Feds' new restorative engagement panel could help combat private sector workplace discrimination, says employment lawyer
The federal government announced Oct. 25 that it is assembling a special panel charged with creating a new “restorative engagement program” (REP) for its public service workforce. The program is designed to tackle discrimination and harassment in federal government agency workplaces.
Although the initiative is meant for federal employees, there are implications for private sector HR leaders as well, said Frank Portman, partner at Massey LLP in Toronto, as federal initiatives can have a “trickle down effect,” becoming indicators of trends to come.
“I think it's clear to any employer what they're trying to root out here, what they're addressing, is something that's important, and it's something that it makes sense to turn our mind to as an organizational priority,” he said, “both as a way of protecting our organization's internal health and atmosphere, but also from a sort of more stark, risk-management perspective.”
The appointed experts will work together to make recommendations on the design and implementation of the REP. government said the process will take months and involve various stakeholders such as employee networks and organizations representing public servants.
The main tenet of the federal strategy is opening workplace dialogue around discrimination, with the aim of creating an environment where employees feel safe to speak up and be heard, the Treasury Board announced.
This is something employers in the private sector could find effective in avoiding discrimination litigation, Portman said.
“Historically, discrimination litigation and employment litigation almost always arise out of the end of an employment relationship,” he told HRD.
“Given how employers want to avoid these big problematic claims where you have an employee quit and allege discrimination, and there's damages claims and all of that, I think there's been a growing trend towards this kind of thought – if there is a way to create a system where we can intervene at an earlier stage, before it reaches that critical mass, we can help reduce our potential exposure to these large discrimination litigation situations.”
On Oct. 19, 2023, Auditor General Karen Hogan released a report on her department’s review of the DEI efforts of six government agencies between 2018 to 2022: the Royal Canadian Mounted Police, Correctional Service Canada, Canada Border Services Agency, the Public Prosecution Service of Canada, Department of Justice Canada and Public Safety Canada.
The auditor found that while the agencies had established DEI action plans and had focused on increasing diversity in their workforces, they had failed to track or analyze data in a way that would ensure their efforts made a difference.
Racialized employees who volunteered to be interviewed for the audit said they “perceived a lack of true commitment to equity, diversity, and inclusion and had the impression that meaningful change was not being achieved.”
Hogan said the aim of those departments needed to have active engagement with racialized employees, and accountable leadership.
A valuable learning that HR leaders can take from the feds’ restorative engagement strategy is taking a holistic approach to disruptions in the workplace that could potentially lead to conflict. Using the panel’s recommendations as a model, employers can keep ahead of what might be a trend to come, said Portman.
“Historically, the restorative justice model as it's been applied in criminal law is less about apportioning blame and punishment and more about trying to find a mutually acceptable way forward for everybody involved,” he said.
“There may be circumstances where you know that a disciplinary approach is the only reasonable option, but there may also be situations where training dialogue or alternative measures can be used to defuse a situation and create a better workplace going forward which, in turn, will prevent these situations from escalating to the point where they become externalized legal conflict.”
