Chapter 4: Strengthening implementation: The barrier removal pillar

Official title: A Transformative Framework to Achieve and Sustain Employment Equity - Report of the Employment Equity Act Review Task Force: Chapter 4

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

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Understanding proactive approaches: Beyond individual reasonable accommodation

Barrier removal is about running processes that are equitable from beginning to end.

An HR practitioner


We often hear that employment equity is proactive. But what does that really mean?

Our task force engagement sessions revealed that the Employment Equity Act framework was being implemented with an unduly limited understanding of “proactive” measures. This has not helped employment equity’s image.

Who wants their inclusion to be reduced to a pure numbers-counting, revolving door, individual reasonable accommodation exercise? The narrow approach to implementation has prevented proactive measures from taking the central place that they should in fostering equitable employment opportunities for all.

This chapter seeks to clarify the proactive character of employment equity legislation in Canada. It offers recommendations not only to streamline the legislation but also to ensure that the proactive character of employment equity is respected.

Section 5 of the Employment Equity Act sets out employers' duty to "implement employment equity." This includes barrier removal, the focus of this chapter. But nothing in Section 5 requires an employer to demonstrate that they have implemented their plans, or at least that they have made reasonable progress on plan implementation. Our consultations suggest that the French version of the law, which is equally authoritative, does not contain the words "if implemented", and specifies that "l'employeur est tenu de veiller à ce que la mise en œuvre de son plan d'équité en matière d'emploi se traduise par des progrès raisonnables" ("the employer is required to ensure that reasonable progress is made in implementing its employment equity plan") has not guided the interpretation. Instead, those responsible for regulatory oversight stressed that the law does not clarify that reasonable progress actually needs to be made.

This is understandably exasperating. Many stakeholders – employers themselves, government actors responsible for oversight, and of course workers and unions - argued that this needs to change, or employment equity will not be achieved. We could not agree more.

Employers and their workplaces should be supported to achieve this reasonable progress, and this report turns attention to the nature and quality of support – including, crucially, financial support.

A related conclusion in this chapter is that equity, diversity and inclusion (EDI) insights can help, but the requirements of the Employment Equity Act framework must not become diluted. As discussed in the introduction to this report, tailored initiatives may keep workplaces busy, but may do little to remove barriers. We must be especially careful to ensure that less than rigorous EDI practices not undermine confidence in the ability of employment equity to be achieved and sustained.

We need, instead, to focus on reasonable progress to proactive implementation of employment equity, so it can be both achieved and sustained. This conclusion was widely shared, including by the outgoing president of the Public Service Commission of Canada, whose candor our task force greatly appreciated.Footnote 1

Recommendation 4.1: The Employment Equity Act should be clarified to ensure that employers are understood to have an obligation to make reasonable progress to achieve employment equity, and to sustain employment equity once it has been achieved.

Representation and barriers

Workplace culture change is essential to employment equity and addressing barriers, and we agree with the Canadian Labour Congress that this “modernization process must support a move toward truly equitable and inclusive workplaces and go beyond the simple representation of members of equity-seeking groups by examining the workplace experience as a whole. This means examining the kinds of positions held by members of the designated groups, their compensation, as well as the opportunities they have for promotion, advancement and professional development.” We would add that examining the workplace experience as a whole should include examining the general culture of the workplace.

Canadian Women’s Foundation, Submission to the EEART, June 2022; Canadian Labour Congress, Submission to the EEART, 28 April 2022

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.

Treasury Board of Canada Secretariat, Office of Public Service Accessibility, Task Force Consultations, 11 March 2022.

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:

Harassment & discrimination

  • LGBTQ2+ members have been targets of discriminatory behaviours (e.g. homophobia, transphobia, etc.)

Systemic inequalities

  • Health benefits [Insurance companies]

Lack of safe/inclusive spaces

  • Socio-environmental factors and family pressure (e.g. being your authentic self at work, lack of gender inclusive facilities, etc.)

Violence in the workplace (verbal & physical)

  • Macroaggressions: Death threats at the office
  • Microaggressions: Assuming heteronormative relationships, misgendering

Isolation and alienation

  • Lack of coordination to leverage existing resources available to LGBTQ2+ community members (e.g. coming out, transitioning, gender fluidity, etc.)

Impacts on career advancement

  • Stagnate upward mobility (e.g. visibility of LGBTQ2+ executives, mentorship and coaching)

Regional context affecting lived experiences (or regional disparities)

  • Regional/cultural differences when it comes to tolerance and acceptance
  • Access to services and information may not be as readily available

These barriers are compounded when members are part of another equity group

Public Service Pride Network, Presentation to the EEART, 17 March 2022

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 SharmaFootnote 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.

Susan P. Sturm, “The Architecture of Inclusion: Advancing Workplace Equity in Higher Education” (2006) 29 Harvard Journal of Law & Gender at 268-269

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.

Recommendation 4.2: The Employment Equity Act should:

  • define barriers as practices that affect equity groups in a disproportionately negative way
  • specify that barrier removal applies across each stage of the employment lifecycle, and
  • provide for the Employment Equity Regulations or guidelines prepared under them to support comprehensive barrier removal 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.

Recommendation 4.3: Reporting by employers, including employment systems reviews, should be required by all covered employers on a 3-year reporting cycle.

Recommendation 4.4: A transitional process should be implemented to ensure that report submission dates by employers are staggered.

Recommendation 4.5: The Employment Equity Regulations should contain schedules to support employers in preparing an employment equity plan.

Recommendation 4.6: Guidelines should be developed that include promising practices for identifying and eliminating barriers in the workplace, including how to conduct employment systems reviews that identify and eliminate barriers across the work lifecycle and incorporate climate surveys.

Beyond individual reasonable accommodation

They do very little to change themselves to accommodate to you. The basic assumption is one of assimilation, and that it is Inuit who need to change and adapt, not the Government of Canada or its policies

Many Voices one Mind: A Pathway to Reconciliation: Welcome, Respect, Support and Act to fully Include Indigenous Peoples in the Federal Public Service. Final Report of the Interdepartmental Circles on Indigenous Representation, 4 December 2017 at 24.

Traditionally, people with disabilities need to prove that they have a disability and justify the required accommodations following a medical model. We need to move away from that. The Accessible Canada Act has recognized that it is the responsibility of society to create an environment, where everyone can function and live at their full potential.

Federal Public Service Employee, Presentation to the EEART, 14 June 2022

It is necessary to move beyond specific, individualized accommodation toward addressing and understanding the structural and institutional nature of discrimination.

Professor Vrinda Narain, EEART Consultations, 22 March 2022

The Employment Equity Act in Section 5 refers to reasonable accommodations, and Section 6 introduces the undue hardship limit. Is this what the Employment Equity Act framework is about?

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:

Documented Individual Accommodation Plans under the AODA Integrated Regulations:

28. (1) Employers, other than employers that are small organizations, shall develop and have in place a written process for the development of documented individual accommodation plans for employees with disabilities.

(2) The process for the development of documented individual accommodation plans shall include the following elements:

  • 1. The manner in which an employee requesting accommodation can participate in the development of the individual accommodation plan.
  • 2. The means by which the employee is assessed on an individual basis.
  • 3. The manner in which the employer can request an evaluation by an outside medical or other expert, at the employer’s expense, to assist the employer in determining if accommodation can be achieved and, if so, how accommodation can be achieved.
  • 4. The manner in which the employee can request the participation of a representative from their bargaining agent, where the employee is represented by a bargaining agent, or other representative from the workplace, where the employee is not represented by a bargaining agent, in the development of the accommodation plan.
  • 5. The steps taken to protect the privacy of the employee’s personal information.
  • 6. The frequency with which the individual accommodation plan will be reviewed and updated and the manner in which it will be done.
  • 7. If an individual accommodation plan is denied, the manner in which the reasons for the denial will be provided to the employee.
  • 8. The means of providing the individual accommodation plan in a format that takes into account the employee’s accessibility needs due to disability.

(3) Individual accommodation plans shall,

  • (a) if requested, include any information regarding accessible formats and communications supports provided, as described in section 26;
  • (b) if required, include individualized workplace emergency response information, as described in section 27; and
  • (c) identify any other accommodation that is to be provided.

 Accessibility for Ontarians with Disabilities Act, Integrated Accessibility Standards Regulation, 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.

Are individual reasonable accommodations provided equitably?

The task force was repeatedly told by experts on disability law that it is in the realm of employment protections that accessibility frameworks are the weakest.Footnote 11 And as we met with more and more workplaces throughout our consultations, we got a picture of the extent to which the relationship between individual accommodations and proactive barrier removal remained ambiguous at best, and perhaps in need of attention from the point of view of transparency or requesters’ hypervisibility. Where was the incentive to undertake meaningful change?

Ambiguity: An example

One written example of this ambiguous relationship is the generally helpful, user-friendly published Labour Program guidance to LEEP employers. A template of human resources policies and practices lists organizations’ formal and informal human resources policies and practices under a range of familiar headings. While features such as general human resource policies, training and development, and promotion are identified in broad and general terms, the section on “accommodation” is particularly detailed and seems to encompass many of the features that should be the subject of proactive barrier-removal. The list ranges from “accessibility” to “childcare services” to “maternity/paternity/parental leave” to “telework”. By listing these elements of working life under “accommodation”, it is taken for granted that there is a different ‘norm’ and everything else is simply accommodated.Footnote 12

Employment equity barrier removal leads to necessary changes to the norm. The norm becomes one that is equitably inclusive.

Transparency: Emerging research

Some emerging, small sample research led us to wonder about the transparency of individual reasonable accommodation requests. We were not so much thinking of the ones that are denied, where complaints might be brought before the Canadian Human Rights Commission or grievances. We were thinking a little more about the cases that are approved.

We tend to have very little information about whether workers with similar accommodation needs receive similar accommodations. Early qualitative research about actual human resource managers’ practices is starting to shed light on the ways in which accommodations are granted in workplaces on the ground. Some of the accommodations may exceed what is legally required under human rights law, when an employer wants to work creatively to maintain relationships with desired employees. Researchers also found that the accommodations may expressly be kept off the books, that is, they may not be documented. Why create precedent that could lead to other comparable requests?Footnote 13

In other words, do we know whether accommodations – offered by pragmatic workplace human resources specialists to solve problems while maintaining valued relationships – are carried out equitably for all similarly situated workers needing accommodations? More data and research are needed.

Who gets accommodated?

The accommodation framework is widely understood to apply in the context of disability, but applies across grounds of discrimination and in the Employment Equity Act, to all employment equity groups. Religious accommodation in the workplace has long been an important area for human rights law, but it has not always been well understood. Members of religious minorities requesting individual accommodations have to establish that their request is reasonable, but may face a standard of reasonableness that treats their religious beliefs as the subjective standard against which the objective workplace norm is measured.

Substantive equality specialists Vrinda Narain, Colleen Sheppard and Tamara Thermitus caution against allowing individual reasonable accommodations to “normaliz[e] structural inequality” by validating rather than carefully analyzing existing workplace norms.Footnote 14

What model?

Finally, our task force was told that reliance on individual accommodations when comprehensive barrier removal is possible is not only cumbersome, but also potentially costly. Individual accommodations have been criticized because they keep us focused on making changes after the fact on a piecemeal basis to enable a worker to “fit in”. They reinforce the medical model of disability. They are not so transparent. We need to know more about them, and we recommend specific reporting on them for barrier removal.

Recommendation 4.7: The Employment Equity Regulations or guidelines prepared under them should provide for reporting on individual reasonable accommodations requested and provided in the workplace to be included in employment systems reviews.

But achieving employment equity means more than individual reasonable accommodations.

Shifting the norm: Closing the gap between reasonable accommodation and barrier removal

Most cases aimed at policies and practices that affect many individuals in the workplace can be described as systemic to the extent that they identify and remove barriers based on outmoded assumptions and stereotypes in the workplace.

Canadian Human Rights Act Review Panel, Promoting Equality: A New Vision. (Ottawa: Department of Justice, 2000), at 18.

Employment equity’s transformative potential is to build accessibility into the workplace’s design, or redesign. Employment equity shifts the norm.

Our extensive consultations led us to worry that the notion of “reasonable accommodations” – a concept drawn from general human rights law found in human rights legislation across the country – has in some cases become the default under employment equity as well, so much so that the proactive work of achieving employment equity has been reduced to individual accommodations.

Our task force urges a recalibration, one that accentuates what is distinctive about the Employment Equity Act framework. In other words, reasonable accommodation in the Employment Equity Act framework needs to be understood as it is by the Supreme Court of Canada in the Meiorin decision discussed in the introduction. The barriers are built into the very measures meant to offer objective evaluations.Footnote 15 The point is to focus attention on removing discriminatory norms, rather than making exceptions to the norms to fit the individual worker into them. Sometimes, it is the norm that is the barrier and that is what needs to be changed. In international human rights law, this is sometimes referred to as the “duty to ensure accessibility,” through barrier removal.Footnote 16

The Employment Equity Act framework emphasizes this proactive character. The employment systems review is necessary to identify and eliminate the barriers:

An [Employment Systems Review] ESR is an in-depth analysis of the organization’s employment systems, policies and practices — both formal and informal. An ESR investigates attitudes, behaviors and corporate culture and should always involve direct consultation with members of the under-represented designated groups. The ESR should focus on each significant representation gap identified in the workforce analysis. A thorough ESR is key to building an effective and legislatively compliant employment equity plan.

Canadian Human Rights Commission, Horizontal Audit in the Communications Sector: Improving Representation for People with Disabilities, 2022 at 13.

And we have some publicly available examples of this work happening in the federally regulated private sector.

Consider the Canadian Broadcasting Corporation/ Radio Canada’s 2020 Annual Report. It offered quite specific across-the-board workplace adaptations for accessibility. CBC/Radio Canada mentioned introducing adaptable furniture and installing height adjustable workstations, creating universal washrooms that are both gender neutral and accessible and installing automatic door openers to allow easier reach for all users. This kind of specificity on accessibility and its impact on other equity groups is important, especially for a federal employer that has as part of its mandate under the Broadcasting Act to strive to be of equivalent quality in English and French, contribute to shared national consciousness and identity and reflect the multicultural and multiracial nature of Canada.

Unfortunately, very few similar examples showed up in the audits shared with the task force chair, a subject that we address under regulatory oversight in Chapter 6.

Undue hardship

There is a limit consistent with Canadian human rights law on the duty to accommodate, in Section 6(a) of the Employment Equity Act – undue hardship to the employer. International human rights law also recognizes the limit of an undue burden. In Canadian case law, undue hardship is part of how we assess whether a measure is a bona fide occupational requirement (BFOR). The Supreme Court of Canada has recognized that the very notion of “undue” implies that some hardship is to be expected to meet the purpose.Footnote 17 The purpose is substantive equality. As an accommodation is to be reasonably necessary, the employer must establish that it would be “impossible” to accommodate the worker without “undue hardship”.

Over time, we have noticed that it is easy when cases are litigated for courts to apply such a broad notion of undue hardship that the duty to accommodate may be reduced to a matter of cost or dismissed because there is a countervailing health and safety consideration. Both are important factors. But courts may be reluctant to substitute their assessment for that of employers.

As the Employment Equity Act is currently drafted, the limit appears to apply to all measures to implement employment equity. We must keep in mind that proactive barrier removal in the Employment Equity Act is different from individual reasonable accommodations.

Proactive barrier removal under the Employment Equity Act framework sets a process in motion within the workplace and between the parties, through meaningful consultations. The measures to eliminate barriers are meant to be implemented. To allow proactive barrier removal to be undermined by a broad notion of undue hardship would defeat the purpose of the Employment Equity Act framework. With nimble regulatory oversight and support, discussed in Chapter 6, there is an important opportunity to ensure that undue hardship is a robust standard.

Canadian substantive equality experts have urged our task force to recommend that undue hardship be defined strictly in the Employment Equity Act framework.Footnote 18 We agree with their advice.

Recommendation 4.8: The notion of “undue hardship” in Section 6(a) of the Employment Equity Act should be defined to mean that it would be impossible to take the reasonably necessary measure without “undue hardship”.

Identifying barriers across the workplace lifecycle

Getting the guidance workplaces need

Barrier removal is central to proactive approaches to substantive equality and should take place across the employment lifecycle. Yet report after report has underscored the challenges employers have faced in identifying the barriers that lead to under-representation.Footnote 19

The self-reflexive process requires support. It requires enough input from concerned workers to be able to see and name the problem. Workplaces require more guidance and support to make this a realistic ask. We need to recalibrate. Chapters 5 & 6 address this challenge, including the guidance needed.

The point of this Chapter is simple: barrier removal should happen across the entire employment lifecycle. Workplaces require nimble, context-specific guidance to do that.

We read audit reports that merely called on employers to review their staffing framework and practices to ensure that appointment, promotions, and retention processes are barrier-free for employment equity groups, including subgroups of visible minorities. That is an ask, but it is not guidance. As discussed in Chapter 6, Labour Program officials do not even know what is in the audits. It should not take 37 years and an independent review to fix this patent problem.

Even the recently adopted Government of Canada Directive on Employment Equity, Diversity and Inclusion repeats the language of barrier removal through “proactively reviewing systems, policies, programs, processes and practices as they are developed and implemented to ensure that they will not create barriers to employment equity designated groups” (4.1.5) but does not provide any guidance on how to conduct those reviews and seems to identify that process as distinct from meeting the Employment Equity Act obligations (4.1.3).

Learning from the Pay Equity Act framework:

In contrast, the Pay Equity Act is extremely specific. Pay equity calculations are complicated; this is acknowledged in the technical, careful way that legislative requirements are set out and explained. The responsibilities and powers of the Pay Equity Commissioner are framed in a precise manner through each step of the process of establishing the relevant committees, how to calculate compensation, as well as the detailed contents of a pay equity plan (Section 51(a) – (m)) and, given the nature of the exercise, a requirement to correct the pay gap by making the required pay increases that become payable the day after the plan is duly posted, subject to a 90 day implementation period (Section 96).

Beyond the purpose of the legislation to achieve pay equity through the proactive means described, there is also a responsibility to maintain pay equity through proactive means (Section 2), with a pay equity maintenance review that includes updated plans (Section 64).

Section 95 of the Pay Equity Act also puts in place an important principle: the plan prevails to the extent of an inconsistency, over a collective agreement, incorporating into the collective agreement any increase in compensation that is payable by an employer to employees under the Act.

We also learned from consultations that much has depended on the ability of the Pay Equity Commissioner to garner the trust and confidence of employers and employees in the workplace context. We’ll come back to that in Chapter 6 on regulatory oversight.

There are limits to what can be gleaned from a statute that focuses on one aspect of one equity group’s disadvantage. But what we take from the Pay Equity Act framework for this first pillar – implementation - is that a modernized Employment Equity Act needs to strive for greater clarity about employers’ responsibility to achieve and sustain employment equity.

Recommendation 4.9: The Employment Equity Act should be amended to clarify that once employment equity has been achieved for any employment equity group, employers have an ongoing responsibility to sustain employment equity.

Where to start? Essential qualifications and the need to look deeply at merit

Rhetorically, I ask who defines the characteristic of being a good lawyer.

The Hon. Corrine Sparks, Women of Colour in the Legal Profession, Appendix 10 to the Report of the Canadian Bar Association Task Force on Gender Equality in the Legal Profession, August 1993

In her 1993 report to the Canadian Bar Association Task Force on Gender Equality in the Legal Profession, the Honourable Corinne Sparks, the first African Nova Scotian judge in Canada, listened to Asian Canadian women lawyers who found themselves closeted in research-related jobs. Those lawyers talked about one of the stereotypes they faced in the profession: that they were somehow not aggressive enough to litigate. Judge Sparks understood that the stereotype went deep: to the very definition of what constitutes a good lawyer. The model was built around another image, the image that predominated in the profession for centuries. Left unchallenged, that model would continue to exclude a lot of talented, committed lawyers from equity groups. Judge Sparks added that too many women who had succeeded had to accept norms established by male lawyers, at the cost of great personal sacrifice.

Judge Sparks’ reflection sadly continues to resonate 30 years later.

  • How do we frame essential qualifications inclusively?
  • How do we learn to let go of norms that have been built up around the profession, not because they are essential qualifications because they are deeply linked to characteristics attributed to those who predominated in the work in the past?
  • How do we prevent generations of equity group members from either being excluded or from having to distort their authentic selves to fit a workplace norm?

If we fail to address these hard questions and shift dynamics, we will keep losing talent.

[S]ome people choose not to self-identify in order to ensure the perception of hiring based on merit rather than being a statistic to help with representation

Participant in consultations undertaken by TBS-OCHRO, presentation to the EEART, 26 May 2022

According to Section 6(b) of the Employment Equity Act, an employer is not required “to hire or promote persons who do not meet the essential qualifications for the work to be performed”. Section 6(d) clarifies that an employer is not required to create new positions in the workplace to implement the Employment Equity Act. These provisions apply to all federally regulated workplaces in Canada covered by the Employment Equity Act.

Section 6(c) also addresses the issue of “merit” specifically for public service employees: no employer is required to hire or promote persons without basing the hiring or promotion on merit in cases where the Public Service Employment Act requires that hiring or promotion be based on merit. While the discussion below has particular importance, therefore, for the federal public service, it is clear that the questioning extends well beyond and is relevant for all those concerned about equitable workplace inclusion.

Let’s turn back to the provisions. We need to acknowledge at the outset that there is redundancy. Section 6(c) of the Employment Equity Act could simply state that merit under the Public Service Employment Act is consistent with employment equity. Section 6(b) already speaks to essential qualifications of the work.

But we heard repeatedly that the way the Employment Equity Act communicates messages has unnecessarily left a number of public service employees feeling like there is an assumption in the law that they are not deserving.

The Deputy Minister for Crown-Indigenous Relations and Northern Affairs Canada, and Deputy Minister Champion for Visible Minorities for the federal public service, Daniel Quan-Watson, focused his comments on the Employment Equity Act’s reference to “merit” in the federal public service. In his presentation to the task force, he traced the history – the transition from a period in law before the Canadian Human Rights Act and the Employment Equity Act were adopted. That transition he argued, like the transition from imperial to metric, understates all the work that was necessary to move from a place of blatantly discriminatory hiring practices to one in which hiring is to happen on the basis of merit. Recalling that most senior management remains unrepresentative, he concluded, poignantly:

The framework retains the assumption and its manner of implementation leads most of us to feel that we are not meritorious.

Deputy Minister Champion for Visible Minorities for the Federal Public Service, Daniel Quan-Watson, presentation to the EEART, 14 June 2022

Understanding merit

It is true that merit is often invoked but rarely defined. This is a mistake. Employment equity has been criticized for its perceived narrow focus on redistributing representation, that is, the numbers. It has led to the mistaken and invariably offensive perception that employment equity means promoting people who are not qualified. This perception is harmful to equity deserving groups, as has been repeatedly expressed., including in the federal public service:

Participants expressed a feeling of being “tokenized” and the task of constantly defending or explaining Indigenous histories and cultures to non-Indigenous colleagues. Participants shared that senior leaders seek them out for photo opportunities but when it really matters, such as designing a policy or program intended for Indigenous communities and people, Indigenous employees did not feel they were called upon to share their Indigenous experience and knowledge.

Many Voices one Mind: A Pathway to Reconciliation: Welcome, Respect, Support and Act to fully Include Indigenous Peoples in the Federal Public Service. Final Report of the Interdepartmental Circles on Indigenous Representation, 4 December 2017 at 12.

This must change.

Deputy Minister Champion Quan-Watson made a poignant plea for a deepened understanding, which is consistent with the task force’s focus on transformation, and an understanding of how important it is to humanize how any of us learn and benefit from support, mentoring, guidance and many would add, grace extended to us in workplace contexts in order to be able to succeed.

This task force has stressed that employment equity has at its heart the removal of barriers to substantive equality. It is about affirming our equal worth and ensuring equitable inclusion for all of us. There is a problem if we do not have proper representation. Equitable inclusion is the response. Employment equity calls for us to look closely at the barriers to achieving that equitable inclusion. It is important, in other words, to stop labelling those who face barriers to inclusion as unmeritorious.

The undervaluing of Indigenous women and 2SLGBTQQAI+ employees can make them feel they need to go above and beyond to receive equal treatment from employers.

Native Women’s Association of Canada, Supporting the Employment Equity Act Review Task Force: Consolidation of 2021 Labour Market Reports, September 2022

Similarly, they should not be made to feel that they have to work twice as hard to receive respect in the workplace.

Instead, this review offers a crucial opportunity to redefine underlying norms, to make workplaces equitable for all.

Part of what is happening with discussions about employment equity and redressing underrepresentation is that we are moving beyond deficit thinking to identifying and cultivating talent.

If, as we learned, major universities have been able to set goals to hire clusters of people from groups where there are employment equity gaps, and to work to close those gaps in some of their most prestigious hiring, and they are seeking some of the most highly educated people around the world, most workplaces in Canada should be able to do a better job of rethinking how they understand talent acquisition, too.

Merit is double-edged and needs to be addressed with nuance. And merit is so important that it needs to be understood in a smarter, more supportive, and more sustainable way.

The submission of the Community of Federal Visible Minorities is particularly insightful on this point: loosely defined EDI initiatives might be undermining meaningful and effective employment equity initiatives:

TBS and PSC have more or less eliminated programs that had positive impact on Visible Minorities, such as non-imperative staffing, and targeted, government-wide selection processes but instead resorted to cherry-picking processes such as “best fit”, “mentorship plus” and “sponsorship”, which legitimizes and normalizes nepotism, compromises the principles of merit, fairness and transparency, and punishes employees for independent thinking and speaking up. These short-term approaches hide the real and legitimate issues of discrimination and favouritism in the public service, which prevent qualified and competent Visible Minorities to be hired, selected for training, including language training, and acting assignments, and to advance their career based on their abilities to do the job and contribute to serving Canadians with excellence.

Because the federal public service totally overlooks seniority, it also overlooks the fact that the vast majority of highly qualified visible minorities spend their entire careers in the same group and level in which they were hired.

Submission of the Community of Federal Visible Minorities to the EEEART, 28 April 2022

That non-advertised positions make up 59.7% of appointments in the core public administration is noteworthy. Bargaining agents have expressed concern about this practice.

We heard that the practice enables candidates who have already gone through competitive processes and who have qualified when assessed against select criteria but were not appointed to the post to remain a part of a qualified pool for a limited time period. But we also heard that there is a glaring lack of transparency to the process surrounding non-advertised positions. The process essentially allows managers to pick from a pool of qualified candidates, without actually advertising the position. Other qualified candidates in the pool might not know that there is a position available for which they, too, have qualified. Despite the stated objective of fostering inclusion, the practice concentrates significant power in the hands of individual managers to make decisions that might well be arbitrary. They might well lead to one member of employment equity groups being hired or promoted, but leave many others feeling that they have not been given a fair opportunity to compete for the position.

Perhaps most importantly, the separate non-advertised position process leaves the terms of competitions unchanged. Troublingly, we learned that competitions could be called to circumvent the pool of qualified candidates. We need to pay greater attention to the selection processes, including the composition of hiring committees, a matter that meaningful consultations can help workplaces to address, as discussed in Chapter 5. There also needs to be clear responsibility for those responsible for hiring to achieve employment equity, as discussed in Chapter 6.

Consider the Public Service Commission of Canada’s own 2014 study, which was conclusive: “employment equity status has an impact on the perceptions of merit and fairness in staffing”.Footnote 20

  • The results suggest that Aboriginal men, men with disabilities or men who are members of visible minorities have less favourable perceptions of merit than men who do not belong to an EE group.
  • The perceptions of merit of Aboriginal women and women with disabilities are comparable to those of women who do not belong to another EE group.
  • Women who are members of visible minorities have less favourable perceptions of merit than women who do not belong to another EE group.
  • Perceptions of merit do not differ between women who do not belong to another EE group and men who do not belong to an EE group.

Public Service Commission of Canada, Perceptions of Merit and Fairness in Staffing Activities, A Statistical Study (Ottawa: 2014) at 10.

Its study also identified factors that affected the perceptions of merit during selection processes. Here are a few:

  • “assessment tools used during the staffing activities also affected perceptions of merit. Candidates assessed through written knowledge tests, structured interviews or reference checks have more favourable perceptions of merit than those who were not assessed using such tools”
  • candidates with three or more years of experience in their position tended to express less favourable opinions of merit.
  • Lengthy staffing processes tended to undermine perceptions of merit.Footnote 21

The Public Service Commission of Canada separately identified factors that affected the perception of “fairness”, where a key difference appears to be that “candidates who participate in an informal discussion are less likely to express a favourable opinion about the fairness of the staffing activity.”Footnote 22

Repeated studies, including the 2021 Staffing and Non-Partisanship Survey, underscored that 53% of employees believe that appointments depend on ‘who you know’.

Despite this, the Public Service Commission concluded that employees’ views on merit, fairness and transparency had improved over time even though differences persist. But the conclusions were vague: the call for more in-depth analysis belies the need for proactive responses. The recommendations from the employment equity promotion rate survey were similarly vague despite negative promotion rates reported in some cases for all equity groups.

When we asked about how to achieve progress, our task force received a candid response from the Commission: we need clear accountability, regular monitoring and rigorous oversight.Footnote 23

Our task force could not agree more: external regulatory oversight is essential to ensure that there is reasonable progress.

We address this issue comprehensively in Chapter 6. But there is an opportunity to return to employment equity in a proactive and creative manner, in light of the legislative latitude within Section 34(1) of the Public Service Employment Act:

34 (1) For purposes of eligibility in any appointment process, other than an incumbent-based process, the Commission may determine an area of selection by establishing geographic, organizational or occupational criteria or by establishing, as a criterion, belonging to any of the designated groups within the meaning of section 3 of the Employment Equity Act.

In light of the stark underrepresentation in executive level positions in the core public administration, the task force recommends that the latitude in Section 34(1) be used to support targeted hiring competitions to redress the underrepresentation of employment equity groups in a proactive and equitable manner.

Recommendation 4.10: Section 34(1) of the Public Service Employment Act should be drawn upon proactively to support targeted hiring competitions to redress the underrepresentation of employment equity groups in a proactive and equitable manner.

Merit requires rethinking what jobs actually require

The ideal of merit has merit. It seeks to reduce arbitrariness and to ensure that work is distributed based on individuals’ abilities, rather than personal preferences of the employer, or excluded on the basis of stereotypes. It is therefore not a surprise that the Public Service Commission of Canada would take the position that merit and equity hiring are entirely compatible. Its definition of merit, however, is not what many people might think. We’ll come back to that later in this chapter.

We can learn a lot from the Honourable Michel Bastarache’s report on the RCMP. He both articulated this critique of those who would “ignore merit” but then also called for merit to be understood seriously:

Ignoring merit and the ability to do the job has, at times, resulted in a worsening of harassment and discrimination. … However, it cannot be assumed that “merit” is a neutral and objective matter. The definition of “merit” needs to be carefully scrutinized, as part of the process of removing systemic barriers. That a candidate brings diversity to the RCMP can be a factor enhancing his or her merit. The question must be asked: what is actually necessary to do “the job”? Further, what is “the job”? … Finally, it cannot be assumed that determining which candidates are meritorious is a neutral and objective process; it may be highly subjective.

The Hon. Michel Bastarache, 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, November 2020 at 64.

After comparing requirements internationally, he found that the work of an RCMP officer required higher qualifications, not lower qualifications. In other words, part of the problem of harassment in the workplace was precisely that workers – all workers – should have more specific and demanding qualifications, rather than assuming that every RCMP member should be a generalist able to fulfil every possible role.

This close scrutiny into merit, into making sure we are really understanding and valuing everyone is how employment equity starts to change the workplace for the better, and for everyone, including for our society as a whole and for Canada in the world.

The close scrutiny must start with how we understand the “essential qualifications” of the job and extends across the entire employment lifecycle.

Essential qualifications and the federal public service

So, what is the definition of merit in the federal public service? It surrounds a highly discretionary notion, “right fit”.

Right fit

‘right fit is often used to exclude better qualified candidates belonging to marginalized communities, rather than its original purpose of increasing representation. The Statement of Merit Criteria (SoMC) is adapted to narrow the field and favour a preferred candidate. Areas of Selection have no real relevance; they often bear little relation to the actual posted requirements, which are adapted to the narrow sector or branch.

Professional Institute of the Public Service of Canada, Submission to the Employment Equity Act Review Task Force, 22 September 2021

There is an abundant literature in organizational behaviour that workplace environments with highly discretionary personnel practices can leave members of employment equity groups susceptible to bias. Discretion is an important part of workplace life, and cannot be treated as “the problem” in isolation. But in the face of legislation that is itself ambiguous, organizations retain a lot of latitude to set for themselves what the compliance will look like, on some of the most fundamental societal issues.

Merit is a defined term in the Public Service Employment Act, which requires appointments to be made on the basis of merit and free from political interference. According to Section 30(2), on the meaning of merit:

(2) An appointment is made on the basis of merit when

  • (a) the Commission is satisfied that the person to be appointed meets the essential qualifications for the work to be performed, as established by the deputy head, including official language proficiency; and
  • (b) the Commission has regard to
    • (i) any additional qualifications that the deputy head may consider to be an asset for the work to be performed, or for the organization, currently or in the future,
    • (ii) any current or future operational requirements of the organization that may be identified by the deputy head, and
    • (iii) any current or future needs of the organization that may be identified by the deputy head.

We heard from a range of stakeholders, including employee networks and unions that there were serious problems with how the notion was applied.

The issue is a challenging one. We are aware that “right fit” had been understood by some as a solution to addressing underrepresentation, even introduced to enable a more flexible approach to assessing merit than a narrow points-based system that was not attentive to the range of potential that employment equity group members could bring. This report as a whole encourages thinking broadly about qualifications as well as how one assesses candidates’ range of expertise and experiences.

Recourse to the notion of ‘right fit’ is part of a broader discussion of the importance of managerial discretion to make hiring decisions in workplaces that are precisely not subject to a narrowly defined set of tasks.

And we have observed this challenge in labour and employment relations before.

If many people with a broad range of skillsets can meet the criteria and do the work, and when the differences between candidates lie more in the training, mentoring and career path opportunities they might have received along the path, the issue starts to look more familiar – that is, how might one ensure that workers in the workplace have appropriate access to training and advancement that respects the quality of their ongoing, evaluated satisfactory service and their potential? How do we ensure that hiring committees have a broad enough vision and training to be able to assess candidates fairly to foster equitable inclusion?

The risk that bias – conscious or unconscious – and other barriers will affect the selections and perpetuate the status quo is one that was repeatedly shared with the task force, with considerable frustration.

And let’s be clear: the language of “right fit” sends exactly the wrong message to members of groups that are underrepresented. The point is not to “fit” into a norm that has excluded diverse talent. The point is to foster equitable inclusion for all. That means challenging barriers to inclusion.

In other types of workplaces, there have been concerns that seniority may prevent decisions based on equity although there is much to suggest that seniority increases perceptions of fairness through which historically excluded groups, once hired, can progress. What we are witnessing in the federal public service without seniority, is the bottlenecking of members of employment equity groups in feeder positions, but an absence of promotion into management. Right fit, rather than providing the incentive and latitude to choose those workers from equity groups that are underrepresented, may embed the latitude to overlook many of them, and of course their years of service. This challenge will become more acute as disaggregated data focus attention on the extent of underrepresentation of some employment equity groups or sub-group members.

This concern is far from new.

Solutions need to emerge through consultations with workplace actors. There are however promising practices and policies that can be fostered for equity.

  • One is to identify the equity groups – and disaggregated members of those equity groups - that are the most severely underrepresented and prioritize their hiring and promotion. In the Royal Commission Report on Equality in Employment, Justice Abella argued that “[i]n devising ameliorative programs … the emphasis should be on concentrating efforts on those minorities in those regions where the need has been demonstrated.”Footnote 24
  • Another is to ensure that hiring committees are themselves equitably inclusive, well trained to consider a range of expertise and experience and to understand the essential qualifications of the position.
  • Yet another, discussed below, is to pay attention to the qualification standards.

Qualification standards

The task force received submissions encouraging the use of the Treasury Board Secretariat’s qualification standards for the core public administration by occupational group or class, developed and maintained by the Office of the Chief Human Resources Officer pursuant to Section 31(1) of the Public Service Employment Act. Section 31(2) clarifies that they are the standards that must be met or exceeded under Section 30(2). They are, in other words, at least the essential qualifications. The qualification standards are meant to apply to all appointments, as well as to all intra-group and inter-group deployments from separate agencies with some notable exceptions for student employment programs, acting appointments of less than 4 months, casual employment and part time workers (less than 12.5 hours per week).

Qualifications standards are expected to be applied in relation to the Appointment Policy.

The qualification standards were acknowledged by stakeholders to limit the discretion of hiring managers. However, they were considered to hold the potential to reduce other systemic barriers. For example:

  • They might address foreign credential recognition with a process enabling candidates to provide proof of Canadian equivalency when applying for a job in the federal public service
  • They might support a process of identifying a number of employer-approved alternatives to formal educational credentials, and
  • They might support ways to sustain equitable inclusion in situations of workforce adjustment

Crucially, Section 31(3) of the Public Service Employment Act as recently revised calls for biases and barriers to be identified when the qualification standards are being established or reviewed. If a bias or barrier is identified, the employer “shall make reasonable efforts to remove it or to mitigate its impact on those persons.” We heard little about how barriers were being identified across employment systems within the federal public service but this dimension is crucial to rethinking appointment processes.

Let’s be clear: qualification standards are not a panacea. The expectation is that they will help to curtail wide discretion.

A caveat is required, moreover: This is not about levelling down.

The goal is to foster workplace flourishing of all, including members of employment equity groups. By creating conditions that are equitably inclusive, we help workers to learn and thrive in a supportive and sustainable workplace.

Our task force was informed that discretionary appointments are based on the interpretation in Section 30(4) of the Public Service Employment Act to the effect that “[t]he Commission is not required to consider more than one person in order for an appointment to be made on the basis of merit.” We were concerned that the interpretation of merit in Section 30(4) of the Public Service Employment Act should be tightened. While no one should be interviewed simply to “accompany” the person who is to be selected, the word “consider” suggests the appointment could be made with no competition whatsoever. We recommend tightening this language to ensure that appointments based on merit occur through competitions with equity resolutely built into those competitions.

Recommendation 4.11: Section 31(1) of the Public Service Employment Act should be changed from permissive to a requirement.

Recommendation 4.12: The qualification standards should be established through meaningful consultations with the Joint Employment Equity Committee.

Recommendation 4.13: The interpretation of merit in Section 30(4) of the Public Service Employment Act should be tightened, notably through attentive use of the Public Service Commission’s general regulatory powers in Section 22(1), to ensure that appointments based on merit occur through competitions assessed by committees composed in consultation with the relevant Joint Employment Equity Committee(s).

Recommendation 4.14: The language of “right fit” should be abandoned in the Public Service of Canada in favour of a concept that communicates an equitably inclusive approach to appointments.

Features of the work lifecycle

What allows us to identify the conditions that enable workers to thrive across the employment lifecycle? We are told of the negative case: could employment equity policies set members of equity groups up to fail? A literature has developed that frames these concerns in terms of the abilities of group members, and the stress imposed on them to succeed. Failure, it is argued, will simply reinforce negative stereotypes.Footnote 25

What tends to be missed is what it means to walk into a workplace knowing that as a member of communities that have been underrepresented, you bear the onus of proving that you belong and that you are worthy, over and over, sometimes under unequal conditions.

Paradoxically, moreover, for employment equity group members, to be perceived as confidently qualified can actually be threatening to others who may hold conscious or unconscious biases about members of the group. A team of scholars led by award-winning psychology professor, Dr. Kecia Thomas, has surveyed Black women in the United States, and found that early in their careers they might benefit from mentoring support from those already in the workplace, often white men. However, as they became more confident and competent, the attitudes of their mentors changed and they even experienced hostility. They went, in Dr. Thomas’ words, from “pet to threat”.Footnote 26 This research has been widely recognized as identifying a significant barrier to promotion and retention. It is revelatory because it shows what a wide range of organizational reactions there might be to the success experienced by members of employment equity groups.

Success by historically underrepresented groups may destabilize deeply held perceptions that are also exclusionary ideas about merit.

Rather than earn greater acceptance and inclusion, employment equity group members may face fear, resentment and exclusion.

Finally, researchers caution that there is much we still do not yet know.

Some call in particular for more research into how 2SLGBTQI+ inclusion is understood and experienced in the workplace context. Pointing to the notion of “gay-friendly” organizations, for example, they ask whether the existing research sufficiently considers employment practices that affect transgender workers.Footnote 27 An intersectional and distinctions-based approach is necessary within this category as well.

Employment equity’s important task is not to reinforce this narrative, but rather to change it.

Employment equity is meant to turn our gaze instead to the quality of the receiving environment. This is not a matter of blame or intent. It is rather about proactively building supportive and sustainable workplace environments.

Recommendation 4.15: Section 6(c) of the Employment Equity Act should be abrogated.

Barrier removal in job classification

There is an extensive literature on the origins of workplace job requirements and classifications, evaluations and related human resource management practices. Consider how job profiles were developed. The profiles themselves were created prior to the Second World War, enabling managers to explain and compare job hierarchies and pay on an objective basis. The models were those that predominated at the time. It is now broadly accepted that they reflect the norms that were prevalent with the emergence of an early to mid-20th century modern employment workplace. Those norms were overwhelmingly male. They excluded many workers who comprise employment equity groups.Footnote 28 Human rights legislation and complaints procedures were necessary to begin to challenge the norm, but those challenges happened after the fact – the hospital scenario.Footnote 29

In workplaces like factories that were organized with vertical reporting and promotion hierarchies, job classifications, evaluations and related human resource management practices explained and justified increases in pay and hierarchy based on assessments of the basic requirements and skill required to perform the job. Even under the traditional models, it was understood that workers were largely evaluated based on features like punctuality and dependability – the “good worker” - alongside criteria most directly related to productivity.

Being recognized as a good worker, awarded merit increases and having a record carry forward – often through seniority-based systems – for promotions, is an important part of the assessment of a “meritorious” or to use a related term, “fair” employment process. For many, educational requirements prior to the job would be minimal and training and learning on the job could be expected.

In contrast, job classifications for positions were typically held by women or associated with women, have been criticized for failing to recognize and adequately value work done by women, or how women might execute those jobs differently, but also well. Recent cases in Ontario on midwives show the failure to value work that is overwhelmingly performed by women and other employment equity group members.Footnote 30

Similarly, employers’ search for “soft skills” in job applicants can make comparison difficult. Depending on how they are assessed, they can have a disproportionate effect on members of equity groups. For example, the Canadian Human Rights Tribunal in the National Capital Alliance on Race Relations employment equity case found that public service managers in Health Canada were assuming that certain soft skills were found in some “cultures” rather than in others, and deciding on that basis that some visible minorities were less well qualified to be managers.Footnote 31 Moreover, some researchers have worried that the non-discriminatory hiring practices that were emerging when employment equity was first introduced might actually become less prevalent or replaced in the face of an emphasis on “soft skills”.Footnote 32

Some employment equity groups, and in particular the Community of Federal Visible Minorities, recommended that government should work with bargaining units to ensure that jobs are appropriately classified in a manner that does not embed disadvantage. This proposal is a reminder of the importance of strengthening the meaningful consultations pillar.

Finally, the task force was warned against the perils of creeping credentialism – if the bar is continuously raised when pools of candidates are being diversified, employers may wind up excluding a diversity of candidates who are perfectly able to perform the requirements of the job on entry or on promotion.

Barrier removal in the recruitment and onboarding processes

On several occasions when our task force asked about barrier removal in the application process, we were met with examples of individual reasonable accommodation. Yet the assessment and appointment stages are moments of significant vulnerability for applicants.

It is not hard to imagine that an applicant might request minimal accommodations, if at all.

Ideally, the workplace would already have identified the most common barriers and eliminated them. For example, the employer might already have ensured that job advertisements were available in accessible formats and posted on accessible websites. The employer might have thought to announce that they have a fragrance-free work environment rather than wait for an applicant with environmental sensitivities to have to ask.

The Government of Canada’s Directive on the Duty to Accommodate took effect on 1 April 2020. It reaffirms the right to accommodation that applies to all protected groups under the Canadian Human Rights Act, and that appropriately frames individual accommodations as occurring “when barriers cannot be removed”.Footnote 33 That policy sets out a series of mandatory procedures that apply to candidates seeking employment.

The Public Service Commission notes that accommodation services requests decreased in 2020-21 and mentions receiving 621 requests compared to 3160 in 2019-20.Footnote 34 It would be useful to know how many of those who requested accommodations were actually hired. While the percentage of public service appointments of persons with disabilities exceeds the percentage of applicants, this seems attributable to persons with disabilities hired into non-advertised positions and regrettably the reporting leaves it unclear how many of these appointments are temporary.Footnote 35 If the number of people who requested accommodations and were hired into permanent jobs is high, it could instill greater confidence in applicants. If the number is low, it could be a signal to review policies.

The Public Service Commission’s 2020-2021 report informs the public that although 4.4% of applicants for jobs in the federal public service were persons with disabilities and after the automatic screening, 4.7% of the applicants remained persons with disabilities, by the assessment stage the percentage was down to 3.6% and only 2.4% of the hired employees were persons with disabilities. The 2021 Public Service Commission’s audit recognized the need to “better understand accommodation services for assessment” and called for further examination.Footnote 36 In the annual report, the Public Services Commission acknowledged that biases and barriers need to be identified and removed.

That persons with disabilities fared better on automated screening and organizational screening than at the assessment stage and that the already small numbers of appointments were halved rather than increasing for women with disabilities suggests that “much needs to be done to ensure that barriers and biases are identified and eliminated.”Footnote 37

It is especially challenging but necessary and required by the accommodation policy to identify systemic factors that could be revised proactively, so that the burden is not systematically placed on individual applicants to seek adaptations at the assessment and appointment stage. For example, the Office of Public Service Accessibility recommended that right from the start, employers should ensure that software used in application processes is itself accessible rather than wait for a potential applicant to request accessible software. The recruitment processes themselves need to be inclusive.Footnote 38

Similarly, we received submissions that pointed to the importance of ensuring that there is universal washroom access to ensure that non-binary, and gender-non-conforming applicants and workers do not have to seek individualized accommodations in the face of a barrier that affects their health and safety in the workplace, and basic human dignity.Footnote 39

Other kinds of barriers include “proxy” discrimination. Applicants may be screened out based on their home address in their curriculum vitae, or an accent detected by an interviewer over the phone.Footnote 40 A study undertaken by the Québec Commission des droits de la personne in 2012 established a statistically significant difference in discrimination based on the name of the applicants. Noting the significant unemployment rate of Québec-born racialized groups, it sought to understand whether racial discrimination at the stage of applications for employment occurred. It adopted a deceptively simple methodology: it sent substantially similar curriculum vitae to employers in the greater Montreal area across a range of sectors and in highly skilled and low skilled occupations, essentially varying only the applicant’s name to reflect names that would suggest African, Arab or Latin American applicants. Someone with the last name Tremblay might be 1.54 to 1.80 times more likely to be called back for an interview than someone with the last name Traoré.Footnote 41

In our extended engagements, similar concerns were raised about the application prospects of workers from the 2SLGBTQI+ communities:

There needs to be a real understanding of how homophobia and transphobia can look like on someone's resume or job application, and understanding what employment barriers 2SLGBTQI+ folks face. These challenges can be addressed by not seeing gaps in employment history or shorter term employment periods as a negative and providing more mentorship to these candidates.

The Enchanté Network, The Employment Equity Act and 2SLGBTQI+ Communities, Extended Engagement Report to the EEART, August 2022 at 10.

Psychometric or behavioural tests may be used in some workplaces. They not only assess aptitude. They can also be used to try to get around problems of under-representation. In other words, and according to the Diversity Institute, these forms of testing might be drawn upon to assess aptitude for the job where members of employment equity groups in the place of requiring certain degrees or even certain kinds of experience.Footnote 42 This research was in early stages, and we were not able to gain a sense of whether this was highly experimental or more broadly used. A concern would be to avoid the situation in which the testing became an additional hurdle rather than an alternative.Footnote 43 Reliability of the testing would also need to be questioned. This comes down to the familiar: to identify, remove and indeed avoid adding new barriers, workplaces need to pay attention to identifying and sticking close to the essential criteria for the job.

Finally, as was alluded to in Chapter 1, care should be taken to evaluate the impact of executive recruitment firms. We know that one of the stickiest representation challenges for employment equity groups is at the top: making sure that the work of executive recruiters fosters equity – rather than reinforces hierarchy – should be one of the features of an employment systems review.

Barrier removal on the job: Workplace harassment and gender based violence

Anti-harassment policies should address three broad actions to address harassment in the workplace: prevent, respond, support.

Unifor, Strengthening the Federal Employment Equity Act: Unifor’s Submission to the Federal Employment Equity Task Force, April 2022 at 10.

Workplace harassment on the basis of grounds of discrimination, including sexual harassment and other forms of gender-based violence and unwanted sexual behaviour constitute a readily recognized example of workplace barriers. The effects are broadly-based, and affect all genders, if differently, but the severity is extremely clear:

While men (56%) were slightly more likely than women (53%) to witness inappropriate sexual behaviour in their workplaces, the opposite was true when it came to personally experiencing this type of behaviour. Three in ten (29%) women were targeted by inappropriate sexual behaviour in a work-related setting compared with 17% of men.

Furthermore, the prevalence of experiencing inappropriate sexual behaviour in the workplace was highest among women who stated that they worked in a male-dominated environment (i.e., their co-workers were all or mostly male). Four in ten (39%) women working in a male-dominated environment were personally targeted by unwanted sexual behaviour, compared with 27% of women working in a female-dominated environment and 28% working in an environment that was about evenly distributed. For men, the prevalence of inappropriate sexual behaviour was highest among those who worked in a female-dominated environment (24%), and was similar for men working in a male-dominated environment (16%) or a workplace that was evenly divided (15%).

[T]hose who were physically or sexually assaulted in any setting were asked details about the most serious incident, including whether or not it occurred at their place of work. The proportion of victims who stated that the most serious incident they experienced had occurred in their workplace ranged from 18% of women and 21% of men who were sexually assaulted, to 26% of men and 29% of women who were physically assaulted.

Adam Cotter and Laura Savage, Gender-based violence and unwanted sexual behaviour in Canada, 2018: Initial findings from the Survey of Safety in Public and Private Spaces, Statistics Canada, 5 December 2019, at 3, 13-14. This study includes some data by age and SOGIESC.

Harassment and violence at work is understood to exclude, that is “to intimidate, discourage, and keep women out of traditionally male fields of employment.”Footnote 44

This is true too in the federal public service: in 2020 more than 1 in 10 employees (11%) in the federal public service indicated that they had been the victim of on-the-job harassment, in almost 2/3 of the cases (62%) the source was an individual of authority. Yet only 8% filed a grievance or formal complaint and 27% took no action.Footnote 45 What happened to the remaining 65% who apparently took some action, but did not formally complain or grieve?

The 2015 External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces undertaken by the Honourable Marie Deschamps and discussed in greater detail below acknowledges the major disincentive for complainants to come forward if harassment complaints are addressed at the lowest level without escalation. Focusing on early settlement and restoring workplace harmony might have been thought of by managers as a “laudable goal”. But for the workers who complained, they might have felt intimidated into not pursuing their legitimate concerns.Footnote 46

In the wake of the ILO Violence and Harassment Convention, 2019 (No. 190), which Canada has ratified early in 2023, necessary attention is being turned to the relationship between one or more unacceptable behaviours and practices or threats that aim at or result in physical, psychological, sexual or economic harm, and that include violence and harassment directed at or disproportionately affecting persons because of their sex or gender. These are interrelated with the world of work, and Canadian labour, employment and human rights law is increasingly recognizing amongst other features, the need to prohibit violence and harassment, adopt a comprehensive strategy to prevent it, including mitigating the impact of domestic violence on the world of work. Barrier removal through employment equity has an important role to play in this comprehensive approach.

The framing of protection against violence and harassment at work situates them within the context of workplace health and safety obligations. Employers have the duty to protect their employees’ mental and psychological health at work.

Recommendation 4.16: The Employment Equity Regulations or guidelines prepared under them should ensure that employers report on workplace harassment and violence policies and their preventative actions.

Barriers throughout the work lifecycle: facades of conformity, mental health, and authenticity

Our task force heard over and over that employment equity group members want to be able to bring their authentic selves to the workplace.

Studies on authenticity are reminding us that the people who have been well represented in the workplace are the people that the workplace norms are built around. Logically, then, there is more room for them to be their authentic selves at work than members of some of the employment equity groups. In other words, while some already have the privilege to be themselves in the workplace, members of employment equity groups may struggle to fit in.Footnote 47 This affects all aspects of the workplace lifecycle. We need to encourage processes of change that ensure that barriers to bringing authentic selves to work are removed.Footnote 48

There are many ways that workers from employment equity groups can be made to feel like they fall outside of workplace norms and must conform to fit in and survive. They may range from matters as basic as consistent overtime, which might interfere with significant family-related commitments,Footnote 49 and given the data presented in Chapter 2, have a disproportionate effect on women workers with care responsibilities. Widely held workplace norms that consider natural Black hairstyles to be unprofessional can be barriers to recruitment and promotion, despite growing evidence that chemical hair straighteners are linked to uterine cancer.Footnote 50 Workplace pressure for women to dye greying hair is another example. Our task force was reminded that not all accents are treated equally in the workplace. Pressure – including perceived pressure - to adopt a name or an accent that sounds “Canadian” may be part of a similar pattern of performing to a norm that may stand in the way of workplace authenticity. These may be types of “inauthentic self-preservation” in the workplace.Footnote 51 They reinforce stereotypes and can stand in the way of meaningful workplace inclusion.

We want to be black and to be queer without being subjected to micro and macro aggressions, without necessarily having a burden to lead equity, diversity, inclusion work in the workplace. We don't want to stand out as an oddity or a special case, or even a celebrated case, because of the bravery or courage, or challenge of their lives. Individuals want to be their authentic selves in the workplace…

Survey Respondent quoted in Dr. Harvi Millar, Reimagining the Employment Equity Act: Making it Work for Black Canadian Employees, Enhanced Engagement Report for the EEART, 20 July 2022 at 76.

The studies on “facades of conformity” are evolving. They are beginning to tell us that when people want to but cannot bring their authentic selves to work, when there is a “conflict between their expressed and felt values,” when they are concerned that being authentic will affect their career progression, they may experience psychological and emotional distress.Footnote 52 This does not mean that disclosure leads to positive outcomes, though. In an unsupportive workplace, revealing the information may also lead to psychological and emotional distress.Footnote 53 As so many of the people who appeared before the task force told us, there may well be good reasons to be cautious. But even in the bad news, there is hope for change: one study suggested that those who disclosed and lost a job were more fearful of disclosing, but also more likely to disclose.Footnote 54

Equity group members may decide that resistance to exclusionary norms and insistence on authentic inclusion is necessary. Can employment equity help to lessen the cost, by enabling workplaces to be more supportive of workers bringing their authentic selves to work?

Authenticity is associated in the research with general well-being. Authenticity and work engagement are also related: workers may feel they can draw fully on their personal energy and strengths in the workplace context. Their intersectional identities as Indigenous workers, women workers, racialized workers, 2SLGBTQI+ workers, disabled workers are not devalued. They do not feel like they have to hide dimensions of who they are to try fit in or “pass”. When workers can behave authentically, they tend to perform well.Footnote 55

Reducing barriers supports workers’ ability to bring their authentic selves at work, and this can benefit us all.

Barrier removal on the job: Performance evaluation, access to training and career progression

The EEA is implemented at the hiring level, but not to the life cycle of employment, which prevents Indigenous peoples’ access to positions in senior management.

Public Service Employee, Member of the Federal Indigenous Employees Network, 10 May 2022

Repeatedly we were told of the unequal distribution of leadership opportunities for members of employment equity groups, and within subgroups. The concerns expressed matched the numbers.

In the core administration of the federal public service, as of March 2021, there were 6,717 executive positions.

  • Only 297 of those positions, or 4.4%, were held by First Nations, Métis or Inuit employees.
  • Only 128 or 1.9% of those positions were held by Black employees.
  • The total number of racialized employees holding those positions was 830, or 12.4% the total number of executives.
  • Disabled persons, at 377 employees represented 5.6% of the total.
  • Women as a group were in a majority position (52.3% or 3, 513).

While the Office of the Auditor General reports that racialized minorities are represented beyond their workforce availability, they are “significantly underrepresented” in the highest salary bands and the number of senior managers was suppressed to preserve confidentiality because it was too small. The numbers were also suppressed for Indigenous persons (2.5% overall) and persons with disabilities (4.9% overall). This is in a key governmental workplace, the Office of the Auditor General, which alone has 791 employees.

We heard a lot of concern about access to executive (EX)-level employment in the federal public service. Some unions conceded that there was potential for employees to gain valuable learning experiences through temporary appointments. But most acknowledged that temporary appointments could be a source of concern given the wide discretion available to employers. The Public Service Alliance of Canada called for greater equity oversight.Footnote 56

Our task force was provided with numerous examples of how equity groups might face “unconscious demotion”, that is what Suzanne Wertheim refers to as the patterned, often stereotypical assumptions that lead to a failure to recognize a person at their correct occupational status. Assuming a Chinese woman judge is a court stenographer, assuming a Black male doctor is an orderly, assuming an Indigenous two-spirit professor is a student: these are examples of how unconscious bias works. The individual “mistakes” can reflect systemic problems that prevent employment equity group members from progressing at an equitable pace in their workplaces. They can lead members of equity groups to repeatedly feel they need to prove their value, and to avoid certain events that may be career enhancing because of the psychological toll.Footnote 57

The conclusion that action is widely needed on promotions, access to training and retention is inescapable. The 1997 National Capital Alliance on Race Relations v. Canada (Department of Health & Welfare) employment equity case before the Canadian Human Rights Tribunal is an important example of how specific barriers were identified and measures were proposed to remove the barriers throughout the employment lifecycle. The decision took a close look at training, career development and promotion.Footnote 58

Moreover, if the low skill jobs in which women predominate are not only less well remunerated than men’s but also offer fewer opportunities for on-the-job training that gives workers greater access to internal job mobility, broader barriers to promotion and movement will persist in the labour market. Professor Marie-Josée Legault’s study is one of the rare inquiries into the potential for employment equity to remove barriers to progress in employment for low wage women with lesser educational levels. She urges policymakers to pay attention to the barriers affecting low wage women.Footnote 59 This concern, when approached intersectionally, helps to turn attention as well to the underemployment of women who might, for example, be new immigrants or racialized.

Barrier removal on the job and for retention: Inclusive benefits packages

The inclusiveness of benefits packages should be part of the employment systems review process. Our task force heard that coverage for sick leave and leave to care for dependents, employee assistance programs and long-term disability are matters of concern for workers generally, and may have a disproportionate impact on members of employment equity groups.

Recommendation 4.17: The Employment Equity Regulations or guidelines prepared under them should provide for workplace benefit packages to be considered in the employment systems review process.

The importance of collective bargaining processes and agreements to securing this important feature of equitable inclusion is internationally recognized, borne out in Canada, and addressed by our task force in Chapter 5.

Barriers to retention and career progression in the federal public service: Official language training

There is a perception that racialized people do not have linguistic competency in both languages. Racialized people perceive that they have less access to official languages testing and learning opportunities that should be evaluated as a barrier to employment and promotion. Despite specific policy provisions allowing prioritization of racialized employees, access is limited by management discretion. Specific programs should be developed to ensure adequate access.

Natural Resources Canada, Written Submission to the EEART

We noted with concern that “official language requirements” were repeatedly framed as barriers in the federal public service.Footnote 60 Yet official language requirements reflect a significant government commitment to a bilingual Canada.

This was discouraging, as there is much that can be done in a public service to facilitate active bilingualism in the public service workplace, which benefits all Canadians. Official language requirements reflect an important government priority, reaffirmed in the most recent 2023 federal budget. It is imperative to put the means behind language training to ensure that inequitable access to training does not have an adverse impact on employment equity group members.

The Interdepartmental Circles on Indigenous Representation in its 2017 report focused precisely on access to language training.Footnote 61 For some groups this included language training for newly recruited employees who may require early support to help to close the gaps, or those who are in regions.

We were also troubled by the suggestion in several submissions and consultations that official language training requirements might be approached unevenly through the exercise of managerial discretion. We heard that providing official language training is a significant financial commitment within government, as the training can require 18 months of salary.

One written submission suggested that for disabled workers with profound hearing impairments, accommodations might be needed to the requirement to become proficient in both official languages. Like so much of the work on equity, this requires asking whether the barrier is the way in which the disability is understood: might the official recognition of Quebec Sign Language (LSQ) and American Sign Language (ASL), not enhance our understanding of bilingualism and help to foster inclusion? Context matters. And so too does carefully framing of the barrier matter, so that it can be eliminated.

Equitable access to official language training by employment equity groups has emerged as an issue that warrants close policy attention. There should be meaningful consultations with bargaining agents to ensure that language training is actually available to members of employment equity groups in a manner that does not impose other barriers due to work overload or scheduling.

The task force was also concerned to ensure that there is support for a deeply related objective, that is ensuring a supportive approach that ensures that meaningful consultations be undertaken with First Nations, Métis and Inuit peoples to ensure that Indigenous languages are valorized in the workplace.Footnote 62 According to the 2021 Census, of 1.8 million Indigenous people in Canada, only 237,420 can speak an Indigenous language well enough to conduct a conversation. A 2016 national survey conducted by the First Nations Data Centre found that although proficiency in a First Nations language was low amongst youth, of those who had some knowledge of a First Nations language nearly half could understand and speak a few words (48.2%), while one quarter were fluent or had intermediate proficiency (23.8%).Footnote 63 For First Nations adults, close to 75% reported the perceived importance of understanding and speaking a First Nations language.Footnote 64

Should we not at this stage in our country’s trajectory be able to embrace ways to honour, promote and value Indigenous languages?

Some Indigenous employees in the public service expressed their choice to work to preserve and strengthen their Indigenous languages, to be able to transmit their language to their children and communities. The task force was told that those who delivered services in their Indigenous languages, notably in the North, should have that skillset valued and remunerated, rather than taken for granted.

Some Indigenous partners who presented to the task force also expressed concern that the Indigenous Languages Act does not render Indigenous languages official languages in Canada. The legislative framework states that it facilitates the effective exercise of the rights of Indigenous peoples that relate to Indigenous languages, including cooperative measures and agreements, while acknowledging and preserving a range of rights.Footnote 65

For our purposes in this Report, the Interdepartmental Circles on Indigenous Representation had a concrete and fitting ask that would be part of a broader package of transformative change: compensating Indigenous language users in positions where Indigenous language use is required or an asset.Footnote 66

Recommendation 4.18: Urgent policy attention should be devoted to assessing the distribution of official language training opportunities to ensure that they are made available to employment equity group members in the federal public service, without discrimination.

Recommendation 4.19: Meaningful consultations should be undertaken between the federal government and First Nations, Métis and Inuit peoples with a view to establishing a national Indigenous languages allowance within the federal public service to acknowledge and compensate Indigenous language users in positions where Indigenous language capacity is required, recommended or relied upon.

Barrier removal for retention – Understanding separation

Exit interviews are an important EDI tool for understanding the reasons for departure. In the federal public service, although hiring falls under the Public Service Commission while the TBS-OCHRO has responsibility for terminations, the ability to speak across the divides and learn from the reasons why public servants from equity groups are leaving seems to warrant attention.

Important as these exit interviews are, they come at the end of the work relationship.

Part of the accountability is to those who leave. Exit interviews should be conducted so that they ensure senior level accountability. But we cannot afford to be naïve and forget that sometimes, the reason why members of employment equity groups are leaving may be well known. The key is accountability. And accountability must be balanced with ensuring that the departing workers feel able to tell their story.

The Interdepartmental Circles on Indigenous Representation have called for exit interviews for Indigenous workers to be conducted with an Indigenous person who is not immediately linked to their work environment.Footnote 67 The exit interview could be conducted by one or more member(s) of the joint employment equity committee proposed in Chapter 5. There is an opportunity to vest this responsibility in a new but important vehicle for transformative change – the recommended deputy employment equity commissioners or ombudspersons discussed in Chapter 6. The departing employee might be permitted to be accompanied by a representative of their choosing. Ultimately the takeaway at this point is that exit interviews are a crucial feature enabling workplaces to identify and address workplace barriers.

Some of the workplace assumptions that prevailed in 1986 when the first Employment Equity Act was adopted have of course shifted. There have been shifts in the understanding of the employment relationship and whether workers plan to build a career in one workplace, although it is important not to overstate them. Substantive equality in the workplace requires us to pay attention when underrepresented group members leave. Maybe they were very happy but found better opportunities elsewhere. But maybe they were not. Disparity in separation is something that employment equity data collection allows us to track.

But when you have small numbers, that exercise will be imperfect. What can be done?

When you have small numbers, each loss, each hire, and each promotion matters.

Katie Wullert, Shannon Gilmartin & Caroline Simard, “The Mistake Companies Make When They Use Data to Plan Diversity Efforts,” Harvard Business Review, 16 April 2019.

More precisely, what can be done with small sample sizes? Does it mean that factors cannot be identified?

Important research on equity practices suggests otherwise. How employers use quantitative data to identify and remove barriers has also become the basis of scrutiny. It makes sense to be cautious of small numbers. But a 2019 Harvard Business Review article, drawing on an example from the separation/ retention stage, urges employers to be more specific about the kind of claims that can be made, based on the small numbers:

When an organization has data on their full population, however, small samples are not an issue for identifying patterns. Understanding descriptively what’s going on with your employees doesn’t require inference from a sample to a population. Say, for instance, that of the 40 Black women in a hypothetical organization in 2017, 15% or 6 people, left the company by 2018. This is enough information to see that you might need to pay more attention to retaining black women.

Now say that the attrition rate for women on average in the organization is 6%. If the company just focuses on the aggregate, the difference in attrition rates among smaller groups gets obscured. The interpretation goes from “the turnover of black women is alarming” to “our company has a low attrition rate for women.” This can harm future retention efforts.

When you have small numbers, each loss, each hire, and each promotion matters.Footnote 68

In other words, the small sample size means that the full story cannot be captured by statistical data alone.

With small numbers, it is necessary to analyze and understand what is happening, and what can be done to change patterns, including by considering the effect on those who remain. Interviews – including exit interviews – are one important tool to identify and remedy the barriers.

Some stakeholders asked for greater attention to be paid to ensuring that members of equity groups, especially those who are new immigrants, be given attentive onboarding, alive to the fact that their work experience in Canada is limited and that some expectations might need to be explained explicitly. We received various versions of this comment across employment equity groups: that fostering equitable inclusion requires a degree of flexibility, mutuality and even, grace, in order to welcome workers with diverse lived experiences in their full humanity and foster their flourishing. This, fundamentally, seems the kind of transformation that is in line with how Canadians want to see ourselves in the world, including the world of work.

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.

Recommendation 4.20: The Employment Equity Regulations should provide for the use of artificial intelligence in recruitment or other forms of worker evaluation or assessment to be reported upon in employers’ employment systems reviews.

Recommendation 4.21: Guidelines and training should be developed and updated by the Employment Equity Commissioner, including on artificial intelligence use across the employment lifecycle with particular attention to recruitment and hiring.

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:

What we are doing

Through the Centralized Enabling Workplace Fund, develop a government-wide approach to address workplace adjustments

As part of the Government of Canada’s accessibility agenda, $10 million over five years (from the 2019 to 2020 fiscal year to the 2023 to 2024 fiscal year) has been allocated for the Centralized Enabling Workplace Fund.

The fund was created based on recommendations made by the Persons with Disabilities Chairs and Champions Committee. It will be managed by OPSA and will:

  • develop and implement an employee passport that:
    • documents needs
    • facilitates conversations with managers and corporate services
    • tracks actions
    • “travels” with employees when they change positions
  • research and assess best practices from public and private sector jurisdictions, and experiment with  innovative approaches to workplace adjustment
  • create a centralized “library” of adaptive devices and services to provide quick access to assistive devices to new employees (student, casual and term employees)
  • implement training and tools to support culture change within the public service, and
  • implement other initiatives such as pilot projects to examine whether they have the potential to be applied government-wide

Treasury Board of Canada Secretariat, “Goal 1: Employment – Improve recruitment, retention, and promotion of persons with disabilities” in Accessibility Strategy for the Public Service of Canada (07 May 2020).

  • 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.

Canadian Human Rights Commission, Horizontal audit on Indigenous employment in the banking and financial sector, 2019 at 16.
  • 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.

Federal Labour Standards Review, Fairness at Work: Federal Labour Standards for the 21st Century, Professor Harry Arthurs, Commissioner (Human Resources and Skills Development Canada, 2006) at 166.

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.

Recommendation 4.22: The federal government should enter into consultations with employers’ and workers’ representatives and concerned communities with a view to amending the Canada Labour Code to enable religious minorities to avail themselves of one or more annual paid leave days reasonably available to them to observe religious high holidays.

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.

Equity, barrier removal and non-disclosure agreements


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.

Lizzie Barmes, “Silencing at Work: Sexual Harassment, Workplace Misconduct and NDAs” (2023) 52 Industrial Law Journal 68 at 76.

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 agreementsFootnote 106

What can we do now?

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

Lizzie Barmes, “Silencing at Work: Sexual Harassment, Workplace Misconduct and NDAs” (2023) 52 Industrial Law Journal 68 at 101- 102.

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

Recommendation 4.23: The federal government should, in consultations with concerned groups, consider amending the Canadian Human Rights Act and the Canada Labour Code to ensure that NDAs are not misused for the purpose of silencing human rights complainants or whistleblowers.

Recommendation 4.24: The Employment Equity Regulations should be amended to require employers to report on the number of NDAs signed with categories regarding the broad subject matter and potential barriers that they covered. The reporting should include non-nominative information about the designated employment equity group(s) to which the complainant(s) and the alleged perpetrator(s) may belong.

Recommendation 4.25: A study should be undertaken of the use of NDAs to resolve employment matters within federal jurisdiction and its impact on respecting human rights and achieving employment equity in the workplace.

Barriers that intersect with the workplace

Without investments in early predictors of employment success, such as youth employment, the Employment Equity Act will face an uphill battle…

Inclusion Canada, Presentation to the EEART, 9 June 2022

[I]t is important to mainstream the promotion of equality of opportunity and treatment in employment and occupation in relevant national policies, such as education and training policies, employment policies, poverty reduction strategies, rural or local development programmes, women’s economic empowerment programmes, and climate mitigation and adaptation strategies.

ILO Committee of Experts on the Application of Conventions and Recommendations, General Observation on Discrimination based on Race, Colour and National Extraction, 2019.


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.

Recommendation 4.26: The Government of Canada is encouraged to ratify the ILO Domestic Workers Convention, 2011 (No. 189).

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.

First Nations Information Governance Centre, Now is the Time: Our Data, our stories, our future: The National Report of the First Nations Regional Early Childhood, Education, and Employment Survey, 2016 at 67

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.

Canadian Association of Counsel to Employers, Submission to the EEART, 28 April 2022

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.

Committee on the Elimination of Discrimination against Women, Concluding Observations on the combined 8th and 9th periodic reports of Canada, 2016, CEDAW/C/CAN/CO/8-9 at para 35(d).

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 Hon. Louise Arbour, Report of the Independent External Comprehensive Review of the Department of National Defence and the Canadian Armed Forces, 20 May 2022, at page 233.

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.

Federal Public Service Employee, Presentation to the EEART, 14 June 2022

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

Laverne Jacobs, “The Universality of the Human Condition: Theorizing Transportation Inequality Claims by Persons with Disabilities in Canada, 1976-2016” (2018) 7:1 Canadian Journal of Human Rights 35

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.

End of Mission Statement, Special Rapporteur on the rights of indigenous peoples, Visit to Canada, 10 March 2023 at 7.

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 immigrantsFootnote 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.

Recommendation 4.27: Studies of the feasibility of basic income policies should be encouraged. They should pay particular attention to the effect of basic income strategies on redressing barriers to equitable workplace inclusion faced by employment equity groups.

Barriers in select federally regulated employers

The Federal Public Service is ripe for transformation.

Many Voices one Mind: A Pathway to Reconciliation: Welcome, Respect, Support and Act to fully Include Indigenous Peoples in the Federal Public Service. Final Report of the Interdepartmental Circles on Indigenous Representation, 4 December 2017, at 4.

Culture evolves, and cannot change by mere decree. Despite slow progress towards women moving into positions of influence, authority and power, and into fields of professional work historically not open to them, we continue to see resistance, particularly in historically male-dominated organizations with “boys’ club” mentalities, such as the CAF.

But thankfully, there is now a palpable change in the air. The question before us is not whether or when, but how.

The Hon. Louise Arbour, C.C., G.O.Q., Report of the Independent External Comprehensive Review of the Department of National Defence and the Canadian Armed Forces, 20 May 2022.

There is considerable variation across the federal public service on employment equity and related EDI initiatives. There is also tremendous variation across federally regulated private sector employers.

Reporting is extremely uneven, even in the federal public service. It was explained that this authority is delegated to Departments and Agencies, and that the oversight is limited to asking whether the plans have been prepared. Understandably, the Office of the Auditor General, which is not subject to TBS OCHRO, prepares its own Employment Equity reports, which include their employment equity plan. But mechanisms seem to be lacking for the plans to be analyzed to ensure that they meet the criteria prescribed in the Employment Equity Act. The Canadian Labour Congress expressed concern about the delegation of responsibility to departments.Footnote 148

LGBTQI2S EDI efforts are highly dependent on the individual agency’s structures, staff, and role within the government. Given the distinct missions and mandates of each federal entity, there are often very different structures in place for supporting EDI at the organizational level, with no formalized means for coordinating efforts across the federal government (by a central agency, for example).

LGBT Purge Fund, Emerging from the Purge: The State of LGBTQI2S Inclusion in the Federal Workplace and Recommendations for Improvement, 17 May 2021

Throughout this task force report, we share reflections from and about the federal public service and federally regulated private sector employers. This section focuses on a few key agencies whose equity practices have given rise to a lot of public attention. It also focuses on a few sectors that seem to be struggling.

We want to be sure that our recommendations are grounded and helpful.

The Canadian Armed Forces


We are, after all, an employer just like all employers and need to be held accountable in areas where modifications need to be made in order to better support our employment equity and diversity and inclusion programs/ initiatives.

Canadian Armed Forces, Submission to the EEART, 16 May 2022

The Canadian Armed Forces (CAF) recognizes itself to be the largest federal employer subject to the Employment Equity Act, and proclaims that it is “fully committed to Employment Equity (EE) throughout the organization.”Footnote 149 The importance of its representation is hard to overstate. For a country that has adopted a Feminist International Assistance Policy and that is present in United Nations peace keeping around the world, the ability to reflect a CAF that reflects Canada seems pivotal. Moreover, there are data from the United Nations suggesting how important it is, for example in the case of sexual violence, for survivors to be able to report to women in a representative CAF.Footnote 150

The Employment Equity Act was applied to National Defence in two stages – in 1986 for civilian employees in the Department of National Defence, and in 2002 for CAF members – including both officers and non-commissioned members. Members of the ‘special forces’ are excluded but task force members were told that the numbers are minimal and representation is not tracked when they are temporarily members of special forces. The CAF is subject to special regulations.Footnote 151 In its written submission to our task force, the CAF recalled that in the absence of a union, its members do not have a collective voice to advocate on their behalf. The Hon. Morris Fish, former Justice of the Supreme Court of Canada who conducted the third independent review of the National Defence Act, characterized their situation in the following terms:

Members of the Canadian Armed Forces (“CAF”) have fewer means of redress than civilians in other organizations. They are not permitted to unionize or otherwise collectively negotiate their working conditions. They do not have employment contracts. And when they believe they have been aggrieved by any decision, act or omission of the CAF, they do not have recourse to an independent tribunal.Footnote 152

He described their main recourse – that is, to file an individual grievance within their chain of command - as a broken system, plagued with “unacceptable” delays and as did previous external review authorities, recommended grievance system enhancements.Footnote 153

An exclusionary record – Violence, harassment and racism at work

[S]ignificant responsibility is given to CAF leaders both to ensure that members are treated with dignity, and to maintain a standard of professional conduct that respects the dignity of all persons… there is a significant disjunction between the aspiration of the CAF to embody a professional military ethos which embraces the principle of respect for the dignity of all persons, and the reality experienced by many CAF members day-to-day.

External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces (March 27, 2015) (External review authority: Marie Deschamps, C.C. Ad.E) at 12.

The Canadian Armed Forces has faced numerous extremely serious reports on sexual misconduct and harassment within its ranks. Most of them have been reviewed for this task force report.

The 2015 External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces by former Supreme Court Justice, the Hon. Marie Deschamps, C.C., Ad. E., captured the magnitude of the challenge, the ways in which CAF members become inured to the culture of harassment as they move up the ranks, the code of silence, and perception that the behaviour is either condoned or ignored. Justice Deschamps noted under-reporting or a lack of reporting. Even if a case is taken seriously and found to be substantiated, the sanctions tended to be perceived as slaps on the wrist. Justice Deschamps called for both policy change and culture change. Her recommendations included close attention to reporting options, allowing support services to be requested without necessarily triggering a formal complaint and an independent centre for accountability and the possibility to transfer complaints to civilian authorities.

A 2016 Statistics Canada Report followed up with a survey of over 43,000 responses on sexual misconduct, covering active members of the CAF. They showed the disturbing prevalence of sexual misconduct.

On 1 June 2021, former Supreme Court Justice, the Hon. Morris Fish, submitted the Third Independent Review containing 107 recommendations under a broad mandate to cover the military justice system. It confirmed the factual findings of the Hon. Marie Deschamps and considered them to be “as rampant and as destructive in 2021 as they were in 2015.”Footnote 154 He included 10 survivor-centred recommendations on sexual misconduct. In particular, he recommended that the Sexual Misconduct Response Centre (SMRC) introduced in 2015 should be reviewed independently to ensure that it is afforded an appropriate level of independence from both CAF and the Department of National Defence (DND). He called for civilian authorities to investigate sexual assaults.

He referenced the 2018 report of the Auditor General of Canada to the Parliament of Canada covering the regular and reserve force members of the CAF, which described the launching of Operation HONOUR in 2015 as a “top down, institution-wide military operation to eliminate inappropriate sexual behaviour.” Operation HONOUR was credited with increasing awareness, but reported that “some members still did not feel safe and supported,” and that “many victims also did not understand or have confidence in the complaint system.”Footnote 155 The Auditor General reported that “[i]n 21 of the 53 cases, the file showed that the victim experienced fear, distress, discomfort, a lack of support, reprisal, or blame, including from the victim’s commanding officer, senior leaders, instructors, and colleagues.”Footnote 156 

Former Supreme Court Justice, the Hon. Justice Louise Arbour’s Independent External Comprehensive Review of the Department of National Defence and the Canadian Armed Forces followed, and included both an interim assessment concluded on 20 October 2021 and a final report on 20 May 2022. The Hon. Louise Arbour was mandated to examine how misconduct cases were handled by the military justice system. She examined “the institutional shortcomings and structural impediments” that have led to a status quo despite so many reports and recommendations. Justice Arbour reiterated that a trust deficit persists in the area of addressing sexual abuse and sexual harassment, adding that “[t]his trust deficit is a liability for the CAF. Rather than improving ‘efficiency, discipline and morale,’ jurisdiction over the investigation and prosecution of sexual offences has undermined confidence in the chain of command while doing little to eradicate the proscribed conduct.” Beyond recommending that language be harmonized with the Criminal Code (sexual assault) and Canada Labour Code (sexual harassment), she offered a close assessment of the CHRC process, noting that the CAF has often taken “a tough stance” when complaints have come forward to the CHRC.Footnote 157 She provided tables indicating the number of complaints brought forward against the CAF to the CHRC, which have been updated by the CHRC for this report:

Table 4.1: Complaints against the Canadian Armed Forces by ground of discrimination, 2015 - 2021
Grounds of discrimination Number of complaints
Disability 108
Sex 43
National or ethnic origin 39
Race 38
Colour 26
Family status 26
Age 24
Religion 23
Other grounds
(marital status, sexual orientation, gender identity or expression, retaliations, pardoned conviction, genetic characteristics)
  • Source: Canadian Human Rights Commission
Table 4.2: Complaints against the Canadian Armed Forces by discriminatory practice, 2015 to 2021
Discriminatory practice Number of complaints
Denial of service 10
Employment-related 176
Discriminatory policy or practice 74
Harassment 40
  • Source: Canadian Human Rights Commission

She noted the existence of reprisal protections under the Canadian Human Rights Act, and the Canadian Human Rights Commission’s competency to deal with complaints. The Canadian Human Rights Commission assured her that they could deal with the cases expeditiously “if they were provided with adequate resources to deal with an influx of cases from the CAF”. In light of that, she called for the Canadian Armed Forces not to object to the Canadian Human Rights Commission’s jurisdiction under Section 41(1)(a) of the Canadian Human Rights Act. She added that the Canadian Human Rights Act should be revised to permit the award of legal costs and increase the potential damage awards.Footnote 158

Overall, Justice Arbour called for corrective measures that would create “an even and safe playing field for women” adding that the measure would “benefit the other marginalized members of the CAF.Footnote 159 Her findings were frank and her recommendations proposed “to empower survivors, as they will be less at the mercy of a chain of command in which they have largely lost confidence.”Footnote 160

As discussed in Chapter 3, a culture of harassment is a particularly pernicious barrier affecting the recruitment of equity groups, including women, and including Indigenous women. The task force considers it important for this barrier to employment, retention and promotion be systematically reported on by CAF and that this reporting be undertaken in an intersectional manner.

In our consultations with members of the Canadian Armed Forces, the Culture Change Directorate members readily acknowledged the exclusionary past – including the “undeniably abusive and traumatizing” treatment referred to as the LGBT Purge. They also acknowledged the areas in which they remain unrepresentative and were open to barrier removal.Footnote 161 And they have shown their commitment to going beyond the parameters of the existing Employment Equity Act, by voluntarily recognizing 2SLGBTQI+ as an employment equity group.Footnote 162

How unique an employer is the CAF?

I do not think that the low representation of women in the CAF is due to a lack of interest on their part in wearing the uniform and serving Canada. It is evident to me that, despite legislation mandating equality, life for women in the CAF is anything but equal. Many women experience harassment and discrimination on a daily basis with one stakeholder noting, “a man can be seen as stoic and forceful and a woman is a bitch. I was told early in my career that I had three choices: to be a slut, bitch or dyke.” This uneven treatment of women, coupled with other forms of systemic discrimination and widespread sexual misconduct, feeds into poor recruitment and retention, as well as underrepresentation at all ranks.

The Hon. Louise Arbour, Report of the Independent External Comprehensive Review of the Department of National Defence and the Canadian Armed Forces, 2022, at 34.

Members of the CAF’s Culture Change Directorate pointed out key specificities of the CAF, including:

  1. Entry-level hiring requiring working up the ranks in a hierarchical structure
  2. Universality of Service requirements, and
  3. The concept of “unlimited liability” within the military context, where members of CAF accept and understand that they are subject to being lawfully ordered into harm’s way under conditions that could lead to the loss of their lives

They translate into the following Policy Direction on the Principle of Universality of Service in the Canadian Armed Forces:

2.1 The mission of the DND and the CAF is to defend Canada, its interests and its values, while contributing to international peace and security.

2.2 To execute this mission the CAF must be given broad authority and latitude in utilizing CAF members and their skills. The statutory basis for this authority is section 33 of the National Defence Act. The fundamental importance of this authority that impacts the functioning and effectiveness of the CAF is recognized in subsection 15(9) of the Canadian Human Rights Act, which provides that the duty to accommodate under subsection 15(2) of that Act is subject to the principle of universality of service. Under this principle, CAF members are at all times liable to perform any lawful duty.

2.3 Effective performance of the broad range of defence and security tasks assigned to the CAF requires that CAF members be capable of performing a similarly broad range of general military, common defence and security duties, in addition to the more particular duties of their military occupation or occupational specification. The open-ended nature of military service is one of the features that distinguish it from the civilian notion of employment governed by a contract, which obliges employees to perform only those duties specified in their job description or contract.

Policy Direction on the Principle of Universality of Service in the CAF, DAOD 5023-0

Task force members were told that it can take 30 years for an entry level recruit to become a general; career progression for women needs to be studied, including what happens to their progression when they take a maternity leave. We were also told about a level of self-reflection that is going into rethinking selection processes; if 25 people are being promoted yet the first woman is 27th, they recognize based on an actual past experience that it might be necessary to re-evaluate to see whether the process has been affected by bias. Unfortunately, we were told, this kind of review has not yet become systematic. We were told that new processes are coming into effect that are less traditional and more focused on competencies.Footnote 163

Implementing employment equity in the CAF:

Representation rates

The dearth of female recruits, particularly in the male-dominated occupations, is not a result of poor effort on the part of recruitment centres. Quite the contrary. The centres strive to redirect women applicants to the occupations where they are most needed. We were told by several women recruits that they were advised to choose infantry or armour, as it was a sure-fire way to get accepted. Unfortunately, one senior officer said that even if the CFRG [Canadian Forces Recruiting Group] could recruit 25% women for combat arms occupations, the resistance of the combat arms community to those women recruits would make it difficult for that many women to be included in its ranks.

Report of the Independent External Comprehensive Review of the Department of National Defence and the Canadian Armed Forces (20 May 2022) (Reviewer: The Hon. Louise Arbour) at 202.

The Canadian Forces Employment Equity Regulations require the records to include the promotion history of each Canadian Forces members alongside other detailed aspects of the workforce analysis and employment systems review.

Section 9 of the Canadian Forces Employment Equity Regulations clarifies that for the purposes of Section 33 of the National Defence Act, the Canadian Human Rights Commission and ultimately the Employment Equity Review Tribunal limit the ability of the Chief of the Defence Staff of the Canadian Armed Forces to “enrol, re-engage or promote” persons. Frankly, at this stage the limit seems altogether hypothetical given that the Employment Equity Review Tribunal has never decided a case on its merits. This is discussed in Chapter 6.

The Canadian Armed Forces does report that it was audited in 2011, affirming that it “achieved compliance” with the Employment Equity Act at that time. Consider the data in relation to the 2022 figures:

Table 4.3: Representation of employment equity groups in the Regular Forces and Primary Reserves, 2011 & 2022
Regular Force & Primary Reserves 2011 1 April 2022
Women 14.8% 16.3%
Aboriginal people 2.1% 2.7%
Visible minorities 4.6% 10.1%
Persons with disabilities 1.2% 1.1%
  • Sources: Canadian Armed Forces. (2011). Employment Equity Report, 2010-2011,; Canadian Armed Forces, Written Submission to the Employment Equity Act Review Task Force, 16 May 2022.

Consider also that while the CAF is required to collect workforce information, determine underrepresentation through workforce analysis, and establish an equity plan for persons with disabilities, Indigenous persons and visible minorities, the CAF has taken the position that it is not required to set a representation goal for persons with disabilities.Footnote 164 As noted in Table 4.3, disabled workers represent only 1.1% of CAF, a slight decrease since 2011.

The CAF considers itself a “unique” employer in that close to half of its workforce comprises occupations that are unique to the military. Arguing that external labour market direct comparison is not possible, it has agreed with the Labour Program, the Canadian Human Rights Commission, and the Treasury Board of Canada to rely only on two National Occupational Classification codes to estimate labour market availability – officers and non-commissioned members (NCMs).Footnote 165 The choice has faced strong critique:

This arrangement permits the CAF to set conservative and outdated goals. Aside from census data being as much as five years out of date, the NOC standard is based on the current representation of designated group members in the military, not in the labour market – a benchmark that is clearly inadequate and must be surpassed if there is to be progress on employment equity in the CAF.

Carol Agócs,  Canadian Dilemma: Is There a Path from Systemic Racism Toward Employment Equity for Indigenous People in the Canadian Forces? (2018) 19:2 Journal of Military and Strategic Studies 273 at 281.

Interestingly, though, the Arbour Report recalled that the CAF is in “close competition with civilian employers who are vying for the same personnel.”Footnote 166

It is important to keep in mind that the Auditor General of Canada has conducted compliance audits of National Defence’s Recruitment and Retention of Military Personnel, in 2002, 2006 and 2016. This auditing included the Canadian Armed Forces Employment Equity Act responsibilities to identify and eliminate barriers and ensure that women and other employment equity groups are appropriately represented. However, the 2016 audit reported on women, but not on the other employment equity groups.

Not only did the Auditor General find that women represented only 14% of the Regular Force; it also found that women were concentrated in six occupations: resource management support clerks, supply technicians, logistics officers, medical technicians, nursing officers, and cooks. The Auditor General noted that the Canadian Armed Forces had not established targets for each occupation. The Auditor General’s report indicates that this was agreed, and there was an extensive follow up report with specific recommendations to report on progress on representation of women, visible minorities and Indigenous peoples by the Standing Committee on Public Accounts in 2017.

However, the CAF’s Employment Equity Plan for 2021-2026 does not appear to retain that approach. It is unclear whether the agreement with the Labour Program, the Canadian Human Rights Commission, and the Treasury Board of Canada to rely only on two National Occupational Classification codes to estimate labour market availability – officers and NCMs – is part of the reason.

The important take away is that the CAF recognizes this is the minimum level of representation. CAF agrees that it has the latitude to set higher goals.

Setting minima and then establishing higher targets is important for other employers covered by the Employment Equity Act framework. But the floors themselves must not become sticky, holding equality back. Employment equity must come to mean making reasonable progress over time, with barrier removal within and beyond the workplace bringing us closer and closer to population-level representation.

And in this, data really matter. Goals matter too.

Canadian Armed Forces Employment Equity Regulations already allow the CAF to rely on “any other statistically-reliable information that is available to the public and that the Minister of Labour determines relevant”.Footnote 167

It might allow for the calculation of goals to be based on different statistical sources, but to fail to calculate goals, in 2023, seems impermissible. This must change.

Recommendation 4.28: The Canadian Armed Forces should be required to calculate availability and set goals for all employment equity groups covered under the Employment Equity Act.

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...

Major Christina Eastwood, "Equity in the Canadian Armed Forces – Why It Matters” Minister of National Defence, 2019.

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.

Meaningful consultations in the CAF

The Deschamps report identified the fear of negative repercussions as the first and foremost reason expressed by members of the CAF to explain why they did not report incidents of sexual harassment or assault, with the lack of confidentiality and lack of trust in the chain of command constituting other important reason given. Fears of being judged, disbelieved or stigmatized were also reported by CAF members. The Deschamps report recalled consistently that although these concerns mirror the society at large, “the context of an organizational culture that values strength and power, and that can appear unsympathetic to any perceived manifestations of fragility or weakness” could compound these fears in the CAF. The actual experience of how reported sexual assault was addressed – leading to re-victimization of the complainant with few repercussions for the aggressor - was potentially one of the most serious deterrents to others. The Deschamps report called for an independent centre for accountability to be created, outside of the CAF, to which sexual harassment and sexual assault could be reported.Footnote 174

Currently, in what it refers to as the absence of bargaining agents, the CAF seeks to meet its consultation requirement through Defence Advisory Groups (DAGs) – Defence Aboriginal Advisory Group; Defence Advisory Group for Persons with Disabilities; Defence Team Pride Network, Defence Visible Minority Advisory Group, and Defence Women’s Advisory Organization - that are open to all CAF members, including members of employment equity groups, and five corresponding champions are nominated. There are also networks, including the Defence Team Black Employee Network.

The Arbour Report said DAGs and informal networks are “essential agents of change.” They are on the ground. They regularly engage with communities.Footnote 175 But researchers have questioned how safe advisory groups they are for participants. For example, a 2016 Defence Aboriginal Advisory Group (DAAG), reported on systemic racism in the CAF and received media coverage, but participation in the survey yielded a low response rate response: only 16 people reporting on 40 incidents. The DAAG report called for an independent investigation.Footnote 176 The Public Service Alliance of Canada (PSAC) and the Union of National Defence Employees (UNDE) play an active role with the civilian workforce in the DND. They question the contracting out of some employees in cleaning and facilities maintenance.Footnote 177

CAF reports that some changes have been made to ensure that there is meaningful representation within the DAG structure. But the structure for meaningful consultations in the CAF remains weak. We see no reason to develop a separate approach for CAF; the recommendations in Chapter 5 on structures for meaningful consultations apply to CAF.

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.

Recommendation 4.29: Dedicated assistance should be provided to the CAF by the Employment Equity Commissioner to support and enable it to sustain reasonable progress to achieve employment equity for all employment equity groups.

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.

A Member of the RCMP

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.

Former Auditor General Sheila Fraser, Review of four cases of civil litigation against the RCMP on Workplace Harassment, March 2017 at 1.

[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.

Independent Assessor, Former Supreme Court of Canada Justice, the Honorable Michel Bastarache, Broken Lives, Broken Dreams: The Devastating Effects of Sexual Harassment on Women in the RCMP, 11 November 2020.

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.

Independent Assessor, Former Supreme Court of Canada Justice, the Honorable Michel Bastarache, Broken Lives, Broken Dreams: The Devastating Effects of Sexual Harassment on Women in the RCMP, 11 November 2020, at 56.

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”:

The RCMP response acknowledges the recommendations, which cross four key areas, many of which are already underway as part of a long-term approach to a healthy and inclusive workplace:

  • Harassment prevention and resolution: e.g., a new Independent Centre for Harassment Resolution [ICHR], a civilian-staffed harassment prevention and resolution regime, outside the chain of command and reporting to the Chief Administrative Officer. This will ensure employees have access to a trusted, consistent process that is accessible, timely and accountable.
    • The launch of ICHR was in June 2021, and today there are 29 external investigators.
    • The ICHR is on track to be fully staffed and fully operational by July 2022.
    • In addition to addressing individual cases, analysis of external investigation findings will provide important information to help the RCMP prevent workplace harassment and violence to improve the workplace.
    • The ICHR is part of the panel involved in conduct review discussions.
  • Addressing systemic barriers: e.g., identifying, preventing and removing barriers from our policies, programs and operations through Gender-based Analysis+ and a new RCMP Equity, Diversity and Inclusion Strategy.
  • Recruitment and onboarding: e.g., recruitment modernization plan, examining large-scale changes to Depot and continuing to review the Cadet Training Program.
  • Leadership development and training: e.g., integration of Character Leadership in recruitment, training and promotion processes.Footnote 185

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.

Recommendation 4.30: The call in the Bastarache report for an independent external review and genuinely independent and adequately resourced oversight body for the RCMP should be implemented.

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.

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