What does equity really mean for regulators?
Equity is just one piece of the DE&I puzzle and, as gatekeepers to professional practice, regulators are also an important part, since they impact the livelihoods of applicants and licensees, argues Cara Moroney.

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The preamble to the Declaration of Independence famously states:  

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. 

It was, at the time, an aspiring and inspiring statement. However, the meanings within it have hopefully been expanded as society has evolved. First and foremost, the fact that it only states “men” is now seen as outdated. And, if it were written as “men and women,” this too would not be seen as inclusive enough. Perhaps even staunch environmentalists that argue animals and plants should have legal standing would not be happy with “all people.” 

And then there are the following words: “are created equal.” At first glance, this does not seem like something to be argued. But, here again, as society has progressed and learned more about itself, the idea of equality has given way to the idea of equity, because treating everyone equal does not necessarily mean we will achieve equality. In fact, it can have the opposite effect of perpetuating systematic inequalities.  

Equality vs. equity 

How can treating people equally lead to inequality? Simply because treating everyone the same does not address the fact that we are not all born in equal circumstances. We all have different characteristics, experiences, and backgrounds. Let’s take an example of a public library: The idea of equality would instruct us to let anybody into the library to read a book regardless of race, color, creed, gender, etc. But what if the library was only accessible from a small set of stairs leading to the entrance doors? In this scenario, despite the library being open to everyone, many people with disabilities may not be able to walk up the stairs and through the doors. For a better idea of what equity means, you may recall this helpful illustration. 

Equity can be said to be the process of allowing everyone equal opportunity of access by addressing some of the systemic inequities faced by many groups. Equity is a process and equality is the outcome. For regulators, this does not mean lowering the standards of the profession or entry into the profession, but providing opportunities for those who do not possess the same resources to better meet the standards or requirements. 

Entry-to-practice exams can present unintentional barriers that undermine equity 

A prime example of one area where regulators are being challenged is entry-to-practice examinations. Although not a new issue,  examinations are increasingly examined very carefully to ensure they don’t present barriers. These barriers might be unintentional as questions could result from unconscious bias or simply because exam writers are not a diverse enough group. The clearest examples are exam questions that contain terms or scenarios that are not part of certain exam takers’ realm of knowledge or experience. For illustrative purposes, the famous SAT question below garnered much controversy years ago for being inherently biased:   

RUNNER: MARATHON 

A) Envoy: embassy
B) Martyr: massacre
C) Oarsman: regatta
D) Horse: stable 

The correct answer is C. However, this answer was seen as biased against students, particularly black, who did not come from an affluent background where they would be familiar with the sport of rowing. Many entry-to-practice exams also contain case study questions which follow with a series of questions. If the scenario involves a situation not familiar to certain groups, then they risk getting several questions incorrect, thus making passing the exam and by extension, entering the profession, harder to achieve. By ensuring that questions have the potential to be answered correctly by all candidates who adequately prepare for the exam, we are creating equitable opportunities for candidates of all demographics to enter a profession. The pass rate remains the same for everyone and the question difficulty does not have to be compromised to create equity.  

A recent legal case demonstrates that examinations found to create an “adverse impact” on applicants can be challenged successfully. In Ontario Teacher Candidates’ Council v. The Queen (2021), the applicant sought a review that the Mathematics Proficiency Test (MPT), the standardized math test required for entry into the teaching profession in Ontario, violated a section of the Canadian Charter of Rights and Freedoms that speaks to equality before and under the law. The court found the requirement did breach the Charter and was not justifiable. The evidence presented and accepted by the court was that there is a “disproportionate impact” and “significant disparities” in the results from standardized exams on racialized applicants. The court found that there were likely less discriminatory methods of applicant testing which would still achieve a goal of better mathematics programs in schools. The literature presented to court also showed that the adverse effect the exam was having on applicants severely hampered the overall diversity within the teaching profession. In the end, the MPT was struck down as unconstitutional.  

Of course, many exams, or questions within an exam, are not written to intentionally discriminate, but the effect is discriminatory nonetheless and must be addressed. Part of the remedy is to have a more diverse group of exam question writers, but this alone is not the solution as culturally biased questions can still make it into an exam.  

Data collection and transparency also important for regulators to achieve equity 

The other big component in achieving equity is data. Some exam developers, associations, and regulators are collecting very specific demographic data about exam applicants and tracking that across each question’s scoring as well as exam pass rates as a whole and, moreover, making the data public. For instance, the National Council of Architectural Registration Boards (NCARB) has an entire section of their website devoted to data and has been publishing an annual report called “NCARB by the Numbers” for 10 years. The introduction to the 2021 report acknowledges that data from 30,000 test takers still reveals “troubling disparities” faced by candidates of color, women, and older candidates. The report states that this data is “further affirming to us the critical necessity of promoting greater equity and inclusion work by NCARB through its data analytics and its programmatic design and implementation, as well as by other leaders and organizations within the greater architecture community.”  

The report contains data on many other aspects of the profession relating to demographics and not just exam performance, providing important insights into the many dimensions of diversity in the profession.   

Regulators or associations that are not transparent about their data may face a backlash from the profession, as has been seen in the social work profession. Many social work educators have been calling for more information on the pass and fail rate of candidates, but the Association of Social Work Boards (ASWB) has failed to fully deliver. In response to an open letter by the CEO of ASWB in December 2020, there are further calls for open data 

As calls for ‘open data’ will undoubtedly grow louder, the concept of equity is present in the data itself. “It is no longer believed that data are impartial and neutral.” Regulators and associations who want to use data to better achieve equity, diversity, and inclusion will need to take care to ensure the data itself is equitable. Diving into how to achieve data equity is beyond the scope of this article and certainly requires many different types of expertise at the table. It is mentioned here simply to illustrate that equity cannot be assumed, particularly given the historical and systemic discrimination that many groups having experienced.  

What is important for regulators is to be prepared that the data is likely not to be favorable and not to present a rosy picture of equity, diversity, or inclusion. In some ways, that is to be expected given how entrenched society’s structural discrimination is. The goal is not to prove oneself equitable at the outset, but to start with transparency and a commitment to use equitable data to drive changes in various policies and systems. And, as stated at the beginning of this article, equity is a process as much as an outcome. It is important for regulators to demonstrate that they truly understand what equity means, learn to be uncomfortable with what the data is likely to show, and indicate a deep obligation to pursuing equity.  

Equity is essential for more meaningful level of diversity and inclusion 

Equity is a nuanced concept requiring sensitivity and an open mind. Equity is not just a definition or something that regulators learn about and put on a website; it is a practice. Equity is essential if we are to move to a more meaningful level of diversity and inclusion, which themselves are unique concepts that also require a deeper understanding.  

Equity is just one piece, but a very important piece, of this puzzle. And regulators are also an important part of the equation – as gatekeepers to the practice of a profession, they have significant impact on the livelihoods of applicants and licensees. If regulators strive for equity, diversity, and inclusion, we will see this reflected in the professions themselves, and hopefully, more greatly in society as well. Hopefully we will find the truths of equity also to be self-evident.

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Cara Moroney
Written byCara Moroney
Cara Moroney is a lawyer with extensive experience in professional regulation in Canada. She investigated cases of serious misconduct at the College of Nurses and led the professional conduct department at the College of Kinesiologists of Ontario, later serving the Law Society of Ontario as Compensation Fund Counsel.

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