Employer must disclose demographic data to Association
Arbitrator finds employer must disclose demographic data to Association in systemic discrimination case
Background
In 2019, the University of Toronto Faculty Association (“UTFA”) filed a policy grievance alleging that faculty members at the University of Toronto who identify as women, or as members of other equity-seeking groups, are systematically underpaid. The grievance remains ongoing.
While UTFA already receives anonymized salary information from the Administration for all of its members on an annual basis, this salary information contains limited demographic information (e.g. the data do not show whether members identify as racialized, Indigenous, or as belonging to other equity-seeking groups). As a result, soon after it filed the grievance, the Association sought extensive pre-hearing production of salary and demographic data from the University. In particular, the Association was aware that the Administration routinely conducts employment equity surveys in which it asks employees to self-identify whether they belong to certain equity groups, including whether they identify as racialized, Indigenous, as having a disability, etcetera. The Association sought production of this demographic data so that it could conduct a statistical analysis and determine if there is, in fact, a discriminatory salary gap based on the employee’s membership in one or more of these equity groups.
The University Administration strenuously resisted the Association’s production request. The Administration argued that the demographic data are highly sensitive and confidential and subject to legal privilege, that employees disclosed this self-identification data to the Administration on a confidential basis, and that it would be a breach of that the confidentiality to disclose the data. The Administration further argued that this breach of confidence would have a chilling effect on its ability to collect employment equity data in the future and, therefore, that such disclosure would negatively impact on the Administration’s ability to address equity issues going forward.
The production dispute ultimately went to a hearing before Arbitrator Kaplan.
The Arbitrator’s Decision
Arbitrator Kaplan dismissed the Administration’s arguments and ordered the Administration to disclosure the data to the Association with appropriate confidentiality measures in place. He concluded that the demographic data are clearly arguably relevant and that the data are not subject to privilege. He held that while employees disclose this self-identification data on a confidential basis, the relationship between an employee and their employer is not the kind of relationship of confidence that gives rise to legal privilege (such as solicitor client privilege, for example), and that arguably relevant confidential information is regularly ordered produced in the context of litigation.
Arbitrator Kaplan held in particular that any harm or chilling effect that might result from disclosure of the data would be significantly outweighed by the benefit of identifying and remedying potential systemic discrimination in pay. As Arbitrator Kaplan put it:
The Association has an incontrovertible interest in ensuring that compensation, which it negotiates, is equitable and non-discriminatory. The grievance alleges systemic discrimination. It would be an extraordinary outcome to deny the Association access to demographic information about faculty members when that information is being sought for the singular purpose of redressing salary inequities.
This case will be a helpful precedent for any union or association that is considering filing a policy grievance regarding systemic discrimination.
One of the challenges in such cases is that the data the union needs to prove systemic discrimination will generally be in the employer’s hands – for example salary and demographic data, or data about which employees are getting certain kinds of positions, or are getting promoted, or other job benefits. The union will need to be able to analyze such data in the aggregate to demonstrate whether there is a pattern based on discriminatory grounds. Employers will often resist disclosure of the data on the basis that the data are so sensitive and confidential that it would be a breach of confidence or employee privacy to disclose the data to the Union.
Helpfully, Arbitrator Kaplan roundly rejected such arguments. He ordered that the data should be disclosed under the normal arguable relevance test, and because disclosure is necessary in order to be able to address and remedy human rights violations.
Lawyers
Emma Phillips, Mary-Elizabeth Dill