Introduction

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

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

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Universal and lasting peace can be established only if it is based upon social justice…

Constitution of the International Labour Organization, 1919

[A]ll human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity…

Declaration of Philadelphia, Annex to the Constitution of the International Labour Organization, drafted in Montreal, 1944

We are tied together in the single garment of destiny, caught in an inescapable network of mutuality. And whatever affects one directly affects all indirectly. For some strange reason I can never be what I ought to be until you are what you ought to be.

Rev. Dr. Martin Luther King Jr., 1968

With knowledge comes understanding, with understanding comes wisdom and with wisdom comes justice. And to have justice we must never forget how the world looks to those who are vulnerable. I will never forget the people who taught me to see the world through their eyes.

The Hon. Rosalie Silberman Abella, 2009

The task force’s mandate

There is an opportunity to make the Employment Equity Act transformative … as it helps Canada as a whole see itself.

Canadian Race Relations Foundation, Presentation to the EEART, 3 June 2022

Employment equity is a proactive approach to achieving and sustaining substantive equality in the workplace. It takes all of us.

It has been almost 4 decades since the sole commissioner of the Royal Commission on Equality in Employment, then judge, now former Supreme Court of Canada Justice, the Hon. Rosalie Silberman Abella, explained the urgency of her proactive, distinctively Canadian approach.

The Employment Equity Act came into force in 1986. It was significantly revised in 1995. The federal Employment Equity Act framework is a combination of the Employment Equity Act and covered programs:

  • the Legislated Employment Equity Program
  • the Federal Contractors Program, and
  • the Workplace Opportunities: Removing Barriers to Equity (WORBE) program

Amendments introducing pay transparency reporting came into force on 1 January 2021.

The federal Employment Equity Act framework covers four “designated” groups, referred to in this report as “employment equity” groups:

  • women
  • Aboriginal peoples
  • persons with disabilities, and
  • members of visible minorities

In July 2021, the Employment Equity Act Review Task Force (EEART) was asked to advise the Minister of Labour on how to modernize and strengthen the federal Employment Equity Act framework. The review covers the Employment Equity Act and its supporting programs, with a focus on four areas that structure this report:

  • Area 1: Equity groups
  • Area 2: Supporting equity groups
  • Area 3: Improving accountability, compliance and enforcement, and
  • Area 4: Improving public reporting

The task force was subject to a stop work order from 16 August 2021 to 14 January 2022.

The Employment Equity Act framework has not been reviewed at the regular 5-year intervals foreseen in the Employment Equity Act. Aspects have been reviewed and revised on a few occasions over the past 37 years through parliamentary or senate reviews, an internal joint management-board review in the public service, and on visible minorities.

This is the first time since the legislation was adopted that an independent, arms-length task force has been established to offer a comprehensive review of the entire employment equity framework.

The importance of this moment

This statement will surprise no one: we have not yet achieved employment equity.

The statement should concern everyone. It has almost become a given, however, that despite the stated purpose in the Employment Equity Act that equality in employment is to be achieved, it remains thought of as merely a lofty ideal.

Our task force heard one message loud and clear: Employment equity is not optional for Canada. For a society that is as deeply diverse as ours to flourish, we must prioritize achieving and sustaining employment equity in the workplace.

More recent federal equity legislation – the Accessible Canada Act and the Pay Equity Act – breaks through the inertia with firm commitments and timelines to achieve a barrier-free Canada and achieve and maintain pay equity. This report seeks to do the same, that is, to refocus our attention on what is needed to make achieving and sustaining employment equity a reality.

The moment is particularly significant. As this report was being submitted, unemployment was at record low levels - 5% in January 2023. We cannot afford to leave anyone who wants to work behind: we literally need everyone.

Our task force was established as Canada reckoned with the discovery of thousands of unmarked graves of Indigenous children abused as part of the legacy of colonialism in residential schools. The commitment to truth and reconciliation, and the adoption of the United Nations Declaration on the Rights of Indigenous Peoples Act, set Canada steadfastly on a necessary path of Indigenous self-determination.

Our task force was formed during the COVID-19 pandemic, as part of a call to think carefully about how we build back. The pandemic forced a profound recognition of human vulnerability and racial disparities in those who predominate in risky, often low waged, yet essential work. Repeatedly, we heard from groups that the pandemic affected the Canadian population unequally, and employment equity groups were particularly hard hit. For example, the Native Women’s Association of Canada’s surveys show that COVID-19 had a “significant impact” on the working lives of Indigenous women, Two Spirit, transgender and gender-diverse people, through job loss, cut hours, and child care responsibilities.Footnote 1 Others agreed:

Those hit hardest by the COVID-19 pandemic have been those who were already struggling the most before its arrival. … In the case of a global pandemic such as COVID-19, this disadvantage has only deepened and has had a disproportionate effect on Indigenous, Black and racialized people, as well as racialized immigrants, newcomers, migrants and people with precarious immigration status – particularly for many women from these groups.

Canadian Labour Congress, Submission to the EEART, 28 April 2022

Our task force was convened as the world emerged from the shadow of the year of racial reckoning with the depth of anti-Black racism in our societies. The #MeToo movement captured a refusal to treat sexual violence – including workplace sexual harassment – as a hidden norm. The Secretary General of the United Nations, acknowledging a pandemic of inequality in the world, has called for a new global social contract as the only way to “build back a more equal and sustainable world.”Footnote 2

But there has instead been backlash. The depth of the discouragement we heard was cause for real concern.

In this crucial societal moment, this report chooses to focus on a vision that Canada accepted when it signed on to the Constitution of the International Labour Organization in 1919 following the devastating 1914-1918 war, and renewed near the end of another great war, in 1944 through the ILO’s constitutional annex, the Declaration of Philadelphia: that lasting peace can only be achieved through social justice.

At a time when it is all too easy to cultivate hate, that message can hardly be more meaningful and urgent.

In Canada, we have an opportunity, indeed a responsibility, to lead by cultivating social justice through equitable inclusion.

We need to move past an exclusionary vision of employment equity. This needs to be heard loud and clear. The vision is one of equitable inclusion. We must stop thinking in terms of “us” and “them” and assuming that some people do not or cannot belong on the basis of one of the protected grounds of discrimination under human rights laws,Footnote 3 or that our society can simply go on marginalizing people, stereotyping them into certain jobs or out of the labour market altogether.

Equitable inclusion means all of us have a place in Canadian workplaces. Equitable inclusion is about capturing a vision of our country that is greater than any one of us but very much about all of us. Employment equity is about making workplaces better and more inclusive for all.

The task force came away convinced of the importance of this work for our country as a whole - our open economy and our democratic, inclusive society. This report proposes a transformative framework to achieve and sustain employment equity in Canada.

What employment equity symbolizes

In Canada, the Employment Equity Act framework has been a symbolic cornerstone of how we have addressed equity in our societies and very specifically in the world of work. It is at some level symbolic because it covers only slightly less than 8% (7.6% in 2020) of the entire Canadian labour force.

Table I.1: Total coverage of the employment equity framework, 2020
Year Total employment equity framework Total Federal public service Core public administration Separate federal agencies Federally regulated private sector with 100+ employees Federal Contractors Program (FCP) Total Canadian labour force as of October 2020
(15 yrs old +)
2020 1,538,406 About 7.6% of the total workforce 300,450* Just under 1.5% of the total workforce 231,176 69,274 735,790 ** 3.6% of total workforce 502,166*** Just under 2.5% of the total workforce 20,327,900****

Our task force was repeatedly told; however, that labour and human rights initiatives in federal law and policy can have an outsized influence, well beyond the actual coverage of the federal Employment Equity Act framework, and across Canada.

Employment equity is especially symbolic because it reaches across the workforce that is meant to represent Canadians – its federal public service and many of the core sectors that unite us.

The joint union/ management vision for Canada’s public service:

A world-class public service representative of Canada’s population, defined by its diverse workforce and welcoming, inclusive and supportive workplace, that aligns with Canada’s evolving human rights context and that is committed to innovation and achieving results.

Building a Diverse and Inclusive Public Service: Final Report of the Joint Union/Management Task Force on Equity and Inclusion, 2017.

Employment equity at its best is equitable inclusion: the belonging that comes with seeing ourselves – all of us - meaningfully represented in the federal public service, and across federal jurisdiction. It is entering a bank, or a passport office or boarding a flight, or turning on the news and sensing that everyone is welcome, that stereotypes are challenged, that everyone in that workplace has an equal opportunity to thrive.

Why is employment equity proactive?

In one of the consultations held for this report, the chair of the Federal Public Sector Labour Relations and Employment Board and former Canadian Human Rights Commissioner, Edith Bramwell, recalled that the complaints-based process for employment equity related matters in labour and human rights law is the hospital after the crash.

We could not agree more. Employment equity was not designed to be the hospital after the crash. For the Inuit worker in a remote Northern community, for the racialized disabled worker in a major metropolitan area, for the Filipina trans worker who arrived in Canada two years ago, discrimination may come at them from multiple directions.Footnote 4 They want to enter the labour market and contribute meaningfully. We should all want to do more than just try to help them to survive predictable crashes.

A proactive approach to equality law structures the intersections, ensuring that the rules that apply to all are enforced to prevent crashes and allow all workers in Canada to trust that they can gain equitable inclusion.

We know what we need to redesign to reduce risk; we know that some rules are necessary and must be applied and enforced to prevent harm – with roundabouts, with protected bicycle paths, with wide, accessible sidewalks, with enforced speed limits, and with traffic lights that also speak - to make a range of ways of circulating safe for all of us. Many of these redesigns were made possible because those most concerned were meaningfully consulted on what they needed to make access safe.

So, this report focuses in large measure on removing barriers to access. Barrier removal – like the widened sidewalk that is great for wheelchair users, and those using a guide cane, and those pushing an infant’s stroller, and those taking a leisurely lunchtime stroll with co-workers – works to make room for all of us. Employment equity, at its best, brings people into the labour market, at all levels, not just in jobs that they are stereotyped as suited to assume. It makes us stronger.

Employment equity law is meant to work like this – it is a proactive approach in that it focuses on removing those barriers to substantive equality that can be reasonably foreseen or have been identified, to make equitable workforce participation a reality for us all.

Finally, employment equity is a meaningfully symbolic reflection of Canada in the world. Canada is one of the world’s most racially and ethnically diverse populations. Canada has championed feminist international policies and shown leadership on accessibility.

The Employment Equity Act framework and the notion of substantive equality that emanates from it, have had an outsized influence on laws and policies around the world. Employment equity aspires no less than to fostering peace through the steadfast cultivation of social justice. This vision should be transformative.

Employment Equity is meant to be transformative

Work is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person's employment is an essential component of his or her sense of identity, self‑worth and emotional well‑being. Accordingly, the conditions in which a person works are highly significant in shaping the whole compendium of psychological, emotional and physical elements of a person's dignity and self respect.

Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, 1987 SCC 88, at Para. 91 (Chief Justice Brian Dickson’s dissenting opinion, subsequently affirmed by the Supreme Court of Canada)

The right to work in dignity is fundamental. Most people spend most of their waking hours at work. Workplace bonds have the potential to strengthen a diverse democracy.

By adopting legislation on employment equity federally, Canada set out to transform our workplaces.

As a country we may have forgotten our history of legal or de facto discrimination and segregation in our society that for some employment equity groups extended well into the 1960s.

Yet Canada has long understood historical exclusion and the need for workplace transformation. Consider that the first employment equity program in Canada emerged from recommendations of the Royal Commission on Bilingualism and Biculturalism established by the federal government in 1963.Footnote 5 Its purpose was to remedy exclusion and transform the federal public service: to ensure that francophones would have equitable access to all positions in the federal public service.Footnote 6 Celebrating group-based identities and making sure they are equitably represented is a source of strength, and a solid basis on which to build social justice in the workplace, alongside cohesive, open, democratic societies.

Well before the work of the 1963 Royal Commission and into the 1970 and 1980s, equity seeking and equity deservingFootnote 7 groups realized that anti-discrimination laws were an insufficient response to deep patterns of workplace inequality and exclusion emerging notably from the colonialism faced by Indigenous nations on their own lands, the enslavement and segregation faced by Black people, and histories of exclusion, discrimination, and under-representation experienced notably by women, persons with disabilities, 2SLGBTQI+ communities and racialized people in Canada.Footnote 8 Policies and laws on employment came from listening to their voices.

The 1984 Royal Commission on Equality in Employment was instructed “to inquire into the most efficient, effective and equitable means of promoting employment opportunities, eliminating systemic discrimination and assisting individuals to compete for employment opportunities on an equal basis.”Footnote 9 Commissioner Abella consulted widely, and reported that many people from groups that have faced historical forms of marginalization were being left out, despite their abilities and vast potential contributions. Meaningful workplace inclusion for all was too important to be left to ineffectual, voluntary initiatives. Human rights legislation focused on anti-discrimination and had reactive, complaints-based approaches. But anti-discrimination approaches – the hospitals after the crash - were insufficient to address the complex character of systemic discrimination.

Although there was key U.S. precedent for proactively addressing systemic discrimination, there were also powerful reasons to take distance from the U.S. concept of “affirmative action” that had become tied up in a polemic both around the notion of “reverse discrimination” and a rigid approach to quotas. Let us be clear: the Employment Equity Act framework does not impose quotas, and the notion of “reverse discrimination” is not part of Canadian equality law and is likewise not part of the Canadian Employment Equity Act framework.

Challenging affirmative action myths: Influential ideas that are not our own

The influence of U.S. ideas about affirmative action on Canadian public understandings of employment equity warrants some attention. We repeat: United States law is not Canadian law. The Supreme Court of Canada has been extremely clear since the Canadian Charter of Rights and Freedoms came into being. Canadian equality law generally, and employment equity measures specifically, have developed quite differently from the U.S. and deliberately so. While considerable media attention is often turned to developments in the U.S., and while this report discusses the most relevant developments, it is crucial not to take U.S. law or Court developments as our own. We have worked hard to build a vision of substantive equality through the Canadian Constitution that allows us to reckon with our own history and to build inclusive spaces.

The U.S. idea of “reverse discrimination” has in particular gained a lot of attention. It is used so often in common parlance that many people do not recognize that it is not a part of Canadian substantive equality law. For that matter, it is not part of international human rights law. Even some U.S. academics have shown that the belief that reverse discrimination is a pressing problem does not hold up in practice in the U.S.: as women and racial minorities are included in the workplace in the U.S., “white men’s access to the best jobs increases.”Footnote 10

Employment equity: A distinctly Canadian contribution

Instead, the Hon. Rosalie Silberman Abella developed the concept of “employment equity” to redress the discriminatory barriers that prevent members of “designated” groups - identified as Aboriginal peoples, women, visible minorities and persons with disabilities - from having the opportunity to put their full potential to work. An approach was needed that could yield proactive, substantive change. She recognized that “laws reflect commitment”:

[Employment equity] is a concept that seeks to identify and remove, barrier by barrier, discriminatory disadvantages. Equality in employment is access to the fullest opportunity to exercise individual potential.

Judge Rosalie Silberman Abella, Commissioner, Equality in Employment: A Royal Commission Report, October 1984 at 3

The Abella Report was trailblazing; the pivotal work framed legislation on employment equity as a distinctly Canadian contribution to understanding systemic discrimination and requiring proactive mechanisms to remove barriers to achieving equality in employment.

The Employment Equity Act framework is meant to support employers to attain equitable representation of employees in equity groups, and to sustain employment equity.

In 1981, an organization representing women workers, Action Travail des Femmes, brought a human rights case against one federal employer, Canadian National (CN) Railway, under the Canadian Human Rights Act. Six years later, a landmark Supreme Court of Canada decision found that there had been systemic discrimination and established an employment equity plan to remedy it and to transform the workplace; it applied the understanding of substantive equality that emerges from the report of the 1984 Royal Commission on Equality in Employment.Footnote 11

The case established that there was deep-rooted discrimination against women at CN. But employment equity, consistent with the focus on systemic discrimination and achieving substantive equality, moves us past a focus on intent, and past a presumption that everyone has the same employment opportunities. Employment equity seeks to achieve and sustain fair, equitable workplace inclusion.

Chief Justice Dickson for the unanimous Supreme Court of Canada therefore focused on changing the workplace context for the future:

[I]t is essential to look to the past patterns of discrimination and to destroy those patterns in order to prevent the same type of discrimination in the future.

Canadian National Railway Co. v. Canada (Canadian Human Rights Commission) [1987] 1 SCR 1114 at 1145.

The Supreme Court of Canada put in place an employment equity plan to get the proportion of women in blue collar jobs to mirror the proportion of women in similar jobs across the country “as soon as possible”.Footnote 12

The implementation plan upheld by the Court had two key components:

  • the first was to discontinue certain kinds of practices that created barriers – including the use of mechanical aptitude tests that the tribunal found had a negative impact on women and were not warranted for the job requirements.
  • the second was the numerical goal of 13% based on the national average of women in non-traditional occupations across Canada: their approach built in flexibility for employers, but CN was required to hire at least one woman for every four non-traditional positions filled in the future, with due regard to seniority rights.

Crucially, the Supreme Court of Canada also stressed that there was nothing arbitrary about setting the goals and timetables as the Human Rights Tribunal had done, because they corresponded to the national average of women involved in non-traditional occupations.

The plan also included regulatory oversight: the Court upheld a quarterly reporting requirement to the Canadian Human Rights Commission.

The Supreme Court of Canada spelled out the foundation for the substantive equality-based approach: employment equity would help to challenge stereotyping, by the very fact of having people thought not able to do the work occupying the jobs.

For the stereotypical attitudes to change, it would not be enough to just have the occasional one or two women hired into the jobs. Too often, the lonely one or two get treated as exceptions or stereotyped themselves as tokens. Either way, could there be a better way to say that a group does not belong in that workplace?

Instead, it was necessary to create a ‘critical mass’ of equity group participation in the under-representative workplace. This required action, both to discontinue the practices that create barriers and to introduce numerical goals.

Over the decades, we have largely forgotten how important barrier removal is to employment equity’s successful implementation. That is a pity, because barrier removal is that enlarged sidewalk – it makes space for employment equity groups, and for all of us. This report seeks to reclaim barrier removal’s centrality to the implementation of employment equity.

To create critical mass and challenge stereotypes, it is necessary for employment equity programs to look well beyond hiring to the conditions of employment over the entire workplace lifecycle. The Supreme Court of Canada was very practical about what employment equity should look like. Chief Justice Dickson asked who would evaluate the equity groups coming in with low levels of seniority, who would be more likely to get laid off, who might be scapegoated as if they were stealing other peoples’ jobs?

We think these questions are fundamental. The ‘who’ has in many cases gotten lost. Yet we have known all along: employment equity simply will not happen without meaningful consultations of those most concerned.

And in this day and age, equity groups are pretty clear about that: nothing about us without us. So many people came before our task force and said, we want to be able to bring our authentic selves to our workplaces. How can the Employment Equity Act framework get workplace actors talking to each other, in a meaningful, supporting manner, about how best to make space for us all to be our best selves at work and across our work lifecycles?

Equity means substantive equality

Substantive equality offers a remedy for exclusion and a recipe for inclusion.

Justice Rosalie Abella, Fraser v. Canada (Attorney General) 2020 SCC 28 at para. 41.

Equity in the context of the Employment Equity Act framework means achieving and sustaining substantive equality. This requires transformation.

Substantive equality is a constitutional principle in Canada, found in Section 15 of the Canadian Charter of Rights and Freedoms. Section 15(1) and (2) are to be read as a comprehensive whole:

  • 15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability
  • (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability

The Supreme Court of Canada recognized in its early key decision, Andrews v. Law Society of British ColumbiaFootnote 13 that to promote equality, Section 15 like the rest of the Charter is not intended to eliminate all distinctions; otherwise, there would be no place in the Charter for protections of multicultural heritage, the freedom of conscience and religion and Aboriginal rights among others. It also recognizes that to treat everyone the same may “frequently produce serious inequality”, as recognized in Section 15(2). It quoted this passage of the Action Travail des Femmes case, which quoted the Abella Report:

Discrimination... means practices or attitudes that have, whether by design or impact, the effect of limiting an individual's or a group's right to the opportunities generally available because of attributed rather than actual characteristics....

It is not a question of whether this discrimination is motivated by an intentional desire to obstruct someone's potential, or whether it is the accidental by-product of innocently motivated practices or systems. If the barrier 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.

McIntyre J., Andrews v. Law Society of British Columbia, [1989] 1 SCR 143, quoting Canadian National Railway Co. v. Canada (Canadian Human Rights Commission) [1987] 1 SCR 1114 at 1138-1139, quoting Judge Rosalie Silberman Abella, Commissioner, Equality in Employment: A Royal Commission Report, October 1984 at 2.

Substantive equality continues to anchor the Employment Equity Act framework. The Canadian framework has also been influential in the development of law on proactive measures to remedy inequality internationally.

Employment equity was a significant advance when it was first proposed, even before Section 15 of the Charter had entered into force. But we need to stop exceptionalizing employment equity. Employment equity is substantive equality in action in the workplace. It implements Canada’s international commitments to effectively advance equalityFootnote 14 and reflects Canadian constitutional and human rights case law.Footnote 15

In 2008, the Supreme Court of Canada took the opportunity to interpret Section 15 of the Charter and to address what it really means for “any law, program or activity” to constitute an “amelioration” in Section 15(2).

In R. v. Kapp, non-Indigenous fishers argued that they were discriminated against when the federal government created the Aboriginal Fisheries Strategy to enhance Indigenous involvement in commercial fishing. For the Supreme Court of Canada, it is important to make sure that the law, program or activity actually includes plausible and predictable ameliorations. Then when a program does make a distinction based on a protected ground and has as its purpose the amelioration of the conditions of a disadvantaged group, it is considered to advance Section 15’s substantive equality guarantee. Under those circumstances, a “claim of discrimination must fail.”Footnote 16 In this sense, not all distinctions created by law are discriminatory. It is not enough to show that the law treats someone differently; it is necessary to show that the impact of the law is discriminatory.Footnote 17

Similarly, pay equity laws are put in place to redress systemic discrimination; they are the kind of ameliorative programs set out under Section 15(2) of the Charter. But in 2018, the majority of the Supreme Court of Canada found that one contained systemic discrimination. It made that determination by assessing whether it met the test for systemic discrimination under Section 15(1). And it found that the challenged provisions were in fact discriminatory.Footnote 18 It was necessary to improve the proactive law to respect substantive equality principles.

Toward a transformative framework

Beyond individual accommodation

Employers “must build conceptions of equality into workplace standards. By enacting human rights statutes and providing that they are applicable to the workplace, the legislatures have determined that the standards governing the performance of work should be designed to reflect all members of society, in so far as this is reasonably possible.”

McLachlin J. as she then was, in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 at para. 68 (Meiorin)

Substantive equality in the context of employment equity is an invitation to rethink the place of individual accommodations in the context of proactive legislation designed for equitable inclusion. The Supreme Court of Canada has also explained the importance of moving beyond individual accommodations in general human rights law, in the British Columbia (Public Service Employee Relations Commission) v. BCGSEUFootnote 19 case, widely referred to as Meiorin. The case involved an experienced firefighter who had been successful in her job until a new aerobic test was introduced. The standard in the test was developed based on men’s results. Ms. Meiorin did not pass one aspect of the test and lost her job. The Supreme Court unanimously found that she had faced discrimination, but the key for our purposes in this report is how the Court approached the notion of reasonable accommodations.

Rather than look to see whether Ms. Meiorin could have been individually accommodated, while leaving the new employment standard in place, the Supreme Court of Canada required the employer to scrutinize its standard before applying it. In other words, the Court refused simply to treat the standard as “neutral” and ask the worker to change. The Court asked whether that standard was reasonably necessary in the first place. It stated that employers “must build conceptions of equality into workplace standards.”

The approach in Meiorin is transformative.Footnote 20 Meiorin is also a jurisprudential high-water mark for understanding the duty to accommodate and its corresponding limit of undue hardship in the workplace context – this is difficult terrain.Footnote 21 In the context of proactive legislation that centres the removal of barriers, Meiorin offers the conceptual clarity needed to guide how we understand the duty to accommodate, barrier removal, and undue hardship for the purposes of achieving and sustaining employment equity. Its consistency with employment equity – and with the importance of taking positive measures to remedy inequality - has long been recognized.Footnote 22

Adverse impact discrimination

At the heart of substantive equality is the recognition that identical or facially neutral treatment may frequently produce serious inequality.

Justice Abella for the majority in Fraser v. Canada (Attorney-General), 2020 SCC 28 at para. 47, citing Andrews v Law Society of British Columbia, [1989] 1 SCR 143 at 164.

One of the Supreme Court of Canada’s most recent decisions on adverse impact discrimination, Fraser v. Canada (Attorney-General),Footnote 23 is the pinnacle of a long trajectory of infusing labour law with substantive equality. It is a case of adverse impact discrimination faced by full-time RCMP members who had to sacrifice pension benefits because they job-shared temporarily. Most people enrolled in job sharing were women, and almost all cited childcare responsibilities as the reason why they joined the program. They sought to buy-back their pension credits and were denied even though it was legally possible and even though full-time workers who took unpaid leave were able to buy back pensions. The Supreme Court of Canada majority decided that the disproportionate impact on women perpetuated women’s historical disadvantage. This violated their right to substantive equality under Section 15(1) of the Charter.

The approach to adverse impact discrimination is not fault-based; rather it is an effects-based model focused on “critically examin[ing] systems, structures, and their impact on disadvantaged groups.” The fact that something has always been done in a certain way is not a good enough reason to keep doing it that way. The goal of substantive equality is transformation.

Some of the oldest human rights cases affirm the importance of recognizing law’s adverse effects, including in the workplace.Footnote 24 The Supreme Court of Canada, including in Fraser, has repeatedly referred to lessons from Griggs v. Duke Power Co., 401 U.S. 424 (1971):

Griggs v. Duke Power Co., 401 U.S. 424 (1971) was foundational to the 1984 Report of the Royal Commission on Equality in Employment. In that case, the employer required employees to have a high school diploma and pass standardized tests to take on particular forms of work in four of the five departments of the plant. The case does not deny the history of segregation in the company: African Americans worked only in the fifth department, the Labour Department, where the highest paying job paid less than the lowest paying job in the other four departments. Promotions within departments happened by seniority. The Supreme Court of the United States even recognized that the high school requirement and the standardized “aptitude” testing were introduced in 1965, once the explicitly segregationist policy of restricting African Americans from the Labour Department ended. White employees hired prior to the policy change and without high school diplomas continued in their jobs. However, rather than requiring proof of intent to discriminate, the Supreme Court of the United States found that Title VII of the US Civil Rights Act of 1964 had as its object to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices.

In coming to this point, the Supreme Court of the United States acknowledged the history of inferior education in segregated schools, and its impact on results under the testing requirements. It was necessary to proscribe not only overt discrimination, but also “practices that are fair in form, but discriminatory in operation.” The key was “business necessity”: in other words, “if an employment practice that operates to exclude [African Americans] cannot be shown to be related to job performance, the practice is prohibited.” Not only were the high school diploma and the standardized tests not necessary; it was also established that those without a high school diploma who had not taken the tests continued to perform satisfactorily in their jobs. The U.S. Supreme Court considered that whether there was discriminatory intent was not the point; rather the government through enacting Title VII “had placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question.” The key was to “measure the person for the job, and not the person in the abstract.”

Fraser is a landmark decision, calling for systems and structures to be examined critically for their impact on disadvantaged groups. The Supreme Court of Canada’s jurisprudence on substantive equality contains much nuance, indeterminacy and at times significant flux.Footnote 25 For this report, we recognize the solidity of the foundation that substantive equality provides for a transformative approach to employment equity.Footnote 26

The development of a thick understanding of substantive equality benefits us all. But as discussed below, employment equity into this changing world of work must encompass more if we are to achieve its transformative aims.

Before addressing the need for transformation, our task force wishes to underscore that we are building on considerable common ground in the Canadian commitment to employment equity.

Common ground: The commitment to employment equity

A lot of critique follows in this report.

But no one should lose sight of the core message: there is a widespread commitment to employment equity in Canada, and to making it work.

Throughout the consultations, with employers, with workers, with concerned communities and with consulted governmental representatives, we heard many different views but all of them included a commitment to employment equity.

Stakeholders who came before us were not just framing employment equity as a constraint on business but rather as a competitive advantage, for individual employers, for economic growth, and for Canadian society as a whole.

The comments from the main employers’ organization – Federally Regulated Employers – Transportation and Communication Organization (FETCO) – summed it up well. We heard that FETCO members believe in employment equity and that our companies should reflect our country. Again, this does not mean it is all smooth sailing. But FETCO added that employment equity started an important, if at times challenging, conversation in Canada on equity. It has raised awareness.Footnote 27

This should not be surprising. We are seeing broad acceptance of the value of fostering representation, in terms of political representation, and on corporate boards. Bill C-25 for example provides for corporate diversity disclosure on boards and senior management for the same groups as the Employment Equity Act. It requires reporting on any other groups the corporations believe contribute to diverse representation on their boards and senior management teams.Footnote 28

Indeed, the business case for equitable inclusion in the workplace has been made so frequently, and was so widely acknowledged by those who came before our task force, that this report acknowledges it, but does not dwell on it.

Academics, governmental policy makers, unions and employers, along with civil society generally, have offered thoughtful recommendations over time, focusing on what works and what has not worked under the Canadian framework. While there are increasing calls to modernize our law, we should not lose sight of this important constant: employment equity reflects deeply held Canadian values and our commitment to substantive equality where most people spend much of their lives, at work.

So, there has been movement, and it extends beyond the workplace to the way that Canada sees itself. Moreover, knowing from Census 2021 statistics that 24.3% of all legislators in Canada are First Nations, Métis or Inuit, although separate from the workings of the Employment Equity Act framework, sends a hopeful sign about the related emergence of Indigenous self-determination and self-governance.

Does that mean we are fully representative of Canada? Definitely not. And we heard a lot of frustration and understandable impatience.

Thirty-seven years since the Employment Equity Act was passed, it is hard to consider that a framework has remained truly proactive if its objectives have not yet been substantially achieved in the workplaces it covers. It was startling to see how unrepresentative some employment remains across Canada.

  • Again, from the 2021 census and the national occupation code, we learn that senior managers are 70% men+ while human resources managers are 68.1% women+.Footnote 29
  • We might not need the 2021 census to tell us that 68.3% of taxi drivers are racialized, and that 93.1% are men.

While these occupations essentially fall outside of the jurisdiction of the Employment Equity Act framework, these forms of persisting occupational segregation tell us something about where equity groups are finding employment, and by extension, where they are not finding it.

  • Why for example, despite coverage under the Employment Equity Act since 1986 are airline pilots still 92.5% male+, only 10.5% racialized, with barely 3% First Nations, Métis and Inuit?

Labour market availability is an intricate topic that will be explored in Chapters 1 and 2 of this report. But the bottom-line is clear: at this stage in Canada’s trajectory, we should really be sustaining employment equity, not struggling to achieve it. So, what has happened along the way, and what do we need to do to harness employment equity’s transformative potential?

What has happened along the way?

Why aren’t we implementing? Why are we not thinking about accessibility from the start?

It is important to stop treating people as “special” and focus on barrier elimination.

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

Along the way, something happened. For some, employment equity just got outdated. The terminology did not keep up with the times and was not inclusive enough. The data collection challenges began to weigh down the process with outdated, less than reliable information. Processes became bureaucratized. Boxes got checked, but were things really getting better?

Time and time again we were reminded: the failure to achieve employment equity in Canadian workplaces is a lost opportunity for Canada. We also heard the more positive side: in Canada of 2023, if we are intentional about employment equity, it can be achieved, and it will enrich our workplaces, our society, and our world.

Losing track of individual workers: Beyond a number-crunching exercise

This legislation will only have the capacity to change the culture of workplaces if it is rooted in community-building processes and restorative accountability structures that promote lifelong learning, cultural humility, and transparency.

DisAbled Women’s Network, Submission to the EEART, 10 June 2022

The Employment Equity Act sets out employer obligations in a detailed list. We listened when employers explained how they understood their obligations to us in some of the official presentations: they were often summed up as maintaining records and submitting reports within a prescribed deadline. It is clear that these obligations were experienced in that way by too many workers as well. After decades of implementation of employment equity, it has become bureaucratized. Increasingly it has been reduced to the numbers rather than removing the barriers to substantive equality. Employment equity, in other words, has been reduced to getting to the attainment rate:

Calculating the Employment Equity Attainment Rate. A key employment equity performance measurement is the attainment rate, where the representation of designated groups is compared to their respective labour market availability (LMA). The attainment rate is used to identify gaps between the representation and LMA of a designated group. Where a designated group’s representation is below LMA, the attainment rate is less than 100%. Progress is considered to have been made when the gap between a designated group’s representation and LMA narrows (that is, the attainment rate approaches 100%) or when a group’s representation equals or exceeds LMA (that is, the attainment rate equals or surpasses 100%). A segment of the workforce is considered representative when the representation of a designated group is equal to its LMA.

Labour Program, Employment Equity Act Annual Report 2021, at page 6.

Getting to the employment equity attainment rate is of course an important part of the process. Although it can seem straightforward, it gets complex quickly. The data requirements can be heavy and fastidious, at least until they are systematized. The Labour Program has tried to streamline them and to make reporting straightforward for employers – but that might inadvertently have contributed to the perception of the narrowness of the number-crunching exercise. And it is clear: the exercise itself can take a lot of resources, so much so that it may seem like the main, if not only, requirement. Broader barrier removal may seem at best like a side requirement.

It is not. Far from it.

Perhaps the most significant consequence is that a remedial approach designed to be proactive and systemic lost sight of the people at the centre of the initiatives: the individual workers themselves. By focusing on the aggregate numbers and allowing employment equity to become bureaucratized, it became easy to forget that real people were behind those numbers.

It is absolutely fundamental to pay attention to the quality of peoples’ lives at work.

Institutions could at once commit to increasing representation from employment equity groups while failing to support individual workers from those groups and in some cases even pushing them out. The failure to support might happen unconsciously or out of resistance to having the hard conversations. The impact can be to silence those individual employment equity changemakers on whom equitable inclusion depends.

If we are not paying attention to the workplace climate, we are sacrificing talent for a revolving door numbers game.

The exclusive focus on number-crunching has displaced a focus on making equitable inclusion the norm.

Employment equity has been so much about numbers that the actual experiences of human beings have been lost. What we are trying to achieve is substantive equality. This means a fundamental transformation and is more than counting.

Canadian Civil Liberties Association, Presentation to the EEART, 3 June 2022

The task force listened deeply to the many constituents who appeared before us. We engaged at length with employers and union representatives, networks of employees in employment equity groups and those who claim employment equity group status, business representatives and civil society groups, managers within and beyond the federal public service, Labour Program officials responsible for implementation, and enforcement bodies. We were struck by the strength of the conviction that the Employment Equity Act framework should not come to be viewed as a pure numbers-crunching, revolving door, individual reasonable accommodation exercise. Rather, “[a]chieving a truly inclusive society requires constant vigilance”.Footnote 30

Our task force was amazed by the time that some employers and some governmental employees seemed to spend simply to generate the numbers that would be necessary to assess representation. Yet as we tried to understand why certain choices were made in the first place, and how they actually helped to achieve employment equity, too often we came up with very little. We were consistently met with employers and government officials responsible for regulatory oversight who showed that they cared deeply about what they were doing. But they had been doing the same thing, often with limited – indeed decreasing - resources for a long time. Some told us how happy they were that we were asking fundamental questions. The work of our task force seemed to incentivize actors to take their own cold hard look at whether their practices, and the benchmarks used, were really helping us to achieve and sustain employment equity.

Employment equity data on the representation gaps are not the end; they offer evidence-based beginnings for courageous conversations on how to make workplaces truly inclusive.

Achieving and sustaining employment equity requires us to focus on employment systems, policies, and practices to identify barriers to equitable inclusion. Workplaces require a plan to be developed and implemented to remove barriers and correct underrepresentation. Workplaces must refuse to lose sight of the individuals who are in them. Employment equity requires us to pay close attention in particular to retention, promotion and other practices that foster well-being and progress into higher ranks. Building a barrier-free workplace cannot simply be done for workers; it must be done with them, through meaningful consultations. To be transformative, workplace equity, diversity and inclusion initiatives must be rooted in substantive equality and supported by a commitment to democratic participation at work. This work requires supportive and sustainable regulatory oversight.

First Nations, Métis and Inuit workers alongside workers from a wide range of equity groups added that it is necessary to adopt a trauma-informed approach to employment equity – one that recognizes the specificity of their histories of labour market exclusion, and the impact on achieving employment equity. Employment equity should certainly not be allowed to become a source of further trauma.

The challenge is at some levels linked to an unnecessary bifurcation of employment equity from broader human rights obligations. Some stakeholders specifically asked the task force to recommend a new section of the Employment Equity Act, clarifying that it too is a quasi-constitutional law, like the Canadian Human Rights Act. We grew to understand just how important it is for a broad range of stakeholders to see that human rights protection at work is part of a comprehensive, harmonized whole ensuring that all workers are treated fairly.

Why is qualitative data on the experience of workers from employment equity groups not a key performance indicator under the Employment Equity Act? The task force was told that employment systems reviews that include climate surveys to measure trust, wellness and workplace integration for all should be woven into the fabric of employment equity accountability.

These issues are addressed throughout the report.

A word of caution is important here: attention to qualitative data is different from a call for “lived experience” writ large; it is of course crucial to know how people are experiencing the workforce, and in our consultations we listened deeply to the richness of the insights that emerged. But the notion must not be allowed to get instrumentalized; no one should be made to feel, like one senior employee shared with the task force, as though they are only there, despite their credentials and expertise, to provide lived experience. Let lived experience – from those who have historically not found a place in our organizations, and all of our lived experiences – help us to approach achieving and sustaining employment equity, with empathy, an awareness of how much we do not know and need to learn about each other in this country. Employment equity will never be implemented by law alone. We need all of us to approach these crucial societal issues of equitable inclusion with open-mindedness, with empathy, mutuality and care.

It's time for transformation. While quantitative targets rightly apply to employment equity groups for whom there is historical underrepresentation, attention to qualitative data should enable proactive workplace barrier removal that is broadly supportive.

The relationship between the Employment Equity Act framework and equity, diversity and inclusion initiatives: Does EDI work?

When organizations create symbolic structures, and those symbolic structures come to be known as ‘best practices’ they acquire an aura of legitimacy that makes it difficult … to see when actual practices diverge from the formal policies and procedures.

Lauren Edelman, Working Law, University of Chicago Press, 2016 at 15.

Something else has happened. An entire industry has developed around largely voluntary equity, diversity and inclusion (EDI) based initiatives. Some EDI techniques and approaches have focused on training within Canadian workplaces to understand and address unconscious workplace bias. They are often considered to be part of the “toolkit” of employment equity.Footnote 31 But how much has improved because of these mechanisms?

Much of the EDI literature emerges from the United States. The turn to equity, diversity and inclusion in the United States context has followed a jurisprudential turn away from enabling positive measures to be used to redress general societal discrimination, and toward supporting “diversity” as a justification for some preferences.Footnote 32 It is perceived to have rather subtly but decisively supplanted some of the compliance with civil rights law, weakening law’s potential to achieve equity.Footnote 33 The shaky state of United States Supreme Court decisions on affirmative action has a further, important impact.

It is often said that diversity is a fact, and inclusion is a choice. But in Canada there is more, and it is crucial: equity is the law.

The Canadian legal landscape on systemic discrimination is markedly different from that of the United States, however. As discussed above, employment equity in Canada is rooted in substantive equality, and therefore equity is the law in covered workplaces. So why has there been a turn to EDI in Canada?

The research on the actual effectiveness of some EDI initiatives is surprisingly limited, and the literature that is available leaves some room for concern. Consider that in the United States, the Equal Employment Opportunity Commission’s Select Task Force on the Study of Harassment in the Workplace found that despite 30 years of corporate training, there is little evidence to show whether it is effective in preventing harassment.Footnote 34 Should what works or does not work simply be left to the marketplace of ideas, especially in a context when individual workplaces may surmise that there are few incentives to disclose their techniques for success, much less their failures?Footnote 35 What if some of the proliferating symbolic policies or procedures framed as promoting EDI increase arbitrariness and actually run the risk of causing real harm?Footnote 36

Our task force was told that some large employers, including some universities, might have staffed EDI offices but limited experience conducting environmental scans of policies and processes to identify systemic barriers, and limited experience engaging in meaningful consultations with affected groups.Footnote 37 Some experts worried that EDI initiatives, detached from a focus on employment equity, run the risk of yielding a “learned helplessness”.Footnote 38 The troubling related, implicit assumption seems once again to be that employment equity will not actually be achieved – the focus is simply on doing something, or worse, appearing to do something.

EDI initiatives may also lack the procedural rigour that equality rights deserve. It was deeply concerning to read through the many reports on workplace harassment and barriers to employment in some aspects of the federal public service and hear auditor after auditor, reviewer after reviewer call attention to procedural problems, conflicts of interest challenges, breaches of privacy. Unless we are careful about treating equality rights as human rights and according them the seriousness of process that they deserve, we run the risk of doing harm even when we mean to do good.

Some U.S researchers have even expressed the concern that the proliferation of internal measures, policies and procedures may be used to suggest in court proceeding that due diligence measures are being taken. The possible result could be to limit liability for discrimination or harassment.Footnote 39

Voluntary measures alone will not bring equity to Canadian workplaces. The 1984 Abella report affirmed it. The 2004 Bilson report on pay equity reiterated it.Footnote 40 We agree: like voluntary measures, merely symbolic measures will not get us to employment equity. There is a lot of goodwill, but we need to create the conditions that allow reflexive mechanisms to work together to promote substantive equality in the workplace.

To recap: there is nothing wrong with having a positive symbolic impact – the turn to EDI could symbolize a willingness to achieve employment equity and measures to help us get there. But EDI language may be taking on a life of its own. Our task force was concerned to ensure that we not let a focus on EDI supplant the firm requirement to achieve and sustain employment equity.Footnote 41

Employment equity needs to be more than EDI characterized by employers largely acting alone; employment equity needs a commitment to a transformative framework that builds compliance through the combination of proactive barrier removal, meaningful consultations and regulatory oversight.

We need a transformative framework, to ensure that EDI practices support rather than supplant the Employment Equity Act framework.

A transformative framework: the three pillars of employment equity

Full compliance does not equal greater diversity.

FETCO, Submission to the EEART, 28 April 2022

In the Canadian context, if employment equity compliance has come to mean little more than completing reports, rather than actually making reasonable progress within a reasonably predictable amount of time, could it be that we are giving license to symbolic but largely ineffectual measures?

These concerns were repeated by groups who came before our task force. Our task force heard over and over that we need to refocus so that we are assessing continuous improvement – that is, reasonable progress so that we actually can achieve and sustain employment equity.

The Employment Equity Act framework is the necessary anchor to secure an evidence-based approach to equitable inclusion in the workplace. The focus is the human rights purpose of achieving and sustaining substantive equality. The task force was urged, in the midst of the changing global workplace and the ever-present risk of backlash, to offer recommendations to ensure that the anchor of employment equity holds.

It is beyond the scope of the [Employment Equity] Act to address the full weight of the inequality created by the historical, societal and cultural forces that have shaped Canadian society. However, the Act sets out a strategy for identifying systemic barriers to equality of results in employment …, and replacing those barriers with practices that are fair to all.

Carol Agócs, Think Piece on Three Topics, Unpublished Paper prepared for the EEART, 30 August 2022

Employment equity was an early model of ‘reflexive regulation’, designed to encourage employers and workplace actors more generally to take a close look at their workplace and identify the practices necessary to transform their workplace. As Sir Bob Hepple, Mary Coussey and Tufyal Choudhury recognized in the recognized in the context of proposing a framework for UK anti-discrimination legislation, it was never assumed that employers could do this alone.Footnote 42 The conditions necessary to make this reflexive regulation effective must extend beyond employers acting alone.

The Employment Equity Act framework must not be allowed to become a check list or a series of forms to fill out.

It is time to be clear about what the framework requires for employment equity to be achieved and sustained. The Employment Equity Act framework is best understood as built on three pillars:

Figure I. 1: Three pillars of the Employment Equity Act
Figure I. 1: Three pillars of the Employment Equity Act: description follows
Text description of Figure I.1

The figure shows three boxes on a horizontal axis connected by arrows going in both directions. The boxes represent the three pillars:

  • Implementation through barrier removal
  • Meaningful consultations
  • Regulatory oversight

The three pillars are discussed in greater detail below and throughout this report, but the key take away is that employment equity is not just a list of employer obligations, it requires a frameworkFootnote 43 for achieving, and sustaining, equality.

The Employment Equity Act is crucial legislation, which depends on a strong, supportive institutional framework that encompasses a balanced relationship between all three pillars.

Over time, the implementation was reduced to number-crunching and individual accommodations that put the onus on underrepresented workers to ask to be “fit” into the norm, with little attention to meaningful consultations and sparse, narrow regulatory oversight. The transformative potential got lost.

It has been easy to lose sight of this structure, by simply listing features of law.

All three pillars in the Employment Equity Act framework are required to ensure employment equity’s stability.

  • The first pillar is the requirement on workplaces to examine their practices, proactively, to implement employment equity, including by identifying and eliminating workplace barriers. Representation numbers are a pivotal part of the exercise. Employers implement through barrier identification and removal including taking special measures to eliminate underrepresentation, with regular reporting. Although special measures through representation goals have received considerable attention, they are far from the whole exercise. Our decades of experience have shown us that if the focus is not broadened to cover the fundamental work of barrier removal through comprehensive employment systems reviews, improvements will plateau or worse, be lost.
  • The second pillar is meaningful consultations of employers and workers throughout the process of identifying barriers, eliminating them including through the implementation of special measures, and reporting. Although there is a nod to meaningful consultations in the Employment Equity Act framework, it has largely been overlooked. Yet it is crucial. Meaningful participation provides an opportunity both to understand quantitative data more effectively, and to build a richer set of data that incorporates qualitative features. Without this pillar, a heavily bureaucratized employment equity approach that forgets about the workers themselves can be harmful. Worker voice matters and relationships matter, especially for employment equity groups who have faced disadvantage and trauma. Canada’s reckoning with truth and reconciliation underscores that self-determination by First Nations, Métis and Inuit peoples must be part of the human rights-based framework through which equitable inclusion is understood. Employment equity is part of a process of deliberately undoing systemic discrimination, while building respectful relationships within inclusive workplaces. Meaningful participation is grounded in the principle of “nothing about us without us”.
  • The third pillar is active support for compliance, accountability and enforcement through sustainably resourced regulatory oversight. Workplaces should be supported through guidance and oversight by state regulatory actors who understand the workplace context and are sufficiently well resourced to give real-time advice. They should be able to provide independent, transparent external auditing to ensure that equitable representation is both achieved and sustained. Voluntary compliance is not enough. Yet the structures that are in place leave the Employment Equity Act framework largely to achieve implementation on its own. Someone needs to be making sure that reasonable progress is actually occurring, with a view to achieving and sustaining employment equity. What our task force has perceived is a regulatory oversight framework that is staffed with motivated and knowledgeable people, but is both under-resourced and sub-optimally structured. We heard a lot of cynicism, and the related concern that this breeds a dangerous disregard for law. Are we, in political economist Leah Vosko’s terms, “inadvertently incentivizing non-compliance”?Footnote 44 The federal government has repeated that employment equity is crucial to who we are as Canadians. Employment equity must not be sacrificed to wishful thinking. On regulatory oversight we must put our money where our principles are. The regulatory oversight needs to be rethought.

To get the Employment Equity Act framework properly into balance, we need to support and sustain all three pillars.

Supportive and sustainable approaches to achieving employment equity

We need leadership which is willing to acknowledge the situation we are in, rather than paint a rosy picture by manipulating data.

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

We reiterate: it is close to 40 years since Canada has been grappling with where to go on employment equity. Employment equity is meant to be achieved. The focus should now turn to sustaining equitable inclusion at work. We are not quite there yet, and in many cases, for many employment equity groups, we are far from it.

Many people who came before us referred to the Clerk of the Privy Council’s Call to Action on Anti-Racism, Equity, and Inclusion in the Public Service. That call starts with these words: “the time to act is now”.

Our task force agrees, and we believe that how we act is key.

The report’s chapters are organized around the transformative framework of the three pillars of implementation through barrier removal; meaningful consultation; and regulatory oversight. The report offers a detailed discussion of where we are and where we need to go to strengthen each of them, in Chapters 4 – 6.

But before addressing how to strengthen each pillar, the report presents three transversal chapters that guide engagement with the three pillars: equitable inclusion in a changing world of work (Chapter 1), data justice (Chapter 2) and rethinking equity groups (Chapter 3). Chapter 7 returns to the theme of equitable inclusion, to explore some of the more technical regulatory implications of supportive and sustainable employment equity coverage.

On coverage and scope in Chapter 1, the report considers how the Canadian workforce has changed since the Employment Equity Act framework was introduced. It takes a hard look at discouraged workers and workers who are overqualified. It asks whether we are effectively covering the Canadian workforce. It also asks whether we might be reproducing stereotypes in our benchmarks.

On data justice in Chapter 2, the report delves into the statistics that support employment equity, with a focus on why we have employment equity: the “why” should affect what we do. We collect data in employment equity to promote and protect the human right to equality. That purpose affects how we approach privacy protections. It affects the decision to disaggregate data. It affects how we approach the issue of self-identification. And it supports moving away from workforce availability in the federal public service toward a benchmark that supports a focus on removing barriers, meaningful consultations and oversight. It also includes strengthening public accountability by democratizing access to employment equity data.

On rethinking equity groups in Chapter 3, we have emphasized the importance of understanding the groups in their context. We invoke specific histories that help us to understand group-based barriers to employment equity and how we should be thinking about employment equity groups in 2023 and into the future. We have emphasized just how important it is to build supportive and sustainable approaches to achieving employment equity for groups who need it. The goal of the Employment Equity Act framework is broader still: through proactive barrier removal, meaningful consultations and regulatory oversight, we work to achieve and maintain employment equity: this benefits us all.

On the regulatory implications of supportive and sustainable employment equity coverage in Chapter 7, we look at the public service, the federal private sector employers and the federal contractors program, and recommend changes to ensure that the Employment Equity Act framework is truly offering supportive and sustainable coverage.

Throughout the report, we say it, and say it again: we must go beyond the symbolic, to focus on a transformative, three pillar framework that offers supportive and sustainable approaches to achieve employment equity.

Our process

Our task force

We are a 12-person task force, including the chair, Professor Adelle Blackett and the vice-chair, Professor Dionne Pohler. Members emerge not only from academia and from key employers and workers organizations, but also from a broad cross section of society (Appendix B). Collectively we brought a breadth of complementary expertise and lived experience rarely captured in federal task forces in Canada. Members brought a thick range of equity, human rights, statistical, policy, labour relations, and business knowledge that intersected with many of the concerns that are at the centre of the Employment Equity Act framework. Members showed commitment and generosity throughout their appointments, which were formally ended for everyone but the Chair with the end of the public consultations in October 2022. The Chair gratefully acknowledges the formidable intellectual companionship and steadfast commitment of Vice Chair Dionne Pohler. The insightful input received from all members of the task force has been invaluable. Members brought grace, each time we met. We have learned immeasurably together and from each other, including what respectful, equitable inclusion looks and feels like.

We made it our priority to listen deeply. Listening deeply meant taking the time to hear what was being said about the Employment Equity Act framework. Listening deeply also meant remembering - being alive to the hopes, concerns, enthusiasm and hurt, senses of possibility and frustration of those who felt that what they were saying had also been said, repeatedly, over the past decades. Some people literally came before us and said that despite their own disappointments, they wanted to make the world of work in Canada better for their children, and better for the next generations. We heard a real sense of urgency. Groups and individuals who met with us wanted to know that our report and recommendations would also be listened to deeply, and would lead to meaningful change.

Consultations

Experiences should inform policies.

Consultations were therefore a significant part of our work. Many people and groups wanted to be heard on this matter that affects their livelihood so directly and invited participants came ready to share. To respect the accelerated post-election pace set by the Government of Canada once we were reconvened following the 5-month stop work order during the federal election, our task force held 51 meeting days with over 109 consultations between February – October 2022. There was a total of 337 attendees, including 176 employer and worker organizations, civil society representatives, experts, governmental departments and agencies. These included a number of roundtable discussions with academics from within Canada and across the world. Many were plenary sessions of the task force; others had a representative range of task force members. The paper that we prepared to support the consultations is included in Appendix N.

We are enormously grateful to the many people who made it a point to meet with us. This report could not have been written with the same depth of insight without their contributions. Key insights from some of the people we met are formally referenced throughout the report, but we want to stress just how rich and resonant many of the reflections were – there is a lot that is shared, and as a result a lot of power in the call to move forward.

In addition to these consultations, the task force chair – either jointly with the vice-chair or alone - held a number of discussions with commissioners leading other independent offices or units related to employment equity, notably the Privacy Commissioner, the Chief Commissioner of the Canadian Human Rights Commission, both the outgoing and acting Pay Equity Commissioner, the Accessibility Commissioner and the Auditor General of Canada. These meetings were extremely important to shaping understandings of the institutional structures and the possibilities for rethinking oversight of employment equity in Canada. We renew our gratitude to each.

Most of the task force’s consultations were undertaken virtually, given the pandemic and in keeping with the task force’s mandate. A few of the meetings that took place into Fall 2022 with federal government officials and agencies responsible for implementing or enforcing employment equity or other equity mandates took place in person once it was considered safe to do so. A list of consulted parties is to be found in Appendix D.

This report would not have been the same without them. We are grateful. What was shared, collectively, has become part of the reconstruction of employment equity through an equitably inclusive understanding of substantive equality.

Enhanced engagements

Our mandate included a request to consider changes to reflect current understandings of the relationship between “Indigenous peoples” and the Canadian state, to reconsider the definition of “persons with disabilities”, to consider whether an employment equity group should be added for workers from 2SLGBTQI+ communities and to consider whether Black communities should be considered a distinct employment equity category. For this reason, we undertook enhanced engagements with key organizations from each of these communities on the principle of nothing about us without us. Organizations entered into grants and contributions agreements to produce detailed consultative reports on core issues related to our mandate. They in turn reached out to the broader communities across Canada, in English and in French, and in some cases in Indigenous languages, in American Sign Language and in Quebec Sign Language, through a combination of surveys, focus groups, engagements with a range of stakeholders including employers’ organizations, conducted online surveys, engaged in desk research, and validated results with their own constituencies, often combining forces to reach several hundred members of their communities. Each organization reported to the task force on interim progress and most final reports were received in writing or in a few instances through presentations to the task force between Summer 2022 and Winter 2023. Particularly given the tight timelines for this consultative process, the enhanced engagement process was pivotal to ensuring broad-based input to inform the development of the report and its recommendations.

Written submissions

Our task force issued a call for written submissions that yielded over 400 contributions, listed in Appendix F. Most were received by April 2022 but some specially commissioned reports from employment equity groups, listed in Appendix E, arrived throughout Fall 2022 and a few into Winter 2023.

The launch of the task force appears to have galvanized a number of reviews and reports internal to the federal government. When our task force met with the Treasury Board of Canada Secretariat’s Office of the Chief Human Resources Office (TBS-OCHRO), we were informed that the Treasury Board was conducting a review of the calculation of Workforce Availability for the federal public service, to determine whether it should be retained. TBS-OCHRO indicates that its work on modernizing benchmarks will be reflected in its 2021-22 report.Footnote 45 Its initial completion timeline was Summer 2022, but it commissioned a separate external study on the calculation of workforce availability in Fall 2022, invited the chair and vice-chair to a meeting, and shared a draft report with the task force chair in Winter 2023. From September 2021 – July 2022, the Canadian Human Rights Commission conducted an Employment Equity Employment Systems Review, with results highlighted in a report released on 8 November 2022. Deputy Minister Champion for Indigenous Federal Employees and Women, Gina Wilson, shared a June 2022 report that she commissioned on self-identification.Footnote 46

Research and data collection

Research was also a pivotal part of the mandate of the task force. Despite the absence of a research director in the secretariat and the pandemic-imposed restrictions on travel, it was crucial for us not to compromise on this dimension of the work. This report has sought to honour the significant, critical research that has been undertaken for decades by many people committed to achieving workplace equality in Canada and beyond. This has required fastidious review. This report has sought to offer a meaningful opportunity to take stock, with a view to enabling Canadian society to move resolutely forward. The key, as we heard over and over from those who came before our task force, is to make change happen.

The task force commissioned a few key research papers from leading experts on core issues related to our mandate. We were highly selective in our choices, to avoid duplicating the significant volume of leading studies related to employment equity. The topics are listed in Appendix H and the papers are referenced in this report.

Given the many concerns expressed about the frequent reliance on outdated data to conduct employment equity, our task force wanted to be sure to draw on as much of the 2021 Census data as possible. Statistics Canada released its labour and language of work data from the 2021 Census of Population on 30 November 2022. The Chief Data Officer for Employment and Social Development Canada (ESDC), Ima Okonny, and her staff along with members of the task force secretariat worked intensively in the first half of December to enable the task force Chair to incorporate some of that crucial newly released data into this report.

We express sincere gratitude for the commitment and dedication of the secretariat and its Executive Director, Eldon Holder. The secretariat provided crucial support notably to schedule intensive consultations and coordinate input from stakeholders from mid-July to early August 2021 until we were fully paused during the elections, and on resumption from February to October 2022, and was largely dismantled by December 2022. However, despite repeated requests in light of the task force’s mandate and terms of reference, the task force secretariat was not equipped to provide the expected legal research support, and the Chair was not provided with independent access to legal counsel, unlike Professor Arthurs’ Employment Standards Review,Footnote 47 Professor Bilson’s Pay Equity Review,Footnote 48 and other recent reviews including the External Review Authority reports cited in this report and conducted notably by the Hon. Marie Deschamps, C.C., Ad. E.,Footnote 49 the Hon. Morris Fish,Footnote 50 and the Hon. Louise Arbour.Footnote 51

With the support of two talented and dedicated student research assistants in law, McGill D.C.L. candidate Leanna Katz (September 2022 – April 2023) and McGill B.C.L. & J.D. candidate Béatrice Rutayisire (May 2022 – April 2023), the Chair conducted an extensive legal and broader literature review using legislation, case law and research papers from across Canada and around the world. We learned how special measures to promote equitable adoption were being used in different parts of the world, from France to India, from Northern Ireland to South Africa, from the United States to Argentina. Our task force report reflects the perspective that experiences from around the world can be instructive, and a source of inspiration. Canada has played a crucial role in contributing to the development of substantive equality principles and employment equity policies abroad, too. The report contains references to international law, especially when it involves the observations or comments made by international treaty bodies commenting specifically on the situation in Canada. Our task force also met virtually with experts from the International Labour Office in Geneva, who explained that special measures were an important part of post-pandemic recovery.

[Employment equity’s] ambiguity and adaptability are both its strength and its fragility. It is not a fixed formula for governmental action transportable from one country to another, nor is it a precise constitutional or legal arrangement of universal action. Yet it does have a core feature… it involves focused and deliberate governmental intervention that takes account of the reality of [systemic discrimination] to deal with and overcome the problems with [systemic discrimination].

Justice Albie Sachs, Foreword, in Elaine Kennedy-Dubourdieu, ed., Race and Inequality: World Perspectives on Affirmative Action (London: Routledge, 2006).

The report contains selective references to comparative law. At this stage when Canada’s system is mature, we want to be especially careful not simply to be “cherry-picking” from elsewhere. Part of the comparative law “method” in this report has been to make explicit much of the distance that has been travelled to come to understandings of these principles that prevail in Canada and that draw inspiration internationally. We have wanted to make sure the use of comparative law and practice is mindful of how legislative approaches are rooted in the societies in which they have emerged. Any changes introduced need to be mindful of context, and alive to the possibility that they might work very differently in one context than in another. It recognizes the potentially emancipatory power of experimentation in law.

This report is in dialogue with what is happening around the world and implicitly builds on many of the contemporary currents, especially on enforcement.

This report focuses not on what might have been done in the abstract, but rather on what can be done concretely and in context to transform employment equity to achieve and sustain substantive equality in Canadian workplaces.

As a result, this report draws on comparative examples with care, and emphasizes taking a good, hard look at some of the assumptions that have surrounded our own system of employment equity to encourage us to take achieving substantive equality seriously. A table of comparative law sources is in Appendix K. We are persuaded this approach takes a model in Canada that has been a source of leadership, quite far.

The recommendations

Finally, throughout the report we issue a total of 187 recommendations that seek to offer comprehensive guidance. They are often reasonably high level, to leave latitude to government in consultations to decide how best to implement them. In some cases, though, the recommendations are more granular, and are meant to complement each other to build a comprehensive whole.

Every effort was made within the accelerated timeframe for delivery of our report to provide precise recommendations capable of implementation without further research; this is true of the vast majority of recommendations. Given the breadth of the review, however, a few recommendations are inevitably more directional. All build on each other, and all depend on a shared commitment to achieving and sustaining employment equity.

Our task force is convinced that all-of-government prioritizing of the proposed holistic approach focused on equitable inclusion and strengthening and balancing the three pillars of the Employment Equity Act framework is needed to achieve and sustain employment equity.

It takes all of us

Despite the magnitude of the challenge, we came away optimistic about the possibilities in this moment to bring about transformative change.

One particularly memorable, and moving moment was when a union representative described himself as an older white working-class man, in an industry that had tended to be very heavily male and white, and explained some of the union’s initiatives to increase the representation of Indigenous workers. He not only affirmed that the task force’s work would be crucial to advancing the conditions of working people, and recognized thatthe voices of workers from employment equity groups needed to be heard. He also offered to add his own voice, in support.

A second takes us back to 1985, as the Employment Equity Act framework was being introduced. The Montreal Board of Trade acknowledged an introverted student body president and class valedictorian from one of the most diverse high schools in the city with its Outstanding Student Award. Of course, the award was deeply meaningful. But the main prize - a summer job at what was then the Toronto-Dominion Bank – made all the difference. Summer after summer, that employment supported her through university until her first position in law; it opened worlds of possibility.

A third was the well-educated taxi driver from Congo-Kinshasa who commented that the task force chair was not joking: the suitcase taken to the Monastère des Augustines in Québec to make progress writing this report really was heavy. The suitcase contained more books than clothing. The taxi driver refused to have the bill doubled as an additional tip, and looked the chair straight in the eyes, as if to convey solidarity with this necessary work.

We need to keep raising the level of public debate so that it is fundamentally understood to involve all of us, together building an equitably inclusive Canada.

And we need to get serious about actually achieving and sustaining employment equity, through a transformative framework built on implementation through barrier removal, meaningful consultations and regulatory oversight.

This work is the work that will transform employment equity. And this work requires all of us. It requires us to build Canadian workplaces, with grace.

In this worldwide moment of rising hate, intolerance and exclusion, Canada has a critical choice to make, and an opportunity to show the importance of our ability, literally, to work together to foster equitable inclusion for all.

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