‘A cure to what ailed us’

Recently, DEI initiatives were once again in the spotlight south of the border, when Coca-Cola was faced with a lawsuit. The United States Equal Employment Opportunity Commission (EEOC) claimed the company violated the Civil Rights Act by denying male employees the “same compensation, terms, conditions or privileges of employment offered and provided to female employees” by excluding male employees from an employer-sponsored trip and networking event.

These kinds of headlines — more common under the presidency of Donald Trump — have many organizations concerned about their DEI initiatives.

But Canadian employers shouldn’t shy away from diversity, equity and inclusion efforts in light of ongoing U.S. backlash — as long as their initiatives are rooted in Canadian human rights and employment laws and designed to be inclusive and merit-based, say two employment lawyers.

“I think what's missing in all of the discussions about DEI is an understanding that it has developed as a result of historical wrongs, significant discriminatory practices and policies, and unfair treatment of women, racialized people, and minorities in general — this is not in a vacuum,” says Soma Ray-Ellis, partner and chair of the employment group at Gardner Roberts in Toronto.

“DEI has developed as a cure to what ailed us and has ailed us historically.”

Laws set framework for inclusion, not quotas

DEI in Canada is understood through the lens of a wide range of federal and provincial laws, says Ray-Ellis.

At the federal level, that includes the Canadian Human Rights Act, the Charter of Rights and Freedoms, the Employment Equity Act, the Pay Equity Act, the Canadian Gender Budgeting Act, the Canada Labour Code and the Canadian Multiculturalism Act, she says.

These aim to achieve equality for women, visible minorities, Indigenous people and people with disabilities in federally regulated workplaces, outline a pay equity system for employers with 10 or more employees, and affirm that multiculturalism reflects Canada’s cultural and racial diversity and that everyone is to receive equal protection under the law, she says.

At the provincial level, there is human rights legislation, along with the Accessibility for Ontarians with Disabilities Act and provincial pay equity laws in Ontario and Quebec.

“DEI is understood in this country through the lens of those legislations. And the lens has been one of, really, inclusiveness and fairness and development of anti-discriminatory practices. It's not been based largely on quotas,” says Ray-Ellis.

“In fact, that's not how we are attacking issues of discrimination and harassment — we are trying to attempt to create better workplaces.”

Andrea Williams, lawyer at McInnes Cooper in St. John’s, likewise points to human rights protections as “perhaps the broadest” in employment, prohibiting discrimination on protected grounds such as race, gender and political opinion, with the specifics varying by jurisdiction but “largely the same.”

Federally, she notes, the Employment Equity Act provides more proactive obligations to ensure that protected groups are provided opportunities in the workplace.

And the latest protection or law with respect to DEI would be pay equity and pay transparency legislation, says Williams: “There’s quite a robust regime federally for federally regulated employers, and then provinces have now started rolling out their own legislation on that.”

‘Equality doesn’t necessarily mean sameness’

Concerns often arise around whether DEI measures that focus on certain groups are themselves discriminatory, particularly with job postings or promotions aimed at underrepresented candidates.

In Canada, “equality doesn’t necessarily mean sameness,” says Williams, with protection for a lot of groups.

 “You may see special programs under human‑rights legislation that specifically provide for the hiring of females in male‑dominated industries or other protected groups,” she says.

Unlike the U.S., the Canadian approach sees these programs are “more remedial in nature,” says Williams: “The special treatment is allowed to the extent that it serves to right a wrong or address some sort of inequality present in society.”

Ray-Ellis says that for some federally regulated employers, there are requirements to have initiatives that ensure they have women in positions and leadership. Why? “Because women have not been allowed or have not been chosen by criteria… and practices that are, in fact, discriminatory,” she says.

At the same time, “DEI practices are not about getting rid of merit,” she says.

“They're about breaking down systemic barriers. Merit still remains the biggest issue. The question is, who's determining merit? Because we know that there is, of course, bias in the determination of merit. It’s [about] levelling that playing field.”

Women-only and affinity events: exclusionary?

Recent headlines like that involving Coca-Cola and female‑only corporate events have raised questions about whether targeted gatherings cross a legal line.

Williams urges caution and taking a case‑by‑case approach: “If it's a social event, exclusion poses some risk.”

However, if the purpose of the program or conference is remedial in nature — to provide opportunities for those who have been historically disadvantaged in the workplace — “it's a little more justifiable to leave certain groups out, for lack of a better word,” she says.

It’s also about considering whether people are truly barred from attending or whether an event is simply geared toward a particular group, says Williams.

“Are you excluding, or is the event more geared towards or marketed towards a certain group?” she says.

“Are you saying men, or whatever group it is, can't come to the event? Or is it simply something that's more marketed, or where the purpose, is to facilitate women getting together —or whatever group it is?”

Williams points to LGBTQIA+ events as an example, where you’d have events made for that group, but allies are welcome: “You can see how flexibility is the best approach,” she says.

“But certainly, programs that are intended to help disadvantaged groups are generally okay.”

In Canada, events such as an International Women’s Day where women are invited to participate are “not really discriminatory because we understand our history of discrimination and that we are trying to ameliorate the problems that women have faced,” says Ray-Ellis.

“You’re allowed to be exclusionary… because we understand our history of discrimination and that we are trying to ameliorate the problems that women have faced.”

Training: low legal risks

On the training front, both lawyers say initiatives such as unconscious bias and anti‑racism training are generally acceptable, with some nuances.

“I don't think there's a lot of legal risk to running it,” says Ray-Ellis, but the key is how to articulate the messaging — “What is this training for? Why are we doing it? What does it do?” — and tailoring it to the individual workplace.

She also emphasizes that DEI should not lead to shutting people down.

“I think it's really important to have men participate and if they have issues, that we deal with it, that we don't silence them in a way that women have been historically silenced when they speak up. I don't think following that trend is the way to go… because inclusiveness is the biggest part of DEI. And so that means that we need to make sure that men are included in this conversation.”

Williams notes that training and internal processes are “mostly guided by policy rather than law,” although harassment regimes increasingly require related education.

More broadly, DEI training is encouraged, but there are risks, she says.

“The employee base is now more politically aware and perhaps hypersensitive to certain political issues… What may have seemed like — and what may be — the right thing to do may have an unintended consequence of offending somebody on a ground that you did not necessarily think about when you were implementing and creating the training.”

Responding to complaints: listen, investigate, adjust

If an employee claims that a DEI initiative, hiring practice or event is discriminatory, both lawyers stress that HR should respond seriously and transparently.

“Don’t brush it away,” says Ray-Ellis. “The complaint should be reviewed using established discrimination and harassment investigation processes rather than being dismissed as resistance to DEI.”

She warns against repeating the dynamics that DEI is meant to address. “I think the biggest complaint from men about woke culture has been that they're being silenced. So the solution can never be silencing,” she says. “Silencing can't be the way to go.”

HR should examine whether the DEI initiative “improperly influenced” employment decisions or access to opportunities and clearly communicate the results of any review. Where concerns are substantiated, Ray-Ellis recommends modifying the initiative “to ensure it remains inclusive, merit-based and legally compliant.” Employers should also use any feedback from the investigation to improve DEI policies — and ensure there is no retaliation against the employee raising the concern.

Williams agrees that listening is key, along with investigating the complaint. While that doesn’t always require “a big, robust process,” she says, it does mean “getting to the root of the employee’s concern.”

Employers should figure out why the person thinks a practice is discriminatory, check it against internal policies, and, if they’re not sure, check with legal counsel, says Williams: “Once you have confirmation that it is or is not discriminatory, act accordingly.”

Designing compliant DEI policies

For HR leaders looking to design or refresh DEI initiatives — whether around hiring, promotion or leadership — compliance starts with understanding the legal landscape.

“The preparing of any DEI policy should begin with the review of any applicable human rights legislation and any applicable employment legislation depending on the province you're dealing with,” says Ray-Ellis.

Williams similarly advises that policies in “that gray area” be reviewed by legal counsel. “There are certain nuances in the wording that you'll want to get right,” she says. For example, if something should qualify as a special program, legal advisers can guide employers through the proper process and approval.

“That would help, in the event there ever is a human rights challenge, to have that green light from the Human Rights Commission,” says Williams.

HR managers should also participate in regularly scheduled equity training sessions focusing on things like unconscious bias and confirmation bias, says Ray-Ellis, and giving potential new hires a fair opportunity.

“They should ensure a diverse interview panel so that everyone's voice is heard and understood, because if you're not at the table, you're not going to be able to make a difference.”