Conclusion and Recommendations

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

Recommendation 1.1: The purpose of the Employment Equity Act should be updated as follows: “The purpose of this Act is to achieve and sustain substantive equality in the workplace through effective employer implementation, meaningful consultations and regulatory oversight of employment equity and, in the fulfilment of that goal, to:

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

Recommendation 1.2: Employment equity data collection and benchmarks should be systematically rethought to eliminate barriers and foster data justice.

Chapter 2: Data justice

Recommendation 2.1: An Employment Equity Data Steering Committee should be established under the Employment Equity Act to support implementation, meaningful consultations, and regulatory oversight to achieve and sustain employment equity.

Recommendation 2.2: The Employment Equity Data Steering Committee should have as a clear mandate to adopt a human rights-based, data justice approach.

Recommendation 2.3: The Employment Equity Data Steering Committee should comprise high level representation that includes as titular members Statistics Canada, the Employment Equity Commissioner, ESDC’s Chief Data Officer, the Canadian Human Rights Commission, the Labour Program, the Public Service Commission and TBS-OCHRO.

Recommendation 2.4: The Employment Equity Data Steering Committee should include sub-committees with appropriate technical specialists within the federal government that are meaningfully representative of employment equity group members.

Recommendation 2.5: The mandate of the Employment Equity Data Steering Committee should include

• recommending appropriate expansions or merging of databases, sources and surveys that affect the ability of federally regulated employers and employers subject to the Federal Contractors Program to report on the representation of employment equity groups and subgroups
• prioritizing the identification and removal of barriers in data benchmarks that affect discouraged and overqualified workers, and
• undertaking research in collaboration with academics and broader communities that are meaningfully representative of employment equity groups

Recommendation 2.6: Labour market surveys conducted by Statistics Canada should include a question, developed in consultation with the Employment Equity Data Steering Committee, asking how long workers looked for employment in their field of study.

Recommendation 2.7: The Employment Equity Data Steering Committee should be considered part of the Employment Equity Act framework.

Recommendation 2.8: The Employment Equity Act should specify that the collection of distinctions-based, disaggregated and intersectional data is authorized to meet the purpose of achieving and sustaining substantive equality for members of employment equity groups.

Recommendation 2.9: Distinctions-based, disaggregated and intersectional data should be collected whenever reasonably possible and with due regard to privacy protections, with the purpose of ameliorating the conditions of all equity groups and with special attention to members of the most underrepresented employment equity groups.

Recommendation 2.10: The Employment Equity Regulations or guidelines prepared under them should offer sustainable support to workplaces on how to prioritize employment equity initiatives on those employment equity groups and subgroups that are the most underrepresented in the workplace, while retaining responsibility for achieving employment equity for all employment equity groups.

Recommendation 2.11: The Employment Equity Act should specifically clarify that the purpose of data collection is to support achieving and sustaining employment equity in the workplace, by building trust in support of implementation, meaningful consultations and regulatory oversight.

Recommendation 2.12: The Privacy Act and PIPEDA should be reviewed and as appropriate amended to clarify expressly that the data collection frameworks are to be interpreted to support the human rights purpose of the Employment Equity Act, including in implementation, meaningful consultations and regulatory oversight.

Recommendation 2.13: Self-identification should remain voluntary under the Employment Equity Act framework.

Recommendation 2.14: Employers should be required under the Employment Equity Act framework to ask all workers to complete a self-identification survey on initial hiring, on an annual basis, and on separation from the employer.

Recommendation 2.15: Completing the self-identification survey should be mandatory, but the survey should include the option not to self-identify under each question related to membership in an employment equity group or sub-group.

Recommendation 2.16: The self-identification survey should be available in accessible formats, include all of the employment equity groups and disaggregated sub-groups, and clarify that a worker may self-identify as being a member of as many of the employment equity groups and disaggregated sub-groups as apply.

Recommendation 2.17: Within the federal public service, self-declaration on appointment should be streamlined with self-identification for the purposes of the Employment Equity Act.

Recommendation 2.18: Within the federal public service, self-identification survey data should be centralized and streamlined, making the Treasury Board Secretariat the central record recipient and recorder to facilitate appropriate employment equity data sharing between units.

Recommendation 2.19: The self-identification survey should be available for workers to update at any moment in their work lifecycle and resubmitted to employees on an annual basis for any updates.

Recommendation 2.20: Employers should be permitted to remind workers to complete the separate, confidential and voluntary self-identification survey at the end of the accommodation process, so long as self-identification for the purpose of employment equity is understood to remain voluntary, confidentiality can be assured, and the datasets are understood to remain separate.

Recommendation 2.21: The Employment Equity Act should expressly clarify that data collection and reporting on sub-group members are permitted, and permit special measures to be taken to improve the hiring, promotion and retention of those sub-group members that are relatively less well represented in the employer’s workplace.

Recommendation 2.22: The Employment Equity Regulations or guidelines prepared under them should provide detailed guidance on how to collect disaggregated data and report it in a meaningful manner to understand underrepresentation and where to prioritize.

Recommendation 2.23: The Employment Equity Regulations or guidelines prepared under them should provide directives to avoid misleading reporting if persons are counted multiple times across a number of disaggregated or intersecting groups.

Recommendation 2.24: The Employment Equity Data Steering Committee should be mandated to consider how best to draw on existing and emerging projections capabilities to redress the time lag in the calculation of labour market availability.

Recommendation 2.25: The federal public service should cease producing and relying on workforce availability to meet its responsibilities under the Employment Equity Act framework.

Recommendation 2.26: The “Canadian workforce” under Section 5(b)(i) of the Employment Equity Act should be the default benchmark in the Employment Equity Regulations.

Recommendation 2.27: Requests for derogations from the default benchmark should be addressed to the Employment Equity Commissioner on a case-by-case basis for a defined time period.

Recommendation 2.28: So long as representation is lower than Census population levels appropriate to the geographic context, employers should be permitted to continue to work to correct underrepresentation of employment equity groups, focusing on obtaining critical mass.

Recommendation 2.29: The Employment Equity Commissioner should develop tools that foster appropriate, accessible public sharing of employer reports. Protocols should be developed to ensure that proprietary information can be excepted from the information that is shared consistent with the Employment Equity Act and privacy laws.

Recommendation 2.30: An open government site for employment equity reports should be created to make all reports filed under the Employment Equity Act framework available through the accessible, searchable database.

Recommendation 2.31: the Employment Equity Commissioner should be provided with all reasonable latitude to ensure that employment equity data are made available for employment equity implementation and oversight as soon as possible after it is prepared.

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

Recommendation 3.1: The term “designated groups” in the Employment Equity Act should be replaced by the term “employment equity groups”.

Recommendation 3.2: Employment equity group members should be referred to as “workers” in the Employment Equity Act framework.

Recommendation 3.3: The Employment Equity Act framework should adopt the term “Indigenous workers” with a distinctions-based approach to First Nations, Métis and Inuit peoples.

Recommendation 3.4: The Employment Equity Act should clarify that its use of “Indigenous workers” with a distinctions-based approach to First Nations, Métis and Inuit peoples is intended to be consistent with Section 35 of the Constitution Act, 1982 and Section 91(24) of the Constitution Act, 1867.

Recommendation 3.5: The federal government should prioritize meaningful consultations consistent with First Nations, Métis and Inuit peoples’ right to self-determination to seek to resolve data sovereignty issues and redress data gaps in labour market information on reserves.

Recommendation 3.6: The issue of Indigenous self-identification for the purposes of the Employment Equity Act framework should be made the subject of an urgent process of meaningful consultation within the meaning of the Canadian constitution and the United Nations Declaration on the Rights of Indigenous Peoples Act.

Recommendation 3.7: Section 7 of the Employment Equity Act should be supplemented by a framework fostering Indigenous self-determination that is co-constructed through meaningful consultations with a view to free, prior and informed consent with Section 35 of the Constitution Act, 1982 and Articles 18 -21 and 26-32 of the United Nations Declaration on the Rights of Indigenous Peoples.

Recommendation 3.8: The transformative framework should include special measures that ensure continuing improvement of First Nations, Métis and Inuit peoples’ economic and social conditions.

Recommendation 3.9: The definition of disability in the Accessible Canada Act should replace the current definition of persons with disabilities in the Employment Equity Act.

Recommendation 3.10: The Employment Equity Data Steering Committee should prioritize developing quantitative and qualitative data on persons with disabilities that are disaggregated and intersectional, including through commissioned research, and in meaningful consultation with employers’ and workers’ representatives and representative organizations of disabled workers.

Recommendation 3.11: Psychosocial or intellectual disabilities should be considered from a disaggregated and intersectional manner to ensure that the implementation, meaningful consultation and regulatory oversight in employment equity effectively responds to the specific needs of those with invisible disabilities.

Recommendation 3.12: The Employment Equity Act framework should draw inspiration from the Accessible Canada Act and the Canadian Survey on Disability to identify appropriate subgroups.

Recommendation 3.13: The Treasury Board of Canada and the Public Service Commission should work closely and on a priority basis with the Employment Equity Commissioner to establish targeted hiring initiatives for persons with disabilities to achieve and sustain the established 2025 hiring goal in the federal public service.

Recommendation 3.14: Women should remain an employment equity group.

Recommendation 3.15: Employment equity implementation, meaningful consultation, and regulatory oversight should be approached in a disaggregated and intersectional manner.

Recommendation 3.16: The Employment Equity Data Steering Committee should study how best to obtain a suitably representative, disaggregated, and intersectional characterization of the Black population in Canada, in meaningful consultation with representative organizations of people of African descent.

Recommendation 3.17: Black workers should constitute a separate employment equity group for the purposes of the Employment Equity Act framework.

Recommendation 3.18: 2SLGBTQI+ workers should comprise a new employment equity group under the Employment Equity Act framework.

Recommendation 3.19: The Employment Equity Act and accompanying regulations should provide for the language of 2SLGBTQI+ to be updated as appropriate, in meaningful consultation with 2SLGBTQI+ communities concerned.

Recommendation 3.20: In consultation with the Employment Equity Data Steering Committee and concerned representatives of 2SLGBTQI+ workers, Statistics Canada should develop appropriate questions for the Census or other suitable surveys to support the implementation of an employment equity group for 2SLGBTQI+ workers.

Recommendation 3.21: Transitional measures should be adopted under the Employment Equity Act or accompanying regulations to ensure that employers can commence coverage of 2SLGBTQI+ employment equity group members by conducting employment systems reviews and preparing action plans drawing on general population data before Labour Market Availability benchmarks become available.

Recommendation 3.22: The term “visible minority” in the Employment Equity Act framework should be replaced by the term “racialized workers”.

Recommendation 3.23: The Employment Equity Act framework should continue to cover racialized workers.

Recommendation 3.24: The federal government should consider ratifying the Global Convention on the Recognition of Qualifications concerning Higher Education.

Recommendation 3.25: A principled approach to the issues of exclusion should come from a comprehensive, proactive approach to barrier removal across protected grounds under the Canadian Human Rights Act.

Recommendation 3.26: The Employment Equity Commissioner should have the ability to investigate and recommend special employment equity programs (special temporary measures) for defined equity groups based on evidence of disadvantage that has resulted in underrepresentation in employment.

Recommendation 3.27: The Employment Equity Data Steering Committee should be mandated to advise on whether a question on religion should be present in each Census rather than every 10 years.

Recommendation 3.28: The inclusion of religious minorities under the Employment Equity Act should be considered for comprehensive study by the newly re-established Law Commission of Canada.

Chapter 4: Strengthening implementation: The barrier removal pillar

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.

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 should be reported upon in the employment systems review, and
• provide for the Employment Equity Regulations or guidelines prepared under them to support comprehensive barrier removal and reporting

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.

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.

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”.

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.

Recommendation 4.10: Sections 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.

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.

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

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

Chapter 5: Reactivating the meaningful consultations pillar

Recommendation 5.1: The Employment Equity Act should clarify that the obligation to make reasonable progress to achieve employment equity, and to sustain employment equity once it has been achieved

• is incorporated into collective agreements governing employees of covered employers, and
• encourages, rather than limits, collective bargaining that deepens equitable inclusion, notably on staffing or classification

Recommendation 5.2: All covered public service employers, alongside federally regulated private sector employers with 100+ workers and FCP employers with 100+ workers should be required to establish a joint employment equity committee, as appropriate with sub-committees notably for departments or specific trades.

Recommendation 5.3: For federally regulated private sector employers (LEEP and FCP) with 50 – 99 workers, the Employment Equity Act framework should support the voluntary establishment of joint employment equity committees. If the covered employers with 50 – 99 workers have at least one bargaining agent, then the joint employment equity committees are required.

Recommendation 5.4: Covered employers should benefit from a reasonable transition window to establish the joint employment equity committees.

Recommendation 5.5: Wherever practicable, terms of service should be harmonized with terms of service of workplace health and safety committees.

Recommendation 5.6: The Joint Employment Equity Committee should comprise a minimum of 5 members, at least half of the members should be employees who do not exercise managerial functions.

Recommendation 5.7: The Joint Employment Equity Committee should strive to represent each of the employment equity groups.

Recommendation 5.8: The Joint Employment Equity Committee should strive to represent workers from across the work life cycle.

Recommendation 5.9: In unionized workplaces, representation should be proportional to the number of bargaining agents in the workplace, with sub-committees as appropriate.

Recommendation 5.10: In non-unionized workplaces, elections of worker representatives should be preferred.

Recommendation 5.11: If a workplace is unable to establish a Joint Employment Equity Committee, the employer should apply to the Employment Equity Commissioner to resolve the matter using ADR techniques. The Employment Equity Commissioner should also have the power to authorize modifications to the legislative requirements.

Recommendation 5.12: Time spent on a Joint Employment Equity Committee should be considered work time and compensated accordingly.

Recommendation 5.13: Joint Employment Equity Committee members should be provided with training in order to be able to carry out their responsibilities.

Recommendation 5.14: The Joint Employment Equity Committee should be permitted to collect, analyze and review relevant data to assist the employer in the implementation of employment equity. The Joint Employment Equity Committee should have full access to all of the government and employer reports, studies and tests relating to employment equity or parts of those reports, studies and tests that relate to employment equity but shall not have access to the medical records of any person except with the person’s consent.

Recommendation 5.15: Joint Employment Equity Committee s should be permitted to conduct exit interviews with departing staff to identify workplace barriers that might be addressed in subsequent employment equity plans.

Recommendation 5.16: Joint Employment Equity Committee members’ liability should be limited to provide protection for good faith acts or omissions under the authority of the Employment Equity Act.

Recommendation 5.17: The Employment Equity Act should be revised to include comprehensive, detailed protection for Joint Employment Equity Committee members and others exercising their rights under the Employment Equity Act against reprisals by the employer or any person acting on behalf of the employer, or by the bargaining agent or any person acting on behalf of the bargaining agent.

Recommendation 5.18: The relevant privacy legislation should be revised following meaningful consultations with representative trade unions to ensure effective trade union participation in the implementation of employment equity.

Recommendation 5.19: Employment equity training should prioritize Truth and Reconciliation Commission calls to action on education and support learning about positive initiatives to promote Indigenous economic prosperity.

Recommendation 5.20: Leadership training in the federal public service should include training on systemic discrimination including systemic racism, substantive equality and equitable workplace inclusion.

Recommendation 5.21: An advice line under the jurisdiction of the Employment Equity Commissioner should be established to provide effective, efficient support to workplaces – employers and Joint Employment Equity Committees - on employment equity implementation.

Recommendation 5.22: Training support should be geared to different organizational levels in the covered employers, and should be attentive to the needs and expertise of middle managers and first line supervisors, as well as members of the Joint Employment Equity Committee.

Recommendation 5.23: WORBE projects should be selected with the input of the Employment Equity Advisory and Review Panel.

Recommendation 5.24: WORBE should be repurposed to

1. support sectors in greatest need of closing the representation gap
2. integrate researchers in initiatives to assess the impact of workplace policies to achieve equity, including through links with the federal tri-agency funding councils
3. build and share practical knowledge on emerging workplace issues that may pose barriers and how to address them, and
4. ensure that employment equity groups are at the centre of the knowledge development and sharing

Recommendation 5.25: WORBE-funded projects and learning outcomes should be made publicly available and readily accessible online.

Chapter 6: Fundamentally rethinking the regulatory oversight pillar

Recommendation 6.1: An Employment Equity Commissioner should be established.

Recommendation 6.2: The Employment Equity Commissioner should be independent and should report directly to Parliament.

Recommendation 6.3: The Employment Equity Commissioner should have legislative responsibility and powers that include the powers in Section 42 of the Employment Equity Act.

Recommendation 6.4: The Employment Equity Commissioner should have the legislative authority to collect information on the employment practices and policies of all covered employers in the federal public service and private sector, as well as under the Federal Contractors Program, for the purpose of ensuring that employment equity is implemented in their workplaces.

Recommendation 6.5: The Employment Equity Commissioner, like other federal commissioners including the Privacy Commissioner of Canada, the Commissioner of Official Languages, the Information Commissioner of Canada, the Public Sector Integrity Commissioner of Canada and the Commissioner of Lobbying, should be considered a contracting authority exempted from Section 4 of the Government Contracts Regulations.

Recommendation 6.6: The Employment Equity Commissioner should be responsible for regulatory oversight including workplace auditing.

Recommendation 6.7: An Employment Equity Advisory and Review Panel should be established under the Employment Equity Act to inform the work of the Employment Equity Commissioner.

Recommendation 6.8: The Employment Equity Advisory and Review Panel should have the responsibility to conduct reviews no less frequently than once every 10 years, to be submitted to Parliament by the Employment Equity Commissioner and rendered public.

Recommendation 6.9: The staffing and funding envelope for the Employment Equity Commissioner should be commensurate with the magnitude of the responsibility, including the auditing responsibilities, and reviewed periodically to provide the regulatory oversight necessary to enable employment equity to achieve and sustain employment equity across federally regulated employers.

Recommendation 6.10: The Employment Equity Commissioner should be legislatively guaranteed a separate budgetary envelope sufficient to ensure that the purposes of the Employment Equity Act can be fulfilled through appropriate staffing and mobility, and guided by the funding available to other independent commissioners that report directly to Parliament, including the Auditor-General of Canada. In particular,

• the auditing responsibility of the Employment Equity Commissioner should be funded at a level commensurate with the volume of covered employers in the federally regulated sector for which it assumes responsibility, and
• the responsibility for statistical analysis should be increased to meet the needs of an expanded Employment Equity Act and to ensure that the Office of the Employment Equity Commissioner can participate meaningfully in the Employment Equity Data Steering Committee

Recommendation 6.11: The Employment Equity Act should provide that the Employment Equity Commissioner enjoys sufficient remedial and enforcement powers to ensure that the purposes of the legislation can be fulfilled.

Recommendation 6.12: The Public Service Employment Act and the Canada Labour Code should be amended to require them to notify the Employment Equity Commissioner when a matter relates to the Employment Equity Act and provide the power to refer a matter to the Employment Equity Commissioner.

Recommendation 6.13: Notice should be given to the Employment Equity Commissioner when a policy grievance has been referred to adjudication and a party to the grievance raises an issue involving the interpretation or application of the Employment Equity Act, in accordance with the regulations. The Employment Equity Commissioner should have standing in order to make submissions on the issues in the policy grievance.

Recommendation 6.14: The Employment Equity Commissioner should enjoy immunity and be precluded from giving evidence in civil suits in a manner analogous with Sections 178 & 179 of the Pay Equity Act.

Recommendation 6.15: Establishing an Office of Equity Commissioners should be closely considered with a view to harmonizing and appropriately funding and ensuring effective equity oversight and parliamentary reporting in the federal jurisdiction with consideration given to the structures and funding of the Office of Auditor-General of Canada, the Office of the Privacy Commissioner of Canada, and the Office of Official Languages.

Recommendation 6.16: The Employment Equity Commissioner should be able to recommend special programs if an investigation establishes underrepresentation of an equity group represented by a ground of discrimination in the Canadian Human Rights Act that warrants a special program to remedy it.

Recommendation 6.17: The Employment Equity Act should be revised to clarify that the Minister is responsible for achieving employment equity by 1 January 2040, and sustaining it.

Recommendation 6.18: Legislative amendments should permit the Accessibility Commissioner and the Employment Equity Commissioner to streamline reporting as it relates to barrier removal related to accessibility in employment. They should have the power to specify and appropriately adapt the requirements through regulations or guidelines.

Recommendation 6.19: The Employment Equity Act should be amended to permit the Employment Equity Commissioner to

• attempt to negotiate a written undertaking from the employer to take specified measures to remedy the failure to make reasonable progress on achieving employment equity, in keeping with Section 25(1) of the Employment Equity Act; and if unsuccessful, and
• issue directions including special measures to remedy the non-compliance

Recommendation 6.20: Sections 40(3.1), 40.1(2) and 54.1 Canadian Human Rights Act, which cumulatively prevent employment equity decisions from being rendered by the Canadian Human Rights Tribunal, should be repealed.

Recommendation 6.21: The Employment Equity Act should be amended to permit cases arising in the circumstances currently anticipated under Sections 40(3.1), 40.1(2) and 54.1 Canadian Human Rights Act to be submitted in the form of a complaint to the Employment Equity Commissioner.

Recommendation 6.22: The discretion in Section 41(2) Canadian Human Rights Act for the Canadian Human Rights Commission should be transferred to the Employment Equity Commissioner.

Recommendation 6.23: The Employment Equity Act should be amended to enable a complaint to be brought by any worker in an employer’s covered workplace, on the grounds that an employer’s implementation obligations under the Employment Equity Act are not being respected.

Recommendation 6.24: The complaints should be brought to the Employment Equity Commissioner.

Recommendation 6.25: The Employment Equity Commissioner shall dismiss a complaint unless the Commissioner considers there to be sufficient evidence, brought by the complainant, to dislodge the presumption that the internal mechanisms to implement employment equity are functioning appropriately.

Recommendation 6.26: Should the Employment Equity Commissioner decide that there is sufficient evidence, an audit by the Employment Equity Commissioner would be the remedy.

Recommendation 6.27: The Employment Equity Commissioner should have the legislative authority and necessary powers to investigate the covered complaints.

Recommendation 6.28: The Employment Equity Commissioner should be legislatively encouraged to use alternative dispute resolution techniques to resolve disputes.

Recommendation 6.29: The English-language title of the Employment Equity Review Tribunal should be renamed the Employment Equity Tribunal.

Recommendation 6.30: The Employment Equity Tribunal should have the staff and resources necessary to be able to hear and decide matters in an expeditious manner.

Recommendation 6.31: The Employment Equity Commissioner should be able to refer to the Employment Equity Tribunal an important question of law that the Employment Equity Commissioner might consider to be more appropriate for the Tribunal to determine.

Recommendation 6.32: The role of the Employment Equity Tribunal should be revised to:

1. Provide that it is responsible for responding to an inquiry into a question of law or jurisdiction referred to the Chairperson of the Tribunal by the Employment Equity Commissioner by rendering a determination
2. Clarify that it is responsible for rendering a decision on appeal from a decision of the Employment Equity Commissioner referred to it by an employer, bargaining agent or other member of the mandated employment equity committee, and
3. Include a strong privative clause consistent with the case law including and subsequent to Canada (Minister of Citizenship and Immigration) v. Vavilov, [2019] 4 SCR 653; 2019 SCC 65

Recommendation 6.33: Section 48.1(2) of the Canadian Human Rights Act should be amended to ensure that appointments of members of the Canadian Human Rights Tribunal must be made having regard to the need for adequate knowledge and experience in employment equity matters among the members of the Tribunal.

Recommendation 6.34: Section 29(3) Employment Equity Act should be replaced with the equivalent of Section 166 (1) & (2) of the Pay Equity Act, to clarify that a hearing must be conducted in public, but the member or panel conducting the inquiry may, on application, take any measures and make any order that the member or panel considers necessary to ensure the confidentiality of the hearing under the conditions provided in Section 166 (1)(a) –(d) and Section 166(2).

Recommendation 6.35: The Employment Equity Act should expressly enable the Employment Equity Tribunal to use methods of alternative dispute resolution, including mediation where appropriate, to conduct hearings virtually, to provide for contemporary open court principles that include posting decisions on the appropriate website(s), and to include contemporary approaches of sending a request to appear before the Employment Equity Tribunal beyond registered mail.

Recommendation 6.36: Orders made under the Employment Equity Act by the Employment Equity Commissioner or the Employment Equity Tribunal should be made enforceable by the Court.

Recommendation 6.37: The Employment Equity Act should clarify the relationship between the powers of the Tribunal under the Canadian Human Rights Act, and the powers set out in the Employment Equity Act, with particular attention to the relationship between Section 29(1)(c) of the Employment Equity Act and the limitation in relation to privileged evidence under Section 50(1)(4) of the Canadian Human Rights Act.

Recommendation 6.38: To ensure reasonable progress in the implementation of employment equity, penalties should be updated and harmonized with comparable penalties under the Pay Equity Act and the Accessible Canada Act, scaled to the size and nature of the employer and to the level of non-compliance.

Recommendation 6.39: In addition to vesting transversal responsibility for women workers in the Pay Equity Commissioner and transversal responsibility for disabled workers in the Accessibility Commissioner, four newly created deputy commissioners, or ombudspersons should be created, with transversal responsibilities for Indigenous reconciliation (First Nations, Métis and Inuit workers), Black workers, racialized workers and 2SLGBTQI+ workers.

Recommendation 6.40: Deputy heads in the federal public service should be held directly accountable through their own performance evaluations for ensuring reasonable progress to achieve employment equity, and to sustain employment equity once it has been achieved.

Recommendation 6.41: Other employers covered under the Employment Equity Act framework should report on how their senior leadership is held accountable in their performance evaluations for ensuring reasonable progress to achieve employment equity, and to sustain employment equity once it has been achieved.

Chapter 7: Technical regulatory implications of employment equity coverage

Recommendation 7.1: Reporting under the Employment Equity Act should include dependent contractors, consistent with the Pay Equity Act and the Canada Labour Code.

Recommendation 7.2: The Employment Equity Act should apply to separate employer organizations in the federal public sector with 10 or more employees, listed in Schedule V of the Financial Administration Act (separate agencies), and other public-sector employer organizations with 10 or more employees, including the Canadian Forces (officers and non-commissioned members in the Regular and Reserve Forces) and the Royal Canadian Mounted Police (regular and civilian members, excluding federal public service employees).

Recommendation 7.3: The Employment Equity Act should apply to employers with 10 or more employees in the federally regulated private sector.

Recommendation 7.4: Employers with between 10 and 49 employees should be required to achieve reasonable progress on attaining representation of employment equity groups consistent with labour market availability. They should be provided with meaningful access to training and support.

Recommendation 7.5: Employers with 50 or more employees and all covered employers in the federal public service should be required to achieve reasonable progress on attaining representation of employment equity groups consistent with labour market availability. They should also be required to assume the existing employer obligations under the current Employment Equity Act, with an appropriate transition window for reporting. They should be provided with meaningful access to training and support.

Recommendation 7.6: The Employment Equity Regulations should carefully specify the transition periods for when an employer is considered to become subject to the Employment Equity Act in a manner that harmonizes them with the Pay Equity Act, and facilitates training and reporting by employers.

Recommendation 7.7: All covered public service employers and federally regulated private sector employers should be required to include Canadians or permanent residents of Canada working abroad in their workplace implementation and reporting responsibilities under the Employment Equity Act framework.

Recommendation 7.8: Specific Employment Equity Regulations should be adopted as necessary to ensure the effective inclusion of Canadians or permanent residents of Canada working abroad, with due regard to operational effectiveness.

Recommendation 7.9: Specific guidance and training should be developed by the Employment Equity Commissioner to support the effective implementation of the recommendations to covered workers abroad.

Recommendation 7.10: The implementation requirements for employment equity by contractors to whom the Federal Contractors Program applies should be equivalent to the implementation requirements for employers covered under the Employment Equity Act.

Recommendation 7.11: The monetary threshold for the inclusion of contractors under the Federal Contractors Program should be established at close to pre-2013 levels, and with a view to broader harmonization with existing contractors programs across Canada, at $100,000.

Recommendation 7.12: The monetary threshold should be assessed in terms of the cumulative contract value. No contractor should be able to cumulate contracts that total more than $200,000 without subscribing to the Federal Contractors Program.

Recommendation 7.13: The threshold for the number of workers should be equivalent to the threshold established for employers under the Employment Equity Act.

Recommendation 7.14: Colleges and universities should be required to agree to participate in the Federal Contractors Program to be eligible to apply for federal research grants and other federal research funding and to participate in federal research granting councils, including the proposed Canadian Knowledge and Science Foundation.

Recommendation 7.15: Legal services providers eligible to be included in the Open Government Canada online directory with individual contracts of $100,000 or cumulative contracts that total more than $200,000 in any given fiscal year should be included in the Federal Contractors Program.

Recommendation 7.16: An analysis should be undertaken of the aspects of the grants and contributions program that could appropriately be made subject to the Employment Equity Act framework, with a threshold comparable to the thresholds proposed for Federal Contractors Program employers.

Recommendation 7.17: Canada’s international cooperation sector should be expressly included within the ambit of the Federal Contractors Program.

Recommendation 7.18: Workers in international cooperation organizations recruited in Canada, whether based in Canada or posted abroad, should be included in the calculation of the applicable numerical threshold under the Employment Equity Act framework, alongside the total amount of the contributions agreements with the Government of Canada.

Recommendation 7.19: Construction industry contractors who meet the threshold requirements should be included under the Federal Contractors Program.

Recommendation 7.20: The threshold number of employees should be assessed by combining the total number of workers across the main bidding contractor and its subcontractors, with due regard for anticipated variations over the lifecycle of the contract.

Recommendation 7.21: Specific provisions should be made in future negotiations to ensure policy space for set backs on behalf of employment equity groups under the Employment Equity Act.

Recommendation 7.22: The federal government should use its policy space to include set backs on behalf of employment equity groups under the Employment Equity Act in awarding procurement contracts to promote the equitable inclusion of entrepreneurs from employment equity groups in the award of federal contracts. Prior government-to-government consultations should take place as concerns First Nations, Métis and Inuit peoples.

Recommendation 7.23: International agreements on procurements negotiated by the Government of Canada should explicitly clarify that Canada retains the ability to adopt or maintain its commitment to substantive equality, including through the Employment Equity Act framework.

Recommendation 7.24: Parliamentary employees should be included within the scope of the Employment Equity Act. This may be accomplished in a manner analogous to the inclusion of Parliamentary employees under the Pay Equity Act framework, through amendments to the Parliamentary Employment and Staff Relations Act.

Recommendation 7.25: The Employment Equity Act should be amended to provide that successorship provisions should apply to businesses that move from provincial to federal jurisdiction alongside transitional provisions in the Employment Equity Regulations to address reporting requirements.

Conclusion and recommendations

Recommendation C.1: An all of government approach should be adopted, recognizing that employment equity is transversal and affects us all.

Recommendation C.2: The Employment Equity Act should be revised to confirm that it is considered quasi-constitutional human rights legislation.

Recommendation C.3: International human rights treaties ratified or acceded to by Canada that inform a proactive, systemic approach to the employment equity framework should be specifically referenced in the revised Employment Equity Act.

Recommendation C.4: The federal government should encourage the harmonization of employment equity frameworks across jurisdictions in Canada, in keeping with Canada’s international human rights and international labour standards commitments.

Recommendation C.5: The Government of Canada should encourage the International Labour Organization to undertake a general survey on special measures, to ensure comprehensive comparative experiences can effectively be shared.