Chapter 4: Strengthening implementation: The barrier removal pillar

What’s in a barrier?

The word ‘barrier’ is often used, but without much consistency. It is helpful to return to the process of building proactive workplace practices and policies at the organizational level. The key is to remove factors that can lead to discriminatory effects. There are better ways to achieve substantive equality than waiting for individual requests for reasonable accommodation, or for complaints before human rights tribunals or grievance arbitrators.

Barrier removal is the redesign of the roads we travel, the holistic approach to care rather than the hospital after an avoidable accident.

Barrier removal to foster truly inclusive workplaces starts a different kind of process – a process of awareness, mutual learning, and change. Undertaken in a collaborative manner, through meaningful consultations to produce workplace environmental scans and action plans, it draws workplace actors into making the workplace better for all of us.

Some requests for individual accommodation will always be a necessary part of sustaining workplace equality. Barrier removal can even support the individual accommodation process, by removing excessive delays or duplication and streamlining responses so that similar requests are handled in an expeditious and equitable manner.

The key is that a proactive approach to barrier removal means individual workers may not need to seek individual accommodations for those structural barriers that workplaces can identify and remove in advance. We’re even willing to suggest that acting proactively holds the potential to be more efficient if you factor in the economic and social costs of related absenteeism, separation, litigation, and stress at work.

Mostly, though, working to remove barriers conveys a commitment to equitable inclusion for all.

Barriers include anything that prevents people from fully and equally participating in Canadian societies. Some barriers are very visible, like a building without an access ramp, other barriers are less visible, like instructions written in complex language.

Barrier removal has been embraced in the Accessible Canada Act. Its implications for all members of society need to be better recognized.

Recentering barrier removal

The Employment Equity Act framework has long been understood as focusing on numerical underrepresentation as a barrier, and redressing that. And it is no small task. The goal-setting exercise is undertaken with care to prevent arbitrariness (this is how quotas are defined and prohibited in Section 33(2) of the Employment Equity Act). The regulatory oversight should be ensuring that progress toward implementing these numerical goals is reasonable. We address these features in Chapter 6.

This is not the only focus of the Employment Equity Act. As we have discussed in Chapter 1, employers are required in Section 5 to implement employment equity by “identifying and eliminating employment barriers” as well as “instituting positive policies and practices and making the reasonable accommodations that will ensure” that persons in employment equity groups achieve equitable representation.

Section 9 of the Employment Equity Act further clarifies that in addition to determining the degree of underrepresentation, employers must also “conduct a review of the employer’s employment systems, policies and practices, in accordance with the regulations, in order to identify employment barriers against persons in designated groups that result from those systems, policies and practices.”

Our task force realized through its consultations with employers, workers’ representatives and networks, government bodies charged with ensuring compliance and accountability, and a range of experts that much has been lost in the interpretation and implementation of the Employment Equity Act framework.

The task force heard loud and clear: we need to recentre barrier removal in employment equity, and to do so comprehensively.

The overemphasis on the numbers has taken us away from the focus on removing workplace systemic discrimination. Yet it is recognized that we cannot ensure the equitable workplace inclusion the Employment Equity Act framework requires unless employment barriers are eliminated and unless positive policies and practices and reasonable accommodations are implemented.

In other words, what is sometimes overlooked is that employment equity must focus, at the workplace level, on the social and administrative structures that “create or perpetuate a position of relative disadvantage” for equity groups, while privileging others.^{Footnote 2} As Carol Agócs explains, employment equity-based employment system reviews are designed to identify workplace barriers with a view to redress.^{Footnote 3} Numerical underrepresentation, in other words, is not the only barrier. Moreover, numerical representation levels are deeply related to a range of societal inequalities that create barriers for equity group members to enter the labour force or to appear at the appropriate levels.

Within the workplace, then, barriers may also be found in organizational structures and organizational culture. Organizational structures include job classification, recruitment, remuneration and other working conditions, retention, training and promotion policies, and termination of employment policies. Organizational culture relates to the range of formal and informal norms and practices surrounding the workplace, and include management approaches, communications, and social interaction.

Defining barriers?

There has been a tendency not to define the notion of barriers, even in the Accessible Canada Act that is built around the notion.^{Footnote 4}

Basically, if a practice is affecting certain groups in a disproportionately negative way, it is a signal that the practices that lead to this adverse impact may be discriminatory.^{Footnote 5}

Barriers are assessed in context. There is no pre-defined list. Barrier identification and elimination requires a careful process of assessing workplace practices through the analysis required by Section 5 of the Employment Equity Act.

Concrete indicative examples of barriers may include requiring Canadian experience for a job when it is not necessary to successfully fulfilling the job. Other barriers may include informal, “word of mouth” based recruiting that draws on networks that exclude racialized workers or workers with disabilities. Selection committees might include only senior-level employees, excluding women or Indigenous workers who are underrepresented in senior levels. Some consulted groups offered a range of concrete examples. For example, the Public Service Pride Network affirmed that members of 2SLGBTQI+ communities face specific forms of barriers:

And the world is changing; sometimes unexpected changes may lead to barriers being removed. For example, we heard from some disability advocates that in the COVID-19 pandemic when people worked remotely, some buildings with physical barriers were no longer being used and some disabled workers were able to work from their accessible homes. With returns to work, there may be the ability to rethink, and purposefully choose workspaces that are accessible.

It is important to add that Section 5(a) of the Employment Equity Act contains its own limit on the breadth of the notion of employment barriers, because it refers to the employer’s employment systems, policies and practices “that are not authorized by law”. An example is Section 8(1), which deems that employee seniority rights are not employment barriers within the meaning of the Employment Equity Act when they concern layoff or recall. In other cases, under Section 8(2), only if the seniority rights are found to constitute a discriminatory practice under the Canadian Human Rights Act are they to be considered barriers. This gives meaning to the limit in Section 5. We discuss Section 8 in detail in Chapter 5 on meaningful consultations.

We also find guidance from constitutional law and human rights law on substantive equality, with a focus on adverse impact discrimination. Both recent Supreme Court of Canada decisions mentioned in this report’s introduction, Fraser and Sharma, focus on the application of laws to assess their constitutionality under Section 15(1) of the Canadian Charter of Rights and Freedoms. Fraser was cited affirmatively in Sharma^{Footnote 6} although Sharma’s majority offers a narrowed interpretation of the standard and how disproportionate impact may be proven for the purposes of constitutional litigation.

Relevant for us is how Fraser, drawing in part on human rights and labour law cases focused on employer practices, understands disproportionately negative impacts, or barriers, in the workplace context:

• Ideally one would have both evidence about the circumstances of the group and about the results produced by the barrier but neither is required - it is important to be flexible
• The group facing barriers does not need to establish why there is a statistical imbalance
• Proof of the employer’s discriminatory intent is irrelevant, and
• It is not necessary to show that all members of the group have the same experience, a principle that is particularly important for claims involving multiple or intersecting grounds of discrimination

Throughout the process of identifying barriers, care must be taken to address the discrimination that can result from “continuing to do things ‘the way they have always been done’”.^{Footnote 7}

Stimulating barrier removal through employment systems review

We need to reclaim the full meaning of “proactive” in the Employment Equity Act framework. But this is hard work and we need to be thinking hard about how to promote it.

Many organizations are not set up to prompt critical assessment of day-to-day performance. Employees operate within organizational routines, which limit their perception of problems. … Public agencies also face considerable obstacles in developing common performance metrics that will simultaneously prompt local experimentation and provide accountability.

Barrier identification and elimination is the first step required in Section 5 of the Employment Equity Act. It is not just the numbers. But we need the incentive to refocus, and that will come through strengthening the two other pillars, meaningful consultations and regulatory oversight.

One of the most recent, thorough examples of what barrier identification looks like emerges from the 2022 Report of the Independent External Comprehensive Review of the Department of National Defence and the Canadian Armed Forces (the Arbour Report). It is not a surprise that the close look came from outside. The report is discussed in greater detail later in this chapter, in our focus on the federal public service. It offers a careful identification of the barriers to women’s recruitment and promotion, in the context of widely documented sexual harassment and abuse. The report addresses the representation statistics, as a basis to understand where the problems lie and what is required to address them. It considers the organizational culture, the recruitment, promotion and retention barriers, the problems with education and training requirements, the procedures, and the leadership context, in addition to the access to remedies.^{Footnote 8} The key is that one emerges with a close and careful assessment of the systemic challenges that prevent employment equity from being achieved.

Under the Employment Equity Act framework, both organizational structures and organizational culture should receive careful employment systems reviews. This extends to policies and practices across the employment lifecycle, to include recruitment, evaluation, promotion, retention, discipline and termination, exit policies and retirement.

Although the Employment Equity Act requires the workplace employment equity plan to address hiring, training, promotion and retention across the employment lifecycle in Sections 5 and 9, we would urge greater clarity, specificity and support to ensure comprehensive implementation and reporting.

Barrier removal recognizes that to achieve employment equity in Canadian workforces, the entire employment lifecycle matters. Employment equity is not only about recruitment. It is about the ability to bring workers’ authentic selves to their jobs throughout their time in their workplace, with retention and promotion as part of the mix.

The practice can be transformative because it requires systemic barriers that may be unconscious and unintended to be recognized. To do that, deliberate, dedicated and determined efforts must be undertaken. This takes time and training. Training is addressed in Chapter 5.

Reducing the regularity of reporting

The regularity of the reporting under the Employment Equity Act framework has some advantages. However, it has created a mountain of work, largely focused on the numerical representation, to the detriment of addressing the qualitative challenge posed by the very barriers that employment equity seeks to remove. Small private sector employers have in particular expressed concern about the weight of the reporting responsibility. This dovetails with their concern that the Census-related Labour Market Availability is insufficient to meet their needs.

We received a number of submissions from stakeholders and from academics, urging the frequency of reporting to be reduced, alongside increasing the focus on barrier removal.^{Footnote 9} We agree. Reporting every three years is also the norm in the Federal Contractors Program. We would extend this requirement to all workplaces covered under the Employment Equity Act framework.

Reasonable accommodations are a crucial part of our human rights law

Individual reasonable accommodations are recognized both internationally and in Canadian human rights law as necessary to ensure the equal enjoyment of the right to work and employment.^{Footnote 10} Individual accommodation is an employer responsibility under human rights legislation, and it can contribute to making workplaces welcoming for all.

The right to request an individual accommodation plan is a pivotal part of proactive schemes on disability, including under the Canadian Human Rights Act. While the first set of regulations under the Accessible Canada Act came into force in 2021 establishing rules to publish accessibility plans, feedback processes and progress reports, individual accommodations are featured in some detail in Ontario’s AODA Integrated Accessibility Standards Regulation that dates from 2011:

Individual accommodations may take on particular importance at different stages of a person’s work lifecycle.

Stakeholders also shared initiatives to centralize accommodation processes and help reduce wait times for accommodations. Compared to one-off individual requests for individual accommodations, these initiatives are positive.

But the Employment Equity Act framework must be understood to go beyond leaving the onus on individual employees to request accommodations, with workplaces responding to individual employees’ accommodation requests one at a time, over and over throughout the employee’s working life cycle, to redress barriers.

Identifying barriers across the workplace lifecycle

The potential barrier of artificial intelligence

Workplaces are increasingly moving to incorporate new technological innovations, in some cases automating tasks and altering skills required in some employment.^{Footnote 69}

The ability of artificial intelligence to embed structural disadvantages precisely by relying on and even amplifying existing social inequalities is the reason why a substantive equality approach is necessary.^{Footnote 70}

The key take away is that technology is not neutral. In workplaces covered under the Employment Equity Act framework, we should be careful to ensure that artificial intelligence-based solutions do not simply mask persisting or deepening bias. There is nothing inevitable about this outcome. A barrier-removal approach grounded in substantive equality remains an important method for achieving and maintaining employment equity.

Unifor recommended that an Employment Equity Commissioner should be responsible for developing standards notably for online job boards and recruitment and hiring agencies. Their concern was to ensure that employment equity objectives are strengthened rather than hindered.^{Footnote 71}

Our task force agrees that the ability to develop nimble, context sensitive guidance over time is the way to approach these issues. We recommend that the use of artificial intelligence in recruitment or other forms of worker evaluation or assessment should be monitored for potential biases and reported upon in employment systems reviews, with suitable guidance.

Promising practices on eliminating barriers to employment

There is a lot of busy work around Equity, Diversity and Inclusion. Task force members heard a lot about it. We also heard from employment equity groups that some of the initiatives were yielding skepticism and downright discouragement when they were not accompanied by actual change in representation. It may be great to commemorate Black history month or women’s history month or attend a Pride parade. But concrete barrier removal within the workplace has to be prioritized.

We cannot jump to the solutions if we do not really understand the problems. Too many of the EDI-based activities offer solutions without analyses of the problems. And after 37 years, if we are not doing better on representation, we have not really understood the problem.

That is why this chapter spends so much time framing the barriers. But the point is not to recommend specific practices or approaches. Barrier removal is context specific. Its goal is to help employment equity’s numerical goals to be realized. To prevent the revolving door, where separation rates are higher than recruitment and promotion rates.

The following promising practices are therefore offered not as a checklist, nor as one-size-fits-all solutions, but as examples of how some actors in some sectors – within and beyond Canada – are trying to root out some systemic barriers through proactive means.

• The task force heard of proactive measures to remove bias from recruitment practices such as resumes that remove demographically identifying data.
• We learned of the success of auditions by musicians that were conducted behind a screen, so examiners could evaluate the performers only based on what they heard.^{Footnote 72}
• The Diversity Institute mentioned scholarship programs in the underrepresented aviation sector offered to Indigenous students through Indspire to enable them to become pilots.
• We learned of a pre-employment training initiative, Pilimmaksaivik, which recruits Inuit workers for professional placements in federal departments and agencies in Nunavut. It includes a 2020 working group co-chaired by OCHRO and Pilimmaksaivik that is working on the incentivization of the use of Inuktitut and whether that could enhance Inuit representation in the federal public service.^{Footnote 73} It notes that in negotiating a joint committee on Indigenous languages with the Treasury Board, the Public Service Alliance of Canada (PSAC) affirmed that it “expects that the results of this joint review will support our standing demand for an Indigenous languages allowance, consistent with the Truth and Reconciliation Commission’s Call to Action.”^{Footnote 74} Some of these promising practices address hiring in relation to the Nunavut Land Claims Act, and focus on finding ways to enable Inuit workers to be hired through a focus on the ability to do the job, and not necessarily on the ability to meet qualifications on paper.^{Footnote 75}
• The Interdepartmental Circles on Indigenous Representation have called for anti-racism, anti-discrimination, anti-harassment and bias free expectations of conduct to be integrated into the competency profiles for all public servants, and for them to become a part of ongoing performance expectations.
• Australia has introduced a “guaranteed interview” approach. The idea of the “guaranteed interview” requires a commitment from employers to guarantee to include in its short list for interviews one or more applicants with disabilities who meet the inherent requirements for the job vacancy. This promising practice avoids charges of tokenism because short listed applicants meet the inherent job requirements. It has been instituted in a number of search processes for the range of equity groups in different employment sectors. It offers a proactive means to challenge unconscious bias, ensuring that selection committees look more closely at applicants from equity groups. It is also a practice that can be the basis of reporting to monitor compliance.
• Requests might entail requiring extra time to complete a test, or permitting a text to be taken orally, or having a reader or a scribe. But imagine if some of the norms about test taking were simply rethought – imagine if, with due regard to essential job components as well as to technological advances, tests were routinely made available in formats that allowed the test taker to decide whether to read or have a computer read the test to them, possibly through increased reliance on e-recruitment as is the case in New Zealand.^{Footnote 76} With technological advances, the possibilities may increase.
• Across the employment lifecycle, the federal public service has introduced workplace accessibility passports. The passports enable an employee to share information once. The information then travels with the employee across government. With due regard to privacy protections, this initiative can foster inclusion and reduce the requirement to repeat certain kinds of accommodations on a perpetual basis.
• To create accessible workplaces in the federal public service, the task force was informed of the Centralized Enabling Workplace Fund, described as follows in the Accessibility Strategy for the Public Service of Canada:

• Some submissions stressed that the pandemic has brought new understandings of the potential to do things differently. Working at home is one example. Lessons may be learned about whether working at home may increase accessibility for some persons with disability, or reconcile some First Nations, Métis and Inuit workers’ preference to stay close to their land. Some reports conducted during the pandemic suggest that workers who have faced discrimination in the workplace may prefer to work from home.^{Footnote 77} Lessons should be evidence-based, and will depend on a range of contextual factors across distinct sectors and industries. We heard from some stakeholders that internet access remained a barrier for many in remote Northern communities. Submissions mentioned the mental health concerns that may arise from social isolation for some who work at home.
• The task force was also interested in an emerging standard practice for executive-level recruitments: reliance on external firms. The talent recruited by executive recruitment firms typically become employees of the organization, often at the highest levels. But for employment equity, it is crucial to be able to assess the impact on the workplace of both. Do they facilitate employment equity or constitute barriers?
  • Some take responsibility for identifying and even pre-selecting candidates. Some specialize in finding candidates from equity groups. Some market their ability to draw in diversity as part of their strength. But we know very little about these practices.
  • In its horizontal audit on Indigenous employment in the banking and financial sector, the Canadian Human Rights Commission reported that executive recruitment was a promising practice:

A related positive/promising practice for external hiring is the use of a recruitment services agreement that requires contracted recruiting agencies to respect an organization’s commitment to EE by seeking out applicants from under-represented designated groups. An organization provides the contracted agency with the EE targets by designated group and occupational group, updating the information at least annually, and the agency strives to include qualified designated group members in its slate of proposed candidates. If, in any one-year period, the agency fails to supply suitable designated group candidates, it must submit a written justification stating the reasons for its lack of success. These contracts can be used for senior managers as well as for other professional or technical openings. They can also be linked to a company policy requiring a certain number or percentage of designated group candidates for positions with significant representation gaps before interviewing can begin.

• Our task force considers that these practices are an important part of the employment equity process and warrant ongoing close attention through the employment systems review process.
• The Interdepartmental Circles on Indigenous Representation considered developing a mid-career employment opportunity program to encourage lateral hiring of Indigenous peoples into the public service to be an immediate opportunity for transformative change within the federal public service.

As promising practices were shared with us, through the consultations, the written reports and research, our task force repeatedly heard the concern that employers needed the capacity to meet their responsibility to provide safe and inclusive environments for all workers, including those from employment equity groups.^{Footnote 78}

Basically, people who appeared before us wanted us to consider, especially in tight labour markets, the prospect that accessible workplaces “can open up a new labour market”^{Footnote 79} – this is a key argument for removing barriers proactively, so that accommodations do not need to be the framework that workers with disabilities need to fit in order even to apply for work.

We turned our thoughts to this too as we analyzed how to reach workers who are “discouraged” from a statistical perspective and considered to be out of the labour market, in Chapter 1.

This message resonates as well for those who might face exclusion on other grounds of discrimination covered under the Canadian Human Rights Act. Proactive barrier removal, like the roundabouts or the widened sidewalk, can support broadly inclusive policies that benefit workers generally.

Far too often, we think of employment equity as distributing a small and shrinking pie. Under a barrier removal approach to employment equity, we are bringing people in, we are baking a bigger, better pie that is ready to be shared more equitably.

Barrier removal beyond equity groups

The overview provided should give a fulsome indication of the kind of work that comprehensive employment systems reviews can provide. They will move us to a deepened understanding of the kind of 360-degree work required to remove barriers to equitable inclusion from the workplace.

What is hopefully also clear is that barrier removal is broadly beneficial and holds the potential to foster equitable workplace inclusion. The effects extend beyond the employment equity groups and create a climate that can enable workplaces to be more receptive to the needs of a broad range of constituents. For example, representatives of youth reminded the task force that they are present in all equity groups, endorsing an intersectional approach. Unifor pointed out that millennial and Gen Z workers onboarded during the pandemic may face particular difficulties integrating into workplaces, alongside familiar tropes and stereotypes that do a disservice to them.^{Footnote 80} Youth organizations welcomed support for initiatives that could allow employers to address workplace barriers, like the misperception that it is acceptable to yell at young people at work. Preventing workplace harassment would be part of the response. So too will taking issues like age into consideration when employment systems reviews are conducted, as Unifor recommends. Addressing barrier removal and accessibility concerns will also assist youth.^{Footnote 81}

Barrier removal can of course be supported through legislative reform. The task force was dismayed, for example, that access to leave for religious minorities whose holidays were other than traditionally celebrated holidays that correspond with some Christian calendars was, at this stage in life in Canada, still a challenge.

In his review of federal labour standards, Commissioner Harry Arthurs considered labour rights, including minimum labour standards, to be human rights. He made a plea for greater flexibility on hours of work, which included leaves for care responsibilities. His review also suggested that “Canada’s labour standards are neither more costly nor less flexible than those of international comparators.”^{Footnote 82} On leave for religious holidays, he recommended the following:

Part III should allow the employer, on the written request of an individual employee, to substitute one or more cultural or religious holidays for any general holiday under Part III. The Labour Program, in cooperation with the Canadian Human Rights Commission, should remind employers of their legal obligation to accommodate such requests.

The recommendation shows important recognition of the significance of accommodating religious holidays.

There have since been significant reforms to Part III of the Canada Labour Code’s leave provisions. The approach has been to acknowledge that there are a range of reasons why people might need flexibility in their working lives. Workplaces and society as a whole benefit by ensuring that flexibility is available when it is needed. The types of leave range under Part III of the Canada Labour Code from parental leave on the birth or adoption of a child to leave for end-of-life caregiving responsibilities, from critical illness, compassionate care and bereavement leaves to leaves in the event of family violence, from personal leave broadly defined to leave for “traditional aboriginal practices”. The approach reinforces the principle that substantive equality is not a sameness standard. Substantive equality is an equitable inclusion standard.

We would encourage the federal government to enter into consultations with employers’ and workers’ representatives and concerned communities, to consider an amendment to Part III of the Canada Labour Code to provide one or more days per year that can be taken on religious high holidays, with appropriate modalities to account for the needs of specific industries or emergencies.

The key takeaway remains the task force’s observations on the over-use of an accommodation model when proactive measures are required should guide this process.

The point is not to bring everything to the macro-level and require law to fix the problem. Rather, the legislation in this context enables broad parameters to be set, and allows workplaces to act in a nimble, fluid manner to remove barriers.

This requires us to take care to identify and eliminate barriers. The need for specificity is recognized at the highest governmental levels, judging from the Clerk of the Privy Council’s 2021 Call to Action on Anti-Racism, Equity, and Inclusion in the Federal Public Service.

This task force underscores the importance of undertaking this work with joint management-employee committees, and with the safeguards necessary to prevent reprisals for those who take this kind of proactive work seriously.

Introduction

One workplace practice that has received significant recent attention in the wake of #MeToo and growing public consciousness of the harms of sexual harassment and violence in the workplace is the use of non-disclosure agreements in dispute settlement. Some frame this development as a managerial rather than legal issue; in other words, letting a matter escalate to the point of becoming an external complaint is perceived to be a sign of “poor management”.^{Footnote 83} This might well promote less adversarial employment relationships. But there are dangers: when a serious human rights matters is not redressed, the dispute might go away but the discrimination might simply be hidden from view. This can prevent barrier removal, and leave systemic discrimination in place contrary to the purposes of employment equity.

The task force heard poignant representations from co-founders of Can’t Buy My Silence, law professor Julie MacFarlane and Zelda Perkins who maintain that legally enforceable non-disclosure agreements (NDAs) – also known as confidentiality agreements - mask abuse and discrimination, and cause harm. These legal instruments were initially privacy tools to protect trade secrets, but their use in settling employment disputes has become ubiquitous. They pointed to the prevalence of non-disclosure agreements, in both the federal public service and the private sector. They noted that confidentiality agreements are used even in employment agreements as a condition of employment, or at the investigation stage of harassment claims.^{Footnote 84}

The use of confidentiality agreements in the employment context extends beyond the purview of the Employment Equity Act framework, and warrants careful and comprehensive treatment. It has been the basis of significant reviews internationally and in Canada, linked in large measure to the transnational advocacy of Can’t Buy My Silence.

Wherever these settlement patterns hold true, they will echo back into the entire system of protective labour and equality laws: if a settlement with an NDA is the best that law and legal process normally offer those who invoke these rights at work, it appears fully rational on that basis alone for complainants to give up early on trying to do something, let alone once additional pressures towards silence are factored in.

To the extent that they run the risk of entrenching rather than removing barriers to achieving substantive equality at work, the indiscriminate use of non-disclosure agreements and confidentiality agreements to investigate or settle harassment and discrimination cases in the workplace is a matter that also warrants our attention in the employment equity review.

NDAs in comparative law and across Canada

There has been growing attention across Canada and internationally on NDAs as they relate to sexual harassment claims in the workplace. The following three broad features emerge from a review of the studies undertaken in Australia, Ireland and the United Kingdom on the use of NDAs in harassment and discrimination claims, with a focus on sexual harassment.

First, NDAs may be perceived to have some benefits, including confidentiality for complainants as some would rather settle a dispute and avoid litigation.^{Footnote 85} Others want confidentiality to avoid being cast as difficult or facing personal reputational damage in their sector of work.^{Footnote 86} Some suggest that without NDAs, employers could instead use their resources to show that they have taken reasonable measures to address discrimination in the workplace and leave defendants to seek independent legal advice, or alternatively to dissuade or repress complainants altogether.^{Footnote 87} We do not yet know. And none of these arguments means that NDAs should be used indiscriminately. Exceptions to the use of NDAs may be difficult for most people to understand, including sometimes the experts.^{Footnote 88} It is important to ask whether they actually protect the complainant from reputational damage.

Second, parties may experience harm by virtue of having signed NDAs. They may not have a real choice as to whether to sign an NDA due to the power imbalance with their employer.^{Footnote 89} Some might not have had access to independent legal advice;^{Footnote 90} even then, the limited sociolegal research questions whether independent legal advice is enough.^{Footnote 91} Complainants may experience isolation, as signing the NDAs prevents them from confiding in friends and family or finding support.^{Footnote 92} NDAs may also limit opportunities for complainants to find new employment if they cannot explain why they left their jobs.^{Footnote 93}

Third, if NDAs merely cover up credible accusations of abuse rather than having perpetrators in the workplace appear before appropriate disciplinary committees and face sanctions, they perpetuate harassment in the workplace and prevent patterns of harassment from being identified and addressed. Perpetrators may be able to move easily between employers without their behaviours being stopped.^{Footnote 94} There is an inherent challenge to gathering information about the prevalence of NDAs due to their secrecy requirements.^{Footnote 95} In this sense, they contribute to a culture of silence.^{Footnote 96}

In Canada, Prince Edward Island’s Non-Disclosure Agreements Act came into force on 17 May 2022, making PEI the first jurisdiction in Canada to pass legislation prohibiting NDAs where a complainant alleges or has experienced harassment or discrimination.^{Footnote 97} Similar bills have been introduced in Nova Scotia,^{Footnote 98} at first reading, and Manitoba, where the private members’ bill did not proceed after second reading but the matter is being studied by the Manitoba Law Reform Commission.^{Footnote 99} British Columbia is also reportedly considering introducing legislation.^{Footnote 100}

In February 2023, the Canadian Bar Association overwhelmingly endorsed a resolution both to “promote the fair and proper use of NDAs as a method to protect intellectual property and discourage their use to silence victims and whistleblowers who report experiences of abuse, discrimination and harassment in Canada” and to “advocate and lobby the federal, provincial and territorial governments to enact changes to legislation and policies to ensure NDAs are not misused for the purpose of silencing victims and whistleblowers.”^{Footnote 101}

There are currently no laws in place yet in Australia, Ireland or the United Kingdom, but Ireland is considering a private members bill, and the UK has committed in principle to consider legislation to limit their scope. Australia proposed a practice note and model confidentiality clause, to promote best practices with plain language expectations while ensuring that whistleblower protections are maintained.

A number of U.S. states have also acted either to restrict or to prohibit the use of NDAs between employers and employees, although generally without proscribing contractual clauses in mandatory arbitration agreements in standard employment contracts.^{Footnote 102} California and Washington broadly prohibit NDAs or render them void in cases of discrimination or harassment and cover independent contractors.^{Footnote 103} New York is one of the U.S. states that has built in procedural protections, by providing a 21-day period for the claimant to consider the NDA and seven days to revoke the agreement.^{Footnote 104} Other states such as Vermont require employees to be notified of their rights. In particular the settlement agreements state that the NDA does not prevent the claimant from lodging a complaint, testifying or otherwise assisting with an investigation, or complying with a discovery request.^{Footnote 105} 

Of particular interest for the Employment Equity Act framework, Maryland introduced a reporting requirement for employers with 50+ employees. The covered employers must report to the state civil rights commission the number of:

• settlements entered after an employee alleges sexual harassment
• payments to the same employee to resolve an allegation of sexual harassment in the last 10 years, and
• confidentiality requirements in settlement agreements^{Footnote 106}

What can we do now?

It is, however, critical not to assume that all change is in the direction of less silencing.

It is clear that there is an important moving landscape seeking to understand and redress the abuse of confidentiality agreements. There is enough information about the potential for misuse for this task force to recommend that the federal government consider changes to human rights and labour laws to ensure that NDAs are not misused for the purpose of silencing human rights complainants or whistleblowers. And we must be alive to unintended consequences of law reform.

Workplace harassment is a broad concept under the Canada Labour Code, and several Canadian jurisdictions have specific psychological harassment laws. We heard concern not only that employment equity groups facing intersectional discrimination are more likely to face workplace harassment; psychological or similarly broad harassment claims might disproportionately target senior-level and at times Black, Indigenous or racialized women when they exercise authority and seek to work within organizational structures and policies to push for change.^{Footnote 107} Could stereotypes such as the “angry Black or Indigenous woman” leave some managers more susceptible to having organizations turn on them, leaving them more susceptible to psychological or related harassment complaints for behaviours that in male managers would be treated as normal? The caution is a reminder that sexual violence and harassment are exercises of power. They intersect with exercises of power in relation notably to race, sexual orientation, sexual identity and expression, and sex characteristics, and accessibility, the very dynamics that are so central to the lived experiences of the employment equity groups that they need also to be taken into account.

The Employment Equity Act framework already features reporting requirements on proactive measures taken in the workplace. It provides the opportunity to learn about a practice that has been shrouded in secrecy. As the requirement will be forward looking, federally regulated employers will be required to conduct themselves in their private agreements in a manner that enables them to respect this reporting requirement. Our task force considers that it can be generative for federally regulated employers to be required to report on the extent and nature of the use of NDAs and confidentiality agreements.

A focus on reporting what can be reported will enhance the ability of the Employment Equity Act framework to enable us to identify and remove barriers.

Our task force therefore recommends that workplaces be required to report on the number of harassment and discrimination complaints, identified by category, by whether complainants or respondents or perpetrators are members of one or more employment equity groups and if so which ones, and by the number of NDAs that were concluded by the workplace as part of the mandated workplace climate scan. The list must be anonymized. We acknowledge that some data suppression may be required based on the size of the employment equity groups or subgroups in question, in keeping with privacy principles discussed in Chapter 2.

Finally, the task force considers that it is timely and appropriate for a study to be undertaken on the issue of the apparently widespread use of NDAs to resolve employment matters and its impact on human rights and equity in the workplace and beyond. The proposed study could usefully consider a range of practices that might affect the unequal bargaining power of parties at different stages of the employment relationships but that affect the conditions of termination. Moreover, it could encompass the use of restrictive covenants including non-competition clauses in often low wage employees’ contracts, considering that the Federal Trade Commission in the United States has just proposed a new rule in the Code of Federal Regulations that would ban employers from imposing non-competition clauses on workers, a practice that they refer to as exploitative.^{Footnote 108}

Introduction

Markets are interdependent.^{Footnote 109} The labour market is no exception. There is a growing awareness that without the work of social reproduction, labour markets could not function. Yet affordable childcare remains a persisting barrier to substantive equality in employment. Moreover, it is telling that both the Woods commission of 1968 and the Abella commission of 1984 found it disturbing that domestic workers were excluded from labour and human rights law.^{Footnote 110} This remains a concern. Canadian leadership through ratification and implementation of the ILO’s Domestic Workers Convention, 2011 (No. 189) is warranted. A related concern is to think about how the programs we support – like childcare programs – may enable equitable inclusion.

There is no magic line between barriers within and barriers beyond the workplace.

But we want to highlight the role that public policies for work play in supporting workplaces – employers and workers alike – and supporting our broader societal substantive equality goals. The barriers discussed – in care responsibilities, in education, and in transportation and housing, are not the only barriers, but they are the ones that were brought to our attention repeatedly by constituents who came before us.

The takeaway is that as a society, we need to think broadly and creatively about some of the most basic aspects of our social system – early childhood care, education, transportation and housing, and prospects for basic income.

Care responsibilities

The differential weight of care responsibilities across employment equity groups was a recurring theme in our task force’s consultations. The data confirm this. International law, including the ILO’s Workers with Family Responsibilities Convention, 1981 (No. 156) supports addressing these issues with dedicated policies. Canadian human rights law is slowly developing to recognize family status as a ground of discrimination that needs to be accommodated at work.^{Footnote 111}

While this report affirms that the disproportionate burden borne by women as a group is well known and often commented upon, differential impacts were also experienced, by First Nations, Métis and Inuit workers, by disabled workers,^{Footnote 112} by Black and racialized workers and by 2SLGBTQI+ workers. Below we stress the literature on First Nations, Métis and Inuit peoples and emphasize that the data are intersectional including across disability, and across gender.

Post-pandemic build-back-better initiatives like transformative 2021 Early Learning and Child-Care Agreements are extremely important for fostering workplace access. Other measures might also be needed, however, to address some of the root concerns over care responsibilities raised by First Nations, Métis and Inuit peoples.

The 2017 Aboriginal People’s Survey conducted by Statistics Canada reported that of working age First Nations women who worked part time, one fifth (19%) did so to care for children.^{Footnote 113} Among core working age First Nations women who wanted to work but were not considered to be in the labour force, 21% did not look for work because of childcare responsibilities. Access to childcare was considered particularly important for First Nations and Inuit women who planned to look for work within 12 months. It is significant, also that 72% of off-reserve First Nations people, and an equivalent percentage of Inuit people, reported “helping out their community” on at least once per month; many of the activities involved forms of care including eldercare.

We were also influenced by the 2016 report of the First Nations Data Centre, offering a rooted perspective on childcare and school programs:

Although formal childcare and school programs are highly significant in directly supporting children and families, these programs should not be seen as adequate in and of themselves. Rather, multi-pronged and inclusive strategies designed to respect diversity should be the foundation upon which to develop programs, policies, and activities that specifically address the collective and the individual elements of health and well-being.

In other words, supporting families and communities to be culturally, spiritually, economically, and socially whole and healthy is a key element in supporting the healthy development of First Nations children. This broader, holistic approach to early childhood development and learning is resonant with an Indigenous world view that recognizes the interconnection of all things and the integral role of language, culture, and Indigenous knowledge in the health and well-being of Indigenous individuals, families, communities, and broader collectives.^{Footnote 114}

A further point about “care” is vital: while much attention has rightly been placed on the importance of affordable childcare, some employment equity groups – notably First Nations, Métis and Inuit workers – face the persisting legacies of having their children disproportionately placed in the child welfare system, a point that was underscored in March 2023 by the United Nations Special Rapporteur on the Rights of Indigenous Peoples, Mr. José Francisco Calí-Tzay in his End of Mission Statement to Canada.^{Footnote 115} Canada is only beginning to grapple with the legacies of residential schools and the 60s scoop for Indigenous children, families and nations.

What our task force heard during our consultations also mirrored what has been reported, including the unsatisfactory result reported in the Auditor General’s 2011 Status Report on Programs for First Nations on Reserves requiring government, in consultation with First Nations, to develop immediately and implement a comprehensive strategy and action plan, with targets, to close the education gap and report to Parliament in a timely basis.^{Footnote 116}

Primary and secondary education

Decisions about life options happen early, whether one knows about the options or not. Education is meant to equalize, to prepare children for a range of life and workplace options, but educational disparities remain stark. In other words, gender segregation starts early.^{Footnote 117} So do other forms of differential life options based on grounds of discrimination. Research considering why women are so underrepresented in some sectors, including the transportation and construction sectors, worldwide, turns attention to how STEM subjects are taught. These factors intersect with others, including the impact of employment requiring long hours on expectations that women will bear primary responsible for care at home.^{Footnote 118}

The comments echoed UN Special Rapporteur on the rights of indigenous peoples, Professor James Anaya’s reminder in his report on his visit to Canada in 2014 that while there have been several “laudable government education programs”:

At every level of education, indigenous people overall continue to lag far behind the general population. Government representatives have attributed the gap in educational achievement in large measure to high levels of poverty, the historical context of residential schools, and systemic racism.^{Footnote 119}

He noted that “numerous First Nations leaders have alleged that federal funding for primary, secondary and post-secondary education is inadequate.”^{Footnote 120} The Committee on the Rights of Persons with Disabilities (CRPD), in its periodic review of Canada, expressed particular concern that Indigenous women with disabilities should have access to education programs.^{Footnote 121}

In his 10 March 2023 end of mission statement, the current UN Special Rapporteur on the Rights of Indigenous Peoples, José Francisco Cali Tzay, called attention to the “appalling legacy” of residential schools:

In every place I visited, I heard about how Indian Residential Schools, more appropriately termed ‘institutions,’ fractured familial and community ties. For over 100 years, successive generations of children, many from the same communities and families, were sent to these institutions and never returned in numbers that may never be fully known. This experience was largely hidden from Canada’s history until the 2021 discovery of 215 unmarked graves at Kamloops residential school captured the world’s attention.^{Footnote 122}

The task force listened carefully to the depth of the educational barriers facing First Nations, Métis and Inuit peoples in light of Canada’s colonial legacy. The 2016 First Nations Data Centre report emphasized the importance of learning in community, including from elders, First Nations community members, as well as from and about the Land. One of the most significant findings of this report on education is that of those who leave school as youth, nearly three quarters eventually return with parental and family support.^{Footnote 123} The impact of parental and family support flows through the report as a whole, and there is an important reminder that it is impossible to assess negative socio-economic statistics for First Nations youth without taking into account the intergenerational trauma that is rooted in the legacy of residential schools and colonization more broadly. The report considered it fundamental to First Nation thriving in future employment for First Nations cultures and languages to be acknowledged and incorporated into formal education.^{Footnote 124}

The education gap between adults living in First Nations communities and those living off-reserve is notable and should be of concern. It is imperative that efforts be made to improve educational outcomes for those living on reserve and in northern First Nations communities.

The 2017 Aboriginal Peoples Survey, looked closely at the educational barriers for First Nations women and men living off reserve. Crucially, it reported that over the past year, over a third (36%) of First Nations people living off reserve took courses, workshops, seminars or training to develop their job skills, and a further 28% wanted to do so.

In the Federal Public Service, the Interdepartmental Circles on Indigenous Representation reported that most participants seemed to have entered the federal government through participation in a student program or through public service work fairs.^{Footnote 125} The importance of these initiatives to break down barriers should not be understated.

Post-secondary education, training programs and internships

Increased recruitment in certain groups depends heavily on information and awareness. This is not only the responsibility of employers, but also the promotion of training programs and the involvement of educational institutions, especially government programs that encourage people to enter unfamiliar or unknown occupations.

The relationship between education, training and employment equity could not be more important. We heard this over and over. Employers who want to hire call for support to address problems of the pool. There is an important role for proactive policies from government, from employers, and from historically underrepresented communities to encourage inclusion. The importance of mentorship should also not be overlooked. CEDAW has recommended that Canada:

Continue to develop and provide targeted training and mentoring programmes on leadership and negotiation skills for potential women candidates and potential female leaders in the public sector, including those who are underrepresented, such as migrant, indigenous and Afro-Canadian women, as well as women belonging to other minorities and women with disabilities.

The OECD, reviewing Canada’s Indigenous Skills and Employment Training (ISET) Program, delivered through 82 agreement holder organizations across Canada and two national organizations raised concerns about whether rural dwellers are adequately served.^{Footnote 126}

The nature and quality of training programs also matters. The 2022 report by the Honourable Louise Arbour provides a crucial analysis of the systemic issues linked to training for the military. The report concludes that “military colleges appear as institutions from a different era, with an outdated and problematic leadership model” that runs a “real risk” of perpetuating discrimination.^{Footnote 127} Despite acknowledging that the military colleges are viewed by many in the CAF as “untouchable institutions”, she recommends the elimination of the Cadet Wing responsibility and authority command structure (Recommendation #28) and that other significant alternatives be studied and considered to the current education of cadets at military colleges:

I do not dispute the fact that the military college system has produced many bright young Canadians, who have become excellent career officers and successful civilians after their release. However, the overwhelming majority of them were white men. Canadian society has changed. The persistent structural, cultural, and ethical issues inherent in the military college system require Canada to ask whether there is another, potentially much better, way to educate its future military leaders.

The Committee on the Rights of Persons with Disabilities (CRPD) also made recommendations to remove barriers linked to the freedom of expression and opinion and access to information, which are rights under Article 21 of the Convention on the Rights of Persons with Disabilities, ratified by Canada in 2010. They called for Quebec Sign Language (Langue des signes Québécoises) and American Sign Language as official languages to be used in schools, and the promotion and use of easy-read and other accessible formats in communications technology and ensuring access to that technology.^{Footnote 128} The Committee on the Rights of Persons with Disabilities called for inclusive educational strategies.

The Committee on the Elimination on All Forms of Discrimination against Women (CEDAW) has also expressed concern about difficulties in gaining access to high quality education, including “significant barriers, including a lack of grants and fragmented funding of educational programs”^{Footnote 129}  faced by women and girls with disabilities or who are Indigenous, Afro-Canadian or migrants. CEDAW recommended increasing grants and removing the funding cap on the Post-Secondary Student Support Program to ensure that Indigenous women and girls have access to funding for post-secondary education, as well as a broader approach to addressing structural barriers for all girls including those who are disadvantaged or marginalized.

The Supreme Court of Canada in R. v. Gladue [1999] 1 SCR 688 has recognized the “excessive” imprisonment of Indigenous people in the criminal justice system and the challenge of systemic discrimination. The link to Canada’s colonial history has been repeatedly made by task forces and research studies and was named powerfully in the Report on Truth and Reconciliation Commission and the National Inquiry into Missing and Murdered Indigenous Women and Girls.

The Correctional Investigator, Ivan Zinger, has regularly reported on rampant racial discrimination in Canadian prisons, identifying systemic overrepresentation of Indigenous prisoners as well as Black prisoners.^{Footnote 130} The Canadian Human Rights Commission has expressed concern about the additional challenges faced by Indigenous and Black inmates, including their over-representation in maximum security and segregation. It has taken the position that “the use of segregation to manage inmates with mental disabilities is inappropriate and should never be permitted.” They call attention to the limited mental health services and alternatives to segregation.^{Footnote 131} The 2022 Report of the Miscarriage of Justice Commission led by the Hon. Harry LaForme and the Hon. Juanita Westmoreland-Traoré reported that the current system has failed to provide remedies for women, Indigenous or Black people in the same proportion as they are represented in prisons in Canada, and called for an independent, proactive, systemic and adequately funded commission.

The United Nations Committee on the Elimination of Racial Discrimination also expressed concern that African-Canadian students are “reportedly disciplined more harshly than other students, which forces them out of learning and contributes to the ‘school-to-prison pipeline’.”^{Footnote 132} In a General Recommendation, CERD has called on member states to “[a]ct with determination to eliminate any discrimination against students of African descent.”^{Footnote 133} We heard from groups who were concerned that the overincarceration of Indigenous people and Black people in Canada has a disproportionate effect on labour market access due to criminal records.

Although unequal access to education can be a barrier, it would be a mistake to assume that simply obtaining an education will pave the path. As was discussed in Chapters 1 and 3, higher educational levels do not necessarily lead to commensurate jobs for Black and racialized workers. Representatives of immigrant workers have long expressed particular frustration at being encouraged to migrate to Canada in part because of their high educational qualifications. Yet they are unable to have their qualifications recognized in a reasonable time and are forced to resort to low wage work to survive. As then Independent Expert on Minority Issues, Gay McDougall stated, “[i]t must be recognized that discrimination plays a role in this equation. A disconnect between education and employment must be tackled by Government as an important issue of concern requiring policy implementation.”^{Footnote 134} She called for solutions to be found to the “doctors driving taxi cabs” cliché that troublingly resonated with too many racialized workers. CERD has similarly recognized the potential barriers linked to professional certification, calling on the organizations – which are essentially within provincial jurisdiction – to review their policies to see whether there are discriminatory barriers to certification of foreign degree holders.^{Footnote 135}

There are aspects of the underemployment of equity groups that have traditionally required care to understand. That immigrant doctor driving a cab may not only be trying to keep a roof over the head of a family in Canada, but also given global income inequality, may be sending remittances to support parents and other family members abroad.

There is an abundance of literature on the need to adopt an “identity conscious” set of strategies to close the opportunity gap for educational success of students from historically marginalized communities.^{Footnote 136} Quite specifically, Pendakur seeks to focus attention on removing barriers – that is, on looking at “institutional responsibility to address policy, systems and environmental factors that contribute to student achievement or failure.”^{Footnote 137}

Transportation and housing

Barriers can be anywhere. Getting to your workplace can be a challenge. We can look at systemic barriers from an ACA perspective and work together to find a solution where we can identify those to create a barrier-free society.

Transportation is the lifeline that connects persons with disabilities with the community, facilitating greater opportunities for work, social inclusion and overall independence.

Transportation, housing and access to information and communications technologies were raised by several representatives of employment equity groups who appeared before the task force. The concern is echoed notably by the UN Special Rapporteur on the rights of persons with disabilities who visited Canada in 2019 and recommended equitable access.^{Footnote 138} Professor Laverne Jacobs, who became a member of the Committee on the Rights of Persons with Disabilities in 2022, has conducted a comprehensive review of case law and focused on those claims brought by applicants who sought to modify transportation systems that extend beyond individually accommodating that applicant’s specific disability needs. Those “transportation restructuring” cases were met with narrow legal interpretations inconsistent with Canada’s international obligations under the Convention on the Rights of Persons with Disabilities and at odds with transformative approaches.^{Footnote 139}

Indigenous Peoples are more likely to live in substandard, overcrowded, and culturally inadequate housing than the rest of the Canadian population. This situation constitutes a barrier to securing stable employment, education, and access to social services.

Some consulted groups considered that remote access to employment – with suitable internet access – could enhance employment equity.^{Footnote 140} Certainly, the possibilities of flexible workplaces have become clearer since the pandemic.^{Footnote 141}

It is important to experiment with targeted measures. Adequate housing has been decried as a consistent feature preventing reconciliation with First Nations, Métis and Inuit people; it is also an employment barrier for Indigenous workers. Promising practices on housing allowances and travel allowances, for example, may be necessary to foster equitable workplace inclusion for Indigenous workers in remote locations.^{Footnote 142}

Specific educational requirements can be barriers for new immigrants^{Footnote 143} in ways that may mirror barriers faced by racialized workers irrespective of their place of birth.^{Footnote 144}

The specific challenge of discouraged workers is in many ways a data justice issue, addressed in Chapter 2. But there is a recognition that potential gaps exist between the legislative obligation to correct underrepresentation and the way that availability is calculated. For example, a visible minority worker with a computer degree who works as a security agent because of employment barriers may not be taken into account in the calculation of labour market availability when the focus is on sector and professional categories, rather than by education level or type.^{Footnote 145}

Basic income

Finally, some accessibility organizations called for programs that provide income benefits to be structured to avoid clawbacks that may discourage disabled workers from taking labour market risks.^{Footnote 146} The relationship between basic income support and labour market access warrants closer attention than this report can provide. Innovative calls for decent jobs at decent pay to all jobseekers are intimately linked to equitable inclusion.^{Footnote 147} However, task force members considered that it was fundamental to break the cycle of disadvantage by providing the basis upon which workers can make life-enhancing choices. Like much in this section, it extends beyond the Employment Equity Act framework, but it could not be more important to equity seeking and equity deserving groups.

The Canadian Armed Forces

Barrier removal

Several female CAF members disclosed how they must adopt male traits such as assertiveness otherwise they are seen as being [weak] however if they are too assertive unlike their male counterpart who would simply be seen as ‘crusty’, a female would be seen that way because of her gender and being a terrible person. Furthermore, female soldiers reported having to work twice as hard as their male counterparts to be accepted in their work environment by having to prove their professional competencies...

CAF has probably had a stronger opportunity than many federal workplaces to understand what barrier identification really looks like, given the many high-level reviews. Inclusion in the Employment Equity Act framework should make the barrier identification and barrier removal an ongoing, reflexive internal process.

This means barrier removal in CAF must be more than one line item among many anticipated features of an action plan. It needs to be central to the employment systems review and yield specific actions.

In the case of CAF, more attention may need to be placed on whether initial assessment requirements – for example fitness tests – are built on a model that disproportionately excludes women or other equity groups.

For example, the Arbour Report identifies some potential barriers, and in particular questions whether the physical fitness standard is required and remains appropriate, underscoring the “many occupations that do not require the same level of fitness as one would require and expect to maintain in a deployment”.^{Footnote 168} It offered a portrait of recruitment that yields a vicious circle, where the CAF can only recruit as many people as it can train, but limited trainers leads to a bogged down process. The Hon. Louise Arbour found that the future of recruitment of women in CAF is “not encouraging” and was told that there is “little or no” chance that CAF will reach its target of 25% women in 2026. She added that women tend to be recruited in support roles, where they already have some representation. Among others, she cited human resources administrators, medical or dental officers, nursing officers, financial services administrators and cooks, occupations that have traditionally tended to feature women. Women were also found in limited number in some Air Force occupations such as aerospace engineers and aerospace control officers.^{Footnote 169} She recommended that recruitment be simplified and restructured.^{Footnote 170} Her specific recommendation #22 that the “CAF should put new processes in place to ensure that problematic attitudes on culture and gender-based issues are both assessed and appropriately dealt with at an early stage, either pre- or post-recruitment” is one that the task force endorses and would encourage the CAF extend to include all employment equity groups.

Studies so far have shown that women are more likely to have doubts about their abilities to meet the standards.^{Footnote 171} That needs to be considered along with the erroneous perception that physical standards were lowered to enable women to pass the FORCE standardized tests to meet the Universality of Service principle.^{Footnote 172} It is also important not to assume that some matters will be barriers – consider that women who enrolled in the CAF did so because they were attracted by the job security, travel opportunity and desire to serve, alongside educational subsidies and desire for a life change, and these were considered as pretty universal reasons for enrolling while the choice of primary reserve had added features that might allow relative control over family- work life balance issues.^{Footnote 173} Taking all of this into account, what more can be done to support those members with family responsibilities?

It is not the role of the task force to identify the barriers specific to each workplace. This discussion is an opportunity to recall that this workplace in particular has a solid basis on which the work of barrier identification and removal can be continued.

Employment equity generates reflexive processes within the workplace. In chapters 5 & 6 we propose the kind of meaningful consultations and regulatory oversight to help to stimulate and support this ongoing work. The key take away is that barrier removal must be centred and ongoing if employment equity is going to be achieved.

Beyond exceptionalism

As this discussion should show, there are some distinctive challenges in the CAF. There are also tools necessary to begin to address them. Specific recommendations have been offered in this section. However, based on the information available to us, we conclude that most of the task force’s recommendations can readily apply to the Canadian Armed Forces, with little adjustment but with lots of support. That is the core recommendation.

The Royal Canadian Mounted Police (RCMP)

Like other federal employers, the RCMP has a statutory responsibility under employment equity legislation and other human rights legislation to provide a workplace that is free of prohibited discrimination. Its responsibility applies across its employee base, from regular RCMP members to civilian members to public servants. Yet the task force observed that confidence in the RCMP’s ability to achieve employment equity is not high.

The RCMP has not been accountable to the marginalized employees within the organization…. Since the RCMP did not have a union until recently, there was no one to report this inaction to.

The RCMP is a very insular organization. Most members join at entry level, train at Depot and advance through the ranks. Few senior officials are not police officers. This has led to a strong culture and sense of pride, valuable in many regards, but which may lead to resistance to change.

[A] fundamental restructuring may be necessary to resolve entrenched issues of misogyny, racism and homophobia but will require an in-depth review which is beyond my mandate. In my view however, it is time to discuss the need to make fundamental changes to the RCMP and federal policing. I am of the view that cultural change is highly unlikely to come from within the RCMP.

Allegations of widespread sexual harassment in the RCMP for over 30 years, alongside recent class action lawsuits by Constable Janet Merlo and Inspector Linda Gillis Davidson were reported by the Canadian Human Rights Commission to the United Nations’ CEDAW during Canada’s 8th and 9th periodic review.^{Footnote 178} The reviews are numerous and long-standing, and include reviews on workplace barriers to retention and promotion.^{Footnote 179} Former Auditor General Sheila Fraser conducted a review of four other allegations in March 2017, and called for an “independent harassment investigation process” to be established, under the direction of a central authority at National Headquarters, to be led by and consist mainly of “people with expertise in dealing with these issues, not members of the RCMP.”^{Footnote 180} The RCMP’s Civilian Review Complaints Commission also issued a report in May 2017, considering that harassment charges had become a catchall that covered a broader range of concerns over a “culture of dysfunction” and an inability to implement reform to redress the problems including recommendations made by the Civilian Review Complaints Commission in 2013. Moreover, it found that 2014 reforms to harassment procedures have only exacerbated employees’ lack of confidence in the RCMP. It issued ten recommendations but concluded that “the RCMP lacks both the will and the capacity to make the changes necessary to address the problems that afflict its workplaces. Responsibility now lies with the federal government.”^{Footnote 181}

The Government of Canada recognized that discrimination and harassment were systemic in the RCMP and agreed to compensate thousands of women, in a settlement agreement approved in May 2017.

Following the settlement, and as part of its implementation, former Supreme Court Justice Michel Bastarache issued Broken Dreams, Broken Lives: The Devastating Effects of Sexual Harassment on Women in the RCMP, Final Report on the Implementation of the Merlo Davidson Settlement Agreement that found the persistence of systemic barriers that prevented women from succeeding in the RCMP, calling for a review of policies and procedures. The barriers were found in recruitment practices that set qualifications that were far less stringent than those in many other countries and that failed to screen candidates for misogyny, homophobia or racism; in on-boarding and the approach to and locations of training both at the initial probationary period and ongoing once in postings; in some of the postings in remote locations; in human resources practices; in access to maternity and parental leave and failures to replace them during their leave leading them to feel pressure to return early; perceptions of bias and unfairness in the dispute resolution mechanisms including a lack of confidentiality, fear of retaliation, alongside a lack of meaningful consequences; promotions derisively described as the “friends and family” plan and incidents of refusals by some junior men to follow the direction of a woman of superior rank disregarded or tacitly approved by senior men.

While my mandate was limited to assessing cases of sexual harassment and gender and sexual orientation-based discrimination, what I heard from the women undermined my belief in the ability of the RCMP to change its culture which, I have concluded, stems from a fundamental lack of respect for anyone that does not fit the profile of the “ideal” Mountie whether due to gender, size, sexual orientation or race.

The Hon. Michel Bastarache had the following to offer on the mental health effects of the discrimination and harassment:

Claimants told us that they were prepared for the horrific things that they witnessed as part of their duties as police officers. However, many believed that the constant stress of having to watch their backs or being subjected to harassment and discrimination undermined their natural resilience and left them more susceptible to psychological injuries. This was documented in several psychological assessments provided to us. In my view, based on the medical reports submitted to us, many of the claimants we spoke to would not have suffered as much from the psychological injuries that they did if they had not faced such a hostile workplace.^{Footnote 182}

The report’s specific recommendations included some quite specific features on recruitment that are akin to an employment equity review:

• Perform a careful analysis of what will constitute “merit” in the recruitment of RCMP members, considering the need to remove systemic barriers and to allow for specialized roles and functions.
• Require a minimum level of 2 years of post-secondary education or training to apply to the RCMP. I recommend that the RCMP study the recent changes to recruitment recently adopted in the UK which give options for varying ways to meet this requirement.
• Encourage applications from diverse groups including women, LGTQ2S+ people and racialized communities and implement programs to assist them in meeting the entry requirements where necessary.
• Conduct effective and detailed background checks on applicants’ views on diversity and women. Eliminate those who are not able to function with women, Indigenous people, racialized minorities or LGBTQ2S+ persons and are unwilling to accept the principles of equality and equal opportunity for all. Screening must consider all incidents of harassment and domestic violence.^{Footnote 183}

The report stressed the importance of leadership, and concluded in the following stark manner:

I have concluded, based on everything I was told over the past 3 years, that the culture of the RCMP is toxic and tolerates misogyny and homophobia at all ranks and in all provinces and territories. This culture does not reflect the stated values of the RCMP, and it is found throughout the organization. RCMP members and officers are forced to accept that they must function in the context of this culture to succeed. RCMP employees appear to blame the “bad apples” without recognizing the systemic and internal origins of this conduct.

Comprehensive cultural change is required. For the last 30 years issues of workplace and sexual harassment and discrimination have been brought to the attention of the Government of Canada and the RCMP through internal reports, external reports and litigation before the Courts. The measures taken in response have not, in my view, succeeded in addressing the underlying issues arising from the RCMP’s toxic culture. Indeed, based on my review of former reports and litigation and conversations with 644 women, I am not convinced that positive cultural change can occur without external pressure. As such, I conclude that the time has come for an in depth, external and independent review of the organization and future of the RCMP as a federal policing organization.^{Footnote 184}

The RCMP responded as follows, committing to an RCMP “free of violence, harassment and discrimination”:

An Independent Centre for Harassment Resolution (ICHR) was established on 30 June 2021. Its mandate is to facilitate the resolution for RCMP employees of workplace incidents of harassment and violence. It is staffed by public servants. It is to accomplish its mandate independently, and understands that to mean “outside the chain of command, and free of bias or conflict of interest.”^{Footnote 186}

ICHR reports that 159 notices of occurrence were filed even prior to its creation, with a total of 615 notices – spanning abuse of authority, discrimination, interpersonal deportation and sexual harassment - filed as of 30 June 2022. An operational challenge in its first year was simply meeting the high demand for investigations.^{Footnote 187}

The ICHR has worked to gain increased access to qualified external investigators under the recent Canada Labour Code Work Place Harassment and Violence Prevention Regulations.^{Footnote 188} The executive directors acknowledge, however, that the ultimate goal cannot be to address harassment after the fact, but rather to address root causes. They also acknowledge the need for restorative practices following harassment and violence, also to prevent reoccurrences. This leads their investigators to issue recommendations to the local health and safety committee for joint determination, whether or not an allegation meets the definition of workplace harassment and violence.

We note the findings of former Auditor General Sheila Fraser in 2017, who found that the RCMP “as an entity has difficulty formally acknowledging that some of its workplace units are dysfunctional. I am of the view that there is a tendency to downplay the transgressions in order to protect the reputation of the organization.”^{Footnote 189} Former Supreme Court of Canada justice, the Hon. Michel Bastarache, found the following:

fixing the RCMP and addressing the negative culture that has taken root in it will take an immense effort and will require the good will of its leaders and members. Most of these individuals are invested in the status quo and will not likely want to make the necessary changes to eradicate this toxic culture.^{Footnote 190}

On 9 May 2022, a report was issued to the Hon. Marco Mendicino, Minister of Public Safety, by the Canadian Feminist Alliance for International Action (FAFIA) entitled The Toxic Culture of the RCMP: Misogyny, Racism and Violence against Women in Canada’s National Police Force. Its findings are consistent with those in the Bastarache report and extends the reflection on the impact of the hard questions raised about the RCMP’s treatment of women it employs to the “women it polices”.

In our consultations the RCMP lamented that the employment equity exercise seemed to be a numbers game, and urged a more comprehensive approach.^{Footnote 191} Yet there was no engagement with the rather comprehensive barrier assessment that emerges from external, independent reviews.

The RCMP’s 2021-22 annual report on equity, diversity and inclusion, submitted by the RCMP’s Chief Human Resources Officer & EDI Champion, Gail Johnson, indicates that the RCMP spent 2020-21 developing an Equity, Diversity, and Inclusion Strategy to meet needs identified in previous comprehensive workforce and employment systems analyses. But the focus in the Report is on Employment Equity Act diversity statistics.

We read that:

• Workforce representation for Indigenous peoples continued to decline in 2020-2021, to 6.2% from 6.3% in 2019-2020 in the general workforce, and to 7% in 2020-2021 from 7.2% in 2019-2020 for Regular Members
• The representation of women increased slightly from 39.4% in 2019-2020 to 39.6% in 2020-2021, with only 21.8% women in the Regular Member cadre
• Visible minorities increased from 12.8% in 2019-2020 to 13.2% in 2020-2021
• Persons with disabilities declined by 15 individuals, despite the already low rates of representation of people with disabilities among regular members (1.4% in 2020-2021, unchanged since 2019-2020) and no new hires in that category for 2020-2021 either. They are underrepresented among senior officer ranks.

Disabled workers face the most significant employment equity gap for the RCMP.

The plan lists other features, including new employee networks being created, communications on the value of equity, diversity and inclusion, notes that performance indicators for senior leaders to measure progress on EDI were created with bargaining unit consultations, and a number of “impact driven” programs. Like many reports, the plan contains pictures of smiling employees representing equity groups and present a positive face. What’s missing, is how actual barriers are being tackled. We are told that “the RCMP’s data collection practices are being strengthened to enable the organization to evaluate the effectiveness of EDI-related programs and services, and their impact on their targeted demographic.”^{Footnote 192}

The disconnect between the EDI plan and the most serious reviews was frankly disconcerting.

While the task force was told that the RCMP’s leadership is now gender diverse and somewhat racially diverse, we were not told very much about the culture change and barrier removal that would be necessary to achieve employment equity. We were told that not all longstanding issues can be addressed in the short term; systemic remedies seemed to be equated with long term change.

Yet the essence of employment equity is to take proactive measures to address substantive inequality in a determined, accelerated manner to prevent inequity from persisting and start a more equitable process.

It is not surprising that one would at once have a fundamental critique of merit and also have calls for the principle of merit to be held onto steadfastly. Both arguments are flip sides of the same coin. They seek to root out arbitrariness and arrive at a precise, transparent, fair approach to achieving substantive equality.

These findings support an approach to employment equity that is rooted in substantive equality supports ensuring:

• clear and transparent job criteria, application processes and selection processes that ensure that candidates for hiring and promotion processes and evaluated workers are treated with respect and dignity, and
• processes that are exempt of barriers and that foster inclusive practices

In this kind of workplace, representation numbers can actually be achieved and employment equity can focus on maintaining equity, because the conditions are in place to make employment equity work for all.

Federally regulated private employers – A focus on transportation

There is considerable variety within the federally regulated private sector. The sector includes several key industries in the transportation sector. The transportation sector is strategically and symbolically significant, not least because the 1987 decision of the Supreme Court of Canada discussed earlier in this report, C.N. v. Canada (Canadian Human Rights Commission) was about stubborn representation challenges in the railway industry. Following that decision, and the decision in the public service, National Capital Alliance v Health and Welfare Canada, the ability to bring statistical representation employment equity complaints was essentially removed from the Canadian Human Rights Act.

In 2023, stubborn representation challenges across the transportation sector persist.

Consider the aviation industry. Air pilots, flight engineers and flying instructors are 92.53% men+. Lack of representation is a global challenge. The problems are not specific to any one employer.

Within this challenged industry, Air Canada is rated one of Canada’s best diversity employers. Like others in the sector, it was hard hit by the pandemic. We know from its own employment equity report for 2020, its entire workforce had decreased by 55%; it is therefore important to be cautious about overall numbers. But with women’s overall representation at 38% with 40% of them leaving Air Canada, visible minorities at 20% with 22% departures, Indigenous representation at 1.2% of the entire workforce and a 1.3% departure rate; or disabled workers at 1.1% representation with 1.4% departure, it is clear that there are some significant persisting challenges to equitable representation.

What support has there been to Air Canada through the Employment Equity Act LEEP participation, to improve these numbers?

The narrative reports were among the most comprehensive reviewed for the report in detail and scope. Initiatives range from showcasing EDI events or external communications type initiatives – pledges, joining voluntary initiatives, recording videos, supporting scholarship and bursary programs, participating in Pride events. They also include revising accommodation policies and providing a range of training.

Let us be clear. What is listed is positive, and may well affect climate and more. But we cannot tell that from the report.

Moreover, the focus on identifying and removing barriers is at best diffuse. The relationship to the quantitative data is to be intuited but is not established. There are commitments to groups that would be disaggregated (Black North Initiative, for example, or Pride events) but they are not linked back to employment equity measures. And, in a workplace that has 86% of its workplace covered by collective bargaining agreements (down from 90% in 2015),^{Footnote 193} the narrative report was strikingly silent on this feature of Employment Equity Act implementation.

The takeaway is this: some employers are putting a lot of effort into doing diversity work and even reporting on it. But they need support to tailor their employment equity initiatives in a manner that actually helps to achieve and sustain results.

Transportation by rail is not faring much better. Have a look at Appendix M. To take one example from the NOC codes, railway carmen/women – Canada wide - are 97.07% male.

Via Rail reported having representation of 8% in 2022 for “visible minorities” in its executive positions, with an overall total of 16% visible minorities.^{Footnote 194} It informed the task force that 2% of its entire workforce is Indigenous, and 2% comprise persons with disabilities, without specifying what percentage of either employment equity group is in executive ranks.^{Footnote 195} Their efforts to promote gender equality seem to have been where most of the movement has happened, with 46% of women managers; the overall representation of women in Via Rail is at 37%.

Via Rail’s narrative report indicated that a robust Diversity & Inclusion Strategic Plan was developed, to reflect its aspiration to “move away from compliance to the creation of a culture of inclusion and belonging.” The report provided a list of bullet points with relatively vague statements on areas from governance and leadership to a planned review of HR practices and policies and the implementation of flexible work-life and accommodation practices.

Again, the practices are laudable so far as they go. But they provide little to no idea of how these initiatives are being linked to enabling Via Rail to achieve employment equity. That workplace reports are so vague says something about the expectation of the receiving entity. We need to turn the attention back to assessing what training and what support are being provided to ensure that the focus remains on identifying and eliminating barriers to employment equity.

To put it bluntly: employment equity is not busy work. We need to be doing the analysis, and preparing the reports with purpose. The purpose is to achieve and then sustain employment equity.

Where are these annual reports going, and why is more not being done with them, to support employers to achieve and sustain employment equity?

Our consultations were fruitful. We did not face federally regulated private sector employers who were in denial. Rather, we were faced with industry representatives who were candid about the need to attract and retain diverse talent. They acknowledged that they are depriving themselves of a huge part of the potential workforce. The Air Transport Association of Canada added that the shortage in pilots was compounded by labour shortages in many other aviation professions. Our task force was told that the carrier with the highest percentage of female pilots was regional. Why? Perhaps because they could enable employees to be back home at night.^{Footnote 196}

The available research on barriers faced by transportation sector workers confirms the impact of work patterns, in particular long shift hours. The ability to address these barriers in a systematic manner may seem limited.

But this is not the whole answer to the problem.

As we saw with other male dominated professions, part of the answer is the way that accommodations are treated. If the accommodation for women workers with childcare responsibilities who seek to work fewer hours is to offer them precarious contracts, then we are just compounding the problem. That is not how you build a supportive and sustainable solution to the challenge of recruiting women with childcare responsibilities. In contexts with little proven flexibility, it is not unlikely that rather than request accommodations, workers will instead adopt a strategy of emulating the dominant norm, or simply leave the sector. The power of dominant workplace gender norms across sexual orientation, gender identity, gender expression and sex characteristics (SOGIESC) factors, is something the research is also beginning to observe.^{Footnote 197}

That said, our task force was surprised to see that at this stage in the life of the Employment Equity Act framework we were still raising these concerns about longstanding problems. 37 years into employment equity, we should have covered more mileage.

We need to strengthen the barrier removal pillar to have more rigorous and clear diagnoses of the problems and to know what to do to eliminate barriers.

We need to activate meaningful consultation.

And we need to recalibrate regulatory oversight.