Canada Feds considering stricter DEI recommendations: task force report

The Federal government of Canada is currently reviewing the DEI recommendations of the task force it appointed in 2021 to strengthen and modernize its 1986 Employment Equity Act (the Act).

The task force has made 182 recommendations, including significant changes to classifications of protected minority groups and increased enforcement and possible fines; for affected companies, it will mean reviewing, revising and implementing new policies around diversity, equality and inclusion (DEI) efforts in their workplaces.

HRD spoke with labour, employment and human rights lawyer Grace McDonell of Fasken Martineau DuMoulin in Toronto, to discuss the important takeaways of the recommendations for HR professionals.

Heightened focus on DEI due to continuing discrimination

The Act is only legally applicable to federal employers and provincially-regulated federally contracted employers with over 100 employees; however, McDonell recommended that HR professionals adopt the framework anyway.

 “We're seeing a greater trend of cases from the courts coming out surrounding things like the misgendering of employees … discrimination complaints, that's why we do recommend having these types of EDI related policies to try to have focus more on the proactive rather than the reactive,” McDonell said, emphasizing that there have also been some higher human rights damages being awarded for discrimination in the workplace.

The most significant recommendations of the task force’s report, which was released in December, include the creation of new designated protected groups under the Act, and a higher level of enforcement and possible penalties.

If these changes are implemented, affected employers will be required to assess, revise and implement their existing DEI surveys and policies.

Report: 2SLGBT+ and Black employees as designated groups

The task force recommended that Black and 2SLGBT+ employees be added to the list of designated groups targeted for EDI policy by the Act. The list currently names women, aboriginal peoples, persons with disabilities and members of visible minorities.

The report identified that because members of the 2SLGBT+ community can present visibly by the way they dress or speak, they are vulnerable to othering and other forms of discrimination; in one B.C. case, a Supreme Court judge stated that “The transgender community is undeniably a marginalized group in Canadian society. The history of transgender individuals in our country has been marked by discrimination and disadvantage.” Recent cases have shown that court judgements involving misgendering of transgender or non-binary employees can result in hefty fines.

The report also pointed out the particular risks for 2SLGBT+ employees in self-declaring their status in the workplace due to homophobia and stigmas surrounding certain groups, such as “feminine-presenting employees” not being seen as leaders.

DEI “Not the hospital after the crash”

The important thing for HR to be aware of is that the Act and its policies are meant to be used as proactive measures, rather than reactive.

“Employment equity was not designed to be the hospital after the crash,” the task force wrote in its report.

“For the Inuit worker in a remote Northern community, for the racialized disabled worker in a major metropolitan area, for the Filipina trans worker who arrived in Canada two years ago, discrimination may come at them from multiple directions. They want to enter the labour market and contribute meaningfully. We should all want to do more than just try to help them to survive predictable crashes.

Employment equity, at its best, brings people into the labour market, at all levels, not just in jobs that they are stereotyped as suited to assume. It makes us stronger.”

HR best practice – keep track of diversity now

The Employment Equity Act is enacted under three Federal programs:

• The Legislated Employment Equity Program (LEEP) applies to federally-regulated private-sector employers with 100 or more employees, federally-regulated Crown corporations with 100 or more employees, and any other federal organization that has over 100 employees.
• The Federal Contractors Program (FCP) includes provincially-regulated organizations that work with the Federal government and have a combined workforce of 100 or more permanent full-time or part-time employees in Canada, and have received initial federal government goods or services contracts of at least $1 million.
• The Workplace Opportunities: Removing Barriers to Equity Program.

These categories only cover slightly less than 8% of the Canadian workforce; however, adopting the recommended policies and framework of the Act is the best way for employers to avoid any possible litigation or financial penalties for discriminatory behaviour.

One of the task force’s recommendations is establishing an independent equity commissioner who would report to Parliament and would be responsible for ensuring compliance. The commissioner would have authority to levy greater penalties for violations.

“The government will be trying to create greater compliance, and potentially levying greater penalties for violations, financial penalties. That's why it's kind of great to start thinking about these things, to get ahead of the curve,” McDonell said. “Even if they don't apply on a legislated basis, it's of course best practice to keep track of the diversity of your workplace, and to assess the diversity of your workplace.”