Canadian Human Rights Commission Submission to the Employment Equity Act Review Task Force
GC Catalogue: HR4-92/2023E-PDF
ISBN: 978-0-660-47738-1
“The genuine pursuit of equality is a litmus test that gauges our success as a liberal democracy.”
- The Honourable Madame Justice Rosalie Silberman Abella, Report for the Royal Commission on Equality and Employment
Introduction
The Canadian Human Rights Commission (CHRC) welcomes the review of the Employment Equity Act (EEA) and urges the Task Force to embed bold and progressive changes to the EEA to create a modern EEA system that can both redress historical harms and inequities in Canada, and lead the world with an invigorated view of inclusion.
The CHRC is Canada’s national human rights institution, established under the Canadian Human Rights Act (CHRA) with a broad mandate to promote and protect human rights. This includes a mandate to conduct employment equity audits under the EEA.
In 1984, the Honourable Madame Justice Rosalie S. Abella’s Report for the Royal Commission on Equality in Employment (Report) paved the way for adoption of the EEA in 1986. At that time, the EEA was intended to increase representation and remove systemic barriers in recruitment, promotion and retention of individuals from four designated groups – women, Indigenous peoples, people with disabilities, and racialized people1 – in federally-regulated workplaces. This was a recognition of the structural and systemic roots of inequality in employment and the need for systemic remedies, and it positioned Canada as a policy leader at that time.
In 1995, Parliament amended the EEA to provide the CHRC with a mandate to audit federally-regulated employers with at least 100 employees, and to extend its application to the federal public service.
Since the introduction of the EEA, some progress has been made in increasing the representation of designated groups. However, challenges in achieving equitable representation in many organizations and sectors remain, and significant barriers to employment for these groups persist. Equity-deserving groups not currently designated under the EEA are seeking recognition, as demographics change and the concept of equality evolves.
This current Task Force review of the EEA offers a unique moment to engage in broader discussion about equity and employment. In recent years, other proactive human rights based legislation has put in place more robust regimes in relation to accessibility and pay equity through the Accessible Canada Act (ACA) and Pay Equity Act (PEA) respectively. Along with mandates under these regimes, the CHRC was also designated with responsibilities under the National Housing Strategy Act and as a body responsible for monitoring the United Nations Convention on the Rights of Persons with Disabilities. The addition of these numerous responsibilities to the CHRC’s existing mandates under the CHRA and the EEA have significantly increased the organization’s role in compliance, enforcement and monitoring in relation to several important branches of Canada’s statutory human rights framework.
The EEA review presents an opportunity to consider the benefits of alignment across these various branches of human rights legislation – and in particular between the regimes under the EEA, ACA and PEA – and for a harmonized statutory framework to advance the goal of substantive equality for all equity-deserving groups.
Recommendations
Recommendation 1.a.
An amended EEA should make explicit reference to the equality provisions in the Canadian Charter of Rights and Freedoms, the CHRA, and other related human rights legislation, including the ACA and the PEA.
Recommendation 1.b.
An amended EEA should explicitly recognize Canada’s obligations to protect, respect and fulfill equality rights guaranteed in the international human rights instruments to which Canada is a party, including in particular the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the UN Declaration on the Rights of Indigenous People (the Declaration), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Rights of Persons with Disabilities (CRPD), and the International Labour Organization’s (ILO) Discrimination (Employment and Occupation) Convention, especially in matters related to work and employment.
Recommendation 2.a.
An amended EEA should harmonize compliance, audit and awareness-raising approaches with similar requirements under the ACA and the PEA in order to reduce regulatory burdens, provide administrative efficiency, and support unified public reporting education and awareness across all three proactive regimes.
Recommendation 2.b.
An amended EEA should include the appointment of an EE Commissioner.
Recommendation 2.c.
An amended EEA should include more robust compliance and enforcement functions, some of which should be modeled on those found in the ACA and its Regulations, and provide the relevant oversight body a full range of remedial powers to impose sanctions for non-compliance. This should include provisions to:
- Require employers to include special measures in their EE plan to close notable representation gaps by occupational group and address the particular challenges of designated group subsets.
- Require employers to establish accountability mechanisms for senior executives including performance objectives for the implementation of their EE plan and progress made.
- Make performance pay for deputy heads, as defined in subsection 2(1) of the Public Service Employment Act, contingent on their organization’s compliance with the EEA.
- Give the relevant oversight body authority to impose administrative monetary penalties scaled to the level of non-compliance and to the size of the employer.
- Permit and/or require publication of a list of non-compliant employers.
- Permit publication of a list of fully compliant leaders in their fields.
Recommendation 3.a.
An amended EEA should re-define and disaggregate the four (4) existing designated groups to better reflect
- uniquely impacted groups, such as the Black community,
- a distinctions-based approach for Indigenous peoples (articulating First Nations, Metis and Inuit groups),
- diverse experiences of persons with disabilities, in line with the disaggregation found in the Canadian Survey on Disability, and
- diversity and intersecting identities of people within the existing groups.
Alternatively or additionally, section 16 of the CHRA (special programs) could be incorporated by reference into the amended EEA to respond to the particular circumstances and needs of uniquely impacted groups.
Recommendation 3.b.
An amended EEA should include additional designated groups to reflect the changing demographics in Canada and recognize under-represented workers.
Alternatively or additionally, section 16 of the CHRA (special programs) could be incorporated by reference into the amended EEA to respond to the particular circumstances and needs of uniquely impacted groups.
Recommendation 4
An amended EEA should be broadened in application to cover the largest possible proportion of Canada’s workers and should:
- Expand application to include federally-regulated employers with at least 10 employees, with basic obligations for workforces with 10 to 99 employees.
- Include a provision that enshrines a federal government commitment to support provinces in their own employment equity initiatives.
- Restore reference to the Federal Contractor’s Program (FCP) and lower the threshold for goods and services contracts covered by the FCP.
- Restore pre-2013 requirements for employers with contracts covered by the FCP and make contract renewal and/or future participation in the FCP contingent on meeting established employment equity requirements.
- Include employees of the Senate, the House of Commons and the Library of Parliament.
- Make access to federal funding and grant programs contingent on meeting established employment equity standards.
Recommendation 5.a.
An amended EEA should include requirements for enhanced and modern data collection by:
- Integrating collection methods and tools to gather qualitative data on lived employment experiences of designated groups.
- Enhancing methods of quantitative data collection to better reflect diversity and intersectionality within designated groups.
- Adjusting collection methods so the data used anticipates reasonable projections of population changes rather than relying on/using outdated figures in stale data.
- Collecting data on representation and experiences of groups not designated, which could inform future reviews of the EEA and could support other equity programs and initiatives.
Recommendation 5.b.
An amended EEA should include enhanced annual public reporting obligations by employers on progress made (reducing or eliminating gaps) in the previous year.
Recommendation 5.c.
An amended EEA should require employers to measure the lived employment experiences of their employees who are members of equity-deserving groups as an essential element of their employment systems review.
Recommendation 5.d.
An amended EEA should require the formal establishment of employment equity committees, inclusive of members of equity-deserving communities – and establish a role for them as part of the employer’s reporting obligations.
Recommendation 5.e
An amended EEA should require employers to consult with and/or obtain information from non-employee members of underrepresented groups about barriers to employment at regular intervals in order to inform their implementation of special measures.
Recommendation 5.f.
An amended EEA should require employers to measure and report on career progress within disaggregated designated groups.
Recommendation 6.a.
An amended EEA should strengthen provisions for research, promotion and public education.
Recommendation 6.b.
An amended EEA should include provisions that require employers to develop mentorship, sponsorship and career development programs/strategies for equity-deserving groups, and permit employers to provide pre-employment training to members of equity-deserving groups.
Recommendation 6.c.
An amended EEA should enshrine federal commitments to certain levels of funding/grants available to federally regulated employers to support mentorship, sponsorship, career development programs and pre-employment training.
Recommendation 6.d.
An amended EEA should include a provision that ensures regular and up to date training for management and for human resource staff that implement and administer an employer’s employment equity plan, on the EEA, its Regulations and best practices.
Recommendation 6.e.
An amended EEA should include a provision that requires the federal government to provide support to stakeholders to ensure equitable access to decision-making processes that affect equity-deserving workers.
Recommendation 6.f.
The EEA review must contemplate the necessity of additional resources for the effective implementation and ongoing administration of an expanded EEA.
Context
Importance of employment equity in a modern era of human rights
“Laws reflect commitment. They entrench objectives and they advertise the genuine determination to inhibit or encourage certain behaviour. They define the limits of acceptable behaviour. […] This is law as the promulgation of public policy, the expression through Parliament of a societal ideal. The character of a community is developed and defined by the laws it passes, the cumulative observance of which represents the essence of what society sees as its most desirable self.
Sincerity is often judged by a willingness to act on a stated belief. Through laws, governments are able to make known the sincerity of their commitment.”
- Justice Rosalie Abella, Report for the Royal Commission on Equality and Employment
We are in a new era of human rights both internationally and domestically, and Canada’s employment equity legislation is profoundly behind the times.
Employment equity has always been about looking to our flawed past and creating a future that is fairer. In 2017 and again in 2021, the Government of Canada publicly committed to reconciliation with Indigenous peoples, to addressing systemic discrimination and racism in Canada’s institutions and workplaces, to ensuring pay equity for all genders, and to removing barriers to employment for people with disabilities. Canada considers itself a leader among nations when it comes to diversity and inclusion. However, barriers to employment for equity-deserving groups persist, gaps in representation in many sectors remain unaddressed, and many equity-deserving groups are not appropriately recognized in Canada’s current EEA.
Reviewing and amending the EEA is not just about bringing it into the modern era from a technical perspective. It is also about bringing it into step with the evolution of our understanding of human rights, diversity and inclusion. A modern and effective EEA will help Canada as a country to recognize and acknowledge our history of colonization, systemic racism and systemic exclusion, how it has shaped our society, and how we can take concrete steps towards de-colonization, anti-racist and anti-ableist institutions. It will also signal to Canadians and the world a sincere commitment by the government to the principles of reconciliation, anti-racism, diversity and inclusion.
The review process itself must be grounded in a human rights based approach in which the principles of de-colonization, anti-racism and intersectionality are embedded. It is only through this lens that broader historical disadvantage, not captured through current methods of data gathering and analysis, can be understood and integrated into a modern, responsive and effective EEA.
Canada’s statutory human rights framework
The EEA is just one branch of Canada’s statutory human rights framework.
Canada is a signatory to a number of international human rights instruments, many of which have informed the development of the domestic framework for the promotion and protection of human rights generally, and equality rights specifically. A number of these instruments explicitly guarantee the enjoyment of the right to work free from discrimination.2
Domestically, along with the equality provisions of the Canadian Charter of Rights and Freedoms, the CHRA, ACA, PEA and other domestic legislation recognize the right to equality and non-discrimination in matters related to employment.
It is important that these commitments are explicitly recognized in the amended EEA as they situate the legislation in the broader context of equality rights in Canada and form the basis from which connections between all fundamental and inalienable human rights can be traced.
Historical and current barriers to employment equity
Despite guaranteed rights to equality and non-discrimination in domestic and international legal instruments, many of the same barriers to equality in employment have persisted since the EEA was first implemented in 1986. These persistent barriers contribute to a cycle of marginalization and systemic challenges to the realization of equality rights.
The current EEA regime has fallen short in meeting the needs of certain groups, is out of step with the changing demographics in Canada, does not recognize significant portions of under-represented workers, does not ensure the right to equal opportunity for promotion or advancement, and does not account for an intersectional approach to addressing systemic barriers experienced by equity-deserving groups. Some of these gaps in the current law have existed since its inception, while others have become apparent in the intervening years as the understanding of the barriers these groups face has evolved.
The EEA alone cannot directly address or remedy the root causes of social and economic marginalization, and many persistent underlying barriers to employment may need to be addressed outside of the EEA. Nevertheless, an acknowledgement of these barriers is important in any discussion of employment equity reform, as this review can influence identify the need for change through other legislation, policies and programs.
Human rights and employment legislation should reinforce the principles and objectives of the EEA. However, there are ways in which current laws work at cross-purposes, and may limit the attainment of employment equity objectives in federally regulated workplaces. For example, during the last review and amendment of the EEA in 1995, section 54.1 was added to the CHRA, presumably to limit the overlap between the EEA and the complaints process under the CHRA. Section 54.1 of the CHRA expressly prevents the Canadian Human Rights Tribunal (Tribunal) from ordering employers to implement positive policies or practices or timetables to increase equitable representation in its workforce. While dismantling systemic barriers to inclusion and avoiding the need for complaints-based resolution is the ultimate objective of proactive compliance regimes, the ideal of proactive compliance should not be a barrier to practical systemic remedies for those dealing with the reality of non-compliance and its impact on equity deserving groups. We encourage the Task Force to consider how the CHRA and other federal employment legislation may be amended to reinforce the principles of the EEA and provide greater harmonization to support the attainment of its objectives.
Colonialism and anti-Indigenous discrimination
Indigenous peoples continue to be significantly disadvantaged in terms of education, employment, proximity to employment, and access to basic needs such as potable water, food security and housing. The legacy of residential schools and discrimination in the child welfare system has had profound negative impacts on the lives of Indigenous children, impacts which have carried over into their experience of employment. These gaps in education, combined with other intersecting economic and social disadvantage, contributes to lower employment rates among First Nations people, with even those with higher levels of literacy and numeracy less likely to be employed (75%) than non-Indigenous people in Canada (90%). First Nations women, who experience intersecting discrimination based on race, ethnicity and gender, have even lower levels of employment than Indigenous men.3
Significant work has been done to lay the foundation for the federal government’s commitments to supporting and empowering Indigenous peoples to realize their social, economic and cultural rights through reconciliation. The Truth and Reconciliation Commission’s (TRC) Calls to Action focus on dismantling the systemic discrimination experienced by Indigenous peoples through Canada’s colonial institutions. Call to Action 7 speaks specifically to the intersecting barriers to education and employment, and calls on the federal government “to develop with [Indigenous] groups a joint strategy to eliminate educational and employment gaps between [Indigenous] and non-[Indigenous] Canadians.”4 Several additional calls to action focus further on the education gap5. Each of these calls to action must be met with concrete initiatives to bolster opportunities and dismantle barriers to education and employment for Indigenous peoples.
Anti-Black racism and discrimination against other racialized groups
Public discourse and action to counter systemic anti-Black racism in Canada has accelerated over the past several years, shining a light on longstanding issues of institutionalized anti-Black racism in Canada.
In February 2021, Statistics Canada (StatsCan) published a “labour market snapshot” of Black Canadians during the pandemic, which showed a troubling picture of employment outcomes for Black Canadians. While Black Canadians between the ages 25 and 54 were more likely to have a university degree than their non-racialized counterparts, they had a lower employment rate. The report also showed that Black men and women were underrepresented in management positions compared to their non-racialized counterparts.6
A representative group of Black public servants have filed a claim against the federal government “seeking long-term solutions to permanently address systemic racism and discrimination in the Public Service of Canada.”7 Among the various claims, claimants are seeking damages for discriminatory practices in the hiring and promotion of Black employees in the Public Service. Claimants are also seeking damages for breaches of the Charter related to the discriminatory application of the EEA. Personal stories of Black public servants tell of persistent situations of individual and systemic discrimination in the shape of unfair treatment in comparison to white colleagues, micromanagement, challenges in obtaining promotions and other employment opportunities, among other grievances.
Canada has also seen a steep rise in hate and intolerance toward other racialized groups. For example, people of East-Asian descent have been subject to increasing incidents of individual and systemic racism during the COVID-19 pandemic, revealing a troubling undercurrent of discrimination that could extend to this group’s access to employment opportunities.
Ableism
Despite recognition and statutory protections under the CHRA and EEA, people with disabilities continue to face barriers and stigma when looking for work, when seeking workplace accommodation and when trying to thrive or advance in their careers.8
Ableism has been defined as “the discrimination and social prejudice against people with disabilities based on the belief that typical abilities are superior. Like racism and sexism, ableism classifies entire groups of people as ‘less than,’ and perpetuates harmful stereotypes, misconceptions, and generalizations about people with disabilities.”9 Ableism continues to exist throughout all social realms, and workplaces are no exception.
Ableist attitudes can have significant negative impacts on a person with a disability’s access to and retention of stable employment. It is more often the profound impacts of ableism on the lives of people with disabilities that present a greater series of barriers to inclusion than the person’s disability or impairment. Ableism is apparent in the misperception that accessibility measures and disability-related accommodations are intended to provide an advantage to people with disabilities in order to increase representation.
Ableism can often manifest in seemingly everyday actions or events which can result in additional layers of barriers for people with disabilities: planning social events in spaces that are not accessible, ordering equipment that is not accessible for people with certain types of disabilities, or “informal” discussions about work without interpretation for the deaf or hard of hearing. Each of these scenarios have the cumulative effect of isolating and excluding people with disabilities from important aspects of participation in the daily experiences of work.
Heterosexism and homophobia
In November 2017, the Prime Minister issued an apology to lesbian, gay, bisexual, transgender, queer, and two spirit (LGBTQ2) individuals in Canada, acknowledging the Government of Canada’s role in creating a culture of systemic oppression and criminalization towards LGBTQ2 people.10 The Clerk of the Privy Council also issued a statement, specifically apologizing for the Government of Canada’s systematic campaign of oppression against LGBTQ2 public servants, and acknowledging the 1950s to 1990s as the “darkest chapter of our history as an employer,” a period referred to as “the Purge.” During this period, LGBTQ2 public servants were “routinely singled out, which often limited or ended their careers.”11 These apologies signify a recognition of the harm caused by “the Purge,” and highlight the historical disadvantage faced by these communities in employment.
Research and literature on two spirit, lesbian, gay, bisexual, transgender, queer and intersex (2SLGBTQI+) employment equality in Canada is relatively recent. A 2019 literature review that gathered and analyzed existing research found that it was “not until the early 2000s that Canadian surveys began to ask questions on sexual orientation.”12 A 2008 study showed that “gay men had personal incomes that were 12% less than heterosexual men and lesbians had personal incomes that were 15% higher than heterosexual women.”13 Other research analyzed in the review focused on the employment experiences of gay, lesbian and bisexual workers showed a variety of patterns of discrimination, including fewer interview offers, rejection of candidacy on the basis of “right fit” criteria, and anti-gay organizational cultures in certain sectors of the economy.14 The author of the above-noted literature review concluded that “the biggest limitation for researchers interested in studying the labour market outcomes of the 2SLGBTQI+ communities continues to be the dearth of high-quality data that includes questions on sexual orientation, non-binary gender identity and relevant employment variables.”15
Cis-normativity and transphobia
In 2017, the CHRC advocated for and welcomed the passage of Bill C-16, which added gender identity or expression to the CHRA, marking the point when all human rights codes in Canada provided these explicit protections. Since that time, a multitude of legal and policy changes have been brought forward by federal, provincial, and territorial authorities to ensure that these rights are more fully realized, and that trans, non-binary, and gender diverse persons can more fully enjoy their human rights and their lives in Canada. Statistics have shown that trans and non-binary people in Canada are highly educated, and yet they are under-employed with 24% having an annual income under $15 000 and almost 50% having an annual income of less than $30 000.16 A 2020 Trans PULSE Canada report based on a survey of trans and non-binary Canadian residents found that only 43% of transgender participants were employed full-time, while 35% were employed part-time. This is particularly shocking given that 67% had a post-secondary and/or graduate degree, and 89% had at least some college or university education.17
As noted above, despite advancements in some areas, trans and non-binary persons face higher levels of discrimination, harassment and violence than cis-gender people, especially those with multiple intersecting identities. For instance, the Trans PULSE Canada report focussing on racialized trans and non-binary people18 highlighted that, overwhelmingly, they reported higher levels of discrimination, violence and assault, as well as anticipated and actual negative experiences with police and the legal system, including a lack of trust in police, particularly Black and Indigenous trans persons.19 These are all factors that contribute to the further marginalization of these communities.
Discrimination based on economic and social condition
Discriminatory attitudes toward, and treatment of, equity-deserving Canadians often manifests in systemic social and economic disadvantage. Historically, violations of people’s equality rights with respect to education, health care, social services, and other benefits bestowed by society perpetuate social and economic marginalization. The cycle of poverty that follows can last for generations. The UN Committee on Economic, Social and Cultural Rights has expressed concern over the significant number of people living in poverty in Canada, and has highlighted that Indigenous peoples, people with disabilities, single mothers and minority groups continue to experience alarmingly higher rates of poverty, housing insecurity, and food insecurity than others in Canada.
Individuals experiencing social and economic disadvantage live in the most vulnerable situations in Canadian society, and are subject to negative stereotyping, adverse living conditions, and discrimination. One’s employment or lack thereof is a primary determinant of one’s socioeconomic rank or standing. Barriers to participation in the workforce based on social condition are likely to reinforce the social and economic disadvantage of the members of these groups.
Ageism
Ageism, or age discrimination, in employment has been a topic of study for some time. However, it is particularly relevant today given Canada’s ageing population and the fact that in the last two decades Canada has seen greater numbers of older workers in its labour force. Simultaneously, young Indigenous workers are entering the workforce in significant numbers, increasing the urgency of contemplating how age and Indigeneity will intersect in the experiences of a growing segment of the workforce.
Ageist thinking, including negative attitudes, stereotypes, and beliefs often manifest in workplace age discrimination, resulting in exclusion or disadvantage of younger or older workers because of their chronological age. Age discrimination can be compounded when ageist attitudes in the workplace intersect with other forms of discrimination, and can occur in all stages of workforce participation.
Broad Principles for the EEA Review Process
Broadly speaking, the EEA review process must begin with a recognition and understanding of how Canada’s institutions have historically been built on and continue to exist according to colonial practices, ableist attitudes, sexism, racism, ageism and limited and discriminatory understanding of gender and sexual identities. As such, in order to understand and remove these barriers to employment, equity-deserving groups must be meaningfully included and involved in all phases of the review process. The CHRC is pleased to see that the Task Force appears to be applying a human rights based approach to this phase of the EEA review process. We encourage the continued application of these principles beyond this phase of the legislative review process, particularly in the following areas.
Meaningful inclusion and engagement
The EEA review, including activities of the Task Force, should include meaningful engagement with rights holders, advocates and community leaders. A successful engagement process is one that is accessible and ongoing. It must include a variety of participants, and in particular those to whom the legislation is most relevant.
Understanding the lived experiences of individuals and groups that face systemic barriers to employment will help create a more complete and accurate picture of the limitations and gaps that exist in the current law. Engagement with a broad variety of experts, stakeholders, rights holders and their advocates can also provide a mechanism to create networks and to collect valuable disaggregated data for ongoing evaluations of the legislation.
The CHRC recognizes the Task Force’s efforts to engage with a broad range of affected persons, communities and organizations. However, as the Task Force has acknowledged, “the accelerated timeframe under which [it is] required to work will make it impossible to meet with all concerned individuals and groups.”20 The CHRC understands the practical limitations and time constraints present in the EEA review process, but encourages the Task Force to continue to promote and raise awareness of the various opportunities available to the public during legislative review, including the various ways to participate in the work of a parliamentary committee.21
Anti-racism and decolonization
An anti-racist approach acknowledges and recognizes how anti-Black and anti-Indigenous racism have shaped legislation and policies historically, and how it continues to shape the experiences of Indigenous and racialized individuals and communities.
A decolonizing approach acknowledges and recognizes how colonial practices have shaped Canada’s laws and institutions in the past, and how they continue to influence policy and lawmaking in the present. As highlighted in the interim report of the National Inquiry into Missing and Murdered Indigenous Women and Girls,
“A decolonizing approach aims to resist and undo the forces of colonialism and to re-establish Indigenous Nationhood. It is rooted in Indigenous values, philosophies, and knowledge systems. It is a way of doing things differently that challenges the colonial influence we live under by making space for marginalized Indigenous perspectives.”22
The EEA Review Task Force should strive to decolonize the engagement process and ensure that Indigenous rights and diverse perspectives are understood and upheld through meaningful and ongoing participation of Indigenous leaders, rights holders and advocates. The process must apply a distinctions-based engagement approach, respecting the varied and diverse perspectives of First Nations, Métis and Inuit communities.
In line with the United Nations Declaration on the Rights of Indigenous Peoples Act23, amendments to the EEA review must be grounded in the federal government’s broader commitments to reconciliation with Indigenous peoples in Canada, including the right of Indigenous peoples to self-determination and the duty to obtain their free, prior and informed consent (FPIC).
The CHRC views FPIC as a mechanism to ensure in law the full participation of Indigenous peoples in decisions affecting them. FPIC underpins the full realization of a different type of relationship between Indigenous peoples and the State – one that is based on mutual respect, equality and fairness in a just and democratic society where human rights are respected.24
The review process in all of its phases must also include meaningful and ongoing engagement with Black and racialized rights holders and leaders in their communities. It is not enough to understand the statistical outcomes. Understanding the lived experiences of Black and racialized workers is imperative to understanding the barriers and to developing effective employment equity legislation and policies.
Intersectionality
Intersectionality is a concept that recognizes that different kinds of discrimination reinforce and influence each other. The different identities a person identifies with, such as their race, class, gender, physical or mental ability, or sexual orientation, can shape the nature of the discrimination they face in their lives.
Applying an intersectional approach means taking into account that a person has more than one social category or identity, and that their experiences and lives are influenced by those other categories or identities.
It is important to acknowledge that discrimination on multiple intersecting grounds can have a different impact than if it is based on a single ground.
Accessibility
A fundamental principle that underpins the development of policies and laws that affect people with disabilities is engagement, as embodied by the mantra “Nothing without us”.
In order to benefit from the wealth of experience and expertise in diverse communities, including the full diversity of the disability community, the EEA review must include accessible engagement processes. In previous engagements it has undertaken, the CHRC heard from various disability communities and their advocates about what accessibility means in practice. People explained that it is important to recognize the difference between allowing people with disabilities to merely be in a space and truly ensuring they are able to participate. An invitation to the table is not sufficient if the tools to participate fully and meaningfully are not provided. This insight is particularly relevant to the engagement process undertaken by the Task Force during the EEA review.
Research, awareness, and public education
Research, knowledge building, and public awareness and education have never been more important for human rights than they are now. In the current age of misinformation, disinformation, and distortion of human rights principles and protections, those who would dismantle human rights protections are using the language of human rights to bolster their arguments.
The EEA Review, including activities of the Task Force, should include broad promotion, education and awareness of matters related to employment equity, the legislative review process, and human rights generally in order to promote public understanding and encourage engagement by equity-deserving groups through all phases of the review process. This includes building awareness of the employment equity principles that will form the basis of an amended EEA.
Modern Proactive Compliance Regimes
Robust proactive compliance regimes are an important feature of a comprehensive human rights framework. They place the onus on employers to examine their employment systems and practices and to make adjustments before problems arise. In this way, they alleviate some of the burden that would otherwise be placed ion individuals experiencing discrimination to bring this to light and seek to effect change through other mechanisms, such as through a human rights complaint or the courts.
The CHRC recommends that the Task Force look to the more recent examples of proactive compliance regimes that have been adopted by the federal government in accordance with the ACA and PEA for guidance in its review of the EEA and the creation of a more robust and responsive employment equity system.
Coordination and harmonization with other regimes
The EEA, ACA and PEA all employ proactive compliance approaches, including audits/inspections and enforcement, to advance human rights. The CHRC submits that harmonizing the approaches taken to accessibility, employment equity and pay equity, and combining elements of governance functions across these three areas, could create regulatory, administrative, and operational efficiencies and maximize overall coherence across these regimes.
Such harmonization in the audit function provide an opportunity for harmonized public reporting on an employer’s compliance with these obligations. The ability to view an employer’s and/or sector’s progress in meeting their requirements in relation to all three areas in a single report card (or dashboard report) would provide a more fulsome view of the degree to which progress towards substantive equality is being achieved, raising public awareness and placing positive pressure on employers to make progress achieve full compliance in each of these areas.
Similarly, a coordinated approach to research, promotion and public education has the potential to support a broader and more complete understanding of how these complementary laws work together toward the objectives of substantive equality in employment. Such an approach has the potential to improve access to justice for all equity-deserving groups, and make human rights progress more attainable across all areas while reducing the burden on individuals.
The CHRC acknowledges that such an approach would require consequential amendments to existing legislation and/or regulations. However, it is of the view that this approach will permit coherence, consistency and clarity for employers, workers and their representatives.
The CHRC recommends that an amended EEA include a provision allowing the CHRC to direct employers to conduct internal audits of employment equity as a first step. This would align with the PEA approach and harmonize programs in the CHRC’s proactive compliance mandates. It would also increase compliance by requiring federally-regulated employers to take proactive responsibility for labour law compliance.
Employment Equity Commissioner
The appointment of an EE Commissioner would have an important symbolic value, enhancing the visibility and importance of equality in the workplace, as well as reinforcing the importance of achieving compliance with the EE Act and enhancing expert advocacy for employment equity. It would also provide much needed oversight of the operation of the employment equity system, as this individual would be in a position to provide ongoing recommendations to appropriate authorities on issues arising in implementation.
In terms of the overall goal of harmonization of approach, this would also align with the approach taken under the ACA and PEA regimes.
Robust proactive compliance and enforcement functions
Require employers to include special measures in their EE plan to close notable representation gaps by occupational group and address the particular challenges of designated group subsets. Require employers to establish accountability mechanisms for senior executives including performance objectives for the implementation of their EE plan and progress made. Make performance pay for deputy heads, as defined in subsection 2(1) of the Public Service Employment Act, contingent on their organization’s compliance with the EEA. Give the relevant oversight body authority to impose administrative monetary penalties scaled to the level of non-compliance and to the size of the employer. Permit and/or require publication of a list of non-compliant employers. Permit publication of a list of fully compliant leaders in their fields.
While the majority of employers are meeting some of their employment equity obligations, most do not meet all that is required of them under the current EEA. This is representatives of a persistent gap between policy and progress, the difference between embracing a philosophy or culture of employment equity and the practice of doing the minimum required to comply with the EEA. A lack of effective accountability and enforcement mechanisms under the EEA have allowed this gap to persist.
Madame Justice Abella recognized the importance of enforcement in her 1984 Report, noting that “equality demands enforcement. It is not enough to be able to claim equal rights unless those rights are somehow enforceable. Unenforceable rights are no more satisfactory than unavailable ones.”25 While the current EEA provides for enforcement mechanisms for non-compliance through negotiation of written undertakings with employers and Tribunal hearings, the CHRC encourages the Task Force to consider an enhanced and expanded range of tools to promote and enforce compliance.
The 2012 Strategic Review of the EEA also confirmed “the importance of a rigorous compliance mechanism to support the effective implementation of employment equity programs.” The Review’s evaluation of the Legislated Employment Equity Program (LEEP) and the Federal Contractors Program (FCP) revealed significant gaps in compliance, “with stakeholders suggesting that employers may be doing the minimum to comply with the program requirements under both LEEP and FCP, until they are subjected to compliance audits or reviews. It was also found that enforcement mechanisms for LEEP employers reporting obligations and FCP employers overall compliance are rarely applied.”26
Since 1997, the CHRC has conducted hundreds of audits in the public and private sectors. The majority of large organizations have been audited at least two or three times. One finding remained constant over the years; regardless of the approach taken, most employers being audited are not meeting all of their requirements under the Act, even when they are subject to a subsequent audit.
Two recent horizontal audits27 have reconfirmed this finding. In 2018, a horizontal audit on the representation of Indigenous peoples was launched in the banking and financial sector. After conducting a survey with 36 employers in this sector, the CHRC selected ten employers for an audit. None of these employers were found to meet all of their obligations.
In 2020, another horizontal audit focusing on the employment of people with disabilities involved 58 employers from the communication sector. Of that number, 17 employers participated in a full audit. Again, while meeting some of their obligations, none of the employers audited met all of the requirements.
The CHRC recommends that the Task Force look to the more recently-adopted examples of proactive compliance regimes – the ACA and the PEA – for guidance on enhancing oversight. This could and should include, for example, consideration of the creation of an Employment Equity Commissioner (see previous recommendation), and the provision of a full range of remedial powers to impose sanctions for non-compliance.
Enhanced mechanisms for accountability
Obligation to include Special Measures in EE Plan
The term “special measure” is used only in section 2 of the current EEA, and is not defined. Elsewhere in the EEA, the term “measure” is used instead. “Special measure” has been interpreted by the CHRC to be available only where there is persistent failure to meet equity goals or comply with the EEA. Special measures permit employers to specify hiring preferences for members of designated groups; however, there is no requirement that they be used.
An amended EEA should clarify that the development and implementation of special measures are a required element of an employment equity plan. Employers should be required to develop special measures in consultation with members of the target equity-deserving group(s) internal and external to the employer, to identify and remedy barriers to employment, retention and advancement.
Relatedly, where equity goals are not met, an amended EEA could require employers to establish that further efforts to achieve the equity goals would have caused it undue hardship. An employer who does not comply with these requirements would not be in compliance with the EEA.
Accountability for senior management
An amended EEA should require employers to implement measures that support accountability with regard to the implementation of their EE plans. This could include, but would not be limited to, integrating accountability for the implementation of EE plans and progress achieved directly into the performance accords of senior executives. Further provisions could make performance pay for deputy heads, as defined in subsection 2(1) of the Public Service Employment Act, contingent on their organization’s compliance with the EEA.
Meaningful sanctions and penalties for non-compliance
While education, promotion and supportive resources are important elements of a comprehensive approach to addressing inequity in employment, without meaningful consequences for non-compliance audited employers have little incentive to swiftly fulfill their legal obligations under the EEA. An amended EEA should provide for a full range of remedial powers to impose enhanced sanctions for non-compliance.
Among the measures that could strengthen enforcement tools available under the EEA are the following:
- Administrative Monetary Penalties scaled to the level of non-compliance and to the size of the employer.
- Publication of a list of non-compliant employers.
- Publication of a list of fully compliant leaders in the field.
- Incentives related to compliance and progress
Administrative Monetary Penalties (AMPS)
The use of administrative monetary penalties is based on establishing violations. In order to establish violations, the oversight body must have criteria against which an employer’s performance is measured. The CHRC encourages the Task Force to recommend that the amended EEA and/or its regulations include criteria to measure compliance in the following areas:
- Establishment of reasonable employment equity goals and concrete steps taken to meet those goals – a way to measure how the means for attaining the goals matches the level of effort required to reach the goals.29
- Reasonable efforts by the employer to implement its employment equity plan;
- Reasonable efforts to monitor progress in the implementation of the plan;30
- Goals/objectives updated or changes initiated based on progress made in the implementation of the plan;31
- Education, promotion and communication to employees regarding implementation of and progress against the employment equity plan.
The CHRC recommends that an amended EEA establish that the standard on which an employer’s efforts are measured is undue hardship. If the relevant oversight body determines that an employer did not make reasonable efforts to meet its obligations to the point of undue hardship, that employer shall be determined to be non-compliant. Appropriate administrative monetary penalties scaled to the level of non-compliance and size of the organization would be established in the EEA’s regulations, modeled after the ACA and its regulations. Failure or negligence to implement an EE plan by an employer should lead to Administrative Monetary Penalties.
An alternative, or complementary, approach to the imposition of AMPs for non-compliance would be a provision in the amended EEA that requires non-compliant employers to fund various employment equity-based programs within their organization. For example, an employer who has not met its goals for representation at management levels could be required to develop and fund a leadership development program for the affected group. Failure to fulfill such compliance measures could then result in the imposition of a more significant AMP.
Incentivizing compliance and progress
While the current EEA limits the oversight bodies’ ability to publish key findings related to individual employer compliance with its employment equity obligations, the CHRC’s position is that there is considerable opportunity to improve compliance by drawing positive attention to compliant employers, while revealing which employers are non-compliant. Such an approach could be accomplished by publishing annual/periodic lists of fully compliant employers, as well as non-compliant employers. These lists could be broken down into specific areas of compliance review and possibly cross-referenced to broader reports on compliance levels within sectors. This approach could have a significant impact on an organization’s efforts in employment equity given the positive public profile it could achieve by being listed among leaders in the field.
The CHRC also recommends that an amended EEA reinforce the provision in s.42(e) that permits gives the Minister responsibility for developing programs to recognize private sector employers for outstanding achievement in implementing employment equity. It encourages the Task Force to consider ways in which this provision can be expanded and enhanced to leverage the promise of good publicity for all employers covered under the EEA.
Designated Groups
Since the introduction of employment equity legislation in 1995, Canada’s workforce demographics have undergone significant changes. According to a research paper published by the Canadian Centre for Policy Alternatives focused on income inequality, “Canada is one of the world’s most racially diverse nations and the makeup of its population continues to change. The 2016 census counted 7.7 million racialized individuals in Canada, representing 22% of Canada’s population and up steeply from 16% in 2006. Of the racialized groups in Canada, the largest is made up of those who identify as South Asian, followed by those who identify as Chinese and those who identify as Black. These three groups account for just over 60% of Canada’s racialized population.”32 The Indigenous youth population of Canada is large and represents a growing sector of the labour force. One in five Canadians (~22%) has a disability. Canadians are staying in the labour force longer. The participation rate of those aged 55 to 64 grew from a low point of 47.1% in 1996 to a high of 65.8% in 2016.33 The trans and non-binary population is being counted more accurately and it is now known that gender non-binary people constitute almost 50% of this group. New Canadians make up a significant and growing proportion of Canada’s population with their own particular employment related needs, varying based on intersecting factors and identities. According to Immigration, Refugees and Citizenship Canada’s published figures, “immigration accounts for almost 100% of Canada’s labour force growth. Roughly 75% of Canada’s population growth comes from immigration, mostly in the economic category. By 2036, immigrants will represent up to 30% of Canada’s population, compared with 20.7% in 2011.”34
Current understanding of how individuals and groups define their identities is incongruous with the legislation’s current approach to defining equity-deserving groups.
As the voices of equity-deserving groups are further amplified through advocacy, inclusive engagement strategies and changing social norms, how designated groups are understood and defined will have to reflect a more flexible response to the unique ways in which individuals with intersecting identities experience disadvantage in the labour market.
Re-defining existing groups and advocating for the addition of designated groups is an important step in rendering the EEA more inclusive and responsive to the needs of those facing discriminatory barriers to employment. However, the process for determining how these groups are identified and defined is equally, if not more important.
Earlier sections of this submission have touched on the importance of inclusive ongoing engagement based on principles of accessibility, de-colonization, and anti-racism. It is only through an approach based on these principles that it can be understood how recognizing and defining equity-deserving groups ultimately serves the needs of those groups and can contribute to eliminating barriers to employment.
Re-defining existing designated groups
uniquely impacted groups, such as the Black community, a distinctions-based approach for Indigenous peoples (articulating First Nations, Metis and Inuit groups), diverse experiences of persons with disabilities, in line with the disaggregation found in the Canadian Survey on Disability, and the diversity and intersecting identities of people within the existing groups.
People with disabilities
People with disabilities should benefit from new and modern legislation that is harmonized to make their employment experiences easier, not more difficult. The ACA was ground-breaking and delivered on international commitments and requires international monitoring. An amended EEA should at the very least complement, and ideally match, this level of delivery on international commitments and monitoring, while ensuring that employers can more easily deliver and report on their requirements and progress under each of these pieces of legislation.
It is already broadly understood that the “disability community” is made up of a diverse array of perspectives and lived experiences that defies a single definition. People with different types of disabilities face different types of barriers to full participation in society. Some disabilities are visible, while others are invisible. Some disabilities are widely misunderstood, while others attract greater degrees of social stigma. People’s lived experience of barriers is also affected by intersecting identities, such as race, age, and gender identity, as well as social and economic conditions.
As the CHRC has previously noted, more research is required to better understand the impact of disability on one’s labour force participation. For example, we recognize that discrimination and its impact on a person’s career path may vary depending on the type and severity of their disability. Additional research may deepen our understanding of these experiences. Additional research is also needed to better understand the long term impacts of workplace discrimination, stigma and harassment for persons with disabilities in the workforce and how that affects stability of long term employment and career progression.35
An amended EEA must include measures to assess working conditions for people with disabilities, including integration of workplace well-being surveys into an employer’s suite of enhanced data collection tools. The Public Service Employee Survey (PSES) integrates questions about employee experiences with discrimination and workplace well-being, seeking responses on how accessibility and accommodation are connected to each of these issues. The requirement to integrate similar (but more focused) surveys into employment equity plans could provide valuable information for employers and oversight bodies on how people with different types of disabilities experience employment, and how their intersecting identities may further shape these experiences.
Of course, in seeking to expand and broaden the definition of disability in the context of the EEA, the principle of “nothing without us” must remain central to the process.
Indigenous groups
As is widely recognized, the term “Aboriginal” should be replaced with the term “Indigenous”. However, work in defining “Indigenous” must involve a more in-depth distinctions-based approach in order to ensure that the unique rights, interests and circumstances of the First Nations, the Métis Nation and Inuit are acknowledged, affirmed, and implemented.
In considering how to define “Indigenous” in the context of employment equity, the CHRC emphasizes the importance of considering how Indigenous communities have variously experienced multiple, intergenerational and systemic barriers to employment, including cultural genocide, intergenerational trauma, substance use disorders, poverty, limited access to and discriminatory treatment by health care institutions, limited access to equitable education and employment opportunities, experiences of food insecurity, and high rates of incarceration.
Of course, it is only through the meaningful participation of Indigenous rights holders, advocates and community leaders that these terms can be appropriately defined.
A provision of the EEA that is directed at improving the employment opportunities for Indigenous peoples is section 7. An amended EEA would revise this blunt instrument, which currently permits private sector employers “engaged primarily in promoting or serving the interests of [Indigenous] peoples” to “give preference in employment to [Indigenous] peoples or employ only [Indigenous] peoples, unless that preference or employment would constitute a discriminatory practice under the Canadian Human Rights Act.”
While the sentiment of preferential employment is laudable, the provision treats Indigenous peoples as an amorphous whole. Its effect is often to prevent targeted employment of the very people it appears that it was intended to assist. One of the most common examples is that First Nations Bands who wish to preferentially hire members of their own communities are unable to do so under section 7 of the EEA. Their recourse is to establish a special program under section 16 of the CHRA.
Black and other racialized workers
Perhaps the most obvious change required in the designated groups is the need to address the outdated, vague (and to some, offensive) term “visible minority”. Of course, finding consensus on how to identify alternative designations will be challenging, but the work in this area has been going on for some time.
Various Statistics Canada studies have begun to explore employment and wage gaps within designated groups, based on disaggregated data. A key takeaway from these more detailed studies of how different racialized groups experience work and employment, is that a failure to capture a disaggregated and intersectional picture of employment outcomes obscures barriers experienced by certain groups and has contributed to ongoing systemic employment discrimination against these groups. For example, an amended EEA should recognize and call for remedial actions for uniquely impacted groups, such as the Black community. As noted above, it is only through the meaningful participation of Black and racialized rights holders, advocates and community leaders that these terms can be appropriately defined.
The government’s recent response to the limitations of the EEA in the public service has been to direct the Public Service Commission to propose amendments to the Public Service Employment Act Regulations to facilitate the hiring of people from other disadvantaged groups (for example, employment equity sub-groups and other equity-deserving groups), identified by a special program established under section 16 of the CHRA. The CHRC has been encouraging federally regulated employers to utilize section 16 of the CHRA to meet their employment equity goals.36
Gender and inclusion
Gender diversity and inclusion
Our understanding of gender identity has evolved significantly since employment equity legislation was first introduced. A binary understanding of gender in the context of employment access and outcomes is now outdated. An amended EEA must reflect a modern understanding of gender diversity and the intersecting identities of a gender diverse labour force.
Gender equality
Women still take on more family caregiving responsibilities than men, work part‐time more often, and give up more hours of work from their full‐time jobs in order to provide care. This negatively affects their full and equal participation in the labour force.
The EEA does not currently include any provisions that would incentivize employers to implement flexible working arrangements to remove barriers to participation in the workforce for women who are the primary caregivers of young children and/or older relatives, in particular for Black, racialized and Indigenous mothers, groups that often find themselves in precarious employment situations. Limited leave allowances for caregiving responsibilities, shift work requirements, and broader lack of flexibility in working arrangements, all contribute to excluding working mothers from many employment opportunities.
Review of the EEA must include a careful study of how the changing employment landscape has affected how women experience barriers to employment and how intersecting impacts are experienced differently by women within this diverse segment of the population.
Adding designated groups
The CHRC firmly believes that the current list of designated groups requires renewal and expansion. While some of the necessary changes have received significant attention and are widely understood to be well overdue, there remain areas of this exercise that call for ongoing research, engagement and collaboration. This exercise also provides an opportunity for creative thinking and exploration of alternative methodologies and tools that could embed a more holistic approach to understanding barriers to the full enjoyment of employment rights by equity-deserving groups – a model that harnesses both qualitative and quantitative data to better capture the employment experiences of those the EEA is intended to serve.
The CHRC’s position is that it is rights holders, advocates and community leaders, who are best placed to comment on how existing designated groups can be re-defined and what new groups should be added. As noted earlier in the submission, seeking to understand the lived experiences of individuals and groups that face systemic barriers to employment will provide the most complete and accurate picture of the limitations and gaps that exist in the current law, including with regard to the designation of equity-deserving groups.
Application
“Ideally, every business or corporation under federal, provincial, and territorial jurisdictions would be subject to employment equity legislation, just as these businesses are now subject to anti-discrimination laws. Provincial and territorial requirements should, insofar as is possible, be consistent with federal government requirements. Businesses contracting with the federal government would then, being already under a statutory duty to implement employment equity, not have to make contractual commitments to do so.”
- Justice Rosalie Abella, Report for the Royal Commission on Equality and Employment
Expand application to include federally regulated employers with at least 10 employees, with basic obligations for workforces with 10 to 99 employees. Include a provision that enshrines a federal government commitment to support provinces and territories in their own employment equity initiatives. Restore reference to the Federal Contractor’s Program (FCP) and lower the threshold for goods and services contracts covered by the FCP. Restore pre-2013 requirements for employers with contracts covered by the FCP and make contract renewal and/or future participation in the FCP contingent on meeting established employment equity requirements. Include employees of the Senate, the House of Commons and the Library of Parliament. Make access to federal funding and grant programs contingent on meeting established employment equity standards.
Including smaller employers
The ACA and PEA apply to federally-regulated workforces of at least 10 employees. Applying the same threshold under an amended EEA would prove challenging from a data analysis perspective. As well, dealing with such small numbers would potentially result in very small representation gaps for designated groups.
However, it would be possible to apply a simplified framework with fewer requirements for smaller employers (10 to 99 employees). For example, an amended EEA could require those employers to collect self-identification data, develop EE and accommodation policies, consult employee representatives, and report on progress made in achieving equity.
Collaboration across jurisdictions
The current EEA covers only a small portion of Canada’s total workforce, approximately 12%. The majority of Canada’s workforce is employed in sectors under provincial/territorial jurisdiction.
Among the provinces and territories, only Quebec has programs for equality in employment that are similar to the EEA. These programs are administered by the Commission des droits de la personne et droits de la jeunesse. Article 23 of the Nunavut Agreement sets out employment equity obligations that seek to “increase Inuit participation in government employment in the Nunavut Settlement Area to a representative level.” However, the lack of consistent employment equity legislation and programs across Canada underscores the importance of robust and effective federal employment equity legislation. A strong federal regime can serve as an example to the provinces and territories, and can underpin federal support for provincial and territorial governments that undertake initiatives to legislate employment equity.
An important consideration for the Task Force is to consider how an amended EEA could support collaboration between the federal, provincial and territorial governments in promoting and implementing employment equity policies and programs across jurisdictions. For example, an amended EEA could include a provision that enshrines a federal government commitment to support provinces and territories in their own employment equity initiatives.
Inclusion of employees of the Senate, the House of Commons and the Library of Parliament
In its 2002 submission to the Standing Committee on Human Resources Development and the Status of the Persons with Disabilities during its review of the EEA, the CHRC recommended that employees of the Senate, the House of Commons and the Library of Parliament be covered under the EEA. While not a measure that would significantly increase the scope of the EEA, there is significant symbolic value to including this small but important sector of the federal workforce. It should be noted that those entities and their employees are expressly included in the ACA.
Revisions to the Federal Contractor’s Program (FCP)
Following a 2012 Strategic Review of the EEA, mentions of FCP employer requirements were removed from the legislation. Moreover, the threshold for goods and services contracts covered by the FCP was raised from $200,000 to $1,000,000. In addition, FCP requirements were reduced to 4 key elements: survey the workforce; conduct a workforce analysis; establish goals; and make reasonable efforts in order to achieve reasonable progress.37
By restoring reference to the FCP in the EEA and lowering the threshold for goods and services contracts covered by the FCP presents, an opportunity is presented to realize a meaningful increase in the number of workers covered by the EEA. Furthermore, restoring previous requirements in the FCP to pre-2013 elements would strengthen the impact of employment equity policy in employers who are awarded federal government contracts. In particular, restoring the requirement to conduct an employment systems review (ESR) would reverse a measure that significantly weakened the program. The ESR is essentially the problem identification phase, and without a requirement to identify gaps and barriers prior to establishing employment equity goals, an employer loses the most effective tool for implementing an effective employment equity plan and achieving meaningful progress in representation.
The 2012 Strategic Review of the EEA noted that the “lack of mechanisms to track FCP progress in the implementation of the program requirements has been identified as a key weakness”38 in relation to measuring the effectiveness of the program through assessment of employment equity results. However, the changes that followed further limited the requirements to be met by employers with contracts covered by the FCP. The CHRC’s position is that an amended EEA should restore requirements for the FCP to pre-2013 standards, while including further provisions that reduce the minimum dollar value for goods and services contracts covered by the FCP.
This position was echoed by the Committee on the Elimination of Racial Discrimination in its Concluding Observations on the combined 21st-23rd periodic reports of Canada (September 2017), in which the Committee expressed concern that “changes to the federal employment equity regulation have reduced the labour rights approach conditions of the mandatory contractor compliance mechanism.”39 In referring to the FCP, the Committee recommended that Canada improve the mandatory contractor compliance mechanism’s labour rights approach conditions in the federal employment equity regulation.40
Employment equity commitments attached to Federal funding/grant programs
Federal government funding programs are available to sectors and industries that employ a vast number of people that are not covered by federal employment equity legislation. There is significant potential to expand the application of federal employment equity standards and principles by attaching requirements to the distribution of federal grant money. For example, the awarding of grants exceeding a certain established dollar threshold could be contingent on an employer’s compliance with employment equity requirements, with funding renewals dependent upon performance in relation to established employment equity indicators.
Data Collection and Reporting
Canada’s long-form census provides a valuable opportunity for the collection of information from which we can draw in order to understand the demographic evolution of Canada’s working age population. Despite its limitations with regard to capturing meaningful and useful disaggregated data, future iterations may resolve some of its inherent deficiencies. However, the CHRC recommends the task force consider incorporating qualitative data collection requirements into an amended EEA to better reflect the lived experience of those the legislation is seeking to serve.
Further, to be an effective part of a modern human rights framework, it is important that an amended employment equity system move beyond annual reporting of changes in representation metrics to present a more holistic understanding of equity in the federally regulated private sector and the federal public service, using a wider set of indicators and data sources. Providing for improvements in public reporting can also support the public conversation around equity, diversity, and inclusion.41
The Commission has heard that obtaining relevant employment data is a barrier for complainants alleging discrimination pursuant to s.10 of the CHRA. The difficulty arises in part from the fact that data compiled pursuant to the EEA is often not publicly available. Moreover, when the data is available to complainants, it is often unhelpful because it is aggregated by the EEA’s designated groups, whereas systemic complaints under the CHRA tend to allege discrimination based on a subset of a designated group, for example Black employees. In addition to facilitating the attainment of employment equity through amendments to the EEA, collecting disaggregated data and requiring public reporting would help address this barrier to access to human rights justice for equity-deserving workers seeking redress for experiences of individual and systemic discrimination in employment.
Enhanced methods of data collection
Integrating collection methods and tools to gather qualitative data on lived employment experiences of designated groups. Enhancing methods to gather quantitative data that reflects diversity and intersectionality within designated groups, including by addressing the current challenges of self-identification. Adjusting collection methods so the data used anticipates reasonable projections of population changes rather than relying on/using outdated figures in stale data. Collecting data on representation and experiences of groups not designated, which could inform future reviews of the EEA and could support other equity programs/initiatives.
Address challenges of self-identification
In 2010, the Senate Standing Committee on Human Rights recommended that the government undertake a systemic, government-wide study of the reasons why federal government employees choose not to self-identify as members of employment equity groups.42 This recommendation was echoed by the Committee in a 2013 report on employment equity in the Public Service, which noted that the study of this issue is ongoing.43
The CHRC echoes the need for initiatives to address the challenges related to worker self-identification in the Public Service, and notes the importance of providing the same tools and resources to other federally regulated employers to support their own efforts to enhance the effectiveness of self-identification in EE data collection.
Many individuals within equity-deserving groups have been reluctant to self-identify for myriad reasons, many of which are rooted in fears that being counted or singled out for “special treatment” may have the opposite effect of making one a target for discrimination.
The Standing Senate Committee on Human Rights reported that many witnesses before the Committee raised concerns that equity-deserving groups are often reluctant to participate in self-identification surveys since they fear that the information will be used against them if they seek promotion or other employment opportunities.44
Distrust in systems and institutions that have historically been the source of oppression make some wonder what will be done with information about their personal identities and how it may be used against them. This is particularly relevant for people with disabilities, Indigenous peoples, as well as Black and other racialized communities, that have been systematically oppressed based on their belonging to these communities. Indigenous identity has been used against Indigenous peoples through the advantages bestowed upon those who chose “enfranchisement” and the oppression imposed on those who chose to retain their Indigenous identity. Similar fears may be present among those in communities that have experienced institutional racism and inter-generational trauma.
Research in this area has resulted in some proposed solutions to the challenges of self-identification processes in the realm of employment equity, most of which involve initiatives to promote awareness and support for principles of equity, diversity and inclusion within an organization. Others suggest providing multiple anonymous methods or avenues for employees to self-identify with guarantees regarding the confidentiality of related data, complemented by communication about the benefits of self-identification including how the information can have a positive impact on the organization and the equity-deserving groups within its workforce. Still others note the importance of robust education and training on equity, diversity and inclusion for all employees and on an ongoing basis.
Another important consideration for addressing reluctance to self-identify is the role of mentors and trusted leaders within the organization in building trust and confidence in the employer’s commitment to improving conditions for equity-deserving groups. An amended EEA that supports mentorship and leadership development programs for workers in designated groups will demonstrate an organization’s commitment to a workplace culture that values these principles.
Notwithstanding the above, the most important resource an employer has in determining its workforce’s views on self-identification is its employees. In this respect, the CHRC notes the importance of addressing this question in employee surveys, the results of which are subject to reporting requirements enshrined in the EEA.
Projecting labour force and workforce representation
Employers usually determine the labour market availability of designated groups based on information provided by the Minister of Labour. This is normally derived from Census data. As censuses are only held every five years, employers calculate representation gaps based on outdated availability data that does not consider the ongoing growth of designated groups’ participation in the labour market. It is feasible to forecast labour market availability estimates by calculating the increment (in percentage) of availability estimates between censuses. Although imperfect, this approach would be more equitable as it would give a more accurate reading on the composition of the labour market in real time.
Collecting qualitative data
Notwithstanding the potential benefits derived from enhanced methods of collecting quantitative data, this approach neglects the much larger, and crucial, project of capturing the lived employment experiences of equity-deserving groups. It is the qualitative data captured through people’s accounts of their lived experience that provides the basis for understanding how a person’s, or group’s, identities impact their employment. Questions that elicit data regarding how a person experiences the workplace have a much greater potential for supporting a holistic understanding of the many emerging and historical barriers to equality equity-deserving groups face once they have entered the workforce.
To fully understand employment equity in the federal workforce, a broader set of tools and enhanced methods of collecting qualitative data is needed. Section 9(1)a) of the EEA outlines the employer’s obligations to collect and analyze information about its workforce in order to determine where designated groups are under-represented in each occupational group. Section 9(1)b) is about the barriers embedded within the employer’s own employment systems, policies and practices. The exclusive collection of quantitative data limits the employer’s ability to understand how the systems, policies and practices are experienced by designated groups as well as the resulting disadvantage. Robust qualitative data can help identify the questions that could be answered through a comprehensive employment systems review (ESR), a powerful tool for understanding an employer’s employment equity situation, but which is not currently fulfilling its potential because of a lack of clear standards.
Fortunately, data on lived experience is becoming increasingly available through new and unique research. For example, in 2019, Trans PULSE Canada began the first national community-based survey on the lived experiences of trans and non-binary people in Canada.45 Of particular interest was that almost 50% of those surveyed identify as non-binary. Members of this younger non-binary community face unique challenges within social and legal systems, which still often recognize only two binary genders.46
The CHRC encourages the Task Force to draw from current and emerging trends in research methodology in pursuing its objective of moving beyond annual reporting of changes in representation metrics to present a more holistic understanding of equity in the federally regulated private sector and the federal public service, using a wider set of indicators and data sources.
Collecting data on representation and experiences of groups not designated
The CHRC recommends that the Task Force consider the ways in which an amended EEA could enhance employers’ and oversight bodies’ understanding of barriers to employment experienced by individuals and groups not designated under the EEA. This may involve the collection of data related to experiences of disadvantage that cannot be easily categorized in relation to their intersection with identities of designated groups. For example, many workers who are not members of designated groups may experience barriers to obtaining or retaining employment because of one or more factors related to caregiving responsibilities, being a student, or a number of other socioeconomic conditions. It is important to capture data related to these barriers in order to obtain a complete picture of the workforce, both from an individual employer’s perspective, as well as from sectoral perspective. The inclusion of questions on employment experience surveys that can capture this type of data will assist in determining where further supports may be required, but may also assist in the ongoing assessment of the currency of existing designated groups.
Require a broader range of reporting mechanisms
The CHRC agrees with the Task Force’s observation in the February 2018 Discussion Paper that “after 35 years of employment equity implementation in Canada the Employment Equity Act framework emphasizes report completion, rather than employers’ actual progress in implementing and achieving employment equity.” The current reporting obligations do not formally require the employers measure or report on progress made against employment equity objectives. This is a significant deficiency of the current federal employment equity framework.
For example, section 18(1) of the EEA sets out the annual reporting requirements of private sector employers. However, it does not include a requirement to report on the employer’s progress in the year preceding the report. The CHRC’s position is that this is a significant omission, as data on outcomes related to an employers efforts to increase representation overall, and progress in relation to more specific indicators such as representation within various levels of the organization is immediately available but is not required to be reported. Section 18(1), or the related section 18(6), could be amended to enhance or broaden requirements to report on information related to the implementation of employment equity plans and details regarding progress toward improving representation and support for designated groups. This should include the requirement to report on any special measures to address specific gaps and barriers affecting one or more designated groups.
Annual progress reports from private sector employers to the Minister of Labour should contain the qualitative and quantitative information obtained through monitoring special measures/programs and feedback from participants. All departments and agencies in the federal public service should do the same via annual progress reports to the Treasury Board Secretariat. Reports on progress should be public, a measure that could incentivize compliance.
As outlined previously, the importance of capturing disaggregated qualitative data that reflects the lived employment experiences of equity-deserving groups is essential to measuring the success of employment equity programs at the employer and sector levels. Reporting on qualitative data will support a better understanding of where gaps and barriers persist and why that is.
The CHRC encourages the Task Force to recommend that an amended EEA include provisions that require alternative reporting requirements, such as the publication of the results of targeted employment equity surveys conducted by individual employers and/or within certain employment sectors or industries. An example would be a survey in which Indigenous women are invited to respond to various questions intended to gather data on employment experiences within a particular sector such as air transportation.
Employment equity/diversity committees
The CHRC considers that requiring employers to include input from employment equity/diversity committees in their annual reports would provide a valuable opportunity to evaluate the information provided by employers. This could be achieved, for example, by amending section 18(5) of the EEA to require an attestation from the Employment Equity Committee Chair as part of the certification process by employers. This could have the effect of enhancing consultation and collaboration between employers and employee representatives, including unions.
Reporting on Employment Systems Reviews (ESR)
EE annual reports from private sector employers to the Minister of Labour should include a formal section on the data obtained through the latest ESR including information on the key employment barriers identified. Federal departments and agencies should also report in the same manner to the Treasury Board Secretariat on a regular basis.
Reporting on Employment Equity Plan Development and Implementation
EE annual reports from private sector employers to the Minister of Labour should include a formal section on the implementation of the latest EE plan and the measures taken to eliminate employment barriers and increase representation where needed. Federal departments and agencies should also report in the same structured manner to the Treasury Board Secretariat on a regular basis.
Currently, employers can choose whether their EE plans are developed for one year, two years, or three years. Most employers choose to develop and implement three-year plans. If an employer choses a three-year timeframe for their EE plan, they should be required to set annual benchmarks that support the attainment of their three-year goals for improving representation. For example, if an employer wants to set up a mentoring program for a particular group, the goal for the first year might be to design the program and begin a pilot phase to test it. The second year objective might be to complete and evaluate the pilot, make adjustments and launch the program. The third year objective would be to monitor the program, get feedback from participants and make refinements while continuing to operate the program. Every initiative in support of closing a gap in representation should include similar timelines and measurable results to demonstrate the employer’s progress.
Provisions requiring employers to measure career progress
All four current designated groups remain underrepresented in leadership roles. The current EEA does not require employers to focus on filling gaps in leadership roles first, and employers typically begin by addressing gaps at entry-level positions. This is a significant contributing factor in why progress towards achieving full representation is so slow as.
Along with non-discriminatory access to opportunities for career advancement, consideration should be given to how the amended EEA can measure and promote an employer’s performance in the area of education, skills development and vocational training for workers in the designated groups. As Justice Abella noted in her 1984 Report, employment equity strategies can only achieve their objective if equity-deserving groups have access to the education and training required to fill jobs within the employment sector in which they work or wish to work.
Equal pay for work of equal value is also an important measure by which employment equity audits could assess the progress of designated groups. The proactive approach outlined in the PEA puts the onus on employers to address gender-based discrimination in their pay practices and systems by assessing, at set points in time, whether employees in jobs commonly held by women are earning equal pay for work of equal value in their workplace. The CHRC recommends that similar requirements be built into the amended EEA to regularly assess whether jobs held by workers from designated groups are earning equal pay for work of equal value, and that progress by designated groups reflects that of the broader workforce.
Precarious versus stable employment
Integral to an understanding of how workers achieve progress within their chosen sector is the ability to measure precarious versus stable employment and how these jobs are distributed across designated groups and in comparison to non-equity-deserving groups. The CHRC encourages the Task Force to consider ways in which an amended EEA could address this issue. For example, a first step would be to require employers to report on the proportion of jobs within their organizations that are indeterminate (versus casual or contract positions), which positions confer benefits to the employee (i.e. pension, dental, medical, etc.), and who holds the various types of positions. This data, along with criteria to measure representation within stable (or permanent) jobs, could provide an additional angle from which to measure an employer’s employment equity progress.
Supporting Requirements
Responsibilities for research, resource development and supports for employers
An amended EEA should reinforce the provisions under section 42 for research, promotion and public education, elements that form a crucial branch of a comprehensive approach to employment equity that is required in this modern era of human rights. It is critical to invest in robust and ongoing public awareness and education campaigns, and to explore ways of partnering with formal education systems, to ensure that human rights are not eroded through the distortion or use of these principles to defend inequities or to maintain or worsen historical and current disadvantages.
The publication and promotion of research, as well as the development of tools and resources for employers and equity-deserving groups, is integral to the success of a renewed and more expansive EEA. While section 42 gives the Minister the responsibility to undertake initiatives in these areas, this provision could be strengthened and expanded given its important contribution to the promotion of a society and workplace cultures that embrace employment equity principles.
A more expansive public education mandate than what is currently contemplated in section 42 would serve to complement the more targeted promotion provided to employers, unions and industry organizations. By broadening public understanding of the benefits of a robust employment equity system, an opportunity is created to expand the reach of an amended EEA, with potential benefits not only for those covered by the legislation, but also for smaller employers and organizations not currently covered under federal employment equity legislation.
An amended EEA could also include a provision that establishes a co-responsibility between the CHRC and ESDC to develop and share common tools to support employers in realizing their employment equity objectives. This would enhance collaboration between these organizations and harmonize our efforts and approach to promotion, education and awareness.
Include provisions that require employers to develop training and mentorship programs
“The competition for jobs must be made an impartial one, open to all who are qualified or qualifiable, regardless of gender, ethnicity, race, or disability.”
- Madame Justice Rosalie Abella, 1984
The Abella Report noted the importance of pre-employment training for equity-deserving groups as a condition for the success of any employment equity program. Madame Justice Abella did acknowledge the challenge of matching training programs with prospective employment needs; however, a new employment equity landscape provides opportunities for public/private partnerships, such as expanded resource sector agreements with Indigenous communities and incentives for the development and coordination of training programs by national industry organizations.
Call to Action 92 of the TRC specifically addresses corporate responsibility to adopt the UN Declaration on the Rights of Indigenous Peoples and to apply its principles, norms and standards to corporate policy and core operational activities, including initiatives to ensure that Indigenous peoples have equitable access to jobs, training and education opportunities in the corporate sector. Resource sector agreements are one example of how this approach can be applied. Another example is found in Article 23 of the Nunavut Agreement, the objective of which is to “increase Inuit participation in government employment in the Nunavut Settlement Area to a representative level,” including various requirements related to education and training.47 Similar approaches to closing employment gaps for Indigenous peoples could be applied more broadly through an amended EEA as part of the government’s commitment to reconciliation and application of the UN Declaration on the Rights of Indigenous Peoples.
An amended EEA should also include provisions that require employers to integrate mentorship, sponsorship and career progression programs and strategies for designated groups into employment equity plans. These obligations should be accompanied by supports, grants, and funding for smaller/medium-sized employers with limited financial capacity to subsidize learning and development initiatives within their organizations, as well as pre-employment training for recruits from equity-deserving groups. Ideally, employers with sufficient financial resources and longstanding representation gaps could be required to fund pre-employment training to facilitate the recruitment of designated group members where needed.
The Task Force may also wish to consider recommending consequential amendments to the Income Tax Act in order to incentivize the creation of such programs by employers. Notwithstanding any possible consequential amendments to other laws, federal commitments to funding opportunities for the creation of training and education opportunities for equity-deserving groups should be enshrined directly in an amended EEA.
Grants and contributions programs such as “Workplace Opportunities: Removing Barriers to Equity (WORBE)” should be expanded and targeted toward areas, industries, and sectors in which significant gaps have been identified.
The Task Force should also explore how an amended EEA can support training and re-certification programs for new Canadians from equity-deserving groups arriving with skills and qualifications, but unable to secure employment in their professions. This too was contemplated in the Abella Report, which noted that “the process of settlement could begin prior to immigration by providing potential immigrants with employment and accreditation information. To assist highly skilled immigrants to become established as professionals, an agency is required to provide counselling services, advice on how to pursue professional accreditation, and language referral services.”48 While aspects of this approach are likely best addressed through programs and services, the core principle of providing education, training and re-certification for new Canadians should be a consideration for the Task Force.
Training for Human Resource Staff and Managers
In addition to support for workers and employers, staff implementing and administering an employer’s employment equity plan should be provided with regular and up to date training on the principles of employment equity and their application. An amended EEA should include a provision that requires the government, in partnership with employers and employee representatives, to develop and deliver employment equity training to all human resource staff and managers involved in recruitment, training and retention of employees. Given the rapidly evolving access to digital and virtual training platforms, the provision of such training is becoming increasingly available and affordable to employers of all sizes.
Include a provision that requires federal support to, and engagement with, stakeholders
The successful administration of federal human rights legislation requires close engagement with stakeholders and rights holders, including people with lived experience and the organizations that represent them. The benefits of meaningful engagement are many and crucial to the ongoing process of assessing the effectiveness of legislation, policies and programs. Engagement encourages deliberation, reflection and ongoing learning on issues. The CHRC’s position is that stakeholder engagement embodies the human rights principles of participation and inclusion, and is fundamental to the effectiveness of proactive legislation such as the EEA.
However, along with barriers to employment, many equity-deserving groups and their representatives face barriers to participation in the engagement process. Therefore, it is essential that these diverse groups are offered the necessary supports to participate and contribute to the ongoing dialogue and decision-making processes related to employment equity policies and programs that flow from an amended EEA.
Supporting stakeholders through the process of sharing their expertise and experience helps ensure the success of engagement initiatives. Meaningful support can increase a stakeholders’ motivation to meaningfully participate and, importantly, help address barriers to participation.
This support may come in the form of financial compensation for individual rights holders, broader funding/grant programs for organizations representing the rights of equity-deserving workers, or other relevant supports, the objective of which is to bolster engagement in processes related to employment equity. The CHRC recommends that an amended EEA include a provision that requires the federal government to provide support to stakeholders to ensure equitable access to public engagement initiatives.
Enhance resource allocation to support expansion of the EEA
An expanded EEA regime will need the appropriate resources allocated to its implementation. This includes not just resources for compliance and enforcement functions, but also for robust public education, research and advocacy activities.
The experience of the CHRC has been that the current system is not sufficiently resourced to achieve the goals of the present EEA. With the limited resources available to it, the Employment Equity Division at the CHRC has been innovative in using various approaches to expand the reach of its audit program, there are limits to the impact the program can have given both resource constraints and limitations in the EEA.
If the EEA is to be reinforced, its scope widened and enforcement measures strengthened, sufficient resources will need to be allocated to all parties who play a part in the implementation and administration of the system. This should be considered in the Task Force’s recommendations.