripped from their persistent historical. Second, a slightly more nuanced report, an inquiry, was rendered a little while later that same year. It recognized, okay, there's a legacy of the past in the form of a collective but it didn't go beyond acknowledging black sleeping car quarters feelings of discrimination. In the light of the water context, though, it did recommend that the two groups be integrated. And it did something that we immediately recognized, of course, as our labor law constant, life full of the direction started via the Weber decision. Validated the use of normal grievance procedures as the best method to ensure fair administration of assignments and promotions under the collective agreement and in the event of unfairness. Well, the griever should go and take the mechanisms to the end of fair employment practices of the investigators for complaint. Okay, so let's, and third, let's not forget why it was started to what it started to look like on the ground by the time we got to this more formal decision when we were doing our report. There were no non-black employees among the sleeping car quarters and there were very, very few non-black employees among those eligible for promotion. So the time dimension and the context dimension, the message was sent, not much needed to change. So the literature of seniority groups it ultimately happened in 1964 after during the recommendation by the CLC the Canada Labor Congress, the Human Rights Committee and a long negotiation as well as a referendum by the union and one might have imagined that a proactive approach would be then what would follow in relation to the history of the block of promotion, but of course features that would have hinted at employment equity like establishing training programs and opportunities for employees to take them or left to the subject of their discussion. Okay, so in keeping then with the transnational thing, always surprised that I turned to one of the United States is Supreme Court decisions that had a fundamental impact on how we deal with the issue of minority representation in Canada and represent cases of discrimination in representation in the steel case that you mentioned at the outset. So it establishes a degree of representation and it is actually a very short case as Professor Brian Alangelo whose mentorship close to me from Geneva back to Canada and into academia has rightly argued recently in a lovely tribute to justice, Leslie Silverman and Ella that it is a case comfortable to Valkarelli in its ability to frame fundamental rights through admins to the law principles and this prior to Brown v. Board of Education and prior of course to our charge. The steel case operates a sophisticated balance 10 years before the U.S. Supreme Court's decision and it reflects an early NAACP strategy quickly quelled by the light due to fears of necrotism through attack segregation through the world of war. For many years its ratio alone was assigned, notably in our labor law baseball group, our textbook to students of Canadian labor and the law and I realized how much that abstract left aside when a brilliant former student now another well-regarded law professor in international law insisted that the case could not possibly have at its core the core facts, the existence of a segregated trade union that is the trade union that refused to admit black firefighters as members, although it had been granted to a more exclusive bargaining agent for the craft that represented it. Yet the facts are eerily close to the history of just brand 40 in the same sector in Canada as Chief Justice Stone wrote in the 1944 decision the Brotherhood According to an act as a representative without informing the black firefighters basically decided to amend the collective event to exclude them. So that was all it took for only white firefighters to be eligible to be murdered for the right work in two years. Chief Justice Stone reads it through the legislation of pastures that a quote, labor organization chosen to be the representative of the craft is thus chosen to represent all of its members, regardless of the union of donations or wanton, yes but it's not because of the forcing they create. Reasoning propulsively if abstracting away from the segregation that would persist and the distinct like choice that it entailed, Chief Justice Stone nonetheless underscored the fruit of the collective agreement that is the collective agreement supersedes the terms of the separate agreements of the employees and the strength and bargaining power for the benefits and advantages are meant to be open to all and instead the workers are meant to be a fair representation. So how can the labor union with exclude this minority from its craft have any standing to act as a representative? That's how Mr. Justice Black would have dealt with a brief concurring decision. And Mr. Justice Murphy also concurred, turned directly to the nature of the economic discrimination based on the lack of the hand of the brotherhood and spoke vehemently about the out of disregard for the dignity and well-being of those citizens and called people beyond legal niceties long statutory interpretation and address the economic cruelty 1943. So it's still it was clear, there was no administrative remedy that could be secured separately and the response that lay in judicial cognizance. Part of the political economy of the Wagner Act is of course the unresolved tension that brings the relationship between the individual and the collective. And certainly Mossguller Mark Bannerberg argues that this tension consent of the majority versus the ability and the intent through progressive thought at the time to support social integration through at once expression by the individual in the form of engaging in collective action but also coherence and the ability to support that that tension remained unresolved in the Wagner Act and indeed in the context of steel I think we have to accept that this is not a matter of individual discipline but representational conflicts that are made between a majority and a minority that I frankly understand its interests differently and please follow me in the movement away from the context where racial segregation is written into the law to the context in which the legacy of racial discrimination remains in workplace representation so the minority is not infrequently an historically marginalized group basically hired often younger workers facing inferior working conditions at the heart of the law found decision that managed to keep the door slightly ajar for access to the right conditions and tribunals and before the recent court decision I note by the way that although Coros may have seen the door shut several human rights tribunals outside of the six works have still been asserting their concurrent jurisdiction so you can feel it this lecture could go in at least three different directions now first it could follow works and in particular the strongest cries of alarm over the direction for example the coalition of black trade unionists of Canada last year reminded the Labour community this human rights legislation is a significant part of the outcome of generations of anti-racist struggle in a moment of justice they affirm that despite all of their work as black trade unionists seeking to educate unions on their realities of anti-black racism for black workers pursuing arbitration rather than human rights tribunal remedies is often I'm quoting here as difficult and as traumatizing as the initial experience of discrimination in the US so as we celebrate resolutions through Labour institutions I'm really seeing carefully to those historically marginalized minorities who fear that they are being left without the necessary if admittedly deeply imperfect alternatives we're second my talk could take the path followed by a number of jurisdictions comparatively calling for us to rethink our tendency to leave minorities without separate representation under collective bargaining preferring despite the legendary challenge raised by Cyril Jordan to borrow other models this is the challenge I know that Sir Bob Hedlop met not only in his reply but also in his contributions to transforming post-apartheid Labour law in South Africa where a majoritarian representational frame is balanced with moderated rights for minority minorities this path elicits consternation in Canada and the US and not without reason it should not be taken lightly precisely because the states are so high for all who are committed to the effective exercise of collective bargaining rights in Canada but I do not choose not to pursue this path for that reason alone the core claim at its heart is for historically marginalized workers to be meaningfully present in the workplace and able to build career trajectories to be meaningfully consulted in other words is at its essence a call for equitable inclusion in the workplace which is in itself a call for workplace transformation so there is I would suggest a third path maybe not so surprisingly a path less followed and I would be not quite I have not personally not written out whether this path is more feared than the first path or less feared than the second so soft to resist it's the path of taking the charge of achieving and sustaining substantive equality as integral to our understanding of labor law in other words it is the historical case for taking employment transformative potential very seriously I will offer a counterintuitive starting point for the certain in the McGill University Health Services Center case not through just the state's majority decision the need for individualized assessments on accommodations but rather Justice Abela's heavily criticized concurring opinion always intriguing for its attempt to support and incentivize unions and management to cooperate to enable the emergence of proactively arrived at agreements it suggests that she is wanting to pay attention to very vulnerable proactively as a way to achieve substantive equality something that is fundamental in twin integrity and at the center of that concurring opinion seems to lie the question how might labor law and substantive equality incentivize the development of proactively negotiated markets and part of that I would suggest is ensuring spaces for meaningful participation by those who are historically represented in those processes that any which the opinion at someone is the Janus based version of the earlier jurisprudential high watermark one that is widely regarded as encapsulating employment at police principles the major decision and major in calls on us to question whether the standard itself in that case an aerobic test applied to an experienced female firefighter and male dominated profession repeated historical continuities between these cases and their sector presented as an ostensibly neutral standard because its legitimacy was not held up to scrutiny but how that standard itself in that systemic discrimination so rather than proceeding simply to leave the standard untouched and seek individual accommodations and challenges much of the eligibility and artificiality of the distinction between direct and adverse effect discrimination and failure of a unified approach and it captures again so much after a barrier approach so employment equity then is inextricably linked to our understandings of clean jurisprudence of substantive equality epitomizes in Fraser as just a donor refers to a good Fraser and for the purposes of this presentation I actually do demand to add that the decision rendered barely one year later Sharma does not overall Fraser but frankly if its general direction is subsequently followed much of our jurisprudence on substantive equality in nature but Fraser is quintessentially labour law and for the social security law while we brought case substantive equality justice developer claims offers us a randomly for exclusion and a recipe for conclusion and the case painstakingly consolidates the jurisprudence on adverse impact discrimination and I want to stress that its purpose through the quality analysis keeps us focused on protecting the groups telling me that our Supreme Court has deliberately taken from US chairs groups and wisely so is retained but Fraser returns us to the 1971 Green's decision from the United States another case about racial discrimination against black workers a case that was foundational to our understanding of employment equity and essential to the 1984 report of the Royal Commission on Employment so the Greeks case basically the employer who required employees to have a high school program to pass standardized tests and to take on a particular homework so the case doesn't deny the history of segregation in the company African Americans worked only in one department the highest paid job was less than the lowest paid job than all the other departments and promotion happened by so the Supreme Court recognized that the requirement the high school and test was introduced after Title 7 was introduced after segregationist policies were removed and that white employees had prior to the policy change didn't have to have high school performance and they continued their jobs so rather than requiring proof of intent we know the Supreme Court of the United States was able to emphasize the effects so achieving equality of employment opportunities by removing barriers and acknowledge that the test although neutral on their face potentially even neutral in intent cannot be maintained if they operate to freeze the status quo of prior discriminatory employment practices in other words present intent may not matter what I'd submit history does so the Briggs decision insists on seeing that history as part of understanding the status quo was being frozen and in coming to that point the Supreme Court acknowledged the history it was necessary to prescribe not only over discrimination but also practices that are fair to form the discriminatory operations so when our only Supreme Court takes judicial notice in tracer that adverse impact discrimination is much more prevalent than the cruder ground openly discriminatory rather openly direct discrimination and moreover that it often poses a greater threat to the equality aspirations that disadvantage groups are we inadvertently erased the presence of our hands are we inadvertently erasing the legacies of histories of racial support that continue to hold certain forms of stereotypical influence going to ask this difficulty might this history continue to inform why 37 years after adopting proactive legislation on employment equity and employment equity has not been achieved so what's to be done in the face of reports of systemic discrimination so persistent and unwieldy that for example the Ontario Parliament should limit what anxiety is to all employers or the Canadian Human Rights Commission itself should be found to have discriminated against its own life and racialized individuals where equality lost color so you want are the section that perceptively underscores that ultimately the scope of the quality on Canada is contingent on whatever the report is willing to see what I heard repeatedly in consultations with equality seeking and equality deserving groups is that they want their experiences of discrimination all of the barriers that stand in the way of their equitable inclusion in Canada all of the ways in which they were made overrepresented and looked at as they are over online to be deeply understood and addressed not aligned understood and they understood that labour markets raised not necessarily despite the perceived inefficiency and irrationality of racial discrimination but sometimes because of how racial equality benefits some of the expense of others what if race what if violence is a persisting sight of invisibilization one that leads us to miss what an act of historical memory may show us the distinctive character of race and racialization in our labour law frameworks it's crucial not to walk past this specificity and to understand the specificity we must equitably include and express peoples of those who've been historically marginalized for protection and lust so in rest on this third option employment equity I'm reaffirming that it is by having historical specificity of equity claims visible and by making a structural choice in the face of systemic inequality to challenge the exclusion proactively that we can begin processings of labour market discrimination that at its core is the employment equity it fosters comprehensive variable it turns attention to or should turn attention to representative structures for meaningful consultations that involve precisely those employment equity that have faced historical realization and it secures dedicated resource regulatory oversight labour lawyers embark on a process of moving beyond all two distinctly textualized compromises that a transnational history of racial subordination has left the learning from history will accept the responsibility for the power I'm just going to make a remark to Professor Blackett after my hope is we willing to entertain questions on erasing remarks or something like 25 minutes there will be a reception afterwards there is a microphone I think it would be useful if we could get the microphone to people as a group to carry it to people just so that everyone in the room we were going to have some people on Zoom I don't think we do have any people on Zoom but if you do have questions raise your hand do you want to sit here and I'll take questions take up your intervention and take it into a moment of litigation the challenge in so much of your work which is repeated in the work of other scholars who have paid attention and who have tried to recover the place of history in the continuation and perpetuation of various forms of structural and quality racial stratification and other forms of stratification in the market is that it's critical to understand and appreciate the continuing rule of history so big categories in the present structure of racial stratification who gets jobs and who doesn't in other fields and other claims for justice let's put it this way in indigenous claims for justice we have increasingly seen the particular ways in which history historical oppression state practices become relevant in litigation in understanding and attempting to reverse and push back against those forms of oppression and so when we have these conversations and when I've heard you make these interventions there is sometimes attention in the particular set of what gets captured by the category of history which history are we pointing to but in particular what does it mean to try and bring that history or an understanding of that history into the terminal before the terminal due to care before the judge before the arbitrator there is a big history of racial discrimination racial oppression and stratification we can point to other historically disadvantaged groups in which that historical those historical forms of oppression matter but can you say more about where the rubber hits the road the ways in which history or histories or what gets included in the category of history that might matter in the forms of claims that are made if it's litigation and if it's not litigation that's fine as well thank you very much it's a session about the question and it's certainly one to which I think required to pay more attention rightly are grappling with indigenous who's the American Soviet to the point where we now have courts technology and and engaging with what that means or starting from understand those that is huge and would not have been possible if we remained at the level of bounty fictions right in my own work and in this presentation we wanted first to respond to respond to a growing unevenness that I've found about the way in which we've allowed an effect space to discrimination law to in some cases abstract us away from the historical content and I want to be really clear this isn't saying we go back to intent that's not the argument it's that we engage with the why I would suggest that we're even seeing this more incredibly challenging moment in the U.S. content on affirmative action right in attempt to hang the hat on diversity has of course now been taken into account but what we're hearing more in some of the challenging is the need to deal with the history of slavery what does it look like and so just as potential round tasks inquiry legacy admission if your was able to go there and I've been in school over several generations versus if your family was enslaved so the operationalization becomes important in seeing why it's important not just to rush to a the contextualized understanding but to engage with an understanding of facts that are historically rooted you opened the opportunity to me very generously also responding in terms of the law and of course I see that as more capacious because one can actually think about the kinds of structures one might put in place historical legacies moving through there are a number of initiatives outside of labor that are underway certainly in the context of African discotions here unfortunately sometimes the relationship with litigation and the dialogue relationship there is important claims claims registration in the labor context obviously of gesturing significant in its ability to operationalize and try to operationalize substantive quality and to do so that it's reflective to regulation and aside as much as possible of the litigation process that sets a different set of actions and play so yes, so I see the role as significant and also somewhat embedded I don't think we necessarily know or need taking our history seriously believe that we should take them seriously because their legacies are with us later I understand you thank you so much I want to talk about how much I appreciated your effort to make sure that we see the continuity over and over again there's history but it's not justice history is with us and that's often a very hard thing to get people to believe and so I'm going to move this out of litigation and into sad stories I hear from across Canada about racism and very crudely put I think what I see is that for decades since immigration racism was handled to exclusion but then there came a point where they really couldn't get away with that anymore but now in some ways it's more shocking what I see that is those people who have been hired are treated badly seriously badly but the institution can't see it and partly because I think for people who are started in great detail exclusion, marginalization oversight any one of which you know you couldn't make this but it was a very compelling story and the university commissioned an independent report that didn't see anything and didn't even mention systemic racism it was a thick they just haven't heard any of this conversation and another example of two, there were only two racialized young colleagues coming up for tenure and they forgot to forward those facts to the university so come June they hadn't heard and they called and found out oh yeah, we forgot instead of an abject apology they said these things happen these are not isolated stories, I'm hearing more and more so there's something what you see in the law is of course not present a replication of chronic collective practices which you cannot integrate what they think they know about history but that's history can't wait to pass with what's right before them so probably remedy that I didn't make that remedy then so thank you so much Professor Ndusky for that comment what I'll say is this what you have just expressed I learned it over and over in the context of consultations and the sense that we've spent such a long time in particular with quite an industry of the eye the training, our unconscious bodies the practices that are supposed to make us able to see these things or maybe not maybe not just the practices maybe we're just supposed to do the practices and not much changes the report I quoted I think was present some of the literature on many of these practices that are dehistoricized that don't make the problem much of the literature suggests they're not actually having revests and that we can't step past the context which includes the historical context and expect that we're going to get the solutions we can't just talk for reconciliation and to not engage so it's part of the reason for spending the time to have a hard conversation that in the repetition tells us that we may not have learned as much as we thought we can learn about the past and we need to keep asking ourselves whether what we're doing now is that much better and I don't want to be clear about that there's a lot that has been done but there are patterns of justification that repeat themselves and by seeing those in historical thinking we need to look much more carefully at why we're repeating that so thank you for that thank you so much I'm not sure I have a question but I think I think I think very much for seeing us in the sleeping car quarters they've seen very often my grandfather was a sleeping carpenter for 25 years a sleeping carpenter for a while and as you know sleeping car quarters those positions were the epitome of employment for black men that was the top of the line because they weren't available that didn't really cost and so that's a greater context that I think gets erased you can get other jobs here in the excursion and so what happened is they went off and they broke the trains they went away from their families my grandmother was looking after the rest of the family while he was coming the racism was right on the rails what they experienced 24 hours a day and then the trauma that that you know on him and in our family and so I feel him today he's going to be with his sisters and I think he was around for some time and I guess the second point I wanted to underscore was that everything, all roles on this go back to slavery and the reason we couldn't get jobs is because we're seen as less human we're seen as less human to justify our enslavement, to build the wealth of the Western world and the reason why somebody can be ignored and their file not looked at or whatever is if they're a person of African descent as they're black is just the same green thing that we're not fully human the reason why the voices black labor unions and other things that have been giving solutions for decades is because we're not taken seriously and power isn't shared with us I guess because we're not human again, all being back to slavery and so there's no question in there it's just a conclusion the experience and everything else that the law has shown us and I just thank you for saying thank you very much Mr. Williams for sharing that really compelling dimension and the parallel made by Cecil Castor as well between the history of the world of the borders and the history of domestic workers it really was the public face of that historical legacy of slavery and so between the so-called private domestic workers it's so crucial to see those continuities and so crucial as well to see the resistances of the people who faced the everyday indignities but still managed to build communities here and how in the reality the mobility of the neighborhood here at the train station so the history is important so much of what I've been trying to do with this broken past work is to say that of course it's labor history it's labor part of seeing the margins of our field and redefining what's involved doing this close work and hopefully this close work also then puts a spotlight on why we value collective voice so much in the labor law it is about maturing that people are able to represent themselves and in the process give dignity to the work that they are doing in that process is transformative it transforms in every place I think maybe it makes sense there are at least two questions here and maybe we'll close it there and continue the conversation over I just wanted to find out what I see as a tension between current trends that I'm seeing and I think you're very important for the consultation with historically marginalized groups so in the Fraser decision Supreme Court talked about the need to use statistical analysis in order to make visible to make visible people's experiences of marginalization and what I'm seeing right now is often a choice being made even within the EDI groups on what data that's collected and therefore what questions get asked and then what information and forms of oppression become visible and then I've also seen lately a shift in speaking from speaking of historically marginalized groups and equity-seeking groups to talking about equity deserving groups so we don't have the data for example that women are disadvantaged so therefore they don't deserve equity anymore and then we don't need to consult them on equity initiatives and I think that really underscores the importance of looking at of considering disadvantage from a historical context and I was very interested when you spoke about how we're doing EDI and you might be doing it wrong I attended an unconscious bias training once which a man was presenting and decided to describe his experiences of having unconscious bias and he didn't even joke about how he doesn't listen when women speak and I thought to myself no other protected group would really be subject to that kind of that kind of anecdote and yet because he couldn't see women's disadvantage he wasn't even able to see it within the context of unconscious bias training wow that's quite a possession thank you for that comment and yes there's intention I think the phraser does a lot of work one, while validating the importance of the statistical data it doesn't make it the only or necessary requirement and there is latitude to look at the range of factors and our court has recognized the importance of historical disadvantage but doesn't quite yeah the section 15 analyses have not entailed this kind of work and I want to underscore not asking for your work in the section 15 analyses but your question is to the choices that are we made about the type of statistical information that's being collected and I take that very seriously one of the things that I've noticed which I think is actually quite powerful in this moment is that StatsCan itself has been quite attemptative to drawing in expert representation from historically marginalized communities in assessing and in framing the community's representation in work, housing, education, life I think that is part of this direction of engaging more broadly with communities on the data that come forward with them there's also multiple initiatives under way in the British Columbia context on the collection of race-based statistical data and framing through what's referred to as the ground model principle that really centers the focus of data collections with the knowledge of the historical harms that could have been faced particularly by indigenous communities by racialized groups by the collection and really ensuring that the approach is very much in keeping with the repulsive approach so this is not insignificant movement on this I think the remaining challenge though is when this gets operationalized at the workplace level including the university so again is there a role for all of them in guiding this information is collected is there a way in which employment activity can be the basis for more rigor in what it is we say we're understanding of equity yeah I think there might have been a dimension run at the very end of your question that I might have I answered your question this is great thank you okay hi Adele it's really great to listen to how you've mapped that it's so rigorous for us and the importance of being historically grounded is it's really important to be able to see how these experiences see and as someone doing the litigation contest it's rare because they do by evidence that's well 150 years and educators look at it this is not relevant to the case my approach has always been that I need to give you this history so that you can see the moment like what exists now and then understanding that but I think that we're still very far away from a place in which educators can understand why they need to hear the history and so when you were saying that you think there's potential in the area of law reform I'm curious about where you see that going certainly the Federal Employment Equity Act was structured in a way that was none of the optimistic about if we could just show you the numbers you would do the right thing and there was no union capacity to enforce things right it was like oh if we just shine information things will change so being attentive to our moment in history now is you're doing this deep rethinking and certainly don't live in that moment of optimism people doing the right thing and there's the very active backlash in which demands for equality that are on hearing are increasingly about the need for diversity of opinion which is really code for that voices that disbelieve in substantive equality and disbelieve in human rights she gave people a building with what is actually our constitutional right to substantive equality so when you talk about optimism of law reform and I don't need to create your report where do you hang that optimism when both the political discourse is actively anti-equality and adjudicators are not yet a point where they can understand the evidence that's before them and I know that as someone who does this work you have to be irrationally optimistic and you have to make a central change so here do you think the optimism that is such an excellent question so first because I know you know Professor Harde has for many, many people have been at the forefront of calling our courts to take seriously the promise section 15 including in respect to the exclusion of historically marginalized workers farm workers elected bargaining so I hear what you are saying and this rationally would be a moment is a moment to meet the concern and it's not just here although much is under here this is transactional and it is a deeply discouraging moment for social and there are huge risks but it's also being precisely those moments that historically marginalized including workers have insisted on change have taken courageous action for change and those actions yes strategic litigation taking to the streets another time using long for moments and other times but they have insisted on the justice of the courts in that sense I don't actually think this moment is any different because again the reconciliation work it's a work that we all had to do on these lines of reckoning with Mark Gray's the atrocities of the past I don't think that we in the same sense and so I like to refer to my self as optimistic but also and perhaps this is really where the end collectively things change and people understand and in a spirit of cautious and collective optimism I invite you to thank Professor Gray