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Jan 25, 2024
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“It is often said that diversity is a fact, and inclusion is a choice. But in Canada there is more and it is crucial: equity is the law”[1]

 

On December 11, 2023, after extensive consultations, the federal Employment Equity Act Task Force led by Professor Adele Blackett of McGill University released a 496-page report titled A Transformative Framework to Achieve and Sustain Employment Equity (the “Task Force Report”). The Task Force Report contains 128 recommendations on how the Employment Equity Act (“EEA” or the “Act”) can be restructured to create substantive workplace equity for federally regulated public sector workers.

 

Employment Equity in the Federal Public Sector

Coming into force in 1986, the EEA was intended to remove barriers to employment and to correct employment disadvantages for four specific “designated” groups: i) women, ii) Aboriginal peoples, iii) persons with disabilities, and iv) members of visible minorities. The EEA provides a legislative framework with supporting programs, including the Legislated Employment Equity Program (LEEP), the Federal Contractors Program (FCP), and the Workplace Opportunities – Removing Barriers to Equity (WORBE).

The EEA covers federally regulated employees who have more than 100 workers in their workplace. While this amounts to just under 8% of the Canadian labour force, laws that apply to federal public sector workers influence human rights and labour initiatives more broadly. In the words of the Task Force Report, it is work that “reaches across the workforce that is meant to represent Canadians – its federal public service and many of the core sectors that unite us.”[2]

Despite the aspirations of the legislation, the EEA has been critiqued for prioritizing the completion of reports over implementing proactive steps towards substantive equity. Further critiques include the use of dated terminology and definitions, a lack of understanding of how intersectionality effects workplace discrimination, as well as a lack of effective enforcement mechanisms. While the EEA underwent significant amendments in 1995, it has not received meaningful review until now.

 

The EEA Task Force Report

In 2021, the federal Ministry of Labour assembled the Employment Equity Act Review Task Force to conduct a comprehensive review of the EEA with an aim to modernize and strengthen the federal employment equity framework. It is “the first time since the legislation was adopted that an independent, arms-length task force has been established to offer a comprehensive review of the entire employment equity framework.”[3]

The Task Force held meetings over 51 days in early 2022 with 176 stakeholders, including unions, worker and employer organizations, experts, and government departments. The review focused on four areas: i) redefining and including equity groups, ii) supporting equity groups, iii) improving accountability, compliance and enforcement, and iv) improving public reporting.

Some specific recommendations include:

 

Terminology and definitions

  • Replace the term “designated groups” with “employment equity groups”;
  • Replace the term “Aboriginal” with “Indigenous” using a distinctions-based approach to First Nations, Métis and Inuit peoples;
  • Replace the term “members of visible minorities” with “racialized people”;
  • Update the definition of “persons with disabilities” to reflect a human-rights based model and to align the definition with the Accessible Canada Act;

  • Strengthening the language around what constitutes “undue hardship”;
  •  

    Scope

  • The inclusion of Black employees as designated employment equity groups;
  • The inclusion of 2SLGTQI+ employees as designated employment equity groups;
  • The EEA should apply to federal public service workplaces with more than 10 employees;

     

    Data

  • Collect disaggregated data – or data which provides sub-categories of information – to better understand how intersectionality impacts workplace discrimination;
  • Establish an Employment Equity Data Steering Committee to support the implementation, consultations, and oversight to achieve and sustain employment equity;

     

    Implementation and Consultation

  • Create an Employment Equity Commissioner to be responsible for regulatory oversight;
  • Establish Joint Employment Equity Committees with specific responsibilities built on existing pay equity and occupational health and safety models;
  • Provide the EEA a quasi-constitutional status such that the Act will take precedence over other legislation; and
  • Require employers to demonstrate that they have implemented their equity plans, or made reasonable progress, to sustain equality once achieved.

 

The recommendations provide a comprehensive response to the shortcomings of the current EEA. The Task Force Report emphasizes that compliance, accountability and enforcement through regulatory oversight is a vital pillar of achieving and sustaining employment equity in the workplace. Without effective enforcement, there is no incentive for employers to implement the legislation.

As stated above, the Task Force Report addresses this issue through the creation of an Employment Equity Commissioner who would be responsible for regulatory oversight. The recommendations include ensuring the Employment Equity Commissioner has the power to conduct investigations and workplace audits where there is a complaint backed by sufficient evidence. The recommendations also include harmonizing penalties for non-compliance with comparable penalties under the Pay Equity Act and Accessible Canada Act. Lastly, the Task Force Report recommends a timeline of January 1, 2040 for achieving pay equity and sustaining it.

Implementing these recommendations would be a major step forward in incentivizing employers to comply with the EEA, bringing the EEA in line with more recent legislation such as the Accessible Canada Act and the Pay Equity Act which contain solid commitments, timelines, and means of enforcement to achieve equity goals.

 

Equity Beyond Symbolic Measures

The Government of Canada stated the report will inform amendments to the EEA and committed to further consultations with impacted communities and organizations, including unions and worker organizations, regarding how to implement the Task Force Report’s recommendations. The Government has already committed to implementing recommendations about including Black employees and 2SLGTQI+ employees as designated groups as well as some recommendations around changing the Act’s terminology. However, the Government has not yet committed to the Task Force Report’s recommendations concerning data collection, consultation, or implementation.

The EEA has the potential to proactively transform workplaces across Canada. Yet the current legislation focuses on reactionary reporting over substantive equity. While the Task Force Report provides comprehensive recommendations for improving the EEA, ultimately the success of the legislation beyond the symbolic will depend on the government’s willingness to meaningfully implement effective enforcement mechanisms. An EEA with teeth would be a vital contribution to the employment equity legislative framework, impacting workers across Canada.

 

This the blog post was written by Emma Bolf, articling student. 



[1] Adelle Blackett et al, A Transformative Framework to Achieve and Sustain Employment Equity: Report of the Employment Equity Ace Review Task Force, Employment and Social Development Canada, 11 December 2023, page 26.

[2] Ibid page 4.

[3] Ibid page 2.

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