Chapter 3: Rethinking equity groups under the Employment Equity Act framework

Official title: A Transformative Framework to Achieve and Sustain Employment Equity - Report of the Employment Equity Act Review Task Force: Chapter 3

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

[T]he underlying causes of discrimination and de facto inequalities, resulting from deeply entrenched discrimination and long-standing social exclusion, cannot effectively be addressed without proactive measures.

The task force was asked to consider what changes should be made, not only to the names and definitions of the current Employment Equity Act “designated groups,” but also to the understanding of “employment equity groups.”

Names matter and virtually everyone who came before our task force agreed that much of the terminology in the Employment Equity Act needed to be modernized. Employer associations, unions, community groups and researchers, alongside international treaty bodies, have urged the government to modernize the language in the Employment Equity Act framework to ensure that it aligns with careful, intersectional, contemporary understandings and concerns of First Nations, Métis and Inuit workers, workers with disabilities, Black and racialized workers, and 2SLGBTQI+ workers.

Our first recommendation is in that spirit. In keeping with our focus on the purpose of achieving and sustaining substantive equality, is that they should be referred to as “employment equity groups”:

The challenge extends beyond naming and defining. Equitable inclusion matters too. It was heartening to hear employers, governmental actors, workers and a range of concerned communities make the case for broad Employment Equity Act inclusion.

Similarly, umbrella categories used in the current legislation - “women”, “Aboriginal Peoples”, “persons with disabilities” and “visible minorities” - can inadvertently lead us to miss the fact that disadvantage is historically rooted. They can also obscure significant differences in experiences and the specific barriers faced by each equity group, as well as by sub-group members. Finally, they run the risk of masking the barriers created at the intersections of grounds of discrimination such as race, gender and disability.

Our task force was reminded by the outgoing United Nations Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, Professor Tendayi Achiume, that barriers tend to reflect historical injustice; international human rights law requires discriminatory practices to be combatted at a structural level so they cease to be barriers for equity groups; for anti-racism, this requires race-conscious remedies that undo discrimination, rather than so-called “colorblind” approaches.^{Footnote 1}

What’s in a name? Terminology matters

In proposing to rename the categories, this report takes an additional step: we have deliberately chosen to identify members of each employment equity group as workers. The notion of work and workers is discussed in broad, non-technical terms, in the report’s spirit of inclusion. Through the broad notion, the report also discusses the changes to the scope of the Employment Equity Act that require attention.

The term worker is used in a deliberately non-technical manner. The language is meant to include. Those who wish to work, even if they have become discouraged from entering or re-entering the Canadian labour market, are considered workers. Those who undertake unpaid childcare work at home and have difficulty entering the workforce as fully as they might like are considered workers. Those whose paid employment is to care for another person in that person’s home, yet earn far less than they might if they were hired according to their formal professional educational level as a nurse, are considered workers. Those who are self-employed yet earn far less than they might if they were hired according to their formal educational level as an engineer are considered workers. Those who have occupied a range of immigration statuses upon arrival in Canada are considered workers. Those who have been misclassified through the use of contractual arrangements that disguise their true legal status as employees are covered in our discussions with the language of workers. Employment equity is about identifying and removing barriers. The language we choose should convey this inclusive approach.

This inclusive approach is guided by the ILO’s non-binding Employment Relationship Recommendation, 2006 (No. 198), which encourages ILO members like Canada to review their laws to ensure that they “guarantee effective protection for workers who perform work in the context of an employment relationship.”^{Footnote 2} Our approach shares some similarities with the broad, non-technical definition of work for statistical purposes in the ILO Resolution concerning statistics of work, employment and labour underutilization, 2013 which allows a range of forms of work, including the own-use production work, employment work, unpaid trainee work, volunteer work, and other work activities to be considered for the purposes of understanding the barriers that may affect workplace participation.^{Footnote 3}

The Task Force’s report also draws inspiration from the ILO’s Violence and Harassment Convention, 2019 (No. 190), Article 2, which is designed to provide broad coverage and protec[t] workers and other persons in the world of work, including employees as defined by national law and practice, as well as persons working irrespective of their contractual status, persons in training, including interns and apprentices, workers whose employment has been terminated, volunteers, jobseekers and job applicants, and individuals exercising the authority, duties or responsibilities of an employer” as well as appl[y] to all sectors, whether private or public, both in the formal and informal economy, and whether in urban or rural areas.

History matters

In response to the first concern, this report is anchored in the specific histories of all employment equity groups. The historical discussion is particularly pronounced for three:

• First Nations, Métis and Inuit peoples because of the significant change in understanding of Canada’s nation-to-nation or government-to-government relationship with Indigenous peoples and the responsibility for truth and reconciliation
• Black workers because of the specific request in our mandate to consider whether this sub-group of the current ‘visible minority’ category should be considered a separate employment equity group, and
• 2SLGBTQI+ workers, because of the specific request in our mandate to consider whether to include them within the Employment Equity Act framework.

Engagement sessions were filled with reminders of the importance of taking the time to understand group members’ lived realities. The inequitable workplace practices experienced by members of employment equity groups are far from abstract. Consistent with its focus on substantive rather than formal equality, employment equity should move us away from a hypothetical, abstract approach to the workplace, and toward a grounded approach that takes history seriously. History offers a way to ground in the actual, lived experiences of unfair practices that serve as barriers to equitable representation in the workplace.

A caution is necessary, however. By looking closely at historical disadvantage, this report does not suggest that historical disadvantage is required to establish that discrimination has occurred under Canadian law; it is not, and international treaty bodies have similarly reaffirmed this point.

History can be helpful to the exercise of identifying employment equity groups because it informs how group members understand themselves and their shared experience of disadvantage, which has often occurred over time and through specific forms of exclusion. The shared experiences help to shape the coherence of the groups proposed to be covered by the law, and shape how each group is identified.

Yet “[r]elations across group-based diversities must be relations of equality.”

Attention to history helps us to acknowledge that while each of the employment equity groups is in one way or another a composite of many subgroups, sometimes the composition of the groups may prevent us from fully appreciating the persistence of forms of exclusions faced by some members of the group.

This message was compellingly communicated by Black workers about their inclusion in the already widely criticized category termed “visible minorities”. In redefining and including equity groups, it was important to pay attention to whether inclusion in the same group could perpetuate rather than assist in removing workplace barriers.

For all workers, and in particular for First Nations, Métis and Inuit workers, it was important to take into account the magnitude of the change in relations – in this case, nation-to-nation relations or government-to-government relations – terms that we use interchangeably - and the impact of the change on the kind of framework we build into our common future.

First Nations, Métis and Inuit: Redefining relationships in the wake of truth and reconciliation

Introduction

Reconciliation is about forging and maintaining respectful relationships. There are no shortcuts.

The review of the EEA is an opportunity to build better relationships with Indigenous people and to work towards reconciliation. Engagement and consultation with Indigenous people are key to work towards reconciliation.

Our task force concludes that it is time to rethink the manner in which First Nations, Métis and Inuit peoples are included in the Employment Equity Act framework. Transformative change includes but extends beyond terminology and self-identification practices. It includes rethinking the framework to support First Nations, Métis and Inuit economic self-determination.

Framing Indigenous peoples as one equity group alongside others misses the nature of the relationship between Indigenous peoples and the Canadian state. Indigenous peoples in Canada are nations. They include approximately 634 First Nations, in addition to Inuit and Métis governments, and stand 1.8 million people strong. The foundations of the relationship have also been powerfully, and importantly, called into question. Volume 2 of the report of the Royal Commission on Aboriginal Peoples states it plainly:

We know … that this country was not terra nullius at the time of contact and that the newcomers did not ‘discover’ it in any meaningful sense. We know also that the peoples who lived here had their own systems of law and governance, their own customs, languages and cultures.^{Footnote 4}

We must reckon with the challenge of this starting point. It literally changes the landscape. It is central to imagining alternatives that are resolutely built on Indigenous rights and recognition. The reckoning is happening in Canada, through the United Nations Declaration on the Rights of Indigenous Peoples, which has been incorporated into Canadian law through the United Nations Declaration on the Rights of Indigenous Peoples Act,^{Footnote 5} and in international organizations such as the Organisation for Economic Co-operation and Development (OECD).^{Footnote 6}

Affirming nation-to-nation or government-to-government relationships is pivotal to rethinking employment equity as it concerns First Nations, Métis and Inuit peoples going forward. Métis constitutional law scholar Josh Nichols and Anishinaabe chair of Indigenous constitutionalism and philosophy, Aaron Mills argue the following:

When Canadians chose to constitutionally recognize the inherent rights of Indigenous peoples in s. 35 of the Constitution Act, 1982 they repudiated the prejudices of the colonial past and affirmed that Indigenous peoples are equal to all other peoples and, like other peoples, they have a right to self-government.^{Footnote 7}

Canada’s colonial past is increasingly acknowledged and set out in detail in key reports, including the Reports of the Royal Commission on Aboriginal Peoples, the Report of the Truth and Reconciliation Commission of Canada, and the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls.^{Footnote 8} It is also the subject of international attention:

Addressing violence against women is not sufficient unless the underlying factors of discrimination that originate and exacerbate the violence are also comprehensively addressed. The IACHR [Inter-American Commission on Human Rights] stresses the importance of applying a comprehensive holistic approach to violence against indigenous women. This means addressing the past and present institutional and structural inequalities confronted by indigenous women in Canada. This includes the dispossession of indigenous lands, as well as historical laws and policies that negatively affected indigenous people, the consequences of which continue to prevent their full enjoyment of their civil, political, economic, social and cultural rights. This in turn entails addressing the persistence of longstanding social and economic marginalization through effective measures to combat poverty, improve education and employment, guarantee adequate housing and address the disproportionate application of criminal law against indigenous people. These measures must incorporate the provision of information and assistance to ensure that indigenous women have effective access to legal remedies in relation to custody matters.

It bears recalling: the majority of First Nations adults have either attended or have at least one member of their family who attended an Indian Residential School.^{Footnote 9} Court cases are also increasingly offering comprehensive discussions of the colonial history including the long life of federal Indigenous assimilation policies.^{Footnote 10} Holistic responses are critical.

Canadian courts increasingly acknowledge the historical right to self-government that flows from Indigenous peoples’ original sovereign rights over their land, and that is now enshrined in Section 35 of the Constitution Act, 1982. The Auditor General of Canada, in an audit of programs for First Nations on reserves, considered that “First Nations members generally face far greater challenges than those confronting Canadian society as a whole, whether they live on or off reserves,” including higher unemployment.^{Footnote 11} The First Nations Information Governance Centre reports that emotional well-being was higher among those who were working, as compared with those who were not. First Nations who were working also reported having relatively higher levels of social support compared with those who were not working.^{Footnote 12}

These reports also contain key teachings about the power and responsibility of relationships for ending violence and fostering transformation. They are grounded in the foundational right of self-determination that emerges through the United Nations Declaration on the Rights of Indigenous Peoples.

The International Labour Organization’s Indigenous and Tribal Peoples Convention, (No. 169), which Canada has not yet ratified, and the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), which Canada has ratified, are often addressed together with the United Nations Declaration on the Rights of Indigenous Peoples by the ILO to reinforce Indigenous peoples’ rights in relation to land and employment. The ILO urges ratification of Convention No. 169 as a way to abide by Convention No. 111. For the ILO, not only do states have an obligation to recognize Indigenous peoples’ rights to land, territories and resources; failure to do so can undermine Indigenous peoples’ “right to engage without discrimination in traditional occupations and livelihoods”.^{Footnote 13} The ILO has called on members to reinforce their efforts to redress discrimination and promote equality of opportunity and treatment in employment and occupation for Indigenous peoples.^{Footnote 14}

The teachings in the extensive reports that have helped to shift the narrative on Indigenous rights in Canada should root how we approach transforming the Employment Equity Act framework.

The Truth and Reconciliation Commission of Canada, in order to redress the legacy of residential schools and advance Canadian reconciliation, has specifically issued a call to action for the corporate sector in Canada:

This call to action, and its invocation of the United Nations Declaration on the Rights of Indigenous Peoples as the framework to be applied, structures the focus of our task force’s work on employment equity. It is a basis for how the Employment Equity Act framework might be reimagined, based on meaningful consultations with First Nations, Métis and Inuit peoples.

Terminology and the Employment Equity Act

The Employment Equity Act uses the term “Aboriginal peoples”, defined as “Indians, Inuit or Métis”. This is the language used and defined under Section 35(2) of the Constitution Act, 1982. In addition, the Supreme Court of Canada has clarified that the reference to the word “Indian” or “Indians” in Section 91(24) of the Constitution Act, 1867 in its historical, philosophical and linguistic contexts “includes all Aboriginal peoples, including non-status Indians and Métis.”^{Footnote 15} The Supreme Court of Canada has also recognized that the term “Indians” was “created by European settlers and applied to Canada’s Aboriginal peoples without making any distinctions between them.”^{Footnote 16} There is an obligation to remedy the harms of “internal colonization”, a term used to include the Truth and Reconciliation Commission’s concept of “cultural genocide”, to recognize that the practices occur within Canadian jurisdiction.^{Footnote 17} The obligation applies to all Indigenous peoples and individuals, including individuals “who may no longer be accepted by their communities because they were separated from them” for example through government policies like residential schools.^{Footnote 18}

The entry into force of the United Nations Declaration on the Rights of Indigenous Peoples Act, S.C. 2021, c. 14 (UNDRIPA) puts the question of Indigenous self-determination squarely on the table, consistent with Article 33(1) and (2) of the United Nations Declaration on the Rights of Indigenous Peoples, 2007 (UNDRIP).

It is important to update the language in the Employment Equity Act, and the task force recommends that the language of “Indigenous peoples” be adopted with a distinctions-based approach, in other words, one that specifically identifies First Nations, Métis and Inuit peoples. The language as updated should be clearly understood to be consistent with the Canadian constitutional coverage of all Aboriginal peoples of Canada. A specific reference to Section 35 of the Constitution Act, 1982 and Section 91(24) of the Constitution Act, 1867 would be advisable.

A note about statistics on First Nations, Métis and Inuit

“The quality and reliability of data related to the Indigenous population is generally high in Canada compared to other OECD countries with Indigenous populations and draws on consistent and therefore comparable definitions of Indigenous groups. Reliance on the national census and specific population-based surveys has been a detriment, however, to a fuller understanding of the state of Indigenous businesses and communities.”

Accurate data are crucial for addressing employment equity for First Nations, Inuit and Métis peoples. In 2019, the OECD urged that Indigenous communities and institutions should be involved in decision-making about ongoing data collection. For data sovereignty reasons linked to First Nations Principles of ownership, control, access and possession (OCAP), Canada labour force surveys are not collected on reserves.

There are initiatives underway that move us toward consultative approaches to data governance and data justice. They include the recent British Columbia Anti-Racism Data Act, discussed in Chapter 2, which rightly puts consultations and collaboration with First Nations and Métis communities at the forefront.

We heard that the data gap gives the appearance of workforce shortages, which could then be used to justify relying on migrant workers. The task force urges the federal government to prioritize government to government, meaningful consultations with Indigenous peoples over the data gap in labour market information, notably on reserves, which arises as a result of unresolved data sovereignty issues.

Census 2021 data confirm that First Nations, Métis and Inuit youth are the fastest growing youth population. Below is the most recent population data from Census 2021, which shows the percentage of the total First Nations, Métis and Inuit population compared to the population at large in Canada with corresponding educational levels:

Text description of figure 3.1

Highest certificate, diploma or degree	Total population	Indigenous population	Non-Indigenous population
No certificate, diploma or degree	30.24%	45.66%	29.13%
Certificate, diploma or degree	69.76%	54.34%	70.87%
Secondary (high) school diploma or equivalency certificate	40.03%	38.95%	40.11%
Apprenticeship or trades certificate or diploma	3.58%	3.44%	3.59%
College, CEGEP or other non-university certificate or diploma	11.84%	7.49%	12.16%
University certificate, diploma or degree	14.30%	4.47%	15.01%
University certificate or diploma below bachelor level	1.65%	0.76%	1.72%
University certificate, diploma or degree at bachelor level or above	12.65%	3.70%	13.30%
Bachelor's degree	10.94%	3.33%	11.49%
University certificate or diploma above bachelor level	0.61%	0.14%	0.65%
Degree in medicine, dentistry, veterinary medicine or optometry	0.11%	0.02%	0.12%
Master's degree	0.96%	0.19%	1.02%
Earned doctorate	0.02%	0.01%	0.02%

• Source: Employment and Social Development Canada, Chief Data Officer, Census 2021, LAB 68-69.

The 2021 Census indicates that the average full-time, full year employment income of First Nations, Inuit and Métis peoples with a university bachelor’s degree or above was 11.4% lower than that of the non-Indigenous population. The difference was significant across all age groups. While the average income of non-Indigenous populations in the same demographic was $98,800, for First Nations, the income was 15% lower, at $83,900; and 8.5% lower for Métis, at $90,400. For Inuk/Inuit people, the income was slightly higher at 2.6% or $101,400.

Text description of figure 3.2

Indigenous identity	Total - gender	Men+	Women+
Total - Indigenous identity	$98,500	$114,000	$83,600
Indigenous identity	$87,500	$100,500	$80,400
First Nations (North American Indian) single identity	$83,900	$95,600	$78,500
Métis single identity	$90,400	$104,400	$81,600
Inuk (Inuit) single identity	$101,400	$106,800	$99,000
Multiple Indigenous responses	$83,000	$97,200	$76,600
Indigenous responses not included elsewhere	$94,800	$106,800	$86,800
Non-Indigenous identity	$98,800	$114,200	$83,700

• Source: Employment and Social Development Canada, Chief Data Officer, Census 2021, LAB 120

The First Nations Information Governance Centre, drawing on a holistic lifelong learning model, prepared a cross-sectional survey that measures early childhood development, education, and employment among First Nations children, youth and adults living in First Nations reserves and Northern communities. The rooted model values sources and domains of knowledge that include a world of people, including the self, family, ancestors, clan and community, and represents the coexistence of Indigenous knowledges with Western knowledges. The model recognizes lifelong learning as a journey across life stages that includes home, community, school, land as well as workplace. It encompasses four dimensions of personal development, that include the spiritual, emotional, physical and mental through which learning is experienced. And the model encompasses community well-being, focusing on the social, economic, spiritual and political conditions that influence and are influenced by the learning process.^{Footnote 19}

The employment results of the First Nations Information Governance Centre were contextualized, and often included seasonal work in rural or isolated First Nations communities. The results did not include traditional work that contributes to the local economy but is unpaid, such as hunting, fishing or caring for children and Elders. Based on these parameters, the survey found that

• close to half of First Nations adults were working at the time of the survey (men, 44.9%; women 44.5%), with close to two-thirds of those between the ages of 40 – 49 working.
• First Nations governments and organizations were a major employer of First Nations adults (and youth) in First Nations communities.
• The main sectors of employed First Nations adults included
  • First Nations government or organizations (40.5%)
  • educational services (9.8%)
  • agriculture, forestry, fishing and hunting; mining, quarrying and oil and gas extraction as well as utilities (8.1%)
  • health care and social assistance as well as public administration (7.7%), and
  • construction (7.5%)
• From an occupational perspective,
  • 22.6% assumed jobs as labourers
  • 19.3% were in professional or technical occupations, and
  • 17.1% were managers and administrators or more senior staff
  • Personal and protective service staff accounted for 14.8%, while
  • clerical or secretarial staff were 10.4%
• While most worked full-time, a significant proportion worked less than 30 hours per week in their main jobs, one third due to a lack of suitable opportunities, and in other cases to care for others.
• The survey found that 22.1% of those who were working had a main job located outside of a First Nation. Reasons ranged, with some high sampling variability, from
  • a lack of jobs in community (51.7%)
  • higher wages (38.7%)
  • job security (6.2%), or
  • advantages and services such as on-site day care or proximity to children’s schools or pension plans (3.4%)
• Importantly, the survey also identified main reasons why First Nations adults chose to work within a First Nations community, including
  • to be close to family (29.4%)
  • to give back to community (22.9%)
  • for financial reasons (17.6%)
  • to build capacity in community (14.8%)
  • to stay connected to their culture, language and traditions (8.7%)
  • to create opportunities for others (3.7%)
  • alongside other reasons (2.9%).^{Footnote 20}

The report recognized the importance of First Nations governments and organizations as public-sector employers, but lamented among other features the lack of job opportunities for First Nations communities and the impact on out-migration. It called for policy makers to pay close attention to the barriers to employment within and outside of First Nations communities, and improvements in the investment climate to foster employment opportunities.^{Footnote 21}

The report provided nuance on the relationship between work experiences and wellness, adding that work environments in which First Nations cultures are not understood and respected can lead to a lack of trust and resentment among First Nations employees, undermining wellness. The report called for the “positive association” between language, culture, and traditions in communities and the well-being of First Nations and potential employment.^{Footnote 22}

According to the 2021 Census, there were 70,545 Inuit people living in Canada, with 69% living in Inuit Nunangat. Based on the 2016 Census, the 2017 Aboriginal Peoples Survey released in 2019 found that more than half (52%) of Inuit aged 15 or over were employed (53% for Inuit women and 51% for Inuit men). Of that number, 79% held permanent employment, while 21% worked part-time. The Aboriginal Peoples Survey paid particular attention to the land-based economy, which included reporting on contributions beyond the wage economy. The “livelihoods” approach to the mixed economy in Inuit Nunangat is important and should not be dichotomized into work and non-work. It included questions focused on whether respondents participated in activities such as hunting, fishing, trapping, gathering of wild plants, and making clothing, footwear, jewelry, carvings, drawings or more, as well as the reasons for participating in these activities. The survey results show that 85% of Inuit living in Inuit Nunangat participate in at least one of these activities, and when they do, they do so often. They do so for many reasons, including for 29% to supplement income.

It is important to underscore the youth dimension of these statistics. Indigenous youth are significant labour market entrants, including in rural communities. This has effects both in rural and urban communities, with due regard to the plural character of rural Canada discussed in Chapter 1. The nature and quality of employment options available to First Nations, Métis and Inuit youth should be a number one policy priority.^{Footnote 23}

The Imperative of meaningful, good faith consultations

[A]ny new and revised legislation must be supported by robust yet collaborative mechanisms with Indigenous governments, organizations, and peoples to take into account jurisdictional scenarios and operational realities. This includes questions and decisions around how the federal government will work closely with Indigenous people in order to build, support and implement any new changes in applicable legislation.

Decisions of the Supreme Court of Canada recognize that the Canadian government has a context-specific duty to consult and accommodate (that is, adapt, harmonize, reconcile) the interests of First Nations, Métis and Inuit peoples when Aboriginal rights are at issue; the duty will vary based on the circumstances.^{Footnote 24} While the Supreme Court of Canada has developed principles ranging from meaningful, good faith consultation with the intention of substantially addressing the concerns of Indigenous peoples whose lands are at issue, to informed consent in the case of established rights, these principles emerge from the specific context of proving the existence of Aboriginal rights through lengthy litigation, so may not be well suited to supporting “the negotiated construction of a constitutional order” for Indigenous self-determination.^{Footnote 25} They hold potential, however, for rethinking relationships beyond the existing Employment Equity Act framework.

In particular, Indigenous peoples have the right to participate in decision-making in matters that would affect their rights. This right is to be exercised “through representatives chosen by themselves in accordance with their own procedures”. They also have the right to “maintain and develop their own indigenous decision-making institutions.”^{Footnote 26}

Free, prior and informed consent “before adopting and implementing legislative or administrative measures that may affect them” is the hallmark right of Indigenous peoples, defined in Article 19 of the United Nations Declaration on the Rights of Indigenous Peoples. It requires Canada to undertake good faith consultation and cooperation with Indigenous peoples through their own representative institutions to obtain that free, prior and informed consent.

The UN Human Rights Committee, while reaffirming Supreme Court of Canada decisions, recommended that Canada “should consult indigenous people to … seek their free, prior and informed consent whenever legislation and actions impact on their lands and rights.”^{Footnote 27}

This rights-based approach to meaningful consultations frames how our task force has engaged with transformative approaches to the Employment Equity Act framework.

A discussion of self-identification in the Employment Equity Act framework

The question of the sufficiency of self-identification under the EEA is, without question, a key barrier that needs to be addressed. … [W]hile many Indigenous people today allow that self-identification is necessary, few accept that it’s sufficient.

Indigenous identity is not a one-size fits all approach; instead, it should more accurately reflect the fluidity of the changing Indigenous-settler relationship and landscape, including the changing nature of First Nation, Inuit, and Métis inter-relations. Each of the Indigenous distinctions-based groups interprets identity quite differently.

The Employment Equity Act has been built on the premise of self-identification. Yet increasingly, there is a call to step back.^{Footnote 28} What are the legacies of colonialism and the Indian Act that make reliance on the self-identification process alone particularly fraught? What are the implications for self-identification of an approach to Indigenous identity that is at once relational and “actively lived as resurgence”, that is “constructed, shaped and lived?^{Footnote 29} And once that work has been done, can the Employment Equity Act framework contribute to building better processes that “honour Indigenous self-determination, practices, and approaches”^{Footnote 30} into the future?

It needs to be stated clearly from the outset: the issue of Indigenous self-identification can only be determined through meaningful consultations with First Nations, Métis and Inuit peoples.

For the task force, it was obvious that our role cannot be to resolve a matter that is rightfully the subject of meaningful consultations and free, prior and informed consent of First Nations, Métis and Inuit peoples. Our goal is to raise important questions that affect how Section 9(2) of the Employment Equity Act on employee self-identification and Section 18(4) on employer reporting on those who have self-identified should be applied.

Our task force was informed that the Government of Canada has specifically committed to close consultations, in particular on the issue of “community acceptance,” given the complexity of self-identification.^{Footnote 31}

The report offers a discussion of some of the key issues that have been raised through our consultations, with special attention to Canada’s obligations under the UNDRIP Act. The discussion benefits from the outstanding discussion paper prepared by Mohawk strategic communications advisor Carolyn Laude for Deputy Minister Wilson, and the incisive analysis provided by Josh Nichols and Aaron Mills. Through the Employment Equity Act Review task force secretariat, our task force also undertook extended engagements and commissioned reports from leading First Nations, Métis and Inuit organizations to inform its reflections.

We were told that for First Nations, Métis and Inuit peoples, addressing the issue of self-identification could hardly be more urgent; it is also painful and fraught. The question of self-identification is profoundly connected to the legacies of colonialism. And the question of identity fraud has come to be understood as a particularly problematic exercise of privilege in the face of persistent underrepresentation of Indigenous peoples in most federally regulated workplaces across Canada.

It is hurtful to First Nations, Métis and Inuit to have to contend with non-Indigenous individuals claiming Indigenous status.

Those who misrepresent themselves as Indigenous may ironically be favoured because they can readily “fit in” or “adapt” to a status quo that is already familiar to them, while First Nations, Métis and Inuit continue to face systemic inequality including barriers within the workplace. That so many public institutions, including universities, appear to have been relying on self-identification alone has been increasingly criticized and has led to some significant reviews of current practices.^{Footnote 32} Whatever the reasons, leading Kanien’kehá :ka anthropologist Audra Simpson states the challenge forcefully:^{Footnote 33}

Indigenous people are quite literally being replaced by non-Indigenous people in these cases. The fallout of that is profound. The perspective that is supposed to be sought is not being acquired. Indigenous peoples are not being represented. In fact, white people are basically hiring themselves. Until there is a proper verification process that involves First Nations and Métis and Inuit Peoples, this is going to continue. It is a farse, it’s a ruse, it’s a farse. And it will continue. There is no reason for them not to. Clearly there are serious ethical and moral lapses that are baked into the self-identification process. Unless there is verification, unless Indigenous peoples are understood to be political communities that govern themselves and can understand and communicate their membership to others, these folks will continue to tick boxes, take up space and speak over and for us.

We were also told, notably by the Métis National Council in its consultations with our task force, that the right of Indigenous governments to determine for themselves who their citizens are, without the federal government infringing on that, is tightly tied with Indigenous self-government, consistent with the United Nations Declaration on the Rights of Indigenous Peoples. The Métis National Council pointed to their own registry, and expressed cautions about approaches from the federal government that make self-identification a Crown responsibility. They also acknowledged the concern to avoid discrimination against Indigenous peoples during the hiring process, considering that self-identification itself should be on a need-to-know basis.^{Footnote 34}

Self-identification in the federal public service

Internal reconciliation with Indigenous employees cannot occur if anti-racism policies are also not part of the equation... In order to better promote and support reconciliation across the country and throughout society, there is a need to start within our own house within the public service.

The task force’s largest engagement session was with Indigenous federal public service employees. They stressed the complexity and challenge of self-identification. In this consultation and in others, the task force was told that the painful paradox is real: it takes courage to self-identify.^{Footnote 35} Many Indigenous workers expressed concerns to us about self-identifying as First Nations, Métis or Inuit for the purpose of employment equity. They know the weight of stereotyping and discrimination, so took their decisions carefully. One former federal employee was reluctant to self-identify as First Nations because their university rendered them ineligible for financial aid on the false assumption, a stereotype, that their First Nation would finance their education. Because of that experience, the employee was afraid to self-identify in the federal workplace.

These reflections echoed some of the statistical data prepared in the report of the Interdepartmental Circles on Indigenous Representation, which in 2017 noted based on their analysis of science-based occupational groups and senior levels of economics and social science services, that Indigenous employees were promoted at a lower rate (19.9%) than those not self-identifying as Indigenous (25.4%), although they had a slightly higher rate of lateral transfers (25.2%) than employees who did not self-identify as Indigenous (24.7%).^{Footnote 36}

“I completed all the hoops I was told I must get through but then you hit the Indigenous ceiling and get pushed back. There is a point at which being labelled as an Indigenous employee becomes a barrier”.

So, we witness in this day and age the combination of instances of identity fraud by non-Indigenous individuals who claim preferential treatment, alongside First Nations, Métis or Inuit workers who hesitate to self-identify for fear of facing further discrimination.

While there is an urgent need to address the self-identification issue, solutions are far from simple. They involve dealing seriously with the legacies of colonialism.

The Office of the Privacy Commissioner offered some reflections on verification regimes in the public service context. Verification could support the accuracy of personal information, but its reasonableness would depend on the context. It added that verification of employment equity self-identification could not involve collecting more personal information than is necessary for the purpose for which it is collected. It called for great thought and consideration in devising any systematic verification scheme. They considered that the need and responsibility for establishing the scheme should be contained in the Employment Equity Act itself.^{Footnote 37} The Office of the Privacy Commissioner urged consultation with Indigenous communities, noting that some wish to be custodians of Indigenous personal information.

The federal government requires an Affirmation of Indigenous Identity Form (effective 1 November 2022, replacing the Aboriginal Affiliation Form) to be completed by a candidate who has self-declared as an Indigenous person, and where one of the following conditions applies:

• the area of selection is limited to Indigenous peoples
• an organizational need is used to increase the representation of Indigenous peoples
• an inventory of Indigenous candidates or a student employment program approved by the Treasury Board of Canada Secretariat is used to increase the representation of Indigenous peoples

According to the Government-wide approach to the Affirmation of Indigenous Identity Form, if one of the circumstances applies, then the form is a condition of employment. The Government of Canada affirms that the form was originally developed following concerns raised by Indigenous groups and in consultation with them. Managers and human resources professionals are informed that they are not to ask applicants to substantiate their Indigenous ancestry, but if they have doubts they are to consult the Public Service of Canada’s investigations directorate for advice.

Dangers abound. A study commissioned by the Deputy Minister Champion for Indigenous Federal Employees and Women, Gina Wilson, identifies significant concerns with a process that emphasizes collecting accurate and complete self-identification data as a basis to see whether policies and programs are being effectively implemented, but does not consider how systemic racism continues to operate.^{Footnote 38}

Deputy Minister Wilson herself stated poignantly how systemic racism operates:

[W]ithout a rigorous EE legislative and policy framework supported by disaggregated data sets to engage managers in distinctions-based staffing measures and deliberate strategies to reduce EE gaps that include a sound understanding of Indigenous Peoples, self-identification based on self-perception can inadvertently reinforce flawed assumptions about what it means to ‘be Indigenous’ and create the perception of identity and culture theft and act as a form of colonialism. It also pushes us to think about how best to breathe life into Indigenous ways of belonging as part of the Employment Equity Act review and how to support the good work of Indigenous Nations in (re)strengthening their citizenship and self-determination efforts in line with the United Nations Declaration on the Rights of Indigenous Peoples. An anti-racist approach of this nature can help us to take stock of and change federal EE policies and legislation to ensure they are not contributing to racist outcomes in the Public Service.

Representatives of 2 Spirits in Motion also stressed how important it is to avoid data underrepresentation, and capture gender identity accurately within Indigenous communities, noting that conversations are ongoing.^{Footnote 39} Representatives of Canadian Roots Exchange wanted to ensure that barriers affecting Indigenous youth – the fastest growing population in Canada - would be better researched in the future.^{Footnote 40} Attention to urban-rural differences remains crucial, experiences of self-identification by Black-Indigenous, or members of 2SLGBGQI+ communities similarly require attention.

An intersectional, rights-based approach is required to acknowledge the diversity of Indigenous peoples’ lived experiences, and meaningfully address the intersectional barriers urban Indigenous people continue to face.

Consider for example that Statistics Canada has included a new question in the 2017 Aboriginal Peoples Survey after consultation with Métis organizations. It asks respondents whether they “have a card or certificate issued by a Métis organization that identifies you as Métis”. Statistics Canada reported that 45% of those who self-identified as Métis responded that they had a card or certificate issued by a Métis organization.

Members of Indigenous federal government employee networks expressed a range of views on the experience of being subjected to what is perceived as a dual process of self-identification. An issues paper shared by Deputy Minister Wilson sought to capture the complexity of self-identification in part through the lens of the different understandings of Indigeneity:

“Divergent understandings of Indigeneity can make the development of a self-identification tab difficult. For some employees, Indigeneity can mean beading or partaking in cultural activities; others live by the Elders teachings and ceremonies; “Indians of convenience” (idea coined by Arthur Manuel) adhere strongly to Eurocentric values and beliefs, but claim Indigeneity when it will benefit them; some employees are only beginning to awaken to their Indigeneity; and lastly, others are “pretendians” who claim Indigeneity based on a distant Indigenous ancestor and they have no connection to community or kinship or culture. This can add to the complexity of Indigenous identity formation in relation to self-identification.”

Self-identification and dismantling internal colonization

Self-identification under the Employment Equity Act needs to be understood in the context of the Government of Canada’s responsibility for dismantling internal colonization through an evolving process of reconciliation that includes removing sex-based discrimination from the Indian Act.^{Footnote 41} Section 67 of the Canadian Human Rights Act (CHRA)^{Footnote 42} shielded decisions or actions taken in relation to the Indian Act from 1977 to 2008, when the provision was repealed. When it was repealed, an interpretive provision was adopted to make it clear that if a complaint is brought under the Canadian Human Rights Act against a First Nation government for how it administered the Indian Act, the CHRA must be “interpreted and applied” to give “due regard” to First Nations legal traditions and customary laws. The provision specifically mentioned balancing individual rights and interests with collective ones, “to the extent that they are consistent with the principle of gender equality.”^{Footnote 43}

Article 17(1) of the United Nations Declaration on the Rights of Indigenous Peoples applies both to Indigenous individuals and peoples. It provides that both “have the right to enjoy fully all rights established under applicable international and domestic labour law”. Article 17(3) of the United Nations Declaration on the Rights of Indigenous Peoples is one of the provisions that applies specifically to Indigenous individuals. It provides that “Indigenous individuals have the right not to be subjected to any discriminatory conditions of labour and, inter alia, employment or salary.”

First Nations, Métis and Inuit nations do not only comprise an employment equity group for the purpose of the Employment Equity Act framework. They have collective rights under Section 35 of the Constitution Act, 1982. The Crown has obligations to both collectives and individuals under Section 91(24) of the Constitution Act, 1867.

For Nichols and Mills, self-identification provisions in the Employment Equity Act are not in tension with either the concept of a collective right of self-determination in the United Nations Declaration on the Rights of Indigenous Peoples Act or Aboriginal and treaty rights under Section 35 of the Constitution Act, 1982. They consider that the United Nations Declaration on the Rights of Indigenous Peoples Act recognizes the right of Indigenous peoples to determine their own membership and identity within their institutions, as a collective right. Moreover, they argue that the collective right cannot determine the relationship between Indigenous individuals and the state.^{Footnote 44} Their concern is clear: they want to make sure the federal governmental recognizes and is held accountable for its responsibility toward those Indigenous people who for reasons that are inseparable from internal colonization such as residential schools, are non-status, may not have ties to a specific nation anymore, but do have the right to employment opportunities. In the midst of the extremely problematic and thorny crisis caused by fraudulent claims to Indigenous status, Nichols and Mills call for rigorous attention by policy makers to Crown responsibilities toward all Indigenous people.

A comparable approach was adopted by the Canadian Human Rights Tribunal in its application of Jordan’s Principle to First Nations children entitled to receive services and supports. It considered that there is a “significant difference” between determining who is a citizen of a First Nation vs determining who is entitled to receive services under Jordan’s Principle. Yet the Tribunal acknowledged that “First Nations parties are concerned and strongly view the two questions as intertwined.” The Panel considered the concerns, and used the terminology “eligibility criteria under Jordan’s Principle.” By using that terminology, the Panel was actively seeking to avoid any misunderstanding; that is, it was decidedly not attempting to define who is a First Nations child for any purpose beyond the eligibility to access Jordan's Principle services.^{Footnote 45} Is a comparable distinction conceivable for the purpose of self-identification under the Employment Equity Act?

Indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned. No discrimination of any kind may arise from the exercise of such a right.

Nichols and Mills offer that beyond “self-identification” as a starting point, there are three far from simple potential conditions. They include two that are traditionally relied upon and have been applied in case law in some cases, lineal descent and community recognition or acceptance. Nichols and Mills add an alternative to membership, which is Indigenous kinship networks, focused more on relatedness than lineal descent and understanding indigenous law from the inside and in its complexity across nations. In preferring this approach to community acceptance given its potential to deny rights to non-status Indigenous individuals, Nichols and Mills argue that “it is difficult to contemplate a serious effort at reconciliation which does not advert to the imperative role of indigenous law”.^{Footnote 46}

Honouring Elders by practicing law in a relational context can help us address issues of Indigenous voice and appropriation in ways which advance Indigenous Peoples’ own laws.

There are challenges with each approach, but there is also an optimism that surrounds the insistence on reimagining self-identification through processes that rebuild with intention, taking Indigenous legal orders and legal traditions particularly seriously.^{Footnote 47}

It is with humility that we reiterate that it is not the role of the task force to purport to resolve the choices. For the purposes of this report, the goal has simply been to posit that the status quo is not sufficient.

A word of caution on self-identification in the federally regulated private sector and under the Federal Contractors Program

In that same spirit of humility, we also offer one employment relations word of caution: the determination of the self-identification for the purpose of employment equity as it relates to First Nations, Métis and Indigenous peoples should grapple with how to mitigate the power that might devolve to individual employers if they ultimately assume a role as arbiters of how Indigenous identity is to be determined. Much of the literature anticipates that it will be the federal government, or major Crown corporations that will assume these roles, with the prospect of a meaningful nation-to-nation relationship (federal government as both the responsible interlocutor for treaty and Indigenous rights as well as the employer in the context of the Employment Equity Act framework).

Increasingly scandals at the university level have broadened the perspective on who the potential employers (and service providers) will be, and the nature of their responsibility. Queen’s University and the University of Saskatchewan have in particular provided alternative models adapted to their institution’s context and based on extensive consultations. Both recent reports on addressing fraudulent self-identification in universities have recommended a role for the Indigenous nations on whose unceded land they are situated, and have built in the notion of consultative bodies.

The scope of the Employment Equity Act framework, including with the proposed enlargement to cover more workplaces with smaller size and lowered federal contractors program coverage, creates the risk of a multiplicity of employers having the ability to make determinations on Indigenous inclusion. Under the Employment Equity Act framework, where self-identification disclosure is limited to protect employees, would a broad mandate for each covered employer to build consultative committees be suitably responsive? The potential for First Nations, Métis and Inuit employees to be subjected to targeted internal scrutiny by institutions concerned about potential reputational harm or human rights complaints is not theoretical.

It is increasingly urgent for meaningful consultations of First Nations, Métis and Inuit organizations to work through what the arrangements might look like in resolving these matters at a nation-to-nation or government-to-government level. It is possible that recognition agreements or minimum criteria and processes for membership determination that can simply be implemented by individual employers may become necessary. Processes that ensure control, oversight and verification by First Nations, Métis and Inuit organizations warrant careful consideration.

Whatever the approach, we must not repeat the colonial harms of the past. We urge a rigorous, decolonial approach to build a transformative Employment Equity Act framework.

This is a first principle.

To determine the most appropriate approach to avoid fraudulent claims and address Indigenous status under the Employment Equity Act framework, there is no circumventing meaningful consultations with a view to securing the free, prior and informed consent of First Nations, Métis and Inuit peoples.

Beyond employee preferences to Indigenous self-determination

“Indigenous Nations have increasingly asserted their inherent jurisdiction and rights in respect to major project development decisions within their traditional territories. This assertion has been driven by the demand for the recognition of the right of free, prior, and informed consent (FPIC) and important Supreme Court decisions that have paved the way for a renewed relationship…”

Indigenous self-determination, recognized in Article 3 of the United Nations Declaration on the Rights of Indigenous Peoples, is at the heart of national Indigenous economic strategies in Canada. Self-government requires a significant economic base.^{Footnote 48}

An Indigenous Economic Strategy for Canada was developed collaboratively by Indigenous organizations following a recommendation of the Organisation for Economic Co-operation and Development (OECD) to the Government of Canada.^{Footnote 49} The Strategy identifies significant barriers to Indigenous economic development both on and off reserve, from the Indian Act itself and its effects on the use of land and land tenure, to access to capital, financial exclusion and discouraged borrowers as well as innovative Indigenous-led approaches to addressing them. It also highlights some notable examples of economic development corporations that are together responsible for over 12,000 jobs. Half of the after-tax revenues earned by 61% of the economic development corporations studied was invested back into Indigenous communities. The strategy underscores the role of Indigenous women in several of the projects.^{Footnote 50}

Some of the strategic statements that are most relevant to this task force’s work are as follows:

Strategic statement	Call to economic prosperity
Labour force: highly skilled, competitive, and world class Indigenous labour force for Canadian and global markets	22. Strengthen support for organizations that focus on Indigenous skills, employment, and business training.
Social capital: proactive and meaningful approaches to eradicate systemic racism	29. Encourage all entities in Canada to establish Reconciliation Action Plans that are measurable and communicated publicly.
Workplace: Inclusive workplace strategies for Canadian employers that harness the human resource potential of all employees	30. Engage Indigenous Advisors to help Indigenous and non-Indigenous organizations evaluate workplace practices and strategies, measure and monitor workplace inclusion strategies, provide inclusive workplace training, and undertake systems review of strategies. 31. All public and private employers adopt the Truth and Reconciliation Calls to Action No. 57 (educate public servants on Indigenous history) and No. 92 (corporate sector adoption of the United Nations Declaration on the Rights of Indigenous Peoples).

These strategic statements on “people” (comprising Indigenous entrepreneurs, leadership and governance, labour force/ labour market, social capital and workplace) are part of a comprehensive whole that is structured as a circle, around three other strategic pathways, including lands (land sovereignty, land management, and environmental stewardship), infrastructure (physical and institutional infrastructure as well as financial resources); and finance (revenue sources, stimulus funds, procurement and trade).

The strategy generally identifies inclusivity goals that resonate with the purpose of employment equity. Calls to incorporate proactive workforce strategies at all levels of the organization that include establishing retention strategies, setting measurement criteria and establishing pathways for training, advancement and promotion of Indigenous employees, echo the Employment Equity Act’s barrier removal process discussed in Chapter 4.^{Footnote 51}

Moreover, there is a call for agreements with enterprises to be co-developed in good faith with Indigenous peoples. Government is encouraged to stimulate the economy and build capacity through employment and training of Indigenous Peoples and businesses. And overall, there is a call to be “innovative and creative.”^{Footnote 52}

These calls resonate with the Organisation for Economic Co-operation and Development (OECD)’s recommendation that the Federal Government’s Procurement Strategy for Aboriginal Business established in 1996 to redress the underrepresentation of Indigenous businesses in federal procurement should be strengthened, among other matters to establish binding procurement targets and set asides for federal government procurements. The OECD notes that presently, departments that procure more than $1 million worth of goods and services (including construction) each year must set their own performance targets. In land claims agreements, the targets are already binding. While multi-national firms in mining or energy projects tend to adopt benefits-sharing agreements, the OECD’s evidence suggests that most of the benefits flow in terms of direct employment.^{Footnote 53}

The prospect of using procurements to achieve national industrial policy objectives has been well understood.^{Footnote 54} Indigenous economic empowerment has been framed by Canada as a priority, including through clauses in trade agreements that allow for preferential treatment of Indigenous participation in economic transactions.^{Footnote 55} Drawing on the United Nations Declaration on the Rights of Indigenous Peoples’ requirements in Article 23 and 32, Professor Panezi argues that beyond free, prior informed consent on economic empowerment plans, Canada should “periodically engage in robust review of the Indigenous procurement regime through consultations with Indigenous participants, beneficiaries and leaders.”^{Footnote 56} Noting that the Nunavummi Nangminiqaqtunik Ikajuuti (NNI) Policy in relation to the Nunavut Land Claims Agreement offers one of the “most elaborate Indigenous procurement systems in Canada” and is an indication of the kind of focus that a comprehensive social procurement regime could take to promote economic empowerment.^{Footnote 57}

Members of First Nations, Inuit and Métis peoples who came before our task force at once affirmed the importance of employment equity but also underscored how remote the issues can at times seem from the many pressing concerns faced in a context of truth and reconciliation.

Part of the concern was how to engage some of the issues, unpacking the starting points that put such distance between Indigenous ways of knowing, and engaging with land and peoples. Barriers upon barriers need to be removed.

Some federal research funding agencies, including the Social Sciences and Humanities Research Council (SSHRC), noted a shift in framework, with Indigenous partners moving beyond the employment equity group self-understanding toward nation-to-nation relationships; SSHRC has therefore developed a distinct Indigenous Research Strategy to govern its relationship with Indigenous partners, with a focus on supporting the research priorities of Indigenous peoples and a revised merit review criteria to ensure that researchers are accountable to Indigenous communities and that First Nations, Métis and Inuit knowledge systems are recognized and contribute to excellence in scientific and scholarly pursuits. It includes data management protocols.^{Footnote 58}

It was important for our task force to pause and acknowledge that it takes a lot just to hold constant the prospect that employment equity as it is currently understood is a broad enough institutional framework to cover crucial Indigenous concerns carefully.

But then we were told, if banks were to hire senior First Nations, Inuit and Métis representatives at the senior management level, we might begin to see positive steps toward addressing some of the problems of access to financial services faced by First Nations, Inuit and Métis people. Of course, better representation at senior levels in telecommunications services might yield greater sensitivity to the needs of First Nations, Inuit and Métis individuals and enterprises that depend on and seek access to the sector. Of course, meaningful representation of First Nations, Inuit and Métis people in the federal government at the highest levels could help foster a move to transformations in relationships between the Crown and Indigenous peoples instead of multiple levels of marginalization. These are all extremely serious concerns. They are part of the rationale for the kind of meaningful and sustained representation that is at the core of the employment equity framework.

But for Crown relations with First Nations, Métis and Inuit peoples as we look forward, the framework is far from enough.

Section 7 of the current Employment Equity Act offers a limited understanding of the relationship between First Nations, Métis and Inuit peoples, and their lands. It permits a specific “preference in employment”:

Section 7, Employment Equity Act:

Notwithstanding any other provision of this Act, where a private sector employer is engaged primarily in promoting or serving the interests of Aboriginal peoples, the employer may give preference in employment to Aboriginal peoples or employ only Aboriginal peoples, unless that preference or employment would constitute a discriminatory practice under the Canadian Human Rights Act.

It was and remains an important, if limited, provision. However, it seems barely to scratch the surface of what it means to be taking inherent rights, treaty rights, the Truth and Reconciliation Commission’s calls to action and UNDRIP seriously. At best, Section 7 of the Employment Equity Act is a place holder for a process of meaningful nation-to-nation or government-to-government consultations to build a transformative approach that fosters Indigenous self-government.

A more powerful vision is found in UNDRIP, Articles 20 & 21:

United Nations Declaration on the Rights of Indigenous Peoples

Article 20

1. Indigenous peoples have the right to maintain and develop their political, economic and social systems or institutions, to be secure in the enjoyment of their own means of subsistence and development, and to engage freely in all their traditional and other economic activities.
2. Indigenous peoples deprived of their means of subsistence and development are entitled to just and fair redress.

Article 21

1. Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions, including, inter alia, in the areas of education, employment, vocational training and retraining, housing, sanitation, health and social security.
2. States shall take effective measures and, where appropriate, special measures to ensure continuing improvement of their economic and social conditions. Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities.

The distinct opportunity of Impact Benefit Agreements

Territories where First Nations, Métis or Inuit peoples’ constitutionally protected Aboriginal and treaty rights have been recognized, comprehensive land claims agreements (modern treaty holders) have been negotiated and signed, where land claims are outstanding, or where Indigenous workers predominate, notably in the territories, may also be resource rich and the subject of significant mining and forestry interests.

Impact Benefit Agreements (IBA) are bilateral agreements negotiated between mining companies and Indigenous peoples. With 335 IBAs signed by 2015 for over 198 mining projects since 1974 covering exploration through reclamation, they constitute a significant part of a landscape that includes investment in resource-based, typically mining, projects.^{Footnote 59} The federal government estimates investments of $650 million by 2024, with many of the projects occurring on or near Indigenous lands.^{Footnote 60}

While the terms of most IBA are confidential, they tend to include a range of purposes, including provisions on employment to enable members of the relevant First Nation, Métis or Inuit community to benefit from employment and training opportunities on a preferential basis.^{Footnote 61} The IBA toolkit proposes the following on preferential hiring:

• There are provisions with measurable targets and milestones that require hiring community members.
• There are provisions with measurable targets and milestones that support advancement of community members into higher skilled and higher paying positions.
• There are provisions with measurable targets and milestones that support retention of community members in the project workforce.^{Footnote 62}

Increasingly, IBA include a more direct focus on broader economic benefits including royalties and direct payments.^{Footnote 63} In some contexts, for example diamond mines in the Northwest Territories, Indigenous employment levels “have been high by national standards, although still below Aboriginal availability within the NWT population, while approximating the target employment levels in the [socio-economic agreements].”^{Footnote 64} The study added that Indigenous workers were disproportionately found among the unskilled or semi-skilled workers, and were rarely found amongst managerial and even professional positions. IBA implementation seemed not to have focused on redressing education and training challenges.^{Footnote 65}

IBAs also emerge out of comprehensive land claims agreement signed by the Crown with First Nations and Inuit Nations. In other words, the modern treaties may require proponents of a major project to sign an IBA with the relevant First Nation.^{Footnote 66}

IBAs came up in a number of our task force’s consultations with First Nations, Inuit and Métis representatives. We learned that there are examples of First Nations that apply a cascading approach to preferential hiring, starting with members of their First Nation, followed by First Nations people broadly, and finally with all Indigenous people. We also learned that there is a drive for full Inuit employment in some Inuit communities.

In particular, our task force met with representatives of a number of Modern Treaty Holders. They explained the importance of preferential hiring practices to ensure high levels of staffing by First Nations and Inuit peoples. We heard of the importance attached to nations’ goals to provide their citizens with the skills and trainings they need to succeed. Nations also worked to reduce the impact of barriers that include Western hiring norms that fail to value Indigenous ways of knowing or recognize lived experience.

Tr’ondëk Hwëch’in Government representatives emphasized the importance of incorporating First Nations values in human resources policies and cited a case where they were able to promote an employee with limited formal education but a wealth of cultural knowledge and expertise.^{Footnote 67}

Representatives of the Kativik Regional Government – emerging from the James Bay and Northern Québec Agreement in 1978 - observed that signatories to IBAs were considerably more likely to hire Inuit workers than non-signatories, and had lower turnover rates. We were told that Kativik Regional Government helps to provide Inuit language training and intercultural training to employers.^{Footnote 68}

The federal government refers to modern treaties as “reconciliation in action”, recognizing that they must be implemented in a manner that upholds the honour of the Crown and in full respect of Aboriginal and treaty rights as recognized and affirmed in Section 35(1) of the Constitution Act, 1982. A whole-of-government approach to implementation is required. This should apply to how the Employment Equity Act framework is approached and transformed.

Teslin Tlingit Council employs Aboriginal and non-Aboriginal employees. TTC’s hiring priority provides opportunity for well-trained Teslin Tlingit Council Citizens to work and remain in their community. As a result, preference wherever possible, will be given to TTC Citizens who apply for positions with the required skills. Other First Nations applicants will also receive preference. Non-Aboriginal applicants who have the required skill sets are encouraged to apply for advertised positions.

The task force heard several important examples of modern treaties that grapple with employment equity issues, very specifically with ensuring the goals of ensuring broad workforce participation by citizens of Indigenous nations – including members of other equity groups such as Indigenous women, Indigenous persons with disabilities, Indigenous two-spirit / 2SLGBTQI+ members - and providing the skills and training needed for success.

For example, the Nisga’a Lisims Government’s Final Agreement from 2000, the first modern treaty in British Columbia, includes a reference to improving employability or creating new employment opportunities; the Nisga’a Lisims Government experiences difficulty recruiting and retaining employees during the COVID-19 pandemic, and developing capacity for Nisga’a citizens on its own land is a priority. Migration into the territory by people who are not Nisga’a citizens increases pressures on resources, including limited housing.

Can the Employment Equity Act framework support employment promotion through IBAs and in particular redress some of the capacity challenges that reportedly affect the ability of some First Nations to take full advantage of IBA-related provisions?^{Footnote 69} Some researchers consider that there is an opportunity to consider publicly regulated requirements in selected industries to ensure a level of Indigenous employment and socio-economic entitlements in the face of major business investment.^{Footnote 70}

Our task force thinks it is about time for the Employment Equity Act framework to be drawn upon to support this more transformative thinking about changing the relationships.

We reiterate that meaningful, good faith consultations with Indigenous peoples are paramount. The task force understands its limited role: to bring some of the issues to the forefront and offer suggestions that might begin to frame an exploratory exchange.

What is clear is that Section 7 of the current Employment Equity Act does not come close to capturing the implications of the embrace, in Section 35 (1) of the Constitution Act, 1982 of a government-to-government constitutional relationship. Our global recommendation is the following:

Disabled workers and accessibility in the wake of the International Convention on the Rights of Persons with Disabilities

Introduction

Disability inclusion is more than adding persons with disabilities to the work force. It’s a cultural shift that prioritizes creating an environment where every employee can flourish to their highest potential. And it is a mindset that actually values the rich contribution of those with a diversity of lived experience.

One of the priority areas of People First of Canada (PFC) is work and employment. PFC also follows Article 27 of the United Nations Convention on the Rights of Persons with Disabilities. This article states that that people with disabilities have the same right to work as other people. This also means that they have the right to earn a living from work they choose in an environment that is open and accessible to all people.

Canada has internationally recognized the “right of persons with disabilities to work, on an equal basis with others” in the Convention on the Rights of Persons with Disabilities.” Canada has committed to taking “all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise”.^{Footnote 71}

The UN Sustainable Development Goal 8.5 sets a target for states, by 2030, to “achieve full and productive employment and decent work for all women and men, including for young people and persons with disabilities, and equal pay for work of equal value.” The UN Committee on the Rights of Persons with Disabilities (CRPD) has called on Canada to ensure that employment equity programs are implemented, and that they include the “allocation of targeted funding to promote the employment of persons with disabilities in the public and private sectors.”^{Footnote 72}

The available data on the underrepresentation of disability speak forcefully, and the story they tell is that much needs to be done.

Our task force concludes that the employment equity group for persons with disabilities needs to be redefined. Progress is long overdue. We need concerted barrier removal to achieve and sustain employment equity for disabled workers.

One in five (22%) people in Canada aged 15 or older had at least one disability in 2017. That is approximately 6.2 million individuals. A greater percentage (24%) were women rather than men (20%). Twenty percent of working age adults aged 25 – 64 had a disability. Among those aged 25 to 64 years, persons with disabilities were less likely to be employed (59%) than those with disabilities (80%). Within Indigenous nations, disability rates exceed 30%.

This information is based on the 2017 Canadian Survey on Disability (CSD), which according to Statistics Canada has since 2012 adopted a social model of disabilities. We await the release of data from the 2022 CSD, which includes new questions on barriers to accessibility.

What we do know is that the prevalence of disability increases with age, and that disabilities among youth aged 15 to 24 were primarily linked to mental health.

We also know that 76% of the working aged population between 25 – 64 years of age who were neither employed nor in school and who had mild disabilities were employed, compared with only 31% of those characterized as having very severe disabilities. Critically, among those with disabilities generally, 39% or 645,000 were ready and willing to work, but were not currently working.^{Footnote 73}

In essence, persons with disabilities were significantly less likely to be employed (59%) than persons without disabilities (80%).

The impact of the pandemic on disabled workers remains to be fully understood, but existing studies underscore the significant negative impact. Early in the pandemic, in August 2020, Statistics Canada reported that over one third of the survey participants with a long-term condition or disability who were employed prior to the pandemic reported that they experienced temporary or permanent job loss or reduced hours during the pandemic.^{Footnote 74}

A big part of the challenge of achieving employment equity lies in transforming how we understand disability.

“In Canada, there are all the conditions to fully implement the Government’s obligations under the Convention on the Rights of Persons with Disabilities,” concluded The UN Special Rapporteur on the rights of persons with disabilities during her 2019 visit to Canada, but, “more must be done to complete the transition from a care and medical approach to a human rights-based approach.”^{Footnote 75} This calls for, as the UN Special Rapporteur recommended, “remov[ing] barriers that impede the effective and full participation of persons with disability on an equal basis with others.”^{Footnote 76}

This powerful statement resonates with the many submissions provided throughout our engagements with disabled workers and their civil society organizations: substantive equality is in reach, but it requires transformation including to the way we understand, implement, consult on and enforce the employment equity framework.

The importance of getting the definition of disability right

When persons with disabilities were included in the Employment Equity Act in 1986, the term was defined in the accompanying Regulations as follows:

Despite significant advances in societal understandings of disability since then, the current definition is only slightly updated since 1986, now found in the text of the Employment Equity Act:

The definition of persons with disabilities is distinct in that it references those who have been accommodated in their current job or workplace.

The complexity of the definitional choice is clear. We were reminded by accessibility organizations to step back, and to focus on how ableism structures ideas about the norm. We were encouraged to rethink the norm, to think about how the environment – including the working environment – is literally built. For example, why are stairs the norm in our society, rather than ramps?

The task force heard consistently that the existing definition of persons with disabilities needs to be updated. It is a medical model, which looks at disability as impairment, and does not link disability to societal barriers. It also constructs disability as a rigid binary, rather than in a more nuanced, contextual manner. Instead, we were strongly urged to follow the emerging societal model, that is, a human rights vision of disability.

Language shapes our thoughts and is central to the way we experience the world. When the public, the government and employers talk about disability, accessibility, or barriers, do we have shared understanding, building upon the same concepts?

Several constituents emphasized that the Employment Equity Act needs to move away from a medical model of disability, toward a model that takes into account the social context. In a medical model, disability is treated as an impairment – the definition focuses on the person alone. In a social model, disability is understood to interact with barriers. It focuses on the role society plays in creating disability.^{Footnote 77} Focusing on barriers puts attention to how much work can be done to make society, and workplaces, accessible. It is therefore a human rights model of disability.

It is important to recognize, though, that while the current definition in the Employment Equity Act diverges from the social model of disability, it does offer something characterized by the Canadian Council on Rehabilitation and Work as unique: it focuses on self-definition. The self-definition aspect has been considered by some as an “enhancement”, leaving the agency in the hands of the persons themselves.

We agree that self-definition is important. The challenge is that the self-definition concerns whether the worker considers themselves to be “disadvantaged in employment by reason of that impairment” or whether they believe an employer will consider them to be disadvantaged. We heard repeatedly that these were the wrong questions.

Instead, self-definition should be based on a definition that persons with disabilities recognize as affirming them, in the terms of the Committee on the Rights of Persons with Disabilities (CRPD), as “a valued aspect of human diversity and dignity”.

On this framing, it must not be construed as a legitimate ground to deny or restrict human rights. Laws and policies are expected to take into account the diversity of persons with disabilities.^{Footnote 78}

It is in that same spirit that this report alternates between a person-first language of “persons with disabilities” that is internationally recognized, and the contemporary, identity-based approach of “disabled workers,” which was strongly encouraged by some of the concerned communities who met with us and task force members with relevant lived experience. We were challenged to “say the word disability”, embrace it, and normalize it.^{Footnote 79}

The Americans with Disabilities Act of 1990^{Footnote 80} in the United States had the effect of introducing reasonable accommodations requirements for people with disabilities in employment. The law was amended under President Barack Obama’s Administration through the Americans with Disabilities Act Amendments Act of 2008^{Footnote 81} to reject jurisprudence that narrowed the scope and explicitly provide expansive coverage. While the basic impairment focused definition of disability was not changed, implementing regulations were adopted by the Equal Employment Opportunity Commission (EEOC) that provided interpretive tools.^{Footnote 82} They adopted a functional approach to disability, which underscored that disability may not be immutable, may not necessarily be visible, and should be addressed in a manner that respects the self-advocacy of disability-rights movements. It similarly shifted responsibility from the individual with a disability to the institution with a responsibility for accommodations.^{Footnote 83} Yet our task force heard from Harvard disability scholar and advocate Michael Stein that of all the areas covered by the Americans with Disabilities Act, the legislative framework has been least effective in fostering equality in employment.^{Footnote 84}

The human rights model is endorsed internationally, including by the UN Committee on the Rights of Persons with Disabilities (CRPD). The CRPD identifies high unemployment rates, low wages, instability, hiring challenges and inaccessible work environments, and acknowledges the prospect for newer barriers through artificial intelligence and new technologies. The CRPD considers especially that ableism can get in the way of States like Canada’s responsibility to “eliminat[e] persistent barriers, particularly disability stereotypes and stigmas”:

Meaningful work and employment are essential to a person’s economic security, physical and mental health, personal well-being and sense of identity. However, the Committee is aware that a value system known as ableism adversely affects the opportunities for many persons with disabilities to have meaningful work and employment. Ableism and its impacts have been described as “a value system that considers certain typical characteristics of body and mind as essential for living a life of value. Based on strict standards of appearance, functioning and behaviour, ableist ways of thinking consider the disability experience as a misfortune that leads to suffering and disadvantage and invariably devalues human life.”1 Ableism is the foundation of the medical and charity models of disability that leads to social prejudice, inequality and discrimination against persons with disabilities, as it underpins legislation, policies and practices … that prevent persons with disabilities from being able to work on an equal basis with others.

The definition in the Accessible Canada Act was inspired by the Convention on the Rights of Persons with Disabilities:

The definitions of ‘barrier’ and ‘disability’ put forth in Bill C-81 draw upon the UN Convention on the Rights of Persons with Disabilities. They are broad and inclusive, supporting the greatest number of Canadians. The bill is meant to inspire and drive a deep cultural transformation. Part of that transformation is changing the way we talk about accessibility and disability. It is also about changing existing government structures and systems and creating new ones. It is about putting these aspirations into action.

The definition was built on the basis of significant, recent consultations with members of the accessibility communities. The Accessible Canada Act’s definition of disability adopts a social model:

any impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment — or a functional limitation — whether permanent, temporary or episodic in nature, or evident or not, that, in interaction with a barrier, hinders a person’s full and equal participation in society. 

The Accessible Canada Act is also one of the only federal human rights texts to define the term “barriers”:

barrier means anything — including anything physical, architectural, technological or attitudinal, anything that is based on information or communications or anything that is the result of a policy or a practice — that hinders the full and equal participation in society of persons with an impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment or a functional limitation.

The broad and inclusive definitions in the Accessible Canada Act dovetail with the Section 15 equality provision of the Canadian Charter of Rights and Freedoms, which includes both “mental and physical disabilities.” It reflects Supreme Court of Canada jurisprudence on disability that defines it broadly, including in the workplace context.^{Footnote 85} The 2019 Onley review of the Accessibility for Ontarians with Disabilities Act, 2005 also recommended that Ontario should adopt the Accessible Canada Act definition, both as a “positive gesture” promoting harmonization across federal and provincial lines, and to harmonize with the international approach.

Harmonization is one of the aspirations sought in this review of the Employment Equity Act framework as well. In light of the recent extensive consultations on the definition under the Accessible Canada Act, its embrace of a social model of disabilities, its important focus on barrier removal that is consistent with the focus of the Employment Equity Act framework, our task force recommends that the Accessible Canada Act definition of disability be adopted in the Employment Equity Act, replacing the current definition.

The importance of intersectional approaches to disability

Thriving would mean not always being so careful about making a mistake. For black disabled people you have to be over careful at all times and you are not allowed to make any mistakes.

As discussed in Chapter 2, and as is the case for all employment equity groups, an intersectional approach to disabilities is crucial. Our consultations revealed that constituents are alive to the importance of an intersectional approach. Yet the data lag. This was true on disability when the Abella report was written. We noted the extent and consistency of the data available on persons with disabilities, including workers with disabilities, published by the United States Bureau of Labor Statistics of the Department of Labor.^{Footnote 86} The monthly data on disability status produced through the U.S. Office of Disability Employment Policy (ODEP) since 2008 – when new questions to assess the employment status of persons with disability were added to the monthly Current Population Survey (CPS) following research and testing - are disaggregated by race and ethnicity as well as gender. As ODEP affirms on its website, “[c]redible, consistent data is critical to creating change.”^{Footnote 87}

In Canada, some advances have been made. However, the Labour Force Survey does not contain the Disability Screening Questions (DSQ) modules or other disability identification questions. More disaggregated and intersectional data on disability are needed. This should be attentive to the specificity of data necessary to persons with disabilities. They may include assessing whether persons had lifelong or long-term disabilities prior to their current employment, or whether they acquired those disabilities while employed or during the course of employment. As discussed in Chapter 4, these specificities affect distinct aspects of the work life cycle and call for distinct barrier removal strategies.

Our task force calls for sustained attention to quantitative and qualitative data on persons with disabilities that are disaggregated and intersectional, in meaningful consultation with representative organizations of disabled workers. The Employment Equity Data Steering Committee should prioritize this question.

Avoiding a one size fits all approach – psychosocial or intellectual Disabilities

“Intellectual disabilities are the unseen and unheard.”

In my experience in sort of mainstream equity, diversity, inclusion spaces, disability tends to refer to physical impairments of various kinds and also mental health. But there is really, really no consideration for folks with developmental disabilities.

We heard that workers with psychosocial or intellectual disabilities have so far not really been able to count on the Employment Equity Act framework to secure representation in employment in federally regulated workplaces. Tellingly, People First of Canada conducted extensive focus groups and asked whether anyone had heard of the Employment Equity Act. Of 101 participants, only 7 said “yes”.^{Footnote 88}

Task force members were urged to avoid a one-size-fits-all approach to disabilities. We were encouraged to adopt a disaggregated approach to addressing disabilities. The Office of Public Service Accessibility helpfully recommended that the subgroups should align with those contained in Statistics Canada’s Canadian Survey on Disability.^{Footnote 89}

We were reminded that both intellectual disability and developmental disability had bio-medical origins, and were thought of as “deviations” from a “norm” of development or learning stages. Participants in of our extended engagements used the language of psychosocial or invisible disabilities, as well as developmental or intellectual disabilities. A more social model understands disabilities through societal barriers:

“For people with developmental or intellectual disabilities, the barriers usually lie more in inaccessible language, lack of time to process information, and disrespect they experience when others perceive them through negative stereotypes – whether in social settings, services, education, workplaces, health care, the justice system or other situations.”

The challenge of self-identification was addressed in Chapter 2. Some of the specific workplace barriers include the ways in which jobs are posted and interviews are conducted and are addressed in Chapter 4. There is also misinformation; outdated ideas may prevent the inclusion of workers with intellectual disabilities, including on hiring committees and in human resources teams.

We note that the term psychosocial disabilities is increasingly used internationally, including by the UN Committee on the Rights of Persons with Disabilities, to capture the social model of disability. It characterizes psychosocial disability as a condition arising from interactions with barriers that hinder persons with psychosocial disabilities from full and equal participation in society on an equal basis with others.

“Ultimately, ableism is the network of beliefs, processes and practices that assign values to certain ranges of abilities. One range of abilities is constructed as perfect and ideal, another as disabled but worthy of protection and support, and another range of abilities as defective and less worthy of help and perhaps even subject to blame and sanction. This book adopts the position. All else equal, where attitudes about disability cause one impairment group to suffer disadvantage relative to others, then in that situation an impairment hierarchy is created.”

People First of Canada called for a distinctions-based approach to ensure that people with intellectual or developmental disabilities would be understood to be included in the definition of persons with disabilities.^{Footnote 90} Inclusion Canada was clear: they are not seeking a separate process; rather they want barriers removed. Inclusion Canada called for this process to be proactively offered, expressing concern that accommodations must systematically be requested.^{Footnote 91} The relationship between accommodations and barrier removal is addressed in greater detail in Chapter 4.

Repeatedly we were told that culture change needs to accompany any legislative change for inclusion to happen. For one, the perception kept coming up, that disabled workers continue to face stigma, and some employers continue to doubt that people with disabilities can do the job.^{Footnote 92}

Consider what we are learning about “neurodiversity” - the term developed by Australian sociologist Judy Singer to capture the insights of the social model of disability - and the “myth of normal”.^{Footnote 93}Wolfgang Amadeus Mozart and Greta Thunberg help us to shift the narrative about what is normal, and to understand the range of contributions that can be embraced when a shift is made to include neurodiversity in Canadian workplaces.

Inclusion Canada also advocated against wage subsidies to employers to hire disabled workers, calling them short-term strategies that do not support disabled workers over time. This important issue requires further, specific consultations and research into the specific programs and is not the subject of a recommendation by the task force. However, the call made by accessibility organizations for us to focus on ensuring that long term, sustainable employment is available to neurodiverse persons is very much the direction of our recommendations.

Addressing disability in the federal public service

The culture is one of nothing for us without us… [I]t is critical to make sure that people with disabilities are at the front end of the decisions that affect them.

According to the most recent Employment Equity in the Public Service of Canada Report, 2020-2021, 5.6% of employees in the core public administration identify themselves as having a disability. Of those employees, 55.5% are women, 9% are Indigenous, and 14.6% are members of racialized minorities. Their workforce availability (WFA) – the benchmark calculated specifically for the federal public service - is 9%. We should also remember that according to the most recent Canadian Survey on Disability from 2017, 15.6% of the workforce in Canada aged 25 to 64 comprises persons with a disability.

In the federal public service, persons with disabilities were underrepresented both in hiring (4.3%) and in promotions. (4.7%), yet their departures were above their representation at 6.8%. They were overrepresented in the two lowest salary levels and under-represented in the two highest salary levels. The overall portrait is disturbing.

That is not the whole story. There is tremendous variation across departments and agencies. Why at the Canadian Human Rights Commission are persons with disabilities 16.5% of the organization, while only 3.8% of the Privy Council Office?^{Footnote 94} We were reminded of the importance of being intentional, paying attention to the workplace climate, and otherwise adopting proactive barrier removal approaches to employment equity implementation, as discussed in Chapter 4.

In one of its first consultations, the task force heard from the Treasury Board of Canada Secretariat’s Office of Public Service Accessibility (OPSA), led by then Deputy Minister Yazmine Laroche and represented at our meeting by Assistant Deputy Minister Alfred MacLeod, who presented Nothing without Us: An Accessibility Strategy for the Public Service of Canada alongside the Centralized Workplace fund (CEWF) to invest in research, tools and innovation to improve workplace accommodation practices and remove barriers that create a need for accommodation. These initiatives are in keeping with the 2019 Accessible Canada Act framework designed to create a barrier-free Canada for persons with disabilities by 1 January 2040.

Accessibility in the workplace focuses on removing and preventing barriers for all employees, and in particular, employees with disabilities who often face systemic barriers in the workplace.

In its consultations on the Accessibility Strategy for the Public Service, the Treasury Board Secretariat heard that for 39% of survey respondents, employment was the most important area in which to improve accessibility. The Government of Canada was urged to lead by example, by having more persons with disabilities within the federal public service.

It is important that the federal public service has committed to hiring 5,000 persons with disabilities by 2025. However, the task force was told that progress toward meeting the 5K goal has been slower than expected.^{Footnote 95}

We heard considerable concern about the slow progress from accessibility groups.

There are various proactive measures that show important experimentation. These include the Centralized Enabling Workplace Fund, and the Workplace Accessibility Passport. These are important. And no one came before our task force claiming that they are enough. There are workplaces in the federal public service that have demonstrated to the task force that they have been intentional in proactively removing barriers that enable them to build workplaces that are equitably inclusive of disabled workers.

The UN Committee on the Rights of Persons with Disabilities (CRPD) has called on states like Canada, in their role as public service employer, to be particularly rigorous on inclusion. Objective standards for hiring and promoting persons with disabilities, quotas or targets designed to increasing the number of employees with disabilities, alongside public procurement measures, targeted funding, and annual reporting on compliance. They specify that to be consistent with the Convention, the measures should involve:

1. Ensuring that employers do not restrict persons with disabilities to certain occupations, reserved jobs or specific employment units
2. Ensuring that employers do not restrict persons with disabilities from opportunities for promotion and career growth
3. Taking steps to ensure that work promoted under these measures does not constitute “fake” employment, whereby persons with disabilities are engaged by employers but do not perform work or do not have meaningful employment on an equal basis with others, and
4. Incorporating a disability, gender and age perspective across the organization^{Footnote 96}

The CRPD is also careful to stress the need to take measures to “mitigate the possibility of unintended negative consequences” when employment equity measures are adopted, to avoid reinforcing rather than challenging stereotypes. Throughout the general comment, there is a consistent concern to avoid segregated work for persons with disabilities.^{Footnote 97}

Moving to disability confidence

The Canadian Council on Rehabilitation and Work added that it was necessary to ensure that large organizations are “disability confident” – that is, they need to be able to look closely at their culture in the workplace, and ensure that the groundwork is in place to include disabled workers meaningfully. There is a need to address fears head on, rather than avoiding matters that may make all the difference for inclusion.^{Footnote 98}

Large organizations also need to make consequential decisions: Disability organizations gave the example of a large employer stating it is keen to hire persons with disabilities, but then unable to afford screen readers – i.e. software programs that enable blind or visually impaired readers to read text displayed on a computer screen with speech technology.^{Footnote 99}

There needs to be a shift in mindset, the task force was told, to focus on barrier removal that meets and supports the culture change necessary to ensure that the stated hiring goals can actually be achieved. With the widespread use of computer-based technology, accessibility organizations argue that it is easier than before to remove barriers and make necessary accommodations.^{Footnote 100}

Our task force emphasizes the need to work steadfastly on barrier removal to create the kind of climate that enables disabled workers to be retained, and to flourish. Strengthening all three pillars: implementation through proactive barrier removal, meaningful consultation and regulatory oversight, will be pivotal to achieve employment equity for people with disabilities. We address these in chapters 4 – 6, with particular attention to ensuring a better harmonization between the Accessible Canada Act and a modernized Employment Equity Act framework.

A long way to go: Persisting challenges for women workers

From the data

There is an opportunity to modernize the Act. Women should continue to be one of the equity groups and it is critical to understand their lived experiences and be aware of their intersectionality.

Gender Equality is UN Global Sustainable Development Goal 5, which Canada has committed to attaining by 2030.^{Footnote 101} Yet the task force was repeatedly reminded of the persisting challenges and adverse workplace impacts faced by women workers. The challenges are intersectional, and require close attention to providing disaggregated data.

Our task force concludes that there are ample reasons why women workers should remain an employment equity group in Canada, and why we should intensify efforts to achieve substantive equality for all women.

It is important to clarify from the outset that this report uses the notion of gender as defined by Statistics Canada since its 2021 Census:

Our task force acknowledges Statistics Canada’s use of women+ and men+ when providing Census 2021 data.

Statistics Canada reports that women in Canada are amongst the most educated in the OECD. In 2020, two thirds (66%) of women aged 25 to 64 had a college or university qualification, compared to an average of 43% across the OECD. For young women aged 15 - 34, according to the 2021 Census data, the percentage of highly educated women is even higher:

Text description of figure 3.3

Highest certificate, diploma or degree	Total - gender	Men+	Women+
No certificate, diploma or degree	19.0%	20.6%	17.3%
Certificate, diploma or degree	81.0%	79.4%	82.7%
Secondary (high) school diploma or equivalency certificate	30.8%	33.4%	28.1%
Apprenticeship or trades certificate or diploma	6.2%	8.5%	3.9%
College, CEGEP or other non-university certificate or diploma	15.7%	14.1%	17.4%
University certificate, diploma or degree	28.3%	23.4%	33.3%
University certificate or diploma below bachelor level	2.3%	2.0%	2.6%
University certificate, diploma or degree at bachelor level or above	26.0%	21.4%	30.7%
Bachelor's degree	18.8%	15.6%	22.1%
University certificate or diploma above bachelor level	1.5%	1.2%	1.8%
Degree in medicine, dentistry, veterinary medicine or optometry	0.6%	0.4%	0.7%
Master's degree	4.8%	3.9%	5.7%
Earned doctorate	0.4%	0.3%	0.4%

• Source: Employment and Social Development Canada, Chief Data Officer, Census 2021

Despite progress in women’s employment over the past decade, women remain less likely than men to be employed.

The 2021 Census data speak volumes on persisting occupational segregation.

There are 516 “unit groups” of jobs in the 2021 National Occupational Codes of Canada. Almost one fifth – for a total of 98 occupations - remain, in 2021, over 90% men+.

We present all 98 occupations that remain over 90% men+ in Appendix M. Below are just a few examples. Several of them are significantly within federal jurisdiction or otherwise potentially covered by the Employment Equity Act framework:

• drillers and blasters in surface mining, quarrying and construction (99.25% men+)
• industrial electricians (98.06% men+)
• railway carmen/ women (97.06% men+)
• transport truck drivers (95.50% men+)
• railway conductors and brakemen/ women (94.52% men+)
• air pilots, flight engineers and flying instructors (92.53% men+)

In contrast, there are far fewer (18 of the 516 occupations) that remain overwhelmingly (90% or more) women+. They include:

• elementary and secondary school teacher assistants (90.48% women+)
• registered nurses and registered psychiatric nurses (90.50% women+)
• occupational therapists (91.31% women+)
• dieticians and nutritionists (95.61% women+)
• early childhood educators and assistants (96.15% women+)
• dental hygienists and dental therapists (96.85% women+)

These data reinforce the disaggregated data presented in Chapter 1. Together, these portraits show us that while there is some movement, there is a long way to go to achieve employment equity for women in Canada.

The gender wage gap remains particularly pronounced for Indigenous women, who in 2018 earned on average 80 cents for every dollar earned by all men in Canada, and immigrant women, who earned 69 cents for every dollar earned by all men in Canada.

Classic economic theories are insufficient to explain the broader range of variables linked to occupational segregation on the basis of grounds of discrimination, including why gender segregation persists despite demonstrated, overlapping abilities.^{Footnote 102} Researchers increasingly combine insights from a range of disciplines, and not just economics, to understand occupational segregation on equity grounds. This is particularly important for employment equity, when researchers try to measure employment equity’s impact. Tools are increasingly sophisticated, but they run the real risk of leading us astray and back into misunderstanding occupational segregation as primarily a matter of personal choice. We need to work hard to understand the many factors that constrain life choices faced by employment equity groups.

Over the years we have learned a lot about the perceptions of women’s skills and their impact on occupational segregation. Some of the perceptions, discussed in a 1997 study, remain stubbornly constant in the occupations.

Table 3.2: Perceptions regarding women’s skills and the impact on occupational segregation

Stereotyped characteristics of women	Effect on occupational segregation	Examples of occupations associated with certain skills
Concern for others (perceived positive trait)	Greater demand in occupations where one takes care of others: children, patients, seniors	Nurse, doctor, midwife, social worker, child care provider, teacher
Lesser physical strength (perceived negative trait)	Lesser demand in occupations requiring substantial physical effort	Construction worker, miner
Lack of aptitude in mathematics and sciences (perceived negative trait)	Lesser demand in scientific occupations	Physicist, engineer, statistician

Statistics Canada data also confirm the widely acknowledged effect of becoming a parent: the decision continues to have an important impact on women’s employment rates, but not on men’s employment rates.

Text description of figure 3.4

Years	Less than 6 years	6 to 11 years	12 to 17 years	18 to 24 years	No child under the age of 25
1976	32.1%	45.0%	50.4%	50.5%	67.3%
1977	33.5%	46.5%	50.9%	50.3%	67.4%
1978	36.3%	47.8%	53.2%	51.1%	68.3%
1979	38.8%	50.1%	54.0%	52.9%	70.2%
1980	41.3%	53.1%	56.5%	54.6%	71.1%
1981	44.0%	55.7%	58.9%	57.2%	71.9%
1982	44.1%	54.0%	58.4%	56.0%	71.3%
1983	46.5%	54.2%	58.1%	57.7%	72.0%
1984	48.4%	56.1%	60.3%	58.5%	71.6%
1985	50.9%	58.0%	62.2%	61.9%	72.8%
1986	53.6%	61.0%	64.3%	61.7%	73.7%
1987	54.9%	63.0%	65.5%	64.0%	74.3%
1988	56.6%	66.2%	68.1%	66.7%	75.3%
1989	57.5%	69.0%	70.1%	67.9%	76.1%
1990	58.2%	69.6%	71.5%	68.9%	76.7%
1991	59.1%	68.2%	71.1%	68.4%	74.9%
1992	58.7%	66.8%	70.5%	67.6%	74.2%
1993	59.0%	67.4%	70.5%	68.1%	73.1%
1994	59.7%	67.0%	71.7%	68.3%	73.5%
1995	60.5%	68.2%	72.2%	70.9%	73.8%
1996	61.7%	68.7%	72.2%	70.4%	73.2%
1997	63.0%	69.9%	73.5%	71.8%	74.6%
1998	64.0%	71.0%	74.7%	73.1%	75.8%
1999	65.0%	72.5%	76.0%	73.8%	76.5%
2000	66.2%	73.2%	77.3%	74.7%	76.6%
2001	66.2%	74.5%	77.1%	75.9%	76.6%
2002	66.4%	75.9%	79.2%	78.1%	77.3%
2003	66.9%	76.0%	78.9%	78.2%	78.5%
2004	68.5%	76.3%	79.4%	79.4%	78.9%
2005	69.1%	75.9%	80.2%	77.7%	78.6%
2006	67.9%	76.8%	81.5%	80.3%	78.9%
2007	70.4%	78.3%	81.5%	82.2%	79.7%
2008	68.6%	78.6%	82.7%	81.4%	79.9%
2009	68.4%	77.6%	80.4%	81.3%	78.9%
2010	68.7%	77.6%	81.1%	81.7%	78.6%
2011	68.7%	77.6%	81.8%	81.3%	78.8%
2012	69.4%	77.9%	81.5%	81.6%	79.7%
2013	70.8%	78.3%	82.2%	81.0%	79.8%
2014	70.2%	77.8%	80.5%	80.1%	79.4%
2015	69.5%	78.1%	81.4%	81.7%	79.3%

• Source: Statistics Canada, Labour Force Survey, custom tabulations

• The employment rate of mothers generally rises with the age of the youngest child in the household. E.g.: the employment rate of women with a child under the age of 6 was 69.5% in 2015 vs 79.3% for women without a child under the age of 25.

Text description of figure 3.5

Years	Less than 6 years	6 to 11 years	12 to 17 years	18 to 24 years	No child under the age of 25
1976	93.3%	93.4%	93.2%	92.9%	84.7%
1977	93.0%	92.6%	92.9%	92.4%	83.1%
1978	92.9%	92.3%	92.8%	92.3%	83.7%
1979	93.5%	93.0%	93.5%	93.2%	84.2%
1980	92.8%	92.6%	92.5%	92.8%	84.3%
1981	93.0%	93.0%	92.6%	91.9%	84.5%
1982	88.9%	88.9%	89.2%	90.7%	79.4%
1983	87.6%	89.0%	89.2%	89.9%	77.4%
1984	88.5%	89.2%	88.6%	89.0%	77.9%
1985	89.4%	89.6%	90.1%	89.6%	79.1%
1986	90.4%	90.6%	90.3%	90.1%	80.5%
1987	90.3%	91.1%	90.7%	90.8%	82.2%
1988	91.5%	91.9%	91.5%	90.5%	82.7%
1989	91.5%	91.0%	91.4%	90.6%	83.1%
1990	90.2%	90.4%	90.4%	89.4%	81.8%
1991	87.3%	88.5%	88.4%	87.7%	78.7%
1992	86.2%	87.4%	86.8%	86.5%	75.9%
1993	86.3%	86.9%	86.6%	86.7%	76.3%
1994	86.7%	87.6%	87.1%	85.9%	77.4%
1995	88.0%	88.1%	87.7%	87.4%	77.7%
1996	87.8%	88.4%	87.5%	87.1%	77.4%
1997	88.8%	89.4%	88.2%	87.8%	78.4%
1998	89.4%	89.7%	88.9%	87.2%	79.9%
1999	90.1%	90.2%	89.9%	88.0%	80.4%
2000	91.2%	90.5%	90.4%	89.2%	81.1%
2001	90.5%	90.3%	90.4%	89.1%	80.5%
2002	89.9%	90.2%	90.1%	89.0%	80.7%
2003	90.3%	90.3%	89.8%	89.3%	81.5%
2004	90.5%	90.6%	91.3%	89.9%	81.6%
2005	91.0%	91.0%	91.2%	89.5%	81.7%
2006	91.2%	91.2%	91.7%	89.5%	81.7%
2007	91.6%	91.2%	90.7%	90.3%	81.8%
2008	91.4%	92.0%	90.9%	89.5%	82.3%
2009	88.4%	89.3%	88.5%	87.9%	78.8%
2010	89.0%	89.5%	89.9%	88.1%	79.0%
2011	90.2%	89.6%	90.4%	90.1%	80.1%
2012	90.7%	91.1%	90.8%	89.8%	80.2%
2013	90.7%	91.7%	90.9%	90.5%	80.0%
2014	90.3%	91.1%	90.4%	89.8%	80.3%
2015	90.8%	90.8%	92.1%	88.6%	80.4%

• Source: Statistics Canada, Labour Force Survey, custom tabulations

• For father, there is limited variability in the employment rate of men related to the age of the youngest child in the household. E.g.: in both 1976 and 2015, the lowest employment rate was for men with no children under the age of 25.

The graphs below tells us about the hours spent per day on paid and unpaid work. Women spend a disproportionately high average number of hours on unpaid work, relative to men, a subject that is monitored every 5 years through a time use survey.

Text description of figure 3.6

Type of work	Women (hours)	Men (hours)
Paid work (primary activities)	3.9	5.2
Unpaid work (primary activities)	3.9	2.4

• Source: Statistics Canada, General Social Survey, 2015.

Text description of figure 3.7

Type of work	Women (hours)	Men (hours)
Paid work (primary and simultaneous activities)	3.7	5.0
Unpaid work (primary and simultaneous activities)	5.4	2.9

• Source: Statistics Canada, General Social Survey, 2010.

The number of employees earning low pay (that is, less than 2/3 of the median hourly earnings before tax and other deductions, at their main job in each year) has increased in Canada between 2020 and 2021, by 316,000 or 10.7%. Men’s median hourly wage was $28.00 whereas women’s was $24.40 in 2021. Most of the increase in low pay was concentrated among young people aged 15 to 24%. Statistics Canada reports that the main characteristics of low-paid workers has not changed much, despite the widely acknowledged impact of the COVID-19 pandemic on the Canadian labour market. In fact, low-paid employment rebounded from 2020 to 2021, with an increase in the low-pay rate to 20.1%.^{Footnote 103}

The task force was informed by Statistics Canada that women accounted for over half (50.9%) of those who earned less than $12 per hour, and only 42.3% of those who earned $30 or more per hour. In 2021, women accounted for over half (53.9%) of the people aged 25 – 54% working in temporary employment; in 2022 that number rose to 56.4%.^{Footnote 104}

Among workers aged 25 to 54 years, women accounted for the majority (71.1%) of those working part-time in 2021.^{Footnote 105}Responsibility for care is the main reason cited by 24.8% of women aged 25 to 54 in 2021, and 27.7% of women in the same age range in 2022.^{Footnote 106} Statistics Canada reports that in 2021, 68% of women aged 20 to 54 were employed full time, with disaggregated data since 2007 for women who are Indigenous, recent immigrants and long-term immigrants:

Text description of figure 3.8

Reference year	Canadian-born	Indigenous	Recent immigrants	Long-term immigrants
2007	66.0%	54.2%	53.6%	66.4%
2008	66.7%	52.6%	51.8%	65.0%
2009	65.2%	54.1%	51.0%	63.1%
2010	65.0%	51.0%	49.3%	62.0%
2011	65.7%	53.3%	50.4%	63.6%
2012	65.9%	52.8%	52.8%	62.6%
2013	66.6%	55.0%	51.6%	63.2%
2014	66.3%	52.7%	50.7%	62.9%
2015	67.4%	51.6%	48.9%	62.2%
2016	67.0%	51.1%	53.3%	62.3%
2017	68.1%	54.8%	52.0%	66.3%
2018	68.6%	56.0%	55.3%	65.9%
2019	69.9%	58.4%	56.8%	66.4%
2020	67.8%	56.5%	55.4%	60.9%
2021	70.4%	58.9%	58.5%	64.9%

• Source: Statistics Canada, Labour Force Survey, March and September monthly files, 2007 to 2021.

The main takeaway from an associated Statistics Canada research paper is that data disaggregation is necessary if we are to obtain a complete picture.^{Footnote 107}

Intersectional analysis is required

It is essential that beyond a gender-based analysis or GBA+, an anti-racism, anti-oppression lens be applied to the LEEP and the FCP. This may appear to be a complex prospect, but the status quo will not show results.

Early employment equity implementation has tended to focus on including women as a category without paying sufficient attention to diversity within the category of women. Aggregate data on women tell an incomplete story about substantive equality in employment on the basis of gender. The need to approach the category women in a disaggregated and intersectional manner was stated poignantly by many of the stakeholders who appeared before our task force.

An intersectional approach to gender is consistent with Canada’s international obligations and has been underscored by several UN Committees. In 2016, the Committee on the Elimination of Discrimination against Women (CEDAW) noted the “limited access” to the labour market faced by Indigenous (First Nations, Inuit and Métis), Afro-Canadian, migrant, refugee and asylum-seeking women, as well as women with disabilities. CEDAW was concerned that occupational segregation persists: “horizontal and vertical occupational segregation and the concentration of women in part-time and low-paid jobs, which is often due to their parallel traditional child raising and caretaking responsibilities”.

CEDAW noted that this occupational segregation also reflects women’s low representation in managerial positions. In addition to endorsing a national childcare framework providing “sufficient and adequate childcare facilities”, CEDAW has quite specifically called for special measures to be put in place to achieve substantive equality of women and men in the labour market and to eliminate occupational segregation in both public and private sectors, considering that quotas would enhance the representation of women in managerial positions in companies. It called for a specific and integrated plan with effective and proactive measures to address Indigenous women’s particular socioeconomic conditions.^{Footnote 108}

The Committee on the Rights of Persons with Disabilities (CRPD)’s General Comment No. 8 (2022) offers an important reminder that

In addition, management scholar Barnini Bhattacharyya and sociologist Jennifer L. Berdahl have published a rigorous recent study of 65 in-depth narratives, on the complexity of women’s experiences of intersectional invisibility in the workplace. They demonstrate how Indigenous, Black and racialized women face the following four prevalent forms of marginalization at work:

• erasure (that is, left out of interactions or ignored in their work environment)
• homogenization (that is, treated as interchangeable with other racialized women, in some cases literally called by the wrong name or sent the wrong email)
• exoticization (that is, objectified by being reduced to “foreign objects of fascination and fetishization”), and
• whitening (that is, “having their similarities to white people complimented and their non-white racial/ ethnic identities and cultural backgrounds discounted or ignored”)^{Footnote 110}

These challenges are discussed in greater detail in Chapter 4, as they are examples of the kind of barrier removal that is necessary to ensure that workplaces are welcoming to all women.

Women in the federal public service

In the federal public service, while women constitute 55.6% of the core public administration according to the data from 2020-2021, Indigenous women workers (5.9%) and disabled women workers (5.6%) are underrepresented according to the workforce availability (WFA) benchmark. Women’s overall promotion into executive positions, while higher than WFA, is challenged by the high degree employees who separate from the public service in the executive rank, which is 4.6% above what it should be and acknowledged to be in need of attention.^{Footnote 111}

Resetting normal on gender justice

The composite picture for women in Canada is that inclusion as an employment equity group remains crucial. Substantive equality has not been achieved. The gains that have been made over time, moreover, have been shown to be all too fragile during the pandemic, as noted by organizations as varied as the United Nations, the Canadian Human Rights Commission and the Canadian Women’s Foundation.^{Footnote 112} We agree with the Canadian Women’s Foundation:

“It's ‘normal’ to view equality as ‘nice to have’ but not an essential feature of a healthy society. … It’s time to reset normal. … Inequality is harmful to our collective health.”

We discuss each employment equity group with attention to gender. We recommend that women should remain an employment equity category. We call for enhanced attention to disaggregation and an intersectional approach.

Black workers in the wake of the International Decade for People of African Descent

Introduction

We want to be treated equally – Black Canadians want their humanity to be valued: a work environment that is supportive, that is respectful of diversity. Our education, experience, and skills should be recognized as valid. We want an equal opportunity to grow professionally and not to be held back because of skin colour.

This section addresses the specific request for workers of African descent to be removed from the existing employment equity group of ‘visible minorities’ or ‘racialized groups’ and constituted into a separate employment equity group. It therefore offers a detailed discussion of the specific history of Black communities in Canada, as well as a statistical portrait, to assess the justification for a special category.

Our task force concludes that it is appropriate and timely to constitute a special employment equity group for Black workers in Canada.

The pandemic revealed for Canadian society a portrait of Black workers that was rarely portrayed in the media, and that countered anti-Black stereotypes – Black health care workers, cleaning personnel, grocery store workers, bus drivers and other workers who made immense personal sacrifices through the depth of the pandemic to enable the majority of the population to shelter in place.^{Footnote 113} The portrait cemented the importance of statistical data on the differential impact of COVID-19 on Black populations. The overrepresentation of Black workers in jobs that literally put their lives and health at risk was a palpable reminder of what employment inequity can look like.

This is contrasted with recent data provided about Black representation in the federal public service. In rarely released sub-group data published on the occasion of an audit by the Public Service Commission of Canada, it was found that Black applicants, who formed the largest sub-group, experienced the overall largest drop in representation of all visible minority sub-groups. That is, their representation between the period of job application, through automated screening, through organizational screening, assessment and ultimately appointment fell from 10.3% down to 6.6%. In the Public Service Commission of Canada’s audit sample, out of 1 570 applications, 30 Black candidates were appointed.^{Footnote 114}

The United Nations Decade on People of African Descent

The United Nations Decade on People of African Descent began in 2014 and was formally recognized by the Government of Canada in 2018. The United Nation’s Committee on the Elimination of Racial Discrimination had formulated a set of recommendations that recognize “that millions of people of African descent are living in societies in which racial discrimination places them in the lowest positions in social hierarchies.”^{Footnote 115} Among them, they call for special measures to be adopted as part of a comprehensive national strategy and with the participation of people of African descent, to eliminate discrimination including in employment.^{Footnote 116}

But in the wake of George Floyd’s unspeakable murder, the extent of “racism and structural discrimination against people of African descent, rooted in the infamous regime of slavery”^{Footnote 117} became globally recognized. We have witnessed global mobilizing of people calling for racial justice and a recent reckoning with the extent of anti-Black racism and the institutional causes. The UN’s transformative agenda calls for States to “examine the extent and impact of systemic racism and adopt effective legal, policy and institutional measures that address racism beyond a summation of individualized acts.”^{Footnote 118}

In the wake of these global developments, representatives from a broad range of Canadian society have joined with Black communities to support establishing a separate employment equity group for Black workers. This included government, employers and unions, experts in Canada and internationally. It centres Black workers, themselves.

The fact that employers can meet compliance standards without ever having to employ Black Canadians is problematic.

Our task force heard from representatives of workers of African descent and representatives of Black communities within the public service and private sector, including representatives from the Black Class Action secretariat that has brought a civil suit on systemic discrimination in the Employment Equity Act framework. A repeated concern was that they experience ‘invisibilization’ and anti-Black racism within the visible minority category. They pointed to statistical data on representation, through which an employer could be considered to have attainment rates that meet or exceed labour market availability, without ever hiring a Black person. While the disaggregation of data through intersectional analyses illustrated the challenge, it did not remedy it. They pointed to persistent barriers that illustrated the nature and persistence of anti-Black racism. Separate categorization, grounded in the specific legacies of enslavement whose afterlives manifest themselves through the statistical data, become an important basis for this rethinking.

The task force was repeatedly reminded that workers of African descent belong to many communities; Black communities are diverse in histories, origins, and geography. They are represented in all employment equity groups. They are urban and rural, and these differences matter. Some identify more readily with specific geographies, particularly those who have recent links to specific states in the African continent. For many others, the history is inextricably tied to transatlantic slavery, as they are the descendants of Africans who were enslaved throughout the Americas, including the Caribbean, Central America, South America and North America. This history, in other words, includes Canada.

The long history of Black people in Canada

Many Canadians may only recently have learned that slavery existed in Canada. The case for a distinct Employment Equity Act category specifically for people of African descent is rooted in part in the legacy of slavery, both in Canada from the 16th century until its abolition in 1834, and as a global institution. Both Indigenous peoples and Black people were enslaved, from the Maritimes to Upper and Lower Canada, prior to Confederation in 1867.^{Footnote 119} In some provinces, like Prince Edward Island, legislation was adopted to codify the legality of slavery. In some other jurisdictions, there are questions about the applicability of legislation authorizing the enslavement of people of African descent, like the French Code Noir in what is now Québec. Moreover, the enslavement of people was only one way in which Canada participated in the global and profitable institution of slavery – the impact of the production and sale of salted cod fish from Eastern Canada and the United States to feed the enslaved is another little-known dimension.

There has rightly been special attention given to the experience of the African Nova Scotian population, including by the courts. The Nova Scotia Court of Appeal found that “African Nova Scotians have a distinct history reflected in how they arrived here and their experience over the past 400 years. This history is rooted in systemic and institutionalized racism and injustice:”^{Footnote 120}

Slavery left legacies that profoundly affect African Canadian communities’ participation in the labour market. The history of segregation – in service provision, housing, schooling and employment – is not well known in Canada, despite the fact that segregation was legally upheld by our Supreme Court of Canada in 1939.^{Footnote 121} But slavery as a global institution is at the root of stereotypes of Black peoples’ proper place in the labour market – in menial jobs, poorly paid, expected to be subservient. As Bridglal Pachai argues,

Historically African Nova Scotians sought to rely on self-help, community economic development in the midst of significant constraints, community organizing, and of course mobility. However, Black communities such as the African Nova Scotian community of Africville, north of Halifax, were forcibly destroyed. Since 2017 following key litigation, a land titles initiative has been put in place to resolve claims and provide clear title to residents of the communities of East Preston, North Preston, Cherry Brook/Lake Loon, Lincolnville and Sunnyville.

Animated by the question of why we do not “know more about the struggle of Black men and women who fought Jim Crow-style laws and political policies so they could be recognized, not only as humans, but as full citizens of Canada,” historian Cecil Foster posits that Canada became an officially multicultural state “because of the … work of the railway porters… if they were men, and in-home domestics if they were women.”^{Footnote 123}

It is well known that railways – an iconic symbol of Canadian unification from coast to coast - were built on the basis of a racialized division of labour.^{Footnote 124} That segregation – which left Black men recruited from the Maritimes, the United States and the Caribbean working gruelling hours, struggling to stay awake, always at the service of the passengers in search of “porters as good housekeepers”^{Footnote 125} yet barely paid a living wage^{Footnote 126} - was formalized by law. It is telling that the first Black Chief Justice, the Hon. Julius Isaac of the Federal Court of Canada, worked as a sleeping car porter in a segregated railway industry.^{Footnote 127} The first African Nova Scotian judge and first Black woman in Canada to become a judge, the Hon. Corrine Sparks, attended segregated schools in Halifax.^{Footnote 128}

Segregated workplaces in Canada have also been the basis of recent human rights cases, including Centre Maraicher Eugène Guignois, where Black permanent residents and citizens working in precarious jobs as “day labourers” on a farm outside of Montreal were required to use separate bathrooms and kitchens from white workers.^{Footnote 129} In Canada. In 2001.

The specific history of anti-Black racism in Canada was stressed by the UN Working Group on People of African Descent, when it visited Canada in 2017.^{Footnote 130} Anti-Black racism has also been acknowledged by the Supreme Court of Canada that “racial prejudice and its effects are as invasive and illusive as they are corrosive”:

For some people, anti-black biases rest on unstated and unchallenged assumptions learned over a lifetime. Those assumptions shape the daily behaviour of individuals, often without any conscious reference to them.

In R. v. Parks, Justice Doherty added that our institutions “reflect and perpetuate those negative stereotypes.” In 2021, the Ontario Court of Appeal affirmed that “[i]t is beyond doubt that anti-Black racism, including both overt and systemic anti-Black racism, has been, and continues to be, a reality in Canadian society.”^{Footnote 131} Also in 2021, the Nova Scotia Court of Appeal acknowledged that “[t]he experience of racism and segregation inflicted deep transgenerational wounds.”^{Footnote 132} In 2022, the Supreme Court of British Columbia took “judicial notice of the fact that anti-Black racism exists in the Lower Mainland of British Columbia, as it does throughout Canada, and that anti-Black racism can have a profound and insidious impact.”^{Footnote 133}

[Translation] To live in the skin of a black person is to experience humiliation, rejection, mistrust, disapproval, disqualification, prohibition, indifference, systemic discrimination, veiled by politically correct speeches at all times but without concretization. Evaluate reality, people of black colors live in rejection, the outrage of a day and forever.

Consulted community organizations understood employment equity as a fundamental question of fairness, of ensuring economic justice for people of African descent and promoting intersectional Black flourishing in an inclusive Canadian society. The extended engagement report that canvassed over 500 members of Black communities across Canada revealed disturbing experiences including being passed over for promotions, a lack of mentorship and limited professional development opportunities, not having academic credentials respected and being told they are unqualified, experiencing a race-based pay gap, and being told to stop playing the “race card”.^{Footnote 134}

A diverse group of People of African Descent: The statistics

This history should not mask just how diverse a population of people of African descent we have in Canada.

For the purposes of the Census, the category “Black” was added in 1986 as part of an important initiative to improve data collection and reporting, in support of Employment Equity Act implementation.^{Footnote 135} 2021 Census data indicate that close to 91% of those born outside of Canada were from the Caribbean or the African continent.

There is a logical, built-in assumption that certain geographical regions – notably much of the African continent - have predominantly Black populations. The assumption has its limits. It should also be noted that members of the Black diaspora from other parts of the world, such as Central and South America, might be undercounted because of assumptions embedded in the constitution of the visible minority category. Historically Brazil, for example, received the largest number of enslaved Africans in the world. Over 97 million people or 50.7% of Brazil’s population have African ancestry.^{Footnote 136} Blackness in Latin America has been historically undercounted, but there is growing attention to the existence of people of African descent in the region.^{Footnote 137} We note that Statistics Canada includes data from Guyana in some of its calculations, noting that the Black population “has many sociocultural commonalities with Black populations in the Caribbean”.^{Footnote 138} Of course, Guyana is both in South America and a member state of the Caribbean Community. The historical trajectory of Black people in North Africa and current experiences of anti-Black racism can be understood in a similar manner.^{Footnote 139}

The basic take away is that statistics on the Black population in Canada focus largely on race while statistics on other racialized populations focus largely on geography.

It is important to acknowledge that the category “Black” cannot be rooted in only one geographical region reflects the history of slavery as a global institution. The notion of African descent draws particular significance from this historical reality.

There is also emerging if limited research on the “multiple visible minority” category used in the Census. Some research from the United States suggests that even when someone identifies as a member of more than one visible minority, but one of those identities is Black, being Black is experienced as an identity that is not a choice and that affects their life options.^{Footnote 140} Britain has developed a standalone ‘mixed’ ethnic designation that includes sub-groups allowing greater specificity – e.g. “white and Black Caribbean” – to be identified.^{Footnote 141}

The challenging issue of arriving at a more representative characterization of the Black population in Canada, in all of its diversity, is an important issue for data collection going forward in support of employment equity implementation, meaningful consultations, and oversight.

Despite these concerns, our task force notes that the 2021 Census data reveal almost a three-fold increase in the size of the Black population in Canada since 2016, with close to 1.5 million people identified as Black. Black people constitute 4.3% of Canada’s total population, and 16.1% or the third largest group of the population defined as visible minorities. A young population, Black people are projected to reach 3.0 million by 2041.

The demography of the Black population has changed dramatically over time, with various waves of immigration from the post-war period through to the present. Currently, according to the 2021 Census data, approximately 42.1% of the Black population were Canadian citizens by birth, while 50.9 % were immigrants, and 7.9% were non-permanent residents.

In 2021, approximately 897,000 members of the Black population were immigrants or non-permanent residents, with 42% of them coming to Canada in the previous decade.

Text description of figure 3.9

Status	Percentage of Black population
Canadian citizen by birth	42.1%
Immigrant	50.9%
Non-permanent resident	7.0%

• Source: Census 2021.

The most recent statistical information confirms that there are significant differences in the employment and earnings of Black people relative to the rest of the adult population in Canada, and these differences have grown over time—despite gains in the educational attainment of Black people. The 2021 Census data indicate that the average employment income of the Black population was 78% that of the total population, while the employment income of Black women+ was 72% of the total population. According to the 2016 Census data, unemployment rates were 2 ½ times higher for Black men than for the rest of the population and frequently two percent higher for both Black women and Black men in most major cities in Canada. One in 5 Black adults live in a low-income situation.

Statistics Canada has underlined the following features showing labour market challenges both at the top and at the bottom emerging from the 2021 Census data. First, at 15.8%, the percentage of the third-generation-or-more Black population with a bachelor’s degree or higher is lower than that of Black populations that immigrated either from the African continent or from the Caribbean, and lower than second generation members of the Black population. Approximately 49.8% of the Black population have postsecondary credentials.

Second, the Black population faces a significant challenge of overqualification. An important feature needs to be stressed: unlike most other racialized groups, the overqualification is not mainly associated with foreign credential recognition.

Fully 16.0% of Black workers with a bachelor’s degree or higher from a Canadian institution work in occupations that required a high school diploma or less.

This is the highest overqualification rate of any Canadian-educated racialized group. The average for the Canadian-educated population was 11.1%.

It is particularly striking that the rate is similar across generations: first-generation Black workers were overqualified at 15.8%, second-generation were overqualified at 16.6% and third-generation-or-more were overqualified at 15.7%. According to Statistics Canada, “[t]his is consistent with other data relating to challenges faced by Black workers; they were more likely than other workers to report facing discrimination or unfair treatment in the workplace.”^{Footnote 142}

From 2001 to 2016, for example, the employment rate of Black women aged 25 to 59 remained at 71%, but increased from 72% to 75% among other women in the same age group. Similarly, the gap in median annual wages increased between Black people and the rest of the working age population, largely because the wages of Black workers did not grow as quickly as those of other workers.

From the labour market portrait of Black workers issued during the pandemic, Statistics Canada reported that in January 2021, Black workers in the core-aged group of 25 to 54-year-olds were more likely to hold a bachelor's degree or higher (42.8%) than Canadians in the same age group who were not a visible minority (33.6%). However, Black Canadians with a university degree had a lower employment rate (86.1%) than their non-visible minority counterparts (91.1%). While Black and non-visible minority men were found in equal proportions in the trades and sciences, for example, but at the management table, Black men were 40% less likely to work in management positions than non-visible minority men. Employed Black women were also underrepresented in management occupations compared to non-visible minority women.

Considering both the distinct history of slavery and segregation in Canada, and the statistical data showing persisting differential treatment and underrepresentation, Black workers have a strong claim for inclusion under Employment Equity Act framework as a separate category. The proposal received significant specific support from a number of stakeholders who appeared before us from a broad range of constituencies, including Black communities themselves.^{Footnote 143}

The collective comments and recommendations show a very strong level of consensus that the EEA is woefully inadequate in creating the conditions for Black flourishing in the workplace. The consensus view from the data is that Black Canadians cannot locate themselves in the equity agenda proposed under the EEA.

A specific employment equity group

Calls for a specific employment equity group have been made both within Canada and before the United Nations. Beginning with a critique of the terminology of ‘visible minority’, workers of African descent have argued that it leads their specific identities and situations to be neglected.^{Footnote 144}

Employers are using this category that is very broad to say they are doing their part but in actuality they aren’t picking black workers.

The task force was informed that a majority of participants to the consultations undertaken by TBS-OCHRO in the federal public service agreed that workers of African descent should be an employment equity group, both in light of the historical context of enslavement and the commitment of Canada to focus on issues that address Black communities and improve data, research and policies, including in light of the International Decade for People of African Descent.^{Footnote 145}

We have deliberately used the language of Black workers and workers of African descent interchangeably in this report, out of respect for the ways in which Black communities in Canada have self-identified and organized. We are also cognizant of the powerful forward momentum derived from the International Decade for People of African Descent and the United Nations Permanent Forum of People of African Descent. A United Nations Declaration on the promotion and full respect of the human rights of people of African descent is currently under development. It seemed fitting to acknowledge and embrace the international language in our report and recommendations.

The Federal Black Employees Caucus (FBEC) considered that recognition of Black workers in a separate category would help with understanding the legacy and impacts of colonialism, and the importance of understanding Black Canadians’ lived experience through the lens of anti-Black racism. Stakeholders that presented to the task force and expressed an opinion tended to be supportive of establishing a distinct category for Black workers, noting the specificity of the history and employment outcomes. The task force also heard from the Black Class Action Secretariat, a not-for-profit organization representing unionized and non-unionized Black federal public servants that has launched a lawsuit against the Government of Canada. They claim the following:

They submitted to the task force that undisclosed sub-group data in the Employment Equity Promotion Rate Study covering 2005 – 2018 indicated a negative relative promotion rate for Black employees of -4.80% relative to employees who are non-Black.^{Footnote 147} The overall visible minority rate of promotion was positive, at +0.6%, although at the executive rank it too was negative at -0.5%.^{Footnote 148}

The Public Service of Canada stressed that departments wanted to take initiatives to focus their hiring on Black candidates or Black students. They were restricted from acting on behalf of the sub-group, because the employment equity group was visible minorities as a whole.

The solution to this emerging need may be the expansion of the designated groups.

Several unions have also expressed public support and solidarity for federal Black public service employees, recognizing the prevalence of anti-Black racism, affirming the importance for the federal public service in particular to lead by example.

The UN Committee on the Elimination of Racial Discrimination has issued a general recommendation, including a call for states to “develop and implement special measures aimed at promoting the employment of people of African descent in both the public and private sectors.”^{Footnote 149}

Black Flourishing: This term which appears in the Scarborough Charter [on Anti-Black Racism and Black Inclusion in Canadian Higher Education: Principles, Actions and Accountabilities] has profound relevance for Black Canadians in the world of work.

It was also important to the task force to note that different sectors in Canadian society increasingly recognize the need to redress the underrepresentation of Black workers. Voluntary initiatives such as the 2021 Scarborough Charter on Anti-Black Racism and Black Inclusion in Canadian Higher Education have helped to frame and support initiatives in universities and colleges to redress the underrepresentation of Black professors, staff and students.^{Footnote 150} The Black North Initiative was launched in 2020 and signed by 481 companies; however, a 2022 independent report raised serious questions about the extent of the progress on equitable inclusion.^{Footnote 151}

We already know this: voluntary measures will not achieve employment equity.

Emerging from the PURGE – Full inclusion of 2SLGBTQI+ workers

Introduction

Our community is a collection of many communities, bound together through our histories, oppressions, and dreams of futures where gender and sexual diversity are celebrated and affirmed.

The International Convention on Economic, Cultural and Social Rights specifically requires states, as a minimum core obligation, to “[g]uarantee through law the exercise of the right [to work] without discrimination of any kind as to ... sexual orientation, gender identity, intersex status.”^{Footnote 152}

Our task force closely considered the history and available evidence of systemic workplace discrimination faced by members of 2SLGBTQI+ communities in Canada. We listened carefully to the many stakeholders who came before us, from the communities themselves and across employer and worker groups. We studied what has already been done, in Canada and in other countries. And we asked what would be necessary to advance knowledge on the employment situation of 2SLGBTQI+ communities’ employment experiences.

Taken together, we conclude that there is a strong basis to recommend inclusion of 2SLGBTQI+ people as an employment equity group in the Employment Equity Act framework and recommend inclusion.

2SLGBTQI+ communities by the available data

The lack of data and research attention created a chicken-egg problem. … With the recent publication of Canadian research using a variety of methods, and the availability of new data on gender diversity from the 2021 Census, in part due to advocacy by the research, policy and [2SLGBTQI+] communities, there is an opportunity to move forward on this issue.

According to the most recent data released by Statistics Canada, an estimated 1 million people are part of the 2SLGBTQI+ communities in Canada, representing 4% of the overall Canadian population aged 15 years and older.^{Footnote 153} Within 2SLGBTQI+ communities, 52% are women, 42% are men, and 3% are non-binary. Based on the same 2018 survey data, 2SLGBTQI+ people constitute a young population, with 58.4% aged 34 or younger compared to 30.5% of the general population, and 7.3% of the population aged 65 or older, compared with 20.6% in the general population. Employment income for 40.5% of the population is less than $20,000 per year. Average personal incomes were significantly lower ($39,000) than those for non-2SLGBTQI+ community members ($54,000).^{Footnote 154}

While our task force was convening, Canada became the first country to provide census data on transgender and non-binary people. Statistics Canada now distinguishes in the Census questionnaire between sex “at birth” and asking a question on gender.^{Footnote 155} Statistics Canada reports that 0.2% of the population aged 18 and older was transgender in 2021. Close to two-thirds (62%) were younger than 35. Over half of the non-binary people aged 15 or older (52.7%) lived in one of Canada’s six largest urban centres.

Separate Government of Canada data collected through an online non-randomized survey in 2021 for the 2SLGBTQI+ Action Plan, found that of 25,636 respondents, 37% self-identified as gay, 23% as bisexual, 20% as queer, 19% as lesbian, 13% as pansexual and 6% as asexual.^{Footnote 156} On employment, approximately half were employed full-time, 11% part time, 14% were students, 7% were unemployed and seeking work, 6% were self-employed and 5% were retired. Discrimination, harassment and exclusion were found to be prevalent, and barriers at hiring were substantial. 30% of transgender women and 22% of transgender men reported that they had been denied employment due to their gender identity compared with 7% of cisgender women and 4% of cisgender men. Two-Spirit respondents were most likely to report that they had experienced harassment based on their sexual orientation (42%) or gender identity (38%) over the past 5 years.

Despite this progress, getting accurate data on employment has been a significant challenge: it is therefore not yet possible to understand the employment context for 2SLGBTQI+ members, in the absence of large data sets.^{Footnote 157} Statistics Canada shared with the task force the following information on employment rates:

Text description of figure 3.10

Heterosexual Men	Heterosexual Women	Gay Men	Lesbian Women	Bisexual Men	Bisexual Women
87%	78%	84%	86%	74%	69%

• Employment rates vary by sexual orientation and gender
  • Between 2007 and 2017, heterosexual men showed similar employment rates as gay men (87% vs. 84%).
  • In contrast, lesbian and gay women had a higher employment rate than heterosexual women (86% vs. 78%).
  • Among lesbian and gay people, men and women had similar employment rates (84% vs. 86%).
  • Overall, bisexual men (74%) and women (69%) showed the lowest employment rates of all groups.
• Source: Waite, Sean. Pajovic, Vesna, and Nicole Denier. (2020). “Lesbian, gay and bisexual earnings in the Canadian labor market: New evidence from the Canadian Community Health Survey.” Research in Social Stratification and Mobility.

Their presentation was based on ten cycles of the Canadian Community Health Survey from 2007 - 2017, which includes a direct question on sexual orientation, large sample sizes as well as income and employment measures. Drawing on this source, a team of researchers has been able to provide important, granular data.

For example, they found that gay men have median incomes that are lower than heterosexual men but higher than heterosexual and lesbian women. They are less likely to work in trades, transportation and equipment operations than heterosexual men, and are more likely to work in sales and service occupations. Lesbians’ median incomes are greater than heterosexual women, but less than gay or heterosexual men. They are more likely to work in trades, transportation and equipment operations than heterosexual women.

Their novel data for bisexual people show that bisexual men ($38,733) and women (32,601) have considerably lower median incomes than heterosexual women (41,611) and men (59,313), gay men (52,013) and lesbians (47,552). Bisexual men are more likely to be immigrants or visible minorities than both gay men and heterosexual men, and bisexual women are more likely to identify as Indigenous than heterosexual or lesbian women. Bisexual men have a relatively large representation in trades, transportation and equipment operation occupations. They are underrepresented relative both to heterosexual and gay men in management and business, finance and administrative occupations. Bisexual women are overrepresented across the board in sales and service occupations as well as in the retail trade industries. Moreover, bisexual men and women are significantly less likely to be employed or work full-time than their respective comparators, heterosexual men and women. They also faced “large and robust wage penalties”, relative to heterosexual men. Lesbians are more likely to be employed and working full time compared to heterosexual women, although their tables do not appear to provide data on lesbian women relative to heterosexual men or for the population as a whole. While the authors acknowledge inevitable limits to their data, they conclude their study with the hope that it will be a catalyst for additional research and data on LGB employment.^{Footnote 158}

Text description of figure 3.11

Occupational Group	Hetero-sexual Men	Hetero-sexual Women	Gay Men	Lesbian Women	Bisexual Men	Bisexual Women
Sales and service occupations	16%	22%	24%	22%	23%	33%
Trades, transportation, and equipment operations	26%	2%	4%	5%	20%	3%

• LGB people are more likely to work in sales and services
  • Between 2007 and 2017, higher proportions of LGB individuals than heterosexual people worked in sales and service jobs, which are among the lowest paid occupations in Canada.
  • Bisexual women (33%) in particular were overrepresented in sales and service occupations.
  • Compared with heterosexual men (26%), gay men (4%) were less likely to be working in trades, transportation and equipment operations.
  • Higher proportion of lesbian and gay women (5%) than heterosexual women (2%) worked in trades, transportation and equipment operations.
• Source: Waite, Sean. Pajovic, Vesna, and Nicole Denier. (2020). “Lesbian, gay and bisexual earnings in the Canadian labor market: New evidence from the Canadian Community Health Survey.” Research in Social Stratification and Mobility.

The importance of community-informed data was stressed in the enhanced engagements, and the dearth of data in particular regarding Intersex people was identified as a matter to be remedied going forward.^{Footnote 159}

Trans PULSE Canada, a national community-based research survey of the health and well-being of trans and non-binary people in Canada, has collected non-randomized data over a 10-week period in Summer 2019, in English and French, online, on paper or by telephone with or without language interpreters). They reached 2873 respondents aged 14 or over living in Canada and identifying as a gender other than the one assigned at birth. Of this total, 9% identified as Indigenous, 14 % identified as racialized, 3% were new immigrants, and 88% were born in Canada. Trans Canada reported on a number of disability-related identities, and noted that 19% identified as disabled. 75% of the total under age 35 and approximately 50% of surveyed people had a college or university degree. They found that 43% were employed on a permanent, full-time basis, while 35% were employed but did not have permanent, full-time status and 16% were on leave and not employed. Despite high levels of education, average incomes for those aged 25 or up was less than $30,000 per year; fully 40% of trans and non-binary people were living in low-income households.

A study relying on the 2017 Public Service Employee Survey (PSES) conducted by Statistics Canada on employment experiences in the federal public service found that there is “compelling evidence that gender diverse federal public service employees experience significantly higher rates of employment discrimination and harassment, relative to cisgender men and cisgender women.”^{Footnote 160}

History matters

Many stakeholders focused on aspects of the history of exclusion and the slow but decided movement toward removing legal barriers to full representation of 2SLGBTQI+ communities in Canadian society.

A community born from oppression: Many queer and trans folks recognize that LGBTQ2+ culture has been created out of necessity as a result of historical and contemporary oppression.

It is a disturbingly contemporary history. The 2022 Federal 2SLGBTQI+ Action Plan takes the time to list the movement toward rights recognition for 2SLGBTQI+ community members over the past 50 years:

It becomes clear that some of the starkest barriers have only just been acknowledged and removed. To echo Professors Brenda Cossman and Ido Katri when legislation was passed in 2017 to protect gender identity and gender expression, including trans rights, “the work of real equality has only just begun”.^{Footnote 161} Quoting them, Professor Samuel Singer adds that social justice movements are aware of the limits of anti-discrimination laws and seek substantive transformation.^{Footnote 162}

Emerging from the Purge

“The history of systemic discrimination towards LGBTQI2S people in Canada’s federal workplaces is deeply troubling. Since the LGBT Purge, we have come a long way towards building inclusive federal workplaces, but it will take coordinated, deliberate, and effective efforts to promote sustainable culture change and foster truly inclusive workplaces across the Government of Canada. Emerging from the Purge is the roadmap for change.”

A significant part of the roadmap for emerging from the purge is on equitable workplaces.

The task force heard in particular from federal workers and unions, who spoke about “the Purge” and its devastating impact on their lives and community. The Government of Canada has acknowledged that throughout the Cold War Era, from the 1950s through to the early 1990s in Canada, federal government employees faced a systematic campaign literally to purge them from the federal public service.

The history, and the need for redress, is chronicled in the Prime Minister of Canada’s historic 2017 apology, delivered in the House of Commons.^{Footnote 163} It is important to identify what the Government of Canada has recognized and committed to redressing:

Why legislative inclusion matters

What remains, is fear. Consider that Statistics Canada has reported that members of 2SLGBTQI+ communities were “more likely to report being violently victimized in their lifetime and to have experienced inappropriate behaviours in person and online than non-sexual”^{Footnote 164} minorities in Canada. Researchers have chronicled the extent of the backlash faced over the recognition of trans human rights protections, and the importance of legal recognition to building an inclusive climate.^{Footnote 165} were Positive Space training offered within the federal public service, while important, was considered to be uneven and insufficient:

Without legislation and support, fear will remain.

This community has faced historic patterns of discrimination and exclusion in what is often referred to as “The Purge”. Census 2021 data will be released about LGBTQ2+ communities in 2022 including trans and non-binary populations. The Public Service Employee Survey shows that members of this community experience harassment and discrimination because of their identity. Including LGBTQ2+ as a designated group is an important step towards addressing systemic barriers for this community.

There are important comparative examples

Canada has been a leader on a number of initiatives on 2SLGBTQI+ inclusion, but not on employment equity inclusion.

Legislation in several jurisdictions, including the United States, South Africa and India (Karnataka state) include measures for members of some or all members of 2SLGBTQI+ communities.

Argentina is one of the most prominent recent examples of international leadership. It has established strong anti-discrimination protections at work specifically for trans persons, defined in Law 26.743 of 9 May 2012 on Gender Identity as all those whose self-perception of their gender identity does not correspond with their sex assigned at birth. In 2020, it adopted Decree No. 721/20, providing that the national public sector should comprise no fewer than 1% of the population by trans persons. It followed in 2021 with Law No. 27.636 and accompanying Decree 659/2021 that expanded the scope to include public ministries, decentralized or autonomous bodies, non-state public entities and Crown corporations. The law specified that criminal antecedents that are irrelevant for the job are not to constitute a barrier to employment given the specific ‘situation of vulnerability’ of this equity group. Temporary fiscal incentives and access to credit for employers, including micro, small and medium sized employers, are built into the law. A single voluntary registry is created across government, of trans persons who wish to seek employment in the national public sector, through the Ministry of Women, Gender and Diversity. Decree 721/20 is notable in its recognition of the discrimination and stigmatization that trans folks have experienced since childhood and in education, and the need for the state to offer repair through positive action measures. The measures include specific support for job applicants to complete some of the necessary educational requirements on the job. They also include measures to facilitate the participation of civil society groups with competency in the matter, in the implementation of the decree. Finally, Argentina has established an inter-ministerial coordination unit with high level representation to establish the implementation plan and ensure the necessary coordination mechanisms and procedures for effective realization of the decree, while ensuring that the educational and capacity-building spaces are available for trans people.^{Footnote 166}

The Argentinian special measures are inspired by the international and regional (Inter-American Court and Commission of Human Rights) recognition of human rights on the basis of sexual orientation and sexual expression. In March 2022, the undersecretary of diversity in the Ministry of Women, Gender and Diversity who was pivotal to the adoption of the Decree, Alba Rueda, was appointed as the Argentinian Special Representative on sexual orientation and gender identity. The notice of her appointment mentioned that she is the first trans woman to occupy this role in Argentina and in the world; it also mentions that four other persons occupy similar roles worldwide – the United States, United Kingdom, Italy and Germany. Rueda’s role reports to the Minister of Foreign Relations, and is part of a foreign policy designed to promote 2SLGBTQI+ rights in the region and beyond.^{Footnote 167}

On language:

The task force was constantly reminded of how important it is for those most concerned to be able to decide how they will be named:

Based on the extended engagement conducted by the Enchanté Network, the language of 2SLGBTQI+ was recommended as the preferred term by members of the concerned community. The Federal Government in its Action Plan has adopted this language in consultation with the community. We note that Statistics Canada, in order to reflect a “broad scope of gender and sexual identities”^{Footnote 168} has decided to use LGBTQ2+, adding that terminology may vary over time and depend on the context. It has acknowledged that gender is “experienced in different ways”, adding that an over two-third majority of people who used the write-in option in the 2021 census question on gender used the term “non-binary”, while others used the term “fluid” (7.3%), “agender” (5.1%), “queer” (4.1%), “gender neutral” (2.9%) and Two-Spirit (2.2%).

The task force was alive to the challenge of identifying communities with a plus, and members tend to prefer choices that explicitly reference each member of the community concerned. This is particularly important for employers as they implement employment equity and seek to ensure that their initiatives are comprehensive and effectively defined. We encourage fluidity and want best to reflect it. We acknowledge that language evolves over time, within communities, and that the commitment to ensuring fulsome representation may mean that the language in the legislation should evolve with it. Our commitment is less to the choice of terminology as to the respect for community self-identification. It is for this reason, as well, that the disadvantaged group is recommended in its composite, inclusive identity while we stress the need to pay careful attention to the specific forms of disadvantage experienced in particular by transgender workers. What matters, in this moment, is the communities’ self-identification as part of 2SLGBTQI+ and the importance for the employment equity group status to reflect that self-identification.

Support for data collection

The significance of self-identification issues for 2SLGBTQI+ members is addressed in Chapter 2. Members of 2SLGBTQI+ communities also stressed how important recognition as an equity group is to support data collection.

Good data are pivotal for effective policy implementation. We have witnessed what happens when data are not available: groups get ignored. Qualitative analyses will also remain crucial, notably to understand some of the barriers and biases that may affect the ability to achieve employment equity. The Emerging from the Purge Inclusion Report similarly stresses that when appropriately collected data are invaluable for improving employment equity initiatives and barrier removal.^{Footnote 169}

Our task force was repeatedly reminded of the lack of official statistical data on the workforce profile of members of 2SLGBTQI+ communities.^{Footnote 170} Statistics Canada made history when its 2021 Census included a discrete question on gender at birth.

The new federal Action Plan commits to “Strengthen 2SLGBTQI+ data and evidence-based policy making by improving data collection, analysis, research, and knowledge on 2SLGBTQI+ communities and the barriers they face in Canada”.^{Footnote 171}

There is an immediacy to the work, moreover. Given the limited available census data to determine precise labour market availability, our task force recommends that covered employers initially be required to carry out an employment systems review and prepare an action plan to remove systemic barriers and provide special measures to support 2SLGBTQI+ inclusion. While they may collect self-identification data and set targets based on available general population numbers, reporting on attainment rates would be progressively implemented as the available Labour Market Availability data becomes available.

Removing barriers now

2SLGBTQI+ workers face significant barriers at work, including disproportionate levels of discrimination and unwanted sexual behaviours at work:

Text description of figure 3.12

Select experiences	LGB+ women	Heterosexual women	LGB+ men Ŧ	Heterosexual men Ŧ
Being insulted, mistreated, ignored, or excluded because of their sexual orientation or assumed sexual orientation	11.4%*	1.1%	10.6%*	0.9%
Being insulted, mistreated, ignored, or excluded because of their gender	20.0%***	9.6%**	5.6%	3.1%
Suggestions that they do not act like a man or woman is supposed to act	26.1%***	6.8%**	11.8%*	4.5%
Unwanted physical contact	27.6%***	12.7%**	11.3%*	4.4%
Unwanted sexual attention	27.1%***	14.3%**	15.4%*	3.8%

• * Significantly different from reference category (p<0.05)
• ** significantly different from estimate for men only (p<0.05)
• *** significantly different from reference category (p<0.05) and estimate for men (p<0.05)
• Ŧ reference category
• Observations
  • In 2018, LGB+ workers were more likely than heterosexual workers to report having experienced discrimination or unwanted sexual behaviours at work (44% vs 22%) –  a similar difference was observed between transgender/non-binary and cisgender workers (69% vs. 23%).
  • Among workers, fewer LGBTQ2+ people than non-LGBTQ2+ people agreed that every person in their workplace has equal advancement opportunities regardless of their sexual orientation (78% vs. 86%) or because they are transgender (69% vs. 79%). Between 2007 and 2017, higher proportions of LGB individuals than heterosexual people worked in sales and service jobs, which are among the lowest paid occupations in Canada.
• Source: Statistics Canada, Survey of Safety in Public and Private Spaces, 2018.

One study of trans workers from Switzerland documented managers wanting their workers to transition quickly. It found that “[s]lower transitions, allowing the person time to take things at their own pace, as physical changes occurred – as a result of hormone therapy, for instance – or allowing for medical and administrative procedures, seemed to have been problematic for managers.”^{Footnote 172} The article noted that even when things seem to be going fine when the transition is announced, difficulties may appear during the course of the transition. Interestingly, one study suggests that trans men post-transition reported getting more recognition for their work even though their skills remain the same.^{Footnote 173} However, the data on income tell a story of persisting economic disadvantage.

Initiatives are already underway

As with Black Canadians, it is revelatory that employers across Canada have already started to implement employment equity and broader EDI initiatives to promote the hiring, retention and flourishing of 2SLGBTQI+workers. The Public Service of Canada specifically mentioned focused hiring initiatives for 2SLGBTQI+ candidates that could be facilitated by expanding employment equity groups.^{Footnote 174} Banks are among the federal private sector employers that have taken a lead on voluntary EDI programming and support for PRIDE events for 2SLGBTQI+ workers. However, the results confirm the challenge with voluntary initiatives:

Across the government today, there is an alarming lack of coordination or clear strategy surrounding LGBTQI2S EDI initiatives, which is inhibiting progress towards LGBTQI2S inclusion. Without an overarching strategy with measurable outcomes, efforts lack consistency and resources and there is little attention paid to their effectiveness.

The task force was reminded that the Government of Canada also includes optional self-identification for 2SLGBTQI+ individuals in applications for judicial appointments, signaling that “it seeks to achieve gender balance and fully reflect the diversity of Canadian society on the superior courts.”^{Footnote 175}

Meaningful participation through collective bargaining processes has been a catalyst to legislative change:

The fact that provisions prohibiting discrimination on the basis of sexual orientation began to appear in collective agreements at a relatively early period in the gay and lesbian rights movement lent support to the fight to get similar provisions in broader human rights legislation.^{Footnote 176}

Indeed, there is a crucial role that collective bargaining can continue to assume in unionized workplaces on benefits coverage. The LGBT Purge Fund has also praised ESDC for the quality of its Guide for Transitioning Employees, their Co-workers and Managers, and urged it to update other guides.^{Footnote 177}

Inclusion will enable employers to deepen the adoption of proactive initiatives that identify recruitment and retention strategies and allow results to be monitored and improved. One example is drawn from the federally funded Canada Research Chairs program, as follows:

The Addendum to the Canada Research Chairs program in Canadian institutions of higher education provides that:

17. The Program shall, using the data collected, monitor the nomination rates and level of representation of the LGBTQ+ community within the Program, gather and implement sound approaches to increase representation by LGBTQ+ chairholders in the Program, and require institutional initiatives to implement such approaches (e.g., within their Equity, Diversity, and Inclusion Action Plans (“EDI Action Plans”)).
18. The Program shall revise its Best Practices Guide to include measures encouraging the nomination and retention of LGBTQ+ nominees and chairholders.

A concern raised sparingly in the literature is a familiar one: self-declaration about identity may be difficult to verify.^{Footnote 178} This risk, sadly, is not new. Declarations of this nature in the employment context would constitute dishonesty in the employment relationship and although the threshold for dismissal on that basis is high, contextual factors to assessing the appropriate sanction would rationally include any preferential treatment received on the basis of the false statement.^{Footnote 179}

On an intersectional, distinctions based approach:

There is disproportionate disadvantage within any umbrella term. We have to break up a category even though it is difficult and look specifically for areas where we know statistically and empirically that people are being disadvantaged. We have to find a way to add protection and be explicit in naming it. I think about racialized queer folks, non-binary folks, persons with disabilities, and people who carry many identities. Trans people experience difficulty in the workplace, and beyond. While their colleagues are getting a lot better in terms of standing up as allies actively and seeing, respecting and learning about them, there is a lot more that needs to be done.

Consulted groups often stressed to our task force that 2SLGBTQI+ workers are members of other equity groups too. We wanted also to turn attention inward, to the challenges of the ‘umbrella’ group.

Will there be challenges to implementation? Certainly. Each employment equity group faces distinct barriers to equity as well as histories of exclusion.

They are also familiar challenges. Our task force reflected on the parallels between the 1984 introduction of the “visible minorities” employment equity group and the proposed introduction of the 2SLGBTQI+ employment equity group. What has been a source of hope in both contexts is the ways in which sub-group members have understood and built upon the shared understanding of historic disadvantage, and the importance of intra-group solidarity for inclusion. However, there is a critical need to avoid generalizations about the community and sub-groups within the equity group. It will be important to keep an eye on the representation of those within the equity group. It is our expectation that by clearly focusing on disaggregated data and targeting the least advantaged within the groups, disparities can be redressed more attentively.

Participants shared fears that federally regulated employers may focus on or solely address barriers related to sexual orientation, and not consider those related to gender identity.

Trans workers have been identified in much of the existing literature as particularly likely to face discrimination in a number of contexts, including healthcare, bathroom use and dress codes.^{Footnote 180} The barriers might be particularly prevalent when trans folks are transitioning. Supportive workplace policies will be crucial.

The Emerging from the Purge Transition Report recommended a “[m]ove away from a universalist approach to EDI and anti-discrimination initiatives to explicitly identify the marginalized groups of focus and articulate specific actions that seek to meet the needs of those groups.”^{Footnote 181} An intersectional approach that is attentive to specific Indigenous worldviews was stressed by Professor Tuma Young, Q.C.. Professor Wesley Crichlow stressed the importance of naming the intersectional specificity of anti-Black racism.

This seems a fitting way to conclude this section. Our task force endorses intersectional specificity. It is consistent with our approach for all employment equity groups under the Employment Equity Act framework. It captures just how important it is to ensure that 2SLGBTQI+ workers are equitably included.

Racialized workers beyond “visible minorities”: Disaggregation and group cohesion

Introduction: A composite category

The courts have acknowledged that racial prejudice against visible minorities is so notorious and indisputable that its existence will be admitted without any need of evidence. Judges have simply taken ‘judicial notice’ of racial prejudice as a social fact not capable of reasonable dispute.

When the category “visible minorities” was introduced into the new Employment Equity Act, it was thought to be progress. It is a composite group, which has comprised the following 11 sub-groups:

• Black
• Chinese
• Filipino
• Japanese
• Korean
• South Asian-East Indian (including Indian from India; Bangladeshi; Pakistani; East Indian from Guyana, Trinidad, East Africa; etc.)
• Southeast Asian (including Burmese; Cambodian; Laotian; Thai; Vietnamese; etc.)
• non-white West Asian, North African or Arab (including Egyptian; Libyan; Lebanese; etc.)
• non-white Latin American (including indigenous persons from Central and South America, etc.)
• person of mixed origin (with one parent in one of the visible minority groups listed above), and
• other visible minority group.

Difficulties with defining and constituting the category were to some degree already anticipated in the Abella Report. Those difficulties persist to this day.

One submission stated plainly that the term “visible minority” reflects a Eurocentric world view, and recommended that each subgroup should have a separate category.

Our task force’s recommended approach is to focus on disaggregating sub-groups. It offers a practical way to acknowledge the concerns, while ensuring that employment equity remains feasible for employers to implement.

We conclude, however, that the term visible minority should be replaced with the term racialized workers.

It is widely understood that “race” does not exist as a biological concept to distinguish between human beings, but that social processes of racialization are inherently linked to major forms of historical, social, economic and cultural oppression, including slavery and colonialism. People from around the world were not simply artificially categorized and discriminated against by “race”, they underwent processes of racialization that created and sustained hierarchies.

Not surprisingly then, ‘race’ existed in pre-Confederation censuses through 1941. In the post-war context, in 1951, the language of race was replaced by ‘ethnicity’ and with the introduction in 1996 of a question focused on measuring ‘visible minorities’, the approach to ethnicity largely remained despite the addition of certain specific categories such as “Black”. The collection of data by race emerged as a transnational norm, encouraged by the International Committee responsible for monitoring implementation of the United Nations Convention on the Elimination of All Forms of Discrimination (UNCERD), alongside specialized UN agencies such as UNESCO and the International Labour Organization, regional bodies including the Council of Europe, and a broader international endorsement through the United Nations Statistical Commission of the use of racial statistics obtained through self-declaration.^{Footnote 182}

In Canada, an interdepartmental employment equity working group comprising representatives from the Departments of Immigration and Citizenship, Statistics Canada, Human Resources and Development, the Public Service Commission, the Canadian Human Rights Commission and the Treasury Board secretariat, reportedly favoured including an explicit question on race in the 1991 Census. Testing results were positive, but ultimately a question on “population group” was not introduced until 1996.^{Footnote 183} The Chief Statistician at the time, Dr. Ivan Fellegi, offered an explanation that remains relevant today:

With the pandemic and the 2020 moment of racial reckoning, there have been increased calls within Canada and internationally to improve the quality of data collection on race.

Members of this employment equity group want to be acknowledged for their past and ongoing contributions to Canadian society. For example, the task force was reminded that the Chinese Canadian community is predominantly an immigrant community for a reason – in the 70th anniversary of the repeal of the Chinese Exclusion Act, Canadian demography is not neutral; it partly reflects a history of legal exclusion of Chinese people.^{Footnote 185} The Canadian Race Relations Foundations reminded our task force that it was created as a Crown Corporation in 1996 as part of the Japanese Canadian Redress Agreement for the internment by Canada of Japanese Canadians during the Second World War.^{Footnote 186} Racialized groups were concerned to dispel misperceptions, and in particular called attention to the myth that racialized groups are newcomers to Canada.

Racialized groups’ contributions to Canada are longstanding, and have helped to make Canada the deeply cosmopolitan, pluralist society that it is today.

Beyond ‘visible minorities’ to racialized groups

We are also too mature a society to still be stuck with the terminology we have. The language of “visible minority” has been almost universally criticized, and the task force received substantial requests to have it changed.

The United Nations Committee on the Elimination of Racial Discrimination has regularly criticized the use of the term “visible minority”, considering that “it renders invisible the differences in the lived experiences of diverse communities.”^{Footnote 187} In 2010, the Independent Expert, Gay McDougall recalled that “[w]hile the category called ‘visible minority’ in the Employment Equity Act was at one time a positive step to acknowledge minority communities, it is now too broad to give a realistic picture of the achievements of or problems faced by distinct communities.^{Footnote 188}

Not only does the purpose of the EEA need to be revised, but the language needs to be changed as well […] making sure that the language you use does not always focus on whiteness as the norm

Much of the federal government, including Statistics Canada, has already adopted the language of “racialized” as the omnibus-term. This language has gained widespread acceptance internationally. Some seek to be more precise by using the language of “racial subordination” or “racial marginalization”, but the language works less well when the focus is to characterize the groups in a multi-dimensional manner. The task force received a few other suggestions on terminology, such as ethno-cultural communities, which could introduce confusion given that another jurisdiction, Quebec, defines “ethnic minorities” for the purposes of an Act respecting equal access to employment in public bodies as “persons whose mother tongue is neither French nor English and who belong to a group other than the aboriginal peoples group or the visible minorities group.”^{Footnote 189}

The language of racialization is important because it is active language. It captures something fundamental: the notion of race is constructed, historically and through ongoing practices that recreate historical forms of social stratification. And in this, Canadian employment and immigration policy continues to play a less than subtle role.

Persisting challenges: by the data

There are factors that remind us that despite signs of progress, the category of racialized workers continues to require coverage under the Employment Equity Act framework.

Educational levels are high for Black and racialized populations, often at or exceeding the population averages:

Text description of figure 3.13

Highest certificate, diploma or degree	Visible minority	Black	Racialized minority	Not a visible minority
No certificate, diploma or degree	15.3%	21.2%	14.1%	20.9%
Certificate, diploma or degree	84.7%	78.8%	85.9%	79.1%
Secondary (high) school diploma or equivalency certificate	29.6%	34.5%	28.7%	31.4%
Apprenticeship or trades certificate or diploma	2.8%	4.8%	2.5%	7.9%
College, CEGEP or other non-university certificate or diploma	13.5%	15.1%	13.2%	16.8%
University certificate, diploma or degree	38.8%	24.4%	41.5%	23.0%
University certificate or diploma below bachelor level	3.4%	2.8%	3.5%	1.7%
University certificate, diploma or degree at bachelor level or above	35.4%	21.6%	38.0%	21.3%
Bachelor's degree	24.5%	15.6%	26.2%	16.0%
University certificate or diploma above bachelor level	2.2%	1.4%	2.3%	1.2%
Degree in medicine, dentistry, veterinary medicine or optometry	0.9%	0.3%	1.0%	0.4%
Master's degree	7.4%	4.1%	8.0%	3.5%
Earned doctorate	0.5%	0.2%	0.5%	0.3%

• Source: Employment and Social Development Canada, Chief Data Officer, Census 2021, LAB 68-69.

Consider, moreover, that unemployment rates of visible minorities who earned a degree within Canada or abroad were significantly higher than non-visible minorities.

Table 3.3: Unemployment rates by location of degree for those with a university certificate, diploma or degree at bachelor level or above

Population	Degree earned within Canada	Degree earned abroad
Visible minorities	8.1%	9.6%
Non-visible minorities	5.1%	6.7%

• Source: Employment and Social Development Canada, Chief Data Officer, Census 2021

The average, full time, full year employment income of members of racialized populations with a university, certificate, diploma or degree at the bachelor level or above was 22% less than that of the population that is not part of an employment equity group. The corresponding average employment income was $83,100 compared to $106,600. For men who are not members of the employment equity group for racialized populations, the average employment income was $127,000 compared with $92,100 for racialized men, $88,500 for women who are not part of the employment equity group for racialized populations, and $72,800 for racialized women.

Despite having generally higher labour market participation rates than non-racialized workers across most educational levels, racialized workers have consistently higher unemployment rates across all levels of education.

Text description of figure 3.14

Highest certificate, diploma or degree	Visible minority – Participation rate	Non-visible minority – Participation rate	Visible minority – Unemployment rate	Non-visible minority – Unemployment rate
Total - Highest certificate, diploma or degree	67.9%	62.2%	12.5%	9.5%
No certificate, diploma or degree	34.8%	36.7%	19.4%	16.1%
Certificate, diploma or degree	73.6%	67.3%	11.9%	8.8%
Secondary (high) school diploma or equivalency certificate	60.3%	59.2%	18.4%	13.1%
Apprenticeship or trades certificate or diploma	73.5%	67.5%	12.6%	8.5%
College, CEGEP or other non-university certificate or diploma	76.2%	69.9%	11.9%	8.3%
University certificate, diploma or degree	80.4%	73.9%	9.1%	5.5%
University certificate or diploma below bachelor level	74.5%	63.3%	10.9%	7.6%
University certificate, diploma or degree at bachelor level or above	81.0%	75.2%	8.9%	5.3%
Bachelor's degree	80.2%	75.5%	9.4%	5.9%
University certificate or diploma above bachelor level	80.2%	71.8%	8.5%	4.6%
Degree in medicine, dentistry, veterinary medicine or optometry	78.2%	76.5%	6.7%	2.2%
Master's degree	83.7%	75.3%	8.1%	4.2%
Earned doctorate	81.9%	73.5%	7.2%	3.5%

• Source: Labour Program - 2021 Census based on 30 Nov. 2022 data release.

From the 2021 Census, we learn that as far as employment income is concerned, Filipino and Black workers earned the lowest incomes of all sub-groups, while Japanese and Chinese workers earned the highest incomes. But no subgroup earned averages as high as the full time, full year employment income of non-visible minorities.

These findings are consistent with what key researchers told us: according to Professor Grace Edward-Galabuzzi, there is a racialization of unemployment.^{Footnote 190}

A further crucial consideration was whether the challenges raised could be addressed through close attention to adopting a disaggregated, distinctions-based approach to the existing employment equity groups. Some researchers have stressed that labour force prospects for immigrants and visible minorities have actually decreased over time, with a particularly dramatic and steady deterioration for racialized immigrant women over the entire 15-year period analyzed.^{Footnote 191} Analyzing census data over four cycles, Pendakur and Pendakur found a “very strong pattern of increasing earnings disparity” that encompassed immigrants and Canadian-born visible minorities, across genders.

Group cohesion through disaggregation

There are important differences in employment equity results for subgroups of racialized workers. In her 1984 Report on Equality in Employment, Justice Abella had already anticipated part of the problem:

For example, according to the 2021 Census data, while labour market participation rates of those who identified as members of racialized groups were higher than those who did not identify as members of racialized groups, at 62.2%, there was one exception: Chinese workers’ participation was slightly lower, at 59.2%.

And there were the differences (positive gaps) between racialized sub-groups, and those populations that are not part of the racialized employment equity group: they ranged from 0.3% (Japanese) to 14.3% (Filipino). While unemployment rates of those who identified as racialized were higher in all sub-groups than populations that are not identified as part of the racialized employment equity group, Filipino workers had lower unemployment levels (8.4%).

We acknowledge that there are limits to what can be gleaned from unemployment rates, as our discussion of labour force participation rates, discouraged workers and overqualified workers in Chapter 1 attests. Together with the discussion in Chapter 1, the differences presented call out for further analysis of the reasons for the differences.

Our consultations similarly confirmed that perceptions about the progress of some racialized subgroups can contribute to mythmaking and stereotyping. For example, Act2End Racism noted that there are some trailblazers amongst Asian communities that have broken through barriers, but the overall underrepresentation of Asians has not been encouraging and underrepresentation persists including at the executive levels.^{Footnote 193} We need to be careful – for example in the pandemic era climate of a rise of anti-Asian hate^{Footnote 194} – not to stoke fires of division.

But another feature should be obvious: the similarities are more significant than the differences. Sub-groups share a lot in common; a racialized workers employment equity group makes a lot of sense, conceptually and practically.

If the notion of “visible minority” is a misrepresentation of who comprises our communities, our task force was reminded that the strategic solidarity across the label – racialized workers - should not be ignored but rather reinforced.^{Footnote 195} Members of this equity group have been able to move forward critical sets of issues affecting representation that foster equitable inclusion.

The case for a separate category for Black workers was made with great care. The history of transatlantic slavery and the broader international law context alongside the powerful data on persisting disadvantage and the specificity of anti-Black racism together led to our task force’s recommendation.

We also heard representations about the many aspects of racialized groups’ lives that may lead to labour market exclusion. It is important to acknowledge them. Many of them are discussed in the next section, since they have led to calls for new employment equity groups covering intersecting factors like immigration status or religion.

Significant statistical work has already been done to get better portraits. As discussed in Chapter 2, more will be required to make employment equity data justice a reality. Disaggregated, distinctions-based record-keeping and reporting accompanied by a focus on barrier-removal is the remaining piece of the puzzle. It is crucial.

We recommend keeping the Employment Equity Act framework resolutely focused on racialized workers.

The federal public service

There are many challenges in the federal public service; addressed in each chapter of this report. Few of them are new. Consider the conclusions of a 2000 task force report on the Participation of Visible Minorities in the Federal Public Service, entitled Embracing Change, which called for an action plan to be implemented within 3 – 5 years.

Too many of the 2000 Embracing Change task force’s conclusions continue to resonate today, and its proposed benchmark of 1 out of 5 in the federal public service – which they sought to have attained by 2003 - continues to be advocated for by members of the current visible minority network, the Community of Federal Visible Minorities. The 2000 task force’s expectation was that this target would have a particular impact for visible minorities in the executive feeder groups and in executive level positions.^{Footnote 196}

By strengthening all three pillars of the Employment Equity Act framework – implementation that includes comprehensive barrier removal, meaningful consultations and regulatory oversight – we anticipate that many of the known challenges – and some emerging challenges – facing racialized groups will be addressed. We do not have a choice if we are going to strengthen our cosmopolitan, pluralist societies through equitably inclusive workplaces.

Inclusion in the Employment Equity Act framework, broadly understood

Introduction: Relationship between the Canadian Human Rights Act and the Employment Equity Act

Focusing on visible minority groups through employment equity programs does not relieve society of the responsibility to eradicate discrimination for all minority groups.

We cannot lose sight of the goal: substantive equality in employment.

Several constituents appeared before the task force, seeking recognition either within existing categories or as distinct employment equity groups. These included representatives of younger workers, older workers, new immigrants,^{Footnote 197} refugees or workers with precarious immigration status, workers with care responsibilities, and members of religious groups or religious minorities.

A few stakeholders suggested that all categories under the Canadian Human Rights Act should be included under the Employment Equity Act.

Employment equity groups relate to but are distinct from the 13 grounds of discrimination identified under Section 3(1) of the Canadian Human Rights Act. Section 15 of the Canadian Charter of Rights and Freedoms is inclusive and allows for analogous grounds of discrimination and by extension to Section 15(2), analogous groups, while specifically referencing “race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

But we understood where the ask was coming from. As we listened, we heard sheer frustration. Individual complaints-based models under the Canadian Human Rights Act or individual grievances were the hospital after the collision. Equity seeking and equity deserving groups wanted preventative care. We canvass some of the challenges in Chapter 6. There is an evidence-based case for strong, well-financed human rights mechanisms, which have the confidence of all equity seeking and equity deserving groups.

We have a comprehensive legal framework. Although both the Canadian Human Rights Act and the Employment Equity Act share the same commitment to substantive equality, they are not the same. Nor should they be the same.

The Employment Equity Act should not be called upon to replace the Canadian Human Rights Act. Hospitals are necessary. But the case for inclusion as a separate employment equity group was different.

Employment equity’s focus is to correct barriers to equitable inclusion in the labour market. It remedies underrepresentation. It is therefore important to establish which of the groups – e.g. women workers rather than sex or gender identity or expression; Black workers and racialized workers rather than race, national or ethnic origin or colour.

We also heard from several stakeholders who worried that adding many more groups would render employment equity too complicated to be meaningfully enforced.

Bluntly stated, if virtually everyone is included in employment equity groups for the purpose of representation targets, no one is really included. Employment equity will be reduced to the broadly aspirational, and utterly unenforceable.

The risk with a non-specific approach to who the Act covers, is that the Act is the basis for compliance and without specificity, there may be too much latitude or potential that accountability will decrease.

Our task force therefore has taken great care in defining the scope of employment equity. We want our justifications for inclusion to be robust, and our approach to the future to be fluid. We want employment equity to be supportive and sustainable.

However, barrier removal does not carry the same limits. Barriers are often common across equity groups, and across protected grounds of discrimination under the Canadian Human Rights Act.

Barrier removal recognizes that someday, any one of us might find ourselves in a workplace needing it to be as inclusive as possible, and that we are all better off in a workplace that allows us to be our authentic selves at work. It strives for belonging.

We discuss this in detail in Chapter 4. But the key is that barrier removal across human rights categories is the consolidation of what employment equity does for all of us: it brings everyone in. It is the inclusion that equity seeks to achieve.

A transformative approach to employment equity fosters equitable inclusion.

There is further potential.

Section 16(1) of the Canadian Human Rights Act already contains the permission needed for workplaces to carry out special programs, plans or arrangements “designed to prevent disadvantages that are likely to be suffered by, or to eliminate or reduce disadvantages that are suffered by, any group of individuals when those disadvantages would be based on or related to the prohibited grounds of discrimination.” The special programs “improv[e] opportunities,” including in employment.

Our focus, developed in greater detail in Chapter 6, is to provide latitude to an Employment Equity Commissioner, working carefully with and through the Employment Equity Data Steering Committee, to be able to draw on a similar provision, that we recommend should be added to the Employment Equity Act, and that would enable the Employment Equity Commissioner to recommend special measures that are supportive and sustainable.

This approach has guided the following requests for inclusion under the Employment Equity Act framework:

New immigrants

We continue to see that newcomers’ rate of labour market participation is lower than Canadian-born even with higher levels of education. That said, the overall economic integration story is positive within 10 years of landing; wherein newcomer earnings come close to the national average.

Some groups that appeared before the task force called for immigrants to be considered an employment equity group, citing in particular the disparities faced by new immigrants with less than 5 years. The literature troublingly shows that newcomers continue to fare worse in the labour market than Canadian born counterparts, and that their situation might be worsening over time.^{Footnote 198} New research suggests that COVID-19 has also had a disproportionate adverse effect on the employment of recent immigrants relative to Canadian-born workers, especially in low-skilled occupations and in industries that were hard hit by the pandemic.^{Footnote 199}

Canada has one of the most highly educated populations in the world based on credentials from colleges and universities, in large measure thanks to an influx of highly educated immigrants.

More than 1.3 million new immigrants settled in Canada permanently since the last census in 2016 and the newly released 2021 census. This is the highest number ever in a Canadian census. And as Statistics Canada has added, Canada is “leaving talent on the table” by failing to recognize the training and qualifications of workers educated abroad. Statistics Canada has underscored the “mismatch” between their training and qualifications and the employment that they currently occupy.

Text description of figure 3.15

Period of Immigration	Visible minority	Black	Racialized	Not a visible minority
Immigrants prior to 2016	81.0%	76.3%	81.7%	91.2%
Recent immigrants	19.0%	23.7%	18.3%	8.8%

• Source: Employment and Social Development Canada, Chief Data Officer, Census 2021

We were heartened that some degree of success seems to emerge from programs that focus on providing opportunities to newcomers while also training employers, including on understanding foreign credentials. These initiatives should be encouraged and their results rigorously studied and shared.

Census 2021 data confirm something important: being Black or racialized still makes a lot of difference for new immigrants.

The unemployment rate of recent immigrants who were not members of Black or racialized employment equity groups and who arrived in either in 2016-20 (10.1%) or 2021 (11.6%) was significantly lower than that of immigrants who are Black or racialized and who arrived during the same reference periods.

The unemployment rate of immigrant women who are either Black or racialized (13.4%) was significantly higher than that of immigrant men who are either Black or racialized (10.4%), and higher than the unemployment rates of both immigrant men who are not part of the Black or racialized equity groups (8.6%) and immigrant women who are not part of the Black or racialized equity groups (10.5%).

The constant is clear: Being a Black worker or being a racialized worker is what makes the difference. Based on this data, our task force considers it appropriate to retain the proposed employment equity groups of Black and racialized workers.

There is one recommendation that stands to make a positive difference for all recent immigrants: moving forward on the recognition of qualifications in higher education. There is international movement on this matter. Our task force urges our government to engage.

Refugees

Our task force also received an expert submission supporting a targeted employment equity initiative for refugees who come to Canada and settle in small communities.^{Footnote 200} The case recognizes that refugees have been forced to flee their homeland in the face of war or persecution. There is often but not always an intersection with grounds of discrimination, including race, ethnicity, religion and gender. They have not been admitted to Canada as economic immigrants, but rather through humanitarian grounds. The literature is clear: they face challenges to settlement in Canada, including in employment. They also tend to fare well in small cities, towns and rural communities that may simultaneously benefit from the influx of people but can benefit from financial support for settlement. There is a possibility to support the social needs of refugees, and rural communities have been shown to be particularly supportive of retention of newcomers.

This kind of proposal is interesting, and would have to be developed on a case-by-case basis with governmental incentives. Consultations and oversight by the Employment Equity Commissioner would be appropriate to consider approving an ad hoc special program. They fall squarely within the regulatory oversight role anticipated in Chapter 6.

Temporary foreign workers

Temporary migrants are overwhelmingly Black or racialized workers:

Text description of figure 3.16

Immigrant Status	Visible minority	Black	Racialized	Not a visible minority
Permanent residents	92.0%	93.0%	91.8%	99.4%
Non-permanent residents	8.0%	7.0%	8.2%	0.6%

• Source: Employment and Social Development Canada, Chief Data Officer, Census 2021

Our task force was concerned about how the treatment of temporary migrant workers, sometimes alongside other racialized workers with permanent immigrant status but limited job options, could reinforce barriers, by cementing the perception that it was simply normal that racialized, temporary migrant workers would occupy low paid, precarious, if essential jobs.

We have already observed some of this stereotyping in human rights cases: from segregated facilities^{Footnote 201} to pervasive sexual harassment.^{Footnote 202} The actual hiring practices that disproportionately concentrate racialized workers in low paid jobs are at the heart an employment equity concern.

Our task force made sure to hear from Immigration, Refugees and Citizenship Canada (IRCC) as well as ESDC to gain insight into the temporary foreign worker program.

The temporary foreign worker program is framed as enabling employers to respond to shortages in labour and skills on the Canadian market with workers who are brought to Canada on a temporary basis. The Temporary Foreign Worker Program has four streams: agriculture (59%), low wage, (22%), high wage (16%) and global talent (4%). While ESDC leads the temporary foreign worker program and Services Canada processes labour market impact assessments, as well as administers the employer compliance program, Immigration, Refugees and Citizenship Canada determines eligibility for work permits. Canada Border Services Agency assesses admissibility at ports of entry and issues work permits. The Temporary Foreign Worker program comprises 0.5% of the labour force and 11% of all temporary residents with work permits as the latter category also includes foreign students, refugee claimants and the International Mobility Program.

We know working and living conditions are a source of concern: troubling reports from the Office of the Auditor General of Canada about the conditions of temporary foreign workers,^{Footnote 203} including the poor quality of inspections and accommodations affecting the health and safety of temporary foreign workers during the pandemic.^{Footnote 204}

What is often overlooked is how labour market stratification results.

The temporary foreign worker program and its precursors have not simply been a significant source of labour for Canada’s agricultural sector since 1966. They have also been a key basis through which labourers from the Caribbean, Mexico and increasingly Guatemala have become associated with low wage work in agriculture in Canada.

Temporary foreign worker programs also contribute to a pervasive misperception that racialized workers are recent arrivals to Canada. Yet the presence of racialized peoples in Canada dates as far back as the arrival of the first European settlers.

Another example is the foreign domestic workers movement. Primarily Black women from the Caribbean came to Canada as domestic workers in the 1950s through the 1970s.

Initially they came with permanent resident status as it was assumed in the text of a 1955 Memorandum they would not leave the role that stereotypically associated them to of domestic work.^{Footnote 205} Over time, as they consistently moved on in search other forms of employment, the schemes changed. Permanent residency stopped being delivered on landing, and workers from the Philippines began to predominate. Over time, the educational requirements became so high that the women who came tended to be trained nurses or teachers.^{Footnote 206}

The caregiver program has changed significantly over time to become one of the temporary foreign worker programs, while the range of sectors and industries covered by temporary foreign workers has multiplied. They require ESDC and IRCC to determine that there is a labour ‘shortage’ and issue employer-specific or open work permits. There is also important literature showing the inter-generational effects of the various domestic worker programs in Canada on some members Black and Filipino communities, as discussed earlier. The combination of poor labour conditions and the racialization of employment^{Footnote 207} in low wage work – anyone who has taken care of children knows that it is far from low skilled work – matters for employment equity.

It matters because we risk reinforcing stereotypes: it is assumed that precarious work is the work that some Black or racialized groups are ‘naturally’ meant to do. The occupational segregation stops being recognized.

If these workers fill labour market shortages and are needed, we should be rethinking their immigration status as the advocacy groups who defend their rights have urged.

Religious minorities

We considered each of these requests, which came as our task force consultations progressed.

It was apparent from the presentations from within government that not all religious minorities were concerned that members of their group were underrepresented in employment. All were concerned, albeit to varying degrees, about the way in which discrimination against religious groups could create workplace barriers.

Anti-Semitism and Islamophobia

Our task force was especially concerned by the reported rise in anti-Semitism and Islamophobia in Canadian society, alongside a torrent of anti-Asian hate that has especially surfaced during the COVID-19 pandemic.

Statistics Canada reports that hate crimes in Canada continue to rise, of a total of 3,360 in 2021, 1,723 targeted people on the basis of race or ethnicity into which Statistics Canada includes Indigenous peoples, a 27% increase over the 2,646 incidents in 2020. Hate crimes targeting religious minorities were reported at 881 incidents and sexual orientation at 423 incidents. These numbers too are high and are rising. Here are some of the numbers for 2021:

Table 3.4: Hate Crimes in 2021

Population	Incidents per 100,000	Total number of incidents
Total population	8.8	3,360
First Nations, Métis & Inuit	4	77
Jewish	145	487
Black	41	642
Sexual Orientation	N/A	423
Arabs and West Asian	17	184
Muslim	8	144
Catholic	1	155

• Source: Statistics Canada, Census 2021

All of these currents are a part of Canada’s past and present, and task force members listened to stakeholder after stakeholder express growing concerns. In Canada, the tragedies of the Quebec City Mosque shooting and the murder of the Afzaal family in London Ontario were especially on our hearts. They affect all of Canada, and are global problems.

That these most serious forms of societal exclusion, which have been acknowledged by the federal government, should affect the workplace is a disturbing but sound assumption. Individuals and groups came before us with examples of Islamophobic comments in the federal workplace and experiences of exclusion, which the Muslim Federal Employees Network (MFEN) considered to be characterized by racism, stereotypes, prejudices, fear and hatred in a context in which Muslims have been stigmatized as security threats.

While data are limited and groups did not necessarily establish underrepresentation in the workplace, they were concerned that discriminatory practices prevented them from being able to bring their authentic selves to the workplace. It is not surprising that many raised the question of how best to include religious minorities into the employment equity framework. It was clear that inclusion needed to be considered in consultation with affected communities.

We agree: it is imperative that the Employment Equity Act be able to address labour market exclusion that religious minorities experience. It should do so in a careful, targeted manner. It should underscore the recognition, both in Canada and internationally, that these forms of exclusion constitute racism.^{Footnote 208}

Muslim women

[I]n the context of Islamophobia and the elision of race with religion, discrimination against Muslim women in the workplace must be recognized as racism.

A biological understanding of race has been discredited. Race is socially constructed, and racism is a persisting lived experience across many groups in Canada. Islamophobia is a specific example. It is a fear and hostility that is projected onto cultural stereotypes of difference. Difference – like wearing a hijab - is perceived to be a threat to state neutrality or liberal democracy and can translate into exclusion in the labour market.^{Footnote 209} A federal public service employee referred to this as “gendered racism”.^{Footnote 210}

Although official data sources limit the ability to gain a full portrait, stakeholders explained the kind of barriers faced in particular by Muslim women workers:

Some stakeholders also expressed concern that legislative developments in other jurisdictions, including the use of notwithstanding clauses to insulate Bill 21 in Québec from certain forms of court scrutiny, could affect Muslim women’s rights in the federal public service and federally regulated sectors. Constitutional litigation is ongoing on Bill 21, and some of the juridical arguments include considering whether the measures may be considered a form of discrimination on the basis of sex/ gender. The federal government has announced its intention to intervene with respect to the use of notwithstanding clauses.

Internationally, in the face of measures from Belgium and France prohibiting the wearing of symbols of belief in schools and employment, the Committee on the Elimination of Racial Discrimination recommended that State parties “ensure that any policies regarding the wearing of symbols of belief in schools and in employment do not in practice lead to discrimination on the basis of ethnicity or national origin.”^{Footnote 211}

This is therefore an area in considerable flux, and the court outcomes will have an impact on access to employment.

Members of Sikh communities

Members of Sikh communities within and beyond the federal public service similarly pointed to limits in the current understanding of individually sought reasonable accommodation. It was all too easy to jump to the conclusion that there was undue hardship. This point was emphasized by Unifor, which called for accommodations to be supported with appropriate workplace accommodations.^{Footnote 212}

We were provided with concrete examples of accommodations: one example was negotiated accommodations by dock workers in British Columbia. Inclusive standards for protective equipment were agreed upon.^{Footnote 213}

We were also told about the United Kingdom approach: turban-wearing Sikhs are exempted from the requirement to wear head protection in the workplace, including on construction sites. An exception is made for some particularly dangerous and hazardous tasks. The exemption includes both an employer responsibility to take necessary action to avoid injury through safety and health measures at work, and a limited liability of the duty-holder should an incident occur.^{Footnote 214}

Proactive barrier removal was shown to be a supportive and sustainable way to ensure that the standard itself was built to be inclusive. In other cases, the Singh Thattha technique for donning respirator masks in COVID-19 patient care,^{Footnote 215} available technology was considered to play a potential role in facilitating accommodations.

Members of the recently established Sikh Public Service Network shared their concern about anti-Sikh sentiment within the federal public service. They also shared intersectional experiences of racism and sexism at work.

Sikh Public Service Network members expressed frustration as “visible minorities” who are too often overqualified yet underemployed.

Members sought a strengthened Employment Equity Act, and wanted to be meaningfully included either as part of the existing employment equity group of “visible minorities” or racialized workers, or through separate protection for religious minorities as a new, distinct employment equity group.

Finally, task force members were mindful of “proxy” discrimination, where people draw upon proxy factors to guess someone’s racial identity, as this has regrettably been reported as a factor affecting some communities who have faced Islamophobia, notably members of the Sikh community.

Insights from comparative law

We also looked at comparative law initiatives to include religious minorities in preferential schemes in other jurisdictions, although the differences in context lead to caution. Northern Ireland is an example deeply rooted in its history and following significant investigations that showed considerable underrepresentation of Catholics in employment in both the public and private sectors. Northern Ireland embraced the notion of systemic discrimination following visits to Ottawa over several years and a visit by Justice Abella to Belfast.^{Footnote 216} In Northern Ireland, since 1989, the affirmative action program, applicable to Catholics and Protestants, has entailed five key duties for employers. They include:

• for all employers with 11 or more employees,
  • registering with the Equality Commission,
  • monitoring the religious composition (and gender) of the workplace and applicants to the post, with annual reporting to the Equality Commission,
• in addition, for all employers with 250 or more employees,
  • reviewing employment practices to ensure “fair participation” of both Catholic and Protestant communities in employment and report every three years;
• taking “affirmative action” in the event of an underrepresentation; and
• setting both goals and timetables to evaluate progress toward achieving fair participation.^{Footnote 217}

Perhaps because it was effectively rooted in Northern Ireland’s historical context, “despite initial misgivings that religious monitoring would cause some difficulties, this aspect of the legislation proved to be uncontroversial.”^{Footnote 218}

The experience in the United States offers a different reminder: although religion is a category for affirmative action measures, the freedom of religion has been interpreted to take precedence over anti-discrimination protections.^{Footnote 219}

Where do we go from here?

Our mandate from the Minister of Labour clearly asked us to consider whether 2SLGBTQI+ workers should be added as an employment equity group and whether Black workers should be added as a separate employment equity group. In light of that mandate and following our request to support extended community consultations, our task force was able to provide targeted funding to community representative organizations as well as ensure that the broad public at large could express their views. The recommendations for inclusion that we have made draw heavily on these meaningful consultations.

In contrast, despite our extensive consultations, we did not receive representations from many of the concerned groups in the broad population beyond the federal public service who wanted us to consider adding religious minorities as an employment equity group. Those dedicated consultations would be required to be able to make a firm recommendation. Our task force wishes to be true to our commitment to ensure that the meaningful consultations necessary to address affected communities has truly been supported.

It is particularly noteworthy that there is already significant if imperfect coverage of those members of religious minorities – and in particular Muslim women and members of the Sikh community – who presented to the task force.

Nine out of ten (87%) of Canadian Muslim women identify themselves as visible minorities…. we know that there is a disproportionate impact of racism and Islamophobia on Muslim women, especially those who are Black and Brown.

We note as well that the Anti-Racism Secretariat includes religious minorities in its anti-racism consultations.

The significant overlap between these communities with racialized workers in particular means that targeted measures that are distinctions based and disaggregated can contribute significantly to increasing and sustaining representation for many religious minorities.

But it is important to stress that the overlap, while significant, is not perfect. Moreover, it may leave those who face labour market discrimination feeling unrecognized and therefore unprotected on the basis of their identity.

The point is that there are markers of racialization, not just the flawed notion of skin colour. They can include clothing that tends to be associated with particular racialized sub-groups, whether or not they present or identify as “non-white”. They can include associations made on the basis of a person’s name, or where they completed their education.

By focusing on comprehensive barrier removal, we help to remove discrimination faced by racialized workers, and by many other workers including a broad range of religious minorities.

This report’s focus on barrier-removal seeks to recognize precisely those barriers that prevent racialized minorities, or women, or other employment equity groups from feeling like they can bring their full selves to the workplace.

An important consideration is the state of the available statistical data. In the absence of workplace data, the reasons offered by those who made presentations before us tended to track the generalized climate of discrimination and rising concerns over hate crimes.

We take note of the recommendation of the Canadian Council of Muslim Women that Census data retain the use of the question on religion in each census, and not every 10 years as is currently the case, to avoid lags in information.^{Footnote 220}

Finally, we suffered from a lack of experimentation or voluntary initiatives on employment equity for religious minorities in Canada. We were able to point to initiatives for Black Canadians and 2SLGBTQI+.

In the case of Canada, given

• the grounding of employment equity in substantive equality, and the timing of the evolution of cases before the courts,
• the fact that all Muslim women are women, and the vast majority (estimated at 90% +) are also Black or racialized workers, and both of these groups are already employment equity groups,
• the call for a commitment to an intersectional, disaggregated approach to employment equity groups, and
• the focus on taking barrier removal seriously, including along grounds of discrimination under the Canadian Human Rights Act,

we consider that concerns can and should be addressed substantively through the proposals made in this report.

Our task force has therefore decided not to recommend the creation of a separate category for some or all religious minorities at this time. We do encourage this situation to continue to be studied, and offer the following four recommendations: