affirmative action

A Human Rights Tribunal constituted under s.39 of the Canadian Human Rights Act 1976-77 found that the recruitment, hiring, and promotion policies at Canadian National Railway Company (“CN”) prevented and discouraged women from working on blue collar jobs and as a result it imposed a special employment programme on CN. The programme required CN to increase to 13% the proportion of women working in non-traditional occupations and until that goal was achieved to hire at least one woman for every four non-traditional jobs filled in the future.

The Constitution states that all fundamental constitutional rights and freedoms are guaranteed free from sex discrimination. These freedoms include equal treatment before public authorities and equality under the law. Chapter 1, Part IV addresses exceptions related to affirmative action and other legislation. While generally no legislation may be enacted based on sex discrimination, such legislation may be enacted if reasonably justifiable in a society that has respect for rights and freedoms of the individual.

In the case of Jacomb v. Australian Municipal Administrative Clerical and Services Union, the applicant, a male union member, sought a court order that a union unlawfully discriminated based on gender by adopting quotas for its executive branch. The quotas required 50% of executive positions to be held by female members. The applicant submitted that the 50% requirement was discriminatory against men who made up more than 50% of members and that the quotas should be proportional to the women's membership within the union.

The Local Authorities Act establishes local authority councils within local government and defines their powers, duties and functions. The Act provides that the slate of candidates from any given political party up for election in a municipal, village or town council election must contain at least three female persons where the council consists of 10 or fewer members and at least five female persons where a council consists of 11 or more members, in an attempt to increase the presence of women in decision making positions. 

The applicant, a male, applied for a senior managerial position previously occupied by a woman. After undergoing a psychometric assessment, he was recommended for appointment. The recommendation was turned down “due to the gender imbalance at SMS level”. The applicant claimed that he had been unfairly discriminated against on the basis of his sex because the target, set by the Gauteng Provincial Legislature, did not comply with the provisions of the Employment Equity Act (EEA), 55 of 1998.

The plaintiffs, four members parliament, sought judicial review before the High Court of a decision of the State President to appoint a woman, Mrs. Fiona Kalemba, as the Clerk of Parliament. This occurred against the recommendation of the Parliamentary Service Commission, which had submitted a male candidate who they believed to be the best candidate for the position. The State President wanted three short-listed names for the position, and specified that a woman should be included.

The Court held that 4, while prima facie unconstitutional, is acceptable if done with the constitutional purpose of furthering the rights of women, considered a constitutionally-protected class, and not with the purpose of maintaining traditional societal roles. The Court held that "the special protection of women allows for discriminatory treatment with constitutional ends." The Court also affirmed that minors are a protected class, protected both by the Colombian Constitution but also by the international treaties to which Colombia is a signatory.

The Court held that existing legal provisions and international treaties that provide women with special rights and considerations were not in violation of the Colombian Constitution's equal rights provision. The Court reasoned that such provisions were not aimed at withholding rights from men, but instead were aimed at correcting any shortcomings in the rights owed to women. 

The South African Police Service (“SAPS”) had adopted the Employment Equity Plan (“EEP”), which sets numerical goals to produce gender and racial diversity. The appellant, Ms. Barnard, applied twice for a position in the National Evaluation Service of the SAPS in 2005. Despite being shortlisted, interviewed, and recommended as the best-suited candidate, she did not get the position on either occasion. This case concerns her second attempt, where the National Commissioner did not appoint Ms.