What is, basically, positive discrimination? This involves favoring, in certain settings, one or more groups of people who experience discrimination or systemic disadvantages in order to restore equal opportunities.
Sometimes that can be done in the form of encouragement, incentives to offer positions to certain people from groups that might otherwise be under-represented. Sometimes we go further and demand a minimum level of representation.
The Supreme Court of Canada Act, for example, stipulates that three of the nine judges in office must come from Quebec. This law was written by people who did not believe that all federal governments, regardless of their ideological inclination and the origin of their members, would ensure representation of Quebec civil law experts on the Supreme Court, simply by goodwill and by recognition of their skills. For fear of systemic biases that would harm Quebec candidates, in particular, positions have been reserved for them.
The Broadcasting Act, which gives its mandate to the CRTC and CBC/Radio-Canada, among other things, also makes extensive use of positive discrimination measures. Across Canada, there has been concern — since the invention of mass media, essentially — that American content is drowning the airwaves and preventing our radio and television industry from developing. Faced with Goliath, we armed David with quotas. Our mainstream media are required to produce or broadcast 40% to 60% Canadian content to maintain their CRTC license.
To protect francophone culture, we go even further. The law requires French-language radio stations to devote at least 65% of their weekly popular music programming to music in French. These quotas necessarily give a good boost to the visibility of Francophone artists, and have played an important role in the development of the Quebec cultural industry. Despite these measures, the “competence” of musicians whose works are constantly played on the radio is not questioned. We understand that, to respond to the unfair advantages (particularly financial) that propel the careers of Anglo-American artists, positive discrimination has a role to play.
Law 101, too, largely fuels positive discrimination. In a context of significant systemic discrimination against Francophones in a number of employment sectors, the Government of Quebec has adopted strong measures. Since then, a large part of the jobs offered in Quebec are reserved for candidates who are fluent in French. It is undeniable that the law has played a major role in improving the economic prospects of Franco-Quebecers in recent decades.
At the federal level, the Official Languages Act also makes it possible to require bilingualism in several positions in the public service. And since more Francophones than Anglophones are bilingual, the measure can largely be likened to a form of positive discrimination. Does this legislation succeed in completely correcting the power imbalance between French and English in Ottawa? No not at all. Colleague Boris Proulx is doing important work in particular to highlight the systemic disadvantage that persists despite the law. He also showed that the problem seems particularly glaring at Global Affairs, where Francophones remain practically absent from senior management.
This situation clearly illustrates that positive discrimination in employment can be circumvented quite easily by elites determined to reproduce among themselves, especially if we operate by encouragement and hiring incentives rather than by regulatory requirement. It also shows that it certainly does not lead to a “reverse regime of domination” of the historically discriminated group. At best, affirmative action limits some of the “damage” to equal opportunity caused by structural inequalities.
The commentators who have been going up to the barricades against positive discrimination for the past few days have certainly built their careers by facing far fewer obstacles than many women and than many racialized, indigenous or disabled people who nevertheless have as much talent and skills than them, if not more. They have also taken advantage (directly or indirectly) of this complex legal infrastructure of positive discrimination built up in the last century to correct part of the systemic inequalities between Francophones and Anglophones. Without the requirements of the CRTC, without Bill 101, without many other regulations, the cultural, media, political and economic life of Quebec and Canada would be unrecognizable.
This undeniable reality is passed over in silence: it is much more convenient. Columnists therefore demand that unilingual Anglophones be excluded from the outset from certain positions (such as that of CEO of Air Canada), on the one hand, then express their horror at the very principle of excluding the most privileged from certain competitions (speaking of a research chair at Laval University), on the other hand. Their credibility rests on the hope that we will not realize this flagrant lack of coherence.
The only possible outcome of such an ill-posed debate is hypocrisy and double standards. It is entirely possible to discuss the relevance of the most restrictive positive discrimination measures depending on the context. But it’s hard to do this with people who, after using a ladder to get their own social group to the top, seek to prohibit the construction of new ones for those who are still at the bottom.