Chapter 1: Equitable inclusion in the changing world of work: Toward supportive & sustainable coverage

Official Title: A Transformative Framework to Achieve and Sustain Employment Equity. - Report of the Employment Equity Act Review Task Force: Chapter 1

Author: Professor Adelle Blackett, FRSC, Ad E, Task Force Chair

On this page

• Introduction: Supportive, sustainable coverage
• Why the focus on employment still matters
• The workplaces covered by the Employment Equity Act framework:
• Employment equity across Canada
• The Canadian population and labour market availability
• Achieving employment equity?
• Are we truly measuring the changing workforce?
• Understanding discouraged workers, overqualification and labour market availability

Introduction: Supportive, sustainable coverage

Much has changed in the world of work since the Employment Equity Act framework was proposed and introduced in the 1980s. This chapter provides an overview of the coverage of the Employment Equity Act framework, then discusses some of the changes. It considers the pros and cons to adapting the coverage in light of the changing world of work.

Our task force repeatedly heard that employment equity concerns all workers, and all employers. If employment equity groups are overrepresented in precarious jobs in the federal sector, we should all pay attention. What workplace measures might bring them meaningfully in to the Employment Equity Act framework?

Some of these measures require societal shifts: like accessible childcare policies and public transportation. They extend beyond any given workplace. Employment equity is just as concerned about those who want to gain equitable access to employment as it is about those who already have that access and seek to maintain it.

We also repeatedly heard that administrative burdens, a lack of harmonization and a lack of sustained support could get in the way of achieving employment equity. Any expansion of coverage needs to pay serious attention to employers’ capacity and workplace capacity more broadly.

Throughout our consultations, we were encouraged to keep our focus on employment equity’s “why” – equitable inclusion in Canadian workplaces, which benefits us all. Equitable inclusion matters, and it needs to be supported to be sustainable.

Why the focus on employment still matters

The focus on the “why” – equitable inclusion – leads us to cover some of the thorniest questions in labour and employment law coverage. They all relate to the Employment Equity Act framework, but distinctly. Take the following three:

First, the Employment Equity Act framework cannot stand alone. It needs to be understood as an important part of a broader, comprehensive law of work. Much of Canadian labor and employment law, including the collective bargaining system, and later minimum standard protections and safety and health at work protections sought to “[reduce] the disparity between the rights of the individual as a worker and [their] rights as a citizen.”^{Footnote 1} Employment equity requires strong surrounding labour and employment laws upholding decent work in the changing workplace. Attempts to reduce the prevalence of precarious work complement attempts to achieve substantive equality at work. In this regard, employment equity coverage is not quite about broad coverage the way much other labour and human rights law imagines coverage.

In other words, and second, the purpose of the Employment Equity Act is to secure social justice through equitable representation of workers, but not just in any jobs. Employment equity is unabashedly about making sure that all workers have an equal opportunity to be represented in good, stable jobs – what internationally, including in the UN Sustainable Development Goal No. 8, tends to be referred to as decent work and economic growth. UN Sustainable Development Goal No. 8 entails “promot[ing] sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all.” Decent work for all was an animating principle for reforms of Part III of the Canada Labour Code, framed by Commissioner Harry W. Arthurs as a “moral imperative to ensure decent working-conditions for the most vulnerable members of the workforce.”^{Footnote 2}

However – for there is always a “however” – some will look at the Employment Equity Act framework in light of this discussion and wonder whether those workers currently covered – that is, employees in largely standard employment relationships - are the workers who “are more in need of assistance compared to vulnerable disadvantaged workers in precarious non-standard jobs, or who are in the bottom of the polarized wage distribution or who have lost their job.”^{Footnote 3} Our task force considered these important views, and found ourselves arriving at a somewhat different conclusion.

Employment equity was never meant to be a complete response, but it can be part of the response, by correcting a distinct set of problems. We agree therefore that historically excluded groups have stood to benefit from employment equity.^{Footnote 4} Alongside and in relation to the other workplace measures that foster substantive equality, namely pay equity, accessibility, and human rights protection, employment equity creates opportunities for equitable inclusion, including, indeed especially, for those who have been excluded and relegated to precarious, non-standard jobs. There is a focus on achieving and sustaining employment equity through the removal of barriers to equal opportunity for all: equitable inclusion of employment equity groups, as a matter of social justice, into good, stable jobs alongside all other workers.

It follows that third, we still need to know what is happening around jobs where the conditions are more precarious, and who is occupying precarious jobs if we are going to be able to foster employment equity. As discussed below, employment equity group members are disproportionately represented in precarious work. They earn disproportionately low wages. They are disproportionately underemployed or unemployed. Despite their education, despite their skills, they are overrepresented in precarious work. Employment equity seeks to correct that inequity. But it is one piece of the puzzle. We repeat: we need a holistic approach to labour and employment law, and an understanding of employment equity’s “why”.

Our first recommendation is to build the “why” more fully into the purpose of the Employment Equity Act.

• correct the conditions of disadvantage in employment experienced by employment equity group members
• give effect to the principle that employment equity means more than treating persons in the same way but also requires barrier removal including special measures
• support the implementation of Canada’s international human rights commitments to substantive equality and meaningful consultations in the world of work, including in the United Nations Declaration on the Rights of Indigenous Peoples, and
• foster equitable inclusion and sustainable economic growth, full and productive employment and decent work for all”

The workplaces covered by the Employment Equity Act framework:

The Employment Equity Act framework applies to the core federal public administration without threshold. Of a total of 228,245 employees in the core public administration, 154,177 have identified themselves as belonging to employment equity groups.^{Footnote 5} It has also been extended to the Canadian Forces and the Royal Canadian Mounted Police. It covers separate federal agencies such as Canada Revenue Agency, where they meet a threshold of 100 or more employees.

The Employment Equity Act framework also applies to federally regulated private-sector employers with 100 or more employees. This includes federal Crown corporations such as Canada Post, as well as a range of other federal organizations like the port authorities. The federally regulated private sector includes approximately 19,000 employers and 1,300,000 employees. For federally regulated employers with 100 or more employees, in 2020, 575 employers submitted an employment equity annual report, covering 739,067 employees across Canada or 3.6% of the Canadian workforce.^{Footnote 6}

The Employment Equity Act makes the Minister of Labour responsible for administering the Federal Contractors Program (FCP). The FCP applies to those who bid for federal contracts worth $1 million or more, with 100 or more employees. The task force was informed that a new iteration of the FCP is expected to be launched in 2024-25 to include requirements based both on the Accessible Canada Act and the Pay Equity Act.

Figure 1.1 shows the breakdown of the entire public service population as of March 2022, comprising 257,577 employees, with a breakdown of the type of contracts that they held:

Text description of figure 1.1

The pie chart shows the following breakdown:

- 214,449 indeterminate employees, an increase of 3.9%.

- 25,420 term employees, an increase of 4.6%

- 10,303 casual employees, an increase of 11.0%

- 7,405 students, an increase of 16.4%.

- The total of 257,577 employees corresponds to an increase of 4.6%.

• Source: Public Service Commission of Canada,  Annual Report 2021–22: Building tomorrow’s public service today (Ottawa: Public Service Commission of Canada, 2022).

The overwhelming majority of workers were on full time, standard, indeterminate/permanent term contracts.

The composition of the federally regulated private sector is reflected in Figures 1.2 and 1.3 below. They show that full time, standard, indeterminate/permanent term employees remain in the majority in the federally regulated private sector.^{Footnote 7} It is important to keep in mind that from the perspective of constitutional law, work that is subcontracted can simultaneously fall outside of federal jurisdiction.

Text description of figure 1.2

Figure 1.2 shows the distribution of the 767,000 employees in the federally regulated private sector, where the number of employers is estimated at 760. Employees are broken down by temporary or permanent status.

• There are 38,300 temporary employees, of whom 10,800 are part-time and 27,500 full-time.
• Of the 10,800 temporary part-time employees, 700 are seasonal, 5,000 are fixed-term or contract, and 5,100 are casual.
• Of the 27,500 temporary full-time employees, 2,600 are seasonal, 20,700 have a fixed-term job or contract, and 4,200 are casual employees.
• There are 728,700 permanent employees, of whom 45,600 are part-time and 683,100 are full-time (qualified as typical employees).
• Of the 45,600 permanent part-time employees, 41,900 work part-time on a voluntary basis, while 3,700 have not chosen to work part-time.

• Source: 2015 Federal Jurisdiction Workplace Survey; 2015 and 2021 Survey of Employment, Payroll, and Hours; 2021 Labour Force Survey. Research and Innovation Division, Labour Program calculations.
• *Federal Crown and Shared Governance corporations are included in the employee counts. Excluded are employees in Indigenous Governments on First Nations reserves.
• **The figure for employers given (760) is directly from the 2015 Federal Jurisdiction Workplace Survey (FJWS). It is higher than the number of employers reporting under the Legislated Employment Equity Program (LEEP) for the 2020 calendar year (575). There could be various reasons for the difference. One example is a difference in how employers are counted: under LEEP, two or more employers who jointly operate related businesses may be authorized to file a consolidated report and would therefore count as one employer, while the FJWS would count each of these employers separately. A second example is a difference in which employees are counted to determine the 100-employee threshold: LEEP does not include all employees receiving a T4 in its count (the Employment Equity Regulations exclude persons employed on a temporary or casual basis for fewer than 12 weeks in a calendar year from that determination), whereas the FJWS does. These examples could lead to the FJWS giving a higher count of federally regulated private-sector employers with 100 or more employees than LEEP.

Text description of figure 1.3

Employee Population	Standard work	Non-Standard work
Canadian employees	76%	24%
FRPS employees	88%	12%

• Source: 2015 Federal Jurisdiction Workplace Survey; 2015 and 2021 Survey of Employment, Payroll, and Hours; 2021 Labour Force Survey. Research and Innovation Division, Labour Program calculations.

Unionization rates are relatively high in the federal public service. In the federally regulated private sector, two-thirds are not unionized. Unionization in the federally regulated private sector also varies significantly by industry. While unionization has been declining in Canada since the 1980s, Gunderson et al note that for women as a group, rates have remained constant. They also note that as concerns employment equity, the decline is essentially in the private sector.^{Footnote 8}

Figure 1.4 below provides the cross-Canada figures:

Text description of figure 1.4

Sex and sector	1981	1997	2022
Men in commercial sector	37.0	26.5	18.6
Women in commercial sector	17.1	13.4	10.2
Men in non-commercial sector	65.7	65.0	65.7
Women in non-commercial sector	60.2	60.3	60.1

• Sources: Statistics Canada, Survey of Work History, 1981; Labour Force Survey, May 1997 and May 2022
• Note: Main job held in May by employees aged 17 to 64. The commercial sector includes all industries except educational services, health care and social assistance, and public administration.

In the public sector generally, 77.2% were covered by a collective agreement in 2021, an increase from 74.7% in 1997. Public administration coverage rates are at 75.5%. The decreases were in the private sector, where 21.3% were covered in 1997 while 15.3% were covered in 2021. In the federally regulated private sector, in contrast, 34% were covered by a collective bargaining agreement, according to Figure 1.5 below.

Text description of figure 1.5

Year	Unionization rate in public sector	Unionization rate in private sector
1997	69.8	19.0
1998	70.1	18.8
1999	70.4	18.1
2000	70.0	18.4
2001	71.4	18.2
2002	72.3	17.9
2003	72.0	18.1
2004	71.9	17.5
2005	71.0	17.5
2006	71.0	17.1
2007	71.0	16.8
2008	71.0	16.2
2009	71.2	16.2
2010	71.8	15.9
2011	70.9	15.8
2012	71.5	16.1
2013	71.9	15.9
2014	71.3	15.2
2015	72.3	15.0
2016	73.0	14.6
2017	72.0	14.9
2018	71.8	14.3
2019	72.6	14.5
2020	74.4	14.3
2021	74.1	13.8

• Note: Due to rounding, estimates and percentages may differ slightly between different Statistics Canada products, such as analytical documents and data tables.
• Source: Statistics Canada, Labour Force Survey, custom tabulation

Text description of figure 1.6

Employees covered by collective bargaining agreement	Employees not Covered by collective bargaining agreement
66%	34%

• Source: Federal Jurisdiction Workplace Survey, 2008 and 2015; Federal Mediation and Conciliation Service’s Industrial Relations Information System, 2022. Research and Innovation Division, Labour Program calculations.

Employment equity across Canada

Québec is the only other jurisdiction with a comprehensive legislative approach to employment equity covering the public service and a broad range of public sector institutions including state enterprises and corporations whose board of directors is appointed by the government; universities, colleges (Cégeps) and school boards; municipal employers including transit authorities, public health care institutions, and the Sûreté du Québec.^{Footnote 9} Québec also has legislation on employment equity in public procurements.

Finally, the Québec Charter of Human Rights and Freedoms also permits employment equity programs. They may be either voluntarily proposed by the employer or recommended by the Québec Human Rights and Youth Rights Commission following an investigation. If the Commission’s recommendation is not followed, it may seek an order of a tribunal to enforce it. An important example of a tribunal order occurred in the case of Gaz Metropolitain.^{Footnote 10} Québec’s significant leadership on proactive measures, including on pay equity, is referenced throughout this report.

Initiatives in the 1990s to extend employment equity to the private sector in Ontario and British Columbia faced significant backlash.^{Footnote 11} In British Columbia, the Public Service Act gives agencies the discretion to develop employment equity programs.^{Footnote 12}

Saskatchewan references employment equity and diversity in its Public Service Act (ss. 3(d), 11(2)(c) and 22(e) of the accompanying regulations. It covers Aboriginal peoples, persons with disabilities and visible minorities. It limits women’s coverage to management and non-traditional occupations.^{Footnote 13}

The Nunavut Land Claims Agreement specifically foresees preferential hiring for Inuit workers. A number of modern treaties and self-government agreements include references to the employment of First Nations, Métis and Inuit workers. Their development offers an important basis for understanding how the Employment Equity Act framework can be transformed. They are discussed at greater length in Chapter 3.

Several other jurisdictions across Canada extend employment equity policies, programs and action plans within their public services. For example, the province of Newfoundland and Labrador has an employment equity program specifically for persons with disabilities. Some other jurisdictions specifically focus on Indigenous workers (e.g., Northwest Territories, Ontario). Ontario has also established goals through its anti-racism strategic plan for hiring Black employees. Nova Scotia has employment equity policy guidelines that empower provincial departments to post positions that are restricted to employment equity groups where the position matches an employment equity group, and the union has granted its permission. Its employment equity groups are Aboriginal people, African Nova Scotians and other racially visible persons, persons with disabilities and women. The Yukon’s employment equity plan includes women, Indigenous people and persons with disabilities.

Canada seems far away from the harmonization encouraged internationally. But a strengthened federal Employment Equity Act framework that considers examples across Canada can help.

The Canadian population and labour market availability

Canada’s total population according to the 2021 Census is over 36 million people, with 30 million over the age of 15. Of that number, the national Labour Market Availability (LMA) is calculated at 20.6 million people. LMA is calculated on the basis of Census data and the Canadian Survey on Disability.

For clarity, the LMA benchmarks are derived from estimates of workers, with relevant recent experience. As a result, the Canada wide workforces for women, Aboriginal peoples and members of visible minorities were derived from the non-student population aged 15 and over who worked some time within the 17 months previous to the 2021 Census (worked in 2020 or 2021). Two challenges built into the calculation of LMA are discussed later under discouraged workers and occupational segregation.

Table 1.1. Total population in private household and workforce for women, Aboriginal peoples and members of visible minorities - (2021 Census)

Population	Total	Men	Women	First Nations, Métis and Inuit peoples	Members of racialized populations
Total population	36,328,475	17,937,165	18,391,315	1,807,250	9,639,200
Percentage of total population	100.0%	49.4%	50.6%	5.0%	26.5%
Population 15 years & over	30,335,915	14,861,245	15,474,675	1,348,040	7,721,915
Percentage of population 15 years & over	100.0%	49.0%	51.0%	4.4%	25.5%
Workforce population	20,630,515	10,690,035	9,940,490	857,775	5,519,790
Labour market availability (LMA)	100.0%	51.8%	48.2%	4.2%	26.8%

• Source: Statistics Canada, Census 2021

Canada’s workforce participation rates hover around 65.9% of the total population but hit an all-time low of 59.7% during the pandemic in April 2020.^{Footnote 14}

The Labour Market Availability above is calculated for men, women, Indigenous persons and racialized groups (visible minorities) based on the Census 2021, released in 2022. Compared to the 2016 Census, the total workforce population increased by 3.4% from 19,956,255 in 2016 to 20,630,520 in 2021. Women, Aboriginal peoples and members of visible minorities increased by 3.4%, 6.8% and 29.5% respectively.

A few features are noteworthy.

• First, the availability of First Nations, Métis and Inuit populations has been growing steadily since 1996, with the largest proportion within the 25 – 34 age group (23.3%). They are the largest growing youth population.
• Second, women made up a slightly higher proportion of the racialized population as a whole (51.7%) than that of the population not belonging to the racialized employment equity group (50.8%). Yet overall, women’s actual labour market availability has remained at 48.2% since 2011.
• Third, the availability of racialized groups continues to grow and grew rapidly between 2016 – 2021, from 21.3% availability to 26.8% labour market availability. Statistics Canada projects that 2 out of 5 people in Canada will be racialized Canadians by 2041.^{Footnote 15} Close to 80% of the racialized or visible minority population as a whole was made up of the following five subgroups: South Asian (27.0%), Chinese (18.8%), Black (14.8%), Filipino (10.1%) and Arab (6.6%).

Of the racialized population as a whole, Japanese and Black populations have the highest percentages of third-generation workers (that is, born in Canada to Canadian-born parents) – 31.7% of Japanese workers and 5% of Black workers.^{Footnote 16}

In the labour force, 44.9% of racialized groups held a university certificate, diploma or degree at bachelor level or above, compared to 26.8% not belonging to a population included in the racialized employment equity group. Education levels for racialized populations are high, and often exceed the population average.

Conspicuously absent in Table 1.1 above, based on Census 2021 data, are corresponding data providing the labour market availability of persons with disabilities. New data on disabled workers come available approximately a year after Census data are released. The Canadian Survey on Disability, which comes available every 5 years, uses a more inclusive set of filter questions to identify persons with disabilities than the Census. Over time it has improved coverage of a range of disabilities. The 2022 Canadian Survey on Disability data were collected from May – October 2022, and data are to be available in late 2023. The workforce population for persons with disabilities comprises persons aged 15 to 64 who worked anytime between 1986 and 1991; 1996 and 2001; in 2011 or 2012; and in 2016 or 2017.

The 2022 survey includes questions on barriers to accessibility, in keeping with the approach that emerges from the Accessible Canada Act. Below is a table that introduces the most recent information available:

Table 1.2: National labour market availability (percent)

Census cycle	1996	2001	2006	2011	2016	2021
Women	46.4	47.3	47.9	48.2	48.2	48.2
First Nations, Métis and Inuit Peoples	2.1	2.6	3.1	3.5	4	4.2
Members of racialized populations	10.3	12.6	15.3	17.8	21.3	26.8
Persons with disabilities	N/A	5.3	4.9	4.9	9.1	N/A

• Source: Census (1996, 2001, 2006, 2016, 2021), National Household Survey (2011) and Canada Participation and Activity Limitations Survey (2001, 2006) and Canadian Survey on Disability (2012, 2017)

While the most recent available data on the population of persons with disabilities in Canada dates from 2017, Statistics Canada, through the use of its projection tool, Demosim, predicts stability in the population of persons with disabilities.

Table 1.3: Projected share (%) of persons with disabilities among the active population aged 15 and over in Canada, 2016-2024

Persons with disabilities	2016	2018	2020	2022	2024
Canadian citizens and immigrants without Canadian citizenship	15.9	15.9	15.8	15.8	15.7
Canadian citizens only	16.5	16.4	16.4	16.4	16.4

• Source: Demosim 2021, using a variant of the scenario Medium growth for the Indigenous populations from “Projections of the Indigenous populations and households in Canada, 2016 to 2041: Overview of data sources, methods, assumptions and scenarios”, with participation rates continuing the 1995-2019 trends and 2016-2020 counts of births, deaths, immigrants and emigrants adjusted to match the most recently available estimates. Demosim’s disability rate calculation is based on the 2017 Canadian Survey on Disability (CSD), Statistics Canada’s main source of data on disability for the non-Indigenous population, alongside modelling using the 2017 Aboriginal Peoples Survey (APS), the main source of information on disability for Indigenous people. Statistics Canada, “Projecting Disability with Demosim” (undated document provided to the task force).

Not surprisingly, the available workforce in Canada is overwhelmingly urban.

Yet employment equity applies not only to fast growing central metropolitan areas and other urban spaces, but also to non-metropolitan areas and rural spaces with populations of less than 10,000 inhabitants. Rural Canada comprised 17.8% of the population in 2021. Although this number is down from 18.7% in 2016, rural populations have grown significantly in some parts of the country, including Nunavut. The pandemic with its work at home mandates has also led workers to move to locations with lower density, including rural communities.

Rural areas are far from monolithic. And urban spaces may or may not be remote. Consider that most of Canada’s population (88.0%) live in the municipalities that make up only 6.1% of Canada’s landmass. Consider too that half of the people living within municipalities identified as Indigenous communities live in remote areas of Canada.^{Footnote 17} Targeted internal mobility and immigration are occurring into rural communities in specific industries and include temporary migration into agriculture. These phenomena extend far beyond that familiar image, however, and can be the site of creativity, initiative and stimulus for inclusion.^{Footnote 18}

The demography matters. Equitable workplace inclusion is important throughout Canada, and opportunities for innovation will vary. They warrant our ongoing attention as the Employment Equity Act framework is rethought.

Achieving employment equity?

More granular data for each employment equity group – current or as proposed – will be presented in Chapter 3. We have presented enough data to provide a sense of some key features of the general labour market.

As discussed in the introduction, the federal workplace is a small percentage of the whole. From the information currently available, how have federal employers – within the public service and private sector - fared? Are they making reasonable progress on their goals to represent workers at the level at which they are available in the relevant labour market (attainment rates)? Are they achieving and sustaining employment equity?

Federal public service

In the 2020-2021 annual report released on 13 July 2022, the core public administration through the Treasury Board secretariat reported that it had met its targets for women and visible minorities as composite groups in all but the executive hiring level. The share of hires and promotions from Indigenous peoples and persons with disabilities is below their representation within the core public administration. Moreover, they acknowledged that “some subgroups of visible minorities do not have the same experience as others in the recruitment processes,”^{Footnote 19} offering based on the Public Service Commission’s 2021 audit that “of all visible minority groups, Black candidates experienced the greatest decrease in representation between the job application and appointment stages (from 10.3% to 6.6%).”^{Footnote 20}

The Treasury Board Secretariat currently relies on a benchmark prepared specifically for its needs, workforce availability (WFA).

WFA is a subset of the labour market availability figures used by private sector employers. It is used to assess the representation or attainment rates in the federal public service. To determine WFA, additional criteria are applied to the labour market availability (LMA) population. They include education levels specific to the public service, and for a long time included a citizenship criterion. The WFA factors have significantly narrowed the availability of workers primarily in the racialized populations group, at times making it look like this group was overrepresented in the core administration of the federal public service when the measure used by most other employers would have told a different story. Some of this gap has recently been reduced, because the Public Service Employment Act was changed to include permanent residents on June 29, 2021. With that change, the rationale for calculating a separate WFA for the public service may also have been significantly reduced. The differences between workforce availability and labour market availability for most other employment equity groups, including First Nations, Métis and Inuit workers, and workers with disabilities are so low, and the representation challenges so persistent, that our task force was left to wonder whether energies might not be better spent, elsewhere – notably by focusing on barrier removal.

Private sector employers – both those that are federally regulated (the Legislated Employment Equity Program, LEEP) and those that are included in the framework through the Federal Contractors Program (FCP) – establish plans to set their own “short term” goals to redress representation gaps. The Labour Program reports that overall, for the 562 federally regulated private sector employers that reported data for all four designated groups in 2020, the attainment rate has been declining for women workers since it reached its highest point in 1990 at 99.4% - in 2020 it was at the lowest rate, 81.0%.The remaining 13 employers in 2020 were reporting for the first time, and so are not included in these trends.^{Footnote 21}

For Indigenous workers, while from 1987 – 2000 there has been an upward trend, some of that was due to the way in which the Labour Market Availability was calculated. However, since 2001, the attainment rate has remained largely the same, and it is only at 59.9% in 2020.

For workers with disabilities, changes to the calculation of the Labour Market Availability also affected the attainment rates. While there was an observed increase of 29.4% in 1987 to 67.0% in 2016, with the new LMA the attainment rate was re-calculated at 36.4% in 2017 and sits at 43% in 2020.

Finally, for members of racialized groups, the attainment rate has been above 100%, sitting at 122.1% for 2020. Yet the report does not disaggregate so those members of different sub-groups within the visible minorities category that are underrepresented remain unknown under this manner of reporting. Moreover, the report is based on Census information that is now dated; recall that racialized groups’ availability grew by over 5% in the period between the 2016 and 2021 Census.

Text description of figure 1.7

Year	Attainment rate (%) women	Attainment rate (%) aboriginal peoples	Attainment rate (%) persons with disabilities	Attainment rate (%) members of visible minorities
1987	93.0	31.4	29.4	79.3
1988	95.3	34.0	31.2	90.0
1989	96.6	37.7	43.3	105.9
1990	99.4	40.6	44.3	112.5
1991	96.3	32.1	38.6	83.1
1992	97.3	33.7	39.1	86.9
1993	99.1	34.8	39.5	88.5
1994	96.7	36.7	40.4	90.4
1995	96.9	39.1	42.0	97.1
1996	96.6	57.9	40.9	89.3
1997	96.0	61.3	35.6	93.9
1998	95.2	62.7	34.8	95.7
1999	96.1	69.4	36.8	101.2
2000	94.3	70.3	35.7	103.6
2001	94.8	59.8	43.2	92.6
2002	93.9	63.9	44.3	97.0
2003	93.0	63.6	43.8	101.0
2004	91.8	64.7	48.0	105.5
2005	91.5	67.8	50.9	111.6
2006	89.9	57.1	54.5	97.5
2007	89.2	61.2	55.0	103.8
2008	88.9	60.5	54.3	108.3
2009	88.2	60.8	54.2	111.9
2010	87.0	62.7	53.1	116.1
2011	85.5	56.4	52.2	102.1
2012	84.9	58.4	53.5	104.7
2013	86.2	60.7	55.4	110.0
2014	85.8	60.9	56.6	114.7
2015	85.1	63.1	60.4	119.0
2016	84.5	57.0	67.0	104.0
2017	83.3	57.9	36.4	107.1
2018	81.8	57.1	37.5	111.8
2019	81.9	57.8	37.9	114.5
2020	81.0	59.9	43.0	122.1

• Sources: Statistics Canada, 1986 to 2016 Census; 1986 and 1991 Health and Activity Limitation Survey; 2001 and 2006 Participation and Activity Limitation Survey; 2011 National Household Survey; and 2012 and 2017 Canadian Survey on Disability, Reproduced from Employment and Social Development Canada, Labour Program, Employment Equity Act Annual Report 2021, (Ottawa: Employment and Social Development Canada, 2021) at 10.

These results varied by sector. The largest percentage of both employers (67%) and employees (41%) is found in thetransportation sector. The banking and financial services sector accounts for over a third of all employees (34.7%) albeit 7.7% of the employer population. The communications sector is the third largest sector with 10.9% of employers and 16.2% of employees. The Employment Equity Act Annual Report, 2021 also showed variation by salaries, disaggregated by gender.

There was no discussion of other barriers. However, the Labour Program has in other information highlighted the importance of barrier removal:

Representation rates are an indicator of compliance, but the purpose of the EEA is to remove barriers and correct under-representation. When the Labour Program notices that there has been non-compliance and that goals have not been met, it opens a dialogue with the employer on the measures put into place and to identify whether there are circumstances beyond the employer’s control. The Labour Program therefore follows up and monitors the efforts of the employer in setting up new targets. The Labour Program tends to adopt a collaborative approach with employers, based on an open and frank dialogue.

Labour Program, July 2021

Finally, the Labour Program’s Employment Equity Act Annual Report, 2021 contained a brief discussion of the Federal Contractors Program (FCP) and the Workplace Opportunities: Removing Barriers to Equity (WORBE) grants and contributions initiative designed to support private-sector employers to improve representation.

Are we truly measuring the changing workforce?

“As our economy increasingly relies on precarious, low-wage, contract-based work, higher numbers of workers and jobs will not be covered by employment equity legislation, a consideration that must be taken into account and addressed in the Act’s modernization. … A strengthened Employment Equity Act that considers and addresses the current realities of Canada’s workforce and the labour market is a critical tool needed to overcome the barriers to decent work for those belonging to communities that have been marginalized and who continue to face unstable, often dangerous work for low pay.”

Canadian Labour Congress, Submission to the EEART, April 2022

Employment equity challenges exclusionary barriers to workplace access. Some may consider it as a rather technical, even niche topic. But a clear message came through our broad consultations, study of the law, statistics and expert reports: employment equity is central to labour law in Canada and a crucial component of what makes work fair.

In employment equity, we might have gotten so caught up in looking at where we want workers from employment equity groups to be able to work that we lose sight of them even when they are working in the same workplaces but under different contractual forms. The workforce in Canada has changed dramatically since the 1980s when employment equity was conceived and introduced into law. Non-standard or precarious work became a pronounced feature of Canadian workplaces around the time that the Employment Equity Act was first adopted in 1986. Are we capturing the workplaces we need to capture?

Much has been written about these changes. They can be summarized in the broad strokes that follow, but one point needs to be recognized: workers in employment equity groups have tended to be overrepresented in non-standard, precarious work. Most of the implications of the broad strokes canvassed below are addressed in Chapter 7, alongside technical recommendations for comprehensive coverage.

Offshoring and Canada in the world

The risk of employment moving elsewhere has been a core concerns about globalization. Canada has committed to open trade relationships with the world. Increasingly this commitment is recognized to include respect for fundamental principles and rights at work – including equality – and the effective enforcement of labour laws.^{Footnote 22}

Offshoring work to other countries affects a broad range of industries. In federal jurisdiction, it may be epitomized in the public imaginary by telecommunications customer services provided by call-center workers abroad.

Researchers acknowledge that multinationals can have a complex impact on social policy. Some research shows that beyond country of origin of the multinational enterprise, unions are a strong predictor of compliance across foreign multinational enterprises in Canada, with a focus on Ontario.^{Footnote 23} Sometimes social policy initiatives become more important in an increasingly integrated world and the basis of competition. This is not necessarily negative: state provided healthcare may for example be considered a comparative advantage for businesses to settle in Canada. Studies focused specifically on employment equity are limited, however. So far, researchers have not identified a clear convergence or divergence between the Employment Equity Act framework and offshoring of work to the United States, although they have called for more evidence.^{Footnote 24} The uncertainty may relate to the shifting legal landscape on affirmative action and the rise of voluntary EDI in the United States.^{Footnote 25} Enforcement of employment equity in Canada has also been characterized as weak.^{Footnote 26} The results of our task force’s consultations seem relevant too: there is broad acceptance of employment equity as an important feature of a diverse Canadian society, economy and workforce. We may come to understand this broad acceptance, coupled with a supportive framework to achieve and sustain employment equity, as a source of Canada’s competitive advantage in a plural world.

From large to small employers

There has been a general societal move from large to small employers. The features of the move are important. David Weil vividly calls the changing workplace the fissured workplace:

Fissured workplaces:

Like rocks split by elements, employment has been fissured away from … market leaders and transferred to a complicated network of smaller business units.

David Weil, Enforcing Labour Standards in Fissured Workplaces (2011) 22:2 The Economic and Labour Relations Review 33 at 36.

Sub-contracting, contracting-out or outsourcing, the use of employment agencies, franchising and self-employment are all important parts of this picture. The Canadian Labour Congress considered that outsourcing was a matter of concern for the viability of the Employment Equity Act framework.^{Footnote 27}

The variations are multiple, and so is the degree of dependency between a traditional, standard employment relationship and a fully independent contractor. The following was observed as early as 2002 for employers under the Federal Contractors Program (FCP):

Changes in the context in which FCP operates have major implications and present challenges for the administration and implementation of the program. For example, the declining size of Canadian private sector companies over the past decade means that fewer companies meet the FCP's 100+ employee threshold and therefore fewer firms are covered. Also, as a result of mergers and acquisitions, the definition of the contracting organization may become less clear. For example, a small company may own 5 subsidiaries with a workforce of 500 employees, but not appear to be covered by FCP if the parent company has only 79 employees. Some of Canada's most prominent corporations, which were previously covered by FCP, were found in this research to be classed as having under 100 employees, because of outsourcing, and were therefore no longer covered by the program.^{Footnote 28}

Our task force observed that fissuring workplaces pose a challenge to coverage under the Employment Equity Act framework, not only for employers under the FCP but also for some public service agencies and federally regulated private sector workplaces where the size of the workplace is near the threshold.

There is one further important observation: fissured workplaces are reported to concentrate a high degree of labour violations in low wage work, where employment equity groups tend to be overrepresented.^{Footnote 29}

Precarious workers

Not only has labour and employment law long excluded many precarious workers.^{Footnote 30} The workers it has tended to exclude are overwhelmingly workers from employment equity groups. Employment equity group members have tended to be overrepresented in precarious work, that is, “forms of work for remuneration characterized by labour market insecurities such as degree of certainty of continuing employment, low income, lack of control over the labour process, and limited access to regulatory protection.”^{Footnote 31}

Temporary employees are one example of precarious workers. As explained in Chapter 7, they are to some extent already covered under the Employment Equity Act framework. They may, however, be recruited by temporary agencies. Temporary employees may be considered to be the employees of the temporary agencies that recruited them under some labour, employment or social security laws, and the employees of the federally regulated public service or federally regulated private sector employer under others.

More generally, there is a tendency to assume that precarious workers are in low wage work that is often considered to be low skilled. Yet precarious workers may also be professional workers. Precarious professional workers are those working full time in positions without pension plans or sick days, or with unpredictable incomes or work schedules, and correlated with relatively low professional earnings. They are not necessarily younger or less experienced than professionals in more secure positions. They are primarily women.^{Footnote 32}

Demographic factors also intersect; researchers underscore the extent to which racialized immigrant workers, alongside racialized workers more generally, regardless of their place of birth, tend to have lower earnings than the population at large.^{Footnote 33} The 2017 Aboriginal People’s Survey conducted by Statistics Canada, which focused on participation in the economy by First Nations people living off reserve, Métis and Inuit, reported that for nearly a third (31%) of First Nations people working part time, part time work was not a choice.

Approximately 30% of precarious workers are in the public service.^{Footnote 34} In its 2020-21 report on hiring, the Public Service Commission noted that hiring of indeterminate workers had decreased by 27.4%, while term employment was up by 14.9%. Overall, hiring activity was down by 15.5%, with casual employment down by 18.5% and student employment down by 32.1%.^{Footnote 35} We were told that the pandemic explained some of this practice.

The Canadian Association of University Teachers (CAUT) noticed that based on their own workforce surveys, equity groups tend to be under-represented in tenured or tenure-track, full-time employment yet starkly overrepresented in precarious, term-limited, part-time or contract academic job categories.^{Footnote 36} Some of the workforce covered by CAUT falls under the federal Employment Equity Act framework through the Federal Contractors Program.

Precarious workers become a specific concern for employment equity when employment equity groups are overrepresented in precarious work. If a covered employer has a lot of diversity in precarious work and not so much in senior management, we should have that full portrait for the purposes of the federal Employment Equity Act framework.

Who tends not to be covered?

The key question ought to be “to whom should labour law apply” not “is that person an employee?”

Judy Fudge, Eric Tucker & Leah Vosko, The Legal Concept of Employment: Marginalizing Workers, Report for the Law Commission of Canada, 2002, at 122.

In precarious work, it might be challenging to identify who is the employer, as workers may be self-employed or autonomous workers.

When workers are in fact employees but have been mischaracterized, this problem should be acknowledged and addressed. The importance of accurate classification is recognized internationally in the ILO’s Employment Relationship Recommendation, 2006 (No. 198) and in Canadian case law – including under the Income Tax Act and increasingly in relation to recent forms of work organization typified by “uberization.”^{Footnote 37}

Broader, more inclusive coverage for workers has extended beyond narrowly defined employment contracts, notably under the Canadian Human Rights Act and through the coverage of dependent contractors in Part I of the Canada Labour Code.

For employment equity, the issues present themselves somewhat distinctly. That is because the goal is equitable inclusion. Equitable inclusion is a challenge to the overrepresentation of employment equity groups in precarious work. We must therefore go back to first principles and ask: what categories of employment should be covered under an Employment Equity Act framework to ensure that employment equity group members are equitably included in the workplace?

Understanding discouraged workers, overqualification and labour market availability

One of the challenges that our task force wanted to address was the need to obtain a strong portrait of what it means to be a discouraged worker. Our related concern was to identify whether overqualified workers were potentially structurally mis-identified in employment equity benchmarks.

In the Canada-wide Labour Market Availability benchmark, employment equity data concerns itself with the following criteria: labour market participation, unemployment, income and ultimately, occupational segregation.

As concerns discouraged workers, we know that the benchmark does not include workers who have been absent from the labour market for 18 months or more. Some of those workers are discouraged workers, who are taken out of the labour market not because they do not want to find work, but because they do not think they can find suitable work.

As concerns overqualified workers, the benchmark calculates availability in relation to one of the 14 occupational groups identified in the Employment Equity Regulations:

• senior managers
• middle and other managers
• professionals
• semi-professionals and technicians
• supervisors
• supervisors: crafts and trades
• administrative and senior clerical personnel
• skilled sales and service personnel
• skilled crafts and trades workers
• clerical personnel
• intermediate sales and service personnel
• semi-skilled manual workers
• other sales and service personnel, and
• other manual workers

We were concerned that the benchmarks that we are using may prevent us from seeing those who have taken themselves out of the labour market, due to discouragement.

We were also concerned about something that experts and representatives of employment equity groups have been telling us for some time: might employment equity data collection lead us to take their overrepresentation in occupations below their qualification level for granted, treating it as if it is the ‘natural’ state of affairs and overlooking the inequity?^{Footnote 38}

Consider for example that the Filipino population has similarly high educational levels to other racialized populations, but they are underrepresented in occupations that require a bachelor’s degree or higher. They are even overrepresented in occupations below their qualification level relative to other members of racialized groups who earned foreign degrees.^{Footnote 39}

Something else is happening. We need to recognize that a significant number of Filipino women came to Canada under various versions of the Caregiver Program, which recruits workers without permanent resident status and with degrees such as registered nurse. Those workers take care of families in Canada, then face hurdles to have their degrees recognized and to exercise their profession if and when they receive permanent residency in Canada. Without reducing this to a single story, it is important to recognize that there have also been intergenerational challenges for those who are subsequently able to bring their families to Canada.^{Footnote 40} This phenomenon has been widely discussed in the social science literature, both as it relates to members of the Filipino community in Canada, and to members of Black communities in Canada who faced similar trajectories in immigration from the Caribbean since 1955.^{Footnote 41} According to the 2021 Census, nurses aides, orderlies or patient service attendants in the health care sector are 14.6% composed of Filipino workers and 15.6% composed of Black workers.

From the perspective of employment equity, the combination of overrepresentation and occupational segregation raises a foundational challenge: it reflects a problem for how labour market availability is actually calculated. The problem is commonly captured by the doctor driving a taxicab. That problem gets complicated by the range of qualifying requirements that lead a newcomer to Canada who must put food on the table for the family to accept the job that does not do justice to the qualifications. When, as we will see in Chapter 4, it is possible to identify whole occupational categories that embed overqualification and treat persons with higher qualifications as available only for the lower qualification, we are building a measure of availability on the basis of pre-existing structural barriers, rather than removing the barriers.

In sum: the length of time it takes to meet licensing requirements could be a barrier. The policy objective may be entirely legitimate: ensuring public safety. But the adverse impact on racialized groups may well warrant us to address the root problem, as a society, and the calculation of labour market availability needs to support that work.

Take a look at the data made available through new data visualization tools by Statistics Canada on 29 March 2023. It shows racialized populations’ degree of “overqualification” – defined as people with a bachelor’s degree or above (at bachelor's level or above) who, during the current year or the year prior to the census, held a position usually requiring a high school diploma or equivalency certificate or less.

• The “visible minority” population as it is currently defined was 22% overqualified.
  • Filipino workers (44.9%)
  • South Asian workers (23.9%)
  • Black workers (23%)
  • Latin Americans (21.3), and
  • the multiple visible minority workers (21.1%) had the highest overqualification rates.
• These percentages compared with 10.8% of the population that is not visible minority.
• Even when one controls for those admitted to Canada more than 10 years ago, the rates remain disproportionately high,
  • at 17.8% for visible minorities as a whole
  • with Filipino workers (31.5%)
  • South Asian workers (21.2%)
  • Latin American workers (18.5%)
  • Japanese workers (17.7%), and
  • Black workers (16.9%) having the highest overqualification rates
• These percentages compared with 9.6% for the population that is not visible minority^{Footnote 42}

Barrier removal is not just an employer responsibility. It is also a societal responsibility. And barrier removal is a feature of the chosen benchmark, which enables employers to achieve and maintain the representation numbers required under the Employment Equity Act. How we calculate this will be discussed in Chapter 2 on data justice.

There is occupational segregation: It is horizontal segregation, for example where women and men are concentrated in different jobs, as well as vertical segregation, where women occupy lower positions in the same occupations than men.^{Footnote 43} We are increasingly able to identify the extent that these patterns affect a range of equity groups.

Have a look too at the distribution of the lowest and highest paid occupations in Canada – full year, full time – under the 2021 Census, presented in full in Appendix L.

• Based on the most recent available statistics, the lowest paid occupations, we find hairstylists, bartenders, taxi and limousine drivers and chauffeurs and home childcare providers. Hairstylists are 82.6% women; taxi and limousine drivers and chauffeurs are overwhelmingly racialized men (93.5% men; 57.3% racialized).
• Among the highest paid occupations, we find judges, senior managers in both the public and private sectors, petroleum engineers, and specialists in surgery. There are a total of 1370 men+ judges (53.1%) and 1205 women+ (46.7%); of those totals, only 80 judges are Indigenous, and 155 judges are racialized including only 30 Black judges. In the ten other categories, the underrepresentation of women, Indigenous and visible minorities is significant.

The takeaway is clear: of the 10 lowest paid occupations using the National Occupational Classification, either women or racialized populations predominate.

As we discuss throughout this report, we are deeply concerned about the unavailability of detailed information for persons with disabilities. Our task force was repeatedly informed that discouragement is a phenomenon that is particularly important for persons with disabilities.

We discuss these findings in greater detail in Chapter 3. But it is important to state this clearly at the outset: the persistence of occupational segregation faced by employment equity group members is disarming.

We therefore need to know what is happening to discouraged and to overqualified workers for more reasons than might immediately be recognized.

If workers with doctorates who drive taxis are simply being captured as taxi drivers, we have a problem.

Employment equity – for all its number crunching – will miss these workers. We need the data that allow us to capture this overrepresentation and to remove the barriers that prevent those workers from getting the job opportunities for which they are qualified.

We need to rethink the data collection, to foster data justice.