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Prof. Rangita de Silva de Alwis’s class discusses employment equity with distinguished guests

March 15, 2021

Eduarda Lague L’21 and Magali Duque L’22 share their observations from the recent International Women’s Day celebration in the International Women’s Human Rights class of Senior Adjunct Professor of Global Leadership Rangita de Silva de Alwis, which included a discussion with the awe-inspiring Honorable Rosalie Silberman Abella, Justice of the Supreme Court of Canada, one of the leading female jurists of our times; Martha Minow, the former dean of Harvard Law School and the 300th Anniversary University Professor at Harvard University; and Clara Spera, a fellow at the ACLU’s Ruth Bader Ginsburg Liberty Center and the late U.S. Supreme Court Justice Ruth Bader Ginsburg’s granddaughter.

Dean Martha Minow, who is the 300th Anniversary University Professor at Harvard University and the former dean of Harvard Law School, introduced Justice Abella with the following insightful account of Justice Abella’s personal narrative and critical contributions to employment equity:

The goal of equality is more than an evolutionary intolerance to adverse discrimination. It is to ensure, too, that the vestiges of these arbitrarily restrictive assumptions do not continue to play a role in our society… . It is not a question of whether this discrimination is motivated by an intentional desire to obstruct someone’s potential, or whether it is the accidental by-product of innocently motivated practices or systems. If the barrier is affecting certain groups in a disproportionately negative way, it is a signal that the practices that lead to this adverse impact may be discriminatory.” These words are from Canada’s 1984 Royal Commission on Equality in Employment. Then-Judge Abella was the author and sole Commissioner. That’s when I first heard of the distinguished and one-and-only Justice Abella.

That is where I learned the concept she invented: “employment equity,” meaning “employment practices designed to eliminate discriminatory barriers and to provide in a meaningful way, equitable opportunities in employment.” This idea and the underlying analysis informed the Supreme Court of Canada in its first decision dealing with equality rights under the 1982 Charter of Rights and Freedom, as well as the governments of Canada, New Zealand, Northern Ireland, and South Africa – and informs ongoing advocacy in the United States.

When a constitutional crisis arose over the role of Quebec in Canada, the national government turned to Judge Abella to chair the Constitutional Conferences, which were set up to deal with the crisis over the role of Quebec within Canada. She also wrote a ground-breaking study on Access to Legal Services by the Disabled. She chaired the Ontario Labour Relations Board and was a leader of law reform. She was the youngest judge in Canadian history, appointed at the age of 29 to the Ontario Family Court (now part of the Ontario Court of Justice). She was apparently also the first pregnant judge in Canadian history. Elevated then to the court of appeals and then to the Supreme Court of Canada, where she became the first Jewish woman in that role. Author of scholarly articles, global lecturer, and visionary jurist, she does justice every day.

Born in a displaced persons camp in Stuttgart, Germany on July 1, 1946, her parents survived the Holocaust. This heritage, her parents’ guidance, and her opportunities in Canada have something to do with her lifelong devotion to human rights, her membership in the United States Holocaust Museum’s Committee on Conscience. Among her many awards and recognitions, The Northwestern Pritzker School of Law’s Center for International Human Rights named her the Global Jurist of the Year in 2016 for her lifelong commitment to human rights and international criminal justice.

Her humanity is all hers and I am so honored by the invitation from your amazing teacher to introduce her to you. Dean Martha Minow

In honoring the spirit of International Women’s Day, Professor de Silva de Alwis also took the time to acknowledge and honor her own teacher, Martha Minow,  longtime advocate of intersectional inclusion and restorative justice, as well as to provide opening remarks to encourage our class to engage further with Dean Minow’s work on equity and inclusion as helpful frameworks to add to our toolkit along with Justice Abella’s employment equity framework.

Professor de Silva de Alwis’s introduction of Dean Martha Minow, 300th Anniversary University Professor Harvard University:

Over the arc of her distinguished career, Dean Minow has reshaped Harvard Law School, and as a legal scholar her ideas have profoundly shaped the human condition and transformed law and justice in our world. Her towering intellect spans such an extraordinary range – from philosophy, to public affairs, to education, to human rights, to the law – that it is nearly impossible to identify her single most important contribution. Given my own background and our class, I am highlighting three of her works.

First, her book Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence. From my own work around the world, including in Cambodia’s Extraordinary Chambers, I observed firsthand how her work was used in transitional justice and restorative justice processes and practices in many countries recovering from conflict. Her book was also pivotal in my own work with Sri Lanka’s now aborted Truth Justice and Reconciliation initiative. Her arguments helped me see that even 11 years after the end of a 25-year civil war, reconciliation remains a process and a challenging imperative.

Second, as we mark the 30th anniversary of her book, Making all the Difference: Inclusion and Exclusion, I reflect on the extraordinary impact it has had on our current public reckoning on the legacy of racism, sexism, ableism, and their intersections. In fact, the book helped to shape this moment and our efforts on inclusion, much before the term “inclusion” became a part of our national vernacular.

More significantly, her case studies in the book on integrated education and the rights of children with disabilities were pivotal to me in helping me make the case to the United Nations for Article 24 of the Convention on the Rights of Persons with Disabilities and in calling for inclusive educational systems for children with disabilities and for intersectional identities such as minority girls with disabilities in Articles 6 and 7 of the Convention.

Third, her latest work, When Should Law Forgive?, is a monumental tour de force on the power of the law to forgive in times such as now. Her philosophy transcends narrow compartments, and she has forever challenged our understanding of justice. As a student of hers, she demonstrates to me the power of law to elevate our understanding of what it means to be human and humane. Her scholarship makes a lasting difference to those who most need it in far corners of the world, children, persons with disabilities, and intersectional groups. Her work draws on an astounding array of moral philosophy, law, and the humanities.

To Dean Minow I owe a debt of gratitude for demonstrating that the majesty of law requires that it be equal and maintains the dignity of all. But today, we thank her for giving us Justice Abella. Professor Rangita de Silva de Alwis

Justice Abella formulated the term “employment equity” meaning “employment practices designed to eliminate discriminatory barriers and to provide in a meaningful way, equitable opportunities in employment.” In her own words as author and sole Commissioner of the 1984 Royal Commission on Equality in Employment, she wrote, “[t]he goal of equality is more than an evolutionary intolerance to adverse discrimination. It is to ensure, too, that the vestiges of these arbitrarily restrictive assumptions do not continue to play a role in our society… . It is not a question of whether this discrimination is motivated by an intentional desire to obstruct someone’s potential, or whether it is the accidental by-product of innocently motivated practices or systems. If the barrier is affecting certain groups in a disproportionately negative way, it is a signal that the practices that lead to this adverse impact may be discriminatory.”

Justice Abella’s words and driving force not only changed the legal framework for analyzing and incorporating equality rights in Canada, but also provided a blueprint and reconceptualized gender discrimination and equity in the legal landscapes of New Zealand, Northern Ireland, South Africa, and the United States.

While Justice Abella’s comments in our class were off the record, her remarks were thought-provoking and inspiring to those in attendance. Lindsay Holcomb L’21 commented that Justice Abella’s insights on American and Canadian democracies were “fascinating” and that the conversation was “easily the best panel I’ve been to at Penn.”

Justice Abella reminds us that equality and discrimination are not just one-dimensional and that real change happens over time. As the speakers mentioned, we need to continue applying law to life. When women are discouraged from negotiating pay, not afforded flexibility after the birth of a child, and leaving the job market soon after graduating from professional and graduate schools, a woman’s self-advocacy is stripped away and not empowered by the institutions. Spera noted how stare decisis can chip away at rights of marginalized groups, especially in the context of reproductive and LGBTQ+ rights, highlighting how critical both jurisprudence and legislation are for protecting women and femme-identifying people.

In order to counteract the potential negative repercussions that stare decisis can engender, perhaps, as Harvard University Professor Hannah Riley-Bowles who spoke from a social scientist’s perspective suggested, there needs to be a shift in thinking purely from a rights-based approach that seeks to penalize demonstrated harm to protected groups but does not recreate systems to prevent harm in the first place.

As Duque asked our group in response to this, “How can we incorporate an understanding of equity that doesn’t necessarily ‘infringe’ on individual liberties or ‘rights,’ which we are so often focused on in American jurisprudence? How can we start to change the way that our legal structures work, as we start and embark on our careers?”

A critical takeaway from the discussion that followed was that equity and equality do not come at the expense of others. Rather, a legal rights approach incorporates equity and equality. Our class will be sure to bring that approach towards our practice as future attorneys.

Justice Abella and the legal scholars we hosted encouraged us to not succumb to the criticisms to change but rather directly object to that type of unproductive criticism and continue to work to include people who have been traditionally excluded. Change may be incremental, but, as Professor de Silva de Alwis reminds us, tenacity and continuing to push the boundaries is necessary to make change for a more equitable society. We have a responsibility to continue to advocate and use tools from those who came before us to continue to address systemic obstacles to the full realization of human rights.

As she quoted from Justice Abella’s report that the class was discussing: “It is not that designated groups are inherently unable to achieve equality on their own, it is that obstacles in their way are so formidable and self- perpetuating that they cannot be overcome without intervention.”

The complete Abella Report to the Royal Commission can be found here.

On this International Women’s Day, the future generation of legal scholars were honored and left to continue the fight led by great legal minds like Justice Abella.