Employers will have to be 'much more sophisticated about information-gathering processes,' says lawyer
For federally regulated employers, the way that diversity surveys are conducted might soon be changing.
New categories of employees are being proposed which means HR departments will have some work to do to ensure these surveys reflect the new reality, says an employment lawyer.
“Of the 182 recommendations that have been made, the main things we would want employers to know is just the creation of the new separate categories, one being the creation of Black workers as a separate designated group under the Act, and the creation of 2SLGBTQ-plus workers as a new and separate designated group,” says Grace McDonell, associate at Fasken in Toronto.
McDonell is referencing the work of a federal task force, chaired by Adelle Blackett of McGill of the Faculty of Law at McGill University.
The committee recently released a 496-page document, entitled A Transformative Framework to Achieve and Sustain Employment Equity, that was commissioned as part of a proposed update to the Employment Equity Act.
Go over language of diversity surveys
For employers affected by these changes, the time is right to go over current survey language, she says.
“The start of a new year is always a great time to dig up policies and to say, ‘I think we need to review this with an equitable lens: do we have all of the necessary equity, diversity and inclusion policies?’”
If employers are subject to the Employment Equity Act, the first step is to pull out that workforce diversity survey, pull out that questionnaire and determine if it’s in line with these best practices, says McDonell. “Have you already got these groups covered?”
Two HR experts recently talked about how employers can best implement equal pay in the workplace.
HR will need to be more ‘sophisticated’ about DEI
The task force recommendations are a welcome addition, says another employment lawyer, and represent “a recognition that we need to be much more exact and granular in our analysis,” says Neena Gupta, a partner at Gowlings in Waterloo, Ont.
Employers will need to update their own categories of worker backgrounds, or “buckets,” she says.
“We really need to get the data that reflects the population today. I was former co-chair of our own firm’s diversity, equity and inclusion council, but one of the things we really pushed for was that it was not enough to just have these big buckets that were not distinguished, and people may have very different barriers, depending on their immigration or ethnicity.
“If that is implemented — and I’m hoping it will be — then it will be a major change because if there are employers who are simply doing the traditional four buckets, they are going to have to be much more sophisticated about their information-gathering processes and how they do deal with it,” says Gupta.
Need to identify, lower barriers to equity
The Employment Equity Act was first implemented in 1986, and had an update in 1995, but the current task force aims to bring its language into a more modern context, says McDonell.
“It would be important to note it is replacing the term ‘Aboriginal peoples’ with ‘Indigenous peoples,’ and replacing the term ‘members of visible minorities’ with ‘racialized people.’”
The changes, if passed, will force employers to take the issue of equity much more seriously, as there is also a recommendation to boost penalties and mandate more regular audits, says Gupta.
“I would think that the good employers are actually not just having a paper plan but trying to implement it to make real change — identify barriers, figure out how to lower barriers.
“But many employers have gotten away with a paper employment equity approach and this task force is saying, ‘We should not be accepting that anymore. We should be looking for real progress.’”
DEI efforts are even more important in high-tech companies, says an HR expert.
Equity task force calls for more departments
However, one area that might cause some headaches for employers is the call for more departments to be created.
“I’m concerned that if these various regulatory bodies or commissioners don’t work well together, and don’t streamline, then you’re essentially going to have employers having to deal with three or four different federal bodies,” says Gupta.
However, these changes might not come to pass if the Liberal government is defeated.
“I’m not sure that there is going to be the political appetite to create and fund significant bureaucracies to do what is recommended in the task force. We are in an era where the current government is under attack for affordability, and housing, and those are actually huge issues for equity-seeking groups and spending money on yet another regulatory, advisory policymaking entity is probably not going to win you the political points you need.”
But with these new powers, this fact will need to be accounted for by organizations, says McDonell.
“There are existing penalties within the legislation currently, however, I believe in the Act’s existence, there have been three penalties levied since 1986 so there’s a push to have a little bit more bite than bark.
“That is something that HR professionals, employers need to start thinking about is that they will be looking at greater fines for any violation of the act.”
What is needed to recruit more diverse workforce
For HR and organizations looking to do the right thing, the new legislation might force them to ask tough questions of the recruiting department, says Gupta.
“What we’re struggling to do is figure out how we get to people who might be good employees who are interested in working in our workplaces, but are not yet doing so because there are barriers that we’re not aware of,” she says.
“Obviously, the more your recruiting managers and HR directors are involved with equity seeking groups and reach out to them, they’re going to learn better how to do things — but how do you consult with people who are not your workers?”
