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GoC Legal

A class act: Black federal employees sue the government for decades of discrimination

On Thursday, December 3, 2020, 12 Black former and current federal government employees launched a class action suit against the Government of Canada. The Black Class Action home page lays out the claim’s details:

“A class action lawsuit has been filed in the Federal Court of Canada on behalf of all Black employees. This action concerns systemic racism in the Public Service of Canada, directed at self-identifying Black individuals who work for or with the Public Service of Canada – this includes current employees and those who have been employed within the past 50 years. This systemic racism includes the wrongful failure to promote, intentional infliction of mental suffering, constructive dismissal, wrongful termination, negligence, and in particular, violations of employment law, human rights law, and Charter breaches. ​This action alleges that as a result of systemic discrimination, Canada has failed to achieve equality in the workplace, such that no person shall be denied employment opportunities or benefits for reasons unrelated to ability. In the fulfillment of the goal of workplace equality, this action alleges that Canada has failed to correct the conditions of disadvantage in employment experienced by Black Canadians.”

There’s no question that the suit is politically and socially well timed but how strong is it legally? One way to assess this is to examine past precedent setting cases.

LGBT purge

The LGBT Purge was one of the longest and most harmful campaigns of discrimination conducted by the federal government against the LGBT community. The campaign, to identify and purge LGBT federal public servants on the basis of their sexual orientation, gender identity, or gender expression in the federal public service and military, began in the 1950’s and continued for decades. Many of the injured persons suffered in silence for many years. That class action suit ended the silence.

Three plaintiffs, Todd Edward Ross,  Martine Roy and Alida Satalic, launched the suit on March 13, 2017. On June 22, 2018, the Federal Court approved the Final Settlement Agreement with up to $110M in compensation. Most eligible class members were expected to receive between $5,000 and $50,000. Between October 25, 2018 and April 25, 2019 individuals submitted claims for compensation and/or Individual Reconciliation Measures. There were 719 claimants: 629 military, 78 public servants and 12 RCMP.

Royal Canadian Mounted Police Harassment, Abuse, & Discrimination

The Royal Canadian Mounted Police (RCMP) began officially accepting female recruits in 1974. Unfortunately, since that time female officers – as well as non-policing staff and volunteers – suffered sexual harassment, abuse, and discrimination at the hands of their male colleagues. In 2016, the RCMP settled a suit brought by over 3,000 female officers for $100 million. Another class action for civilian employees and volunteers had 41,000 claimants. However, after three times as many women submitted claims for compensation than expected, the amount available was increased to $150 million. Another class action lawsuit seeking compensation for women in non-policing roles was settled in 2019 for $100 million.

Indian Residential Schools Lawsuit

In the 19th century, the Canadian government created a system of residential or boarding schools to educate the children of Indigenous peoples. However, instead of education, assimilation was the goal of this program. Attendance at residential schools was mandatory. Children systematically suffered physical, emotional, and sexual abuse; isolation from peers, family members, and tribal customs; exposure to  disease; and overwork. Teachers and staff at the schools were often underpaid and unqualified, amplifying the mistreatment and neglect Indigenous students experienced.

Nora Bernard, a survivor of the Shubenacadie Indian Residential School in Nova Scotia and an activist for Indigenous peoples rights, led a group that sought justice for the pain and hardships Indigenous children suffered in the schools. Survivors of other residential schools joined this lawsuit against the government of Canada.

The Indian Residential School Settlement Agreement was the largest class action settlement in Canadian history. Reached in 2006, the agreement created a fund of $1.9 billion for survivors of institutional abuse and neglect in the residential schools system. The settlement also included provisions for assessment of compensation for individuals.

So, given that history shows the government tends to settle large class action suits about historical mistreatment of marginalized groups, the Black class action seems to have a good chance of ending up with the government agreeing to pay up. The question is, how much?

The claim is for $800 million in total, but is that enough? How do you put a price on the destruction of someone’s mental health, or someone being denied promotions for years? It will be challenging to put an exact number on it but one thing is certain: it should be a really big one.

Note: much of the information on the RCMP and residential schools cases comes from the article Top Class Action Cases in Canada by Klein Lawyers LLP.

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Awareness raising Diversity and Inclusion Government of Canada Public service White women

How my white women bosses terrorized me

The global response to George Floyd’s death has got people talking about other incidents where white people did bad things to Black people. One of those incidents surfaced in a viral video of a white woman threatening to call the police, then doing so, on a bird-watching African-American man who asked her to leash her dog in New York’s Central Park. Amy Cooper’s apology to Christian Cooper (no relation), following her being fired, is a classic case of too little waaaay to late.

In his New York Times article, How White Women Use Themselves as Instruments of Terror, Charles M. Blow argues that what Cooper did was simply the latest in a long history of white women using themselves as weapons against Black men. And Blow adds, “There are too many noosed necks, charred bodies and drowned souls for them to deny knowing precisely what they are doing.” I agree and here’s why…

In the fall of 2017, I got a new boss. She was my sixth boss in 18 months and she immediately began micromanaging me on a level that, to me, qualified as my first case of professional harassment. I told my union representative about it and he told me he had informed the Director General. I heard nothing from the DG for about a month while the situation with my boss worsened. Then, one day, after a tense email exchange with my boss, I went to a meeting in a boardroom full of my colleagues, who were mostly white women. When I entered the meeting, I saw my boss sitting at the table, went to her and asked, “Was my email clear?”. I was angry and tense when I said it. In response, she sent an email to my DG that said, “He is getting in my face in a threatening way.” (I got the email through Access to Information – i.e. the federal government equivalent of taking part in a slave rebellion.) A few minutes later, my DG entered the room, came over to where I was sitting silently in the corner and said, in front of all my colleagues, “ Robin. Do you have an issue? Because we can’t have you threatening your colleagues.” (This is the same person who, as I explained in Tales from the Plantation #1, had me banned from all of my workplace buildings without informing me.)

Despite the many complaints I have filed since that day, neither my former boss nor the DG have been held accountable, in fact, the DG got promoted. The global reaction to George Floyd’s death provides some perspective on why that is.

Systemic discrimination means it’s normalized. Black folks suffer it every day. It’s not unusual. It’s not spectacular – and it’s rarely, if ever, filmed. However, like the cops who killed Floyd, the people abusing Black folks in the federal public service know exactly what they’re doing.

Blow’s argument that white women know what they’re doing is counter to the idea of “unconscious bias” that is so popular in government discussions of systemic discrimination. The idea is that, since the bias is unconscious, all we have to do is make it conscious for people through awareness training and all will be well.

However, my experience shows that isn’t the case. All that great awareness I’ve raised by taking the risk to speak out and file complaints has only made my harassers more aware that what they’re doing is wrong – but hasn’t stopped them from doing it. It has also resulted in me being hit by one sanction after another for the last two years.

That’s because systemic discrimination privileges certain groups over others and those on top don’t want to share the goodies. We must recognize that folks act in their own interest so, to get them to do the right thing in terms of diversity and inclusion, we have to change the system so that there are much bigger rewards for doing the right thing – and much bigger penalties for doing the wrong thing.

They should start by setting targets for executives, like actually hitting their legally mandated Employment Equity Act numbers by hiring, and promoting, all the talented Black folks around, and withholding their performance bonuses if they don’t.

Black lives matter – but docking performance pay gets results.

Categories
GDPR GoC Regulation SurCap

All the great “free” stuff we get from Google and Facebook is costing us a lot more than our privacy

In my post, COVID-19 could mean we lose and surveillance capitalists win — again, I discussed some of the challenges of surveillance capitalism (surcap). This post starts the discussion of what we can collectively do about those challenges.

One of the first issues is who is “we”? Only those who think there’s a problem will see the need for a solution. However, unlike the rise of the resistance to industrial capitalism that was partly fuelled by people slaving under horrible working conditions, surveillance capitalism’s most negative effects are mostly cloaked. Most people see only the benefits like free search, email and YouTube.  

For those that do see a problem, there are, thus, two challenges:

  1. How to fight back.
  2. How to get more people to join the fight.

As knowing how to fight back is key to getting more people to join the fight, let’s focus on that for now.

The success of surveillance capitalism is due to a lot more than lots of folks feeling hooked on great, free tools like Facebook and Gmail. In her book, The Age of Surveillance Capitalism, released in February 2019, Shoshana Zuboff identifies 16 reasons for surcap’s success. Here are 7 of them, including the most personal ones:

  1. Unprecedented – Surcap is a completely new phenomenon so we have a hard time fully understanding it as we tend to compare it to things we know.
  2. Velocity – “Surcap rose from invention to domination in record time”, says Zuboff. She says this is by design to freeze resistance while distracting us with immediate gratification.
  3. Inevitability – Surcap rhetoric makes us believe that it’s all inevitable and we should simply accept it, enjoy its benefits – and don’t think too much about any possible down side.
  4. Inclusion – Paraphrasing Zuboff, “Many people feel that if you’re not on Facebook, you don’t exist. People all over the world raced to participate in Pokemon Go. With so much energy, success and money flowing into surcap, standing outside of it, let alone against it, can feel like a lonely and risky prospect.”
  5. Ignorance – Surcap’s inner workings are secretive by design. Their systems are intended to ensnare us, preying on our vulnerabilities bred by an unequal balance of knowledge, and amplified by our scarcity of time, resources and support.
  6. Dependency – Most people find it difficult to withdraw from using surcap’s free tools and many wonder if it is even possible.
  7. No alternatives – There just aren’t great alternatives to Google Search, in terms of quality, and Facebook in terms of ubiquity. There are better alternatives to things like Gmail and Google Docs but, with so many people using them, it’s very hard to switch.

However we decide to combat surcap, one thing is clear: we can’t do it on our own. Stopping surcap’s march will require many of us constantly pushing our governments to bring in effective regulation – and working to get more folks to join the fight. 

In terms of government regulations, Zuboff says many hopes today are pinned on the EU’s new General Data Protection Regulation (GDPR), which became enforceable in May 2018. The EU approach fundamentally differs from that of the US in that companies must justify their data activities within the GDPR’s regulatory framework. The regulations introduce several key new substantive and procedural features, including:

  • a requirement to notify people when personal data is breached;
  • a high threshold for the definition of “consent” that puts limits on a company’s reliance on this tactic to approve personal data use;
  • a prohibition on making personal information public by default;
  • a requirement to use privacy by design when building systems;
  • a right to erasure of data; and
  • expanded protections against decision making authored by automated systems that imposes “consequential” effects on a person’s life.

The new regulatory framework also imposes substantial fines for violations, which will rise to a possible 4% of a company’s global revenue, and it allows for class-action lawsuits in which users can combine to assert their rights to privacy and data protection. 

In May, 2019, Jim Balsillie, co-founder of Research in Motion that created the Blackberry, made other suggestions for what governments can do. Balsillie appeared as a witness, alongside Zuboff and Zucked author Roger McNamee, at a hearing of the International Grand Committee on Big Data, Privacy and Democracy, in Ottawa and suggested:

  1. Eliminating tax deductions of specific categories of online ads.
  2. Banning personalized online advertising during elections.
  3. Implementing strict data governance regulations for political parties.
  4. Providing effective whistle-blower protections.
  5. Adding explicit personal liability alongside corporate responsibility to affect CEO and board of director decision-making.
  6. Creating a new institution for like-minded nations to address digital co-operation and stability.

The Grand Committee is a first step towards achieving #6 as it has members from around the globe, some of whom come from countries like the Philippines which are already experiencing life and death consequences of uncontrolled surcap. However, it is #5 that may have the most impact given one of the most dangerous impacts of surcap: an increase in online hate fuelled by real “fake news”.

One of the points that came through clearly at the Committee hearing is the most disturbing: surcap companies resist removing hateful content and fake news because it generates by far the most engagement and the most money. Balsillie’s point was that making CEOs and board members personally liable for such content would make them think twice about letting it proliferate on their platforms.

So now it’s up to us to demand that our political leaders start implementing ideas like Balsilli’s.

Our very freedom is at stake just like it was during the Second World War. Only this time, instead of being controlled through blatant terror by a power that knows very little about us, we’re being controlled through hidden systems by powers that know almost everything about us.