Discrimination is allowed – with exemptions, say legal experts urging Canadian organizations to stay grounded in human rights law – despite pushback from U.S.
Recently, the Human Rights Tribunal of Ontario responded to a complaint by a male lawyer claiming it was discriminatory for an employer to post a job ad — in accordance with its employment equity plan — stating the successful candidate would be “a qualified woman.”
The tribunal concluded there was no discrimination against the individual.
But as diversity, equity, and inclusion (DEI) programs face increasing legal and political resistance in the United States, Canadian employers may be questioning whether their initiatives could be at risk — legally, operationally or reputationally.
That’s especially true for organizations with cross-border operations.
But in discussing the reasoning behind human rights law in Canada — and DEI initiatives — two employment lawyers provide reassurance that the core goals of systemic change and redressing workplace inequities in Canada are solid.
Formal equality vs. substantive equality
“Organizations with cross-border operations, I think, are having some challenges in figuring out what to do because of the differences in the legal landscape and the environment between the U.S. and Canada right now, and wanting to try and have a consistent approach across the organization,” says David Wong, partner at Fasken in Vancouver.
The difference between the two countries’ legal systems is foundational, he says, citing the recent decision Students for Fair Admissions v. Harvard, in which the U.S. Supreme Court ruled that race-based affirmative action programs in college admissions were unconstitutional.
“The U.S. Supreme Court's approach to equality rights is formal equality where, in contrast, the Canadian courts have consistently interpreted the protection for equality — provided for under the Charter [of Rights] — as providing the right to substantive equality,” says Wong.
Substantive equality requires looking at context and historical disadvantage, he says, “when considering if equal treatment results in people really being placed on equal footing — whereas… formal equality is just treating everyone the same.”
Also applicable is human rights legislation for the various provinces and territories, says Wong.
“And within the context of that legislation... there's exemptions for certain things that otherwise might be reverse discrimination.”
Are DEI programs discriminatory?
At first glance, the premise of giving advantages to disadvantaged groups may seem discriminatory. And, technically, they are, Wong notes.
“They are discriminatory by their very definition, by their very nature. And, so, it's a question of whether they are prohibited discrimination under our legislation or not.”
Canadian human rights legislation includes specific exemptions.
“For example… programs or activities that have as their objectives the amelioration of conditions of disadvantaged individuals or groups don't contravene the Code,” he says.
“The purpose of our Human Rights Code is to protect against discrimination of those who have traditionally been disadvantaged. And so ... if it's discrimination that advantages those disadvantaged groups, then it can be interpreted by the courts and tribunals often as not being discrimination that's prohibited.”
In the decision mentioned earlier, Horne v. Public Service Alliance of Canada, the Human Rights Tribunal of Ontario said it could not be “disputed” that women “continue to be underrepresented and disadvantaged in the workforce as compared to men, especially in professional and management roles such as the one at issue in this application.
“The [employer’s] plan is clearly designed to alleviate the historic and continuing under-representation of women in the workforce and the conditions of disadvantage in employment experienced by women and other specified equity-seeking groups.”
Navigating discomfort of equity, inclusion
One of the most frequent questions asked is: How can DEI programs lawfully provide advantages to certain groups? says Dana Campbell-Stevens, partner at Rubin Thomlinson in Toronto.
Her response is candid: “The question reveals or reflects… a failure to acknowledge the disadvantage experienced by certain groups and the privilege experienced by others.”
And the effort to achieve that equality “makes a lot of people very uncomfortable, which is why you have that conversation as to ‘Why isn't that discriminatory?’” she says.
DEI programs strive to put those who are disadvantaged and systemically excluded on equal footing as those who are privileged, says Campbell-Stevens.
“Because the system, the way it is naturally set up, does not automatically include certain groups, it excludes them, which goes against the very fabric of our human rights framework, which requires equal treatment and opportunity.
“So, to achieve that equality that our legal framework requires, intentional steps have to be taken to create advantage or opportunity for the disadvantage.”
Even before the whole concept of DEI became popular, employers in Canada had an obligation to create a space that's free from discrimination for all their employees, says Cambell-Stevens, and “DEI initiatives were intended to address the barriers created by the system against marginalized groups. It was intended to address systemic discrimination.”
Pre-approvals not necessary
Wong points out that courts have grown more flexible in interpreting exemptions related to discrimination. While pre-approval from a human rights commission was once deemed essential, case law now suggests it's not strictly necessary — provided the initiative aligns with the purpose of the legislation, he says.
“As long as the programs do what’s said there in the legislation — of ameliorating conditions of disadvantaged individuals or groups — then they'll be found not to contravene the code.”
Still, Wong recommends going through the “rigorous” process for pre-approval when possible, calling it a protective step.
“It certainly requires the organizations to submit enough information to convince the Human Rights Commissioner that the program fits within the exemption ameliorating conditions of disadvantaged individuals or group,” he says, which “provides protection for the organization against any claim of reverse discrimination.”
Backing up DEI with data
Should an employer face an employee complaint about a DEI initiative that hasn’t been pre-approved, it’s important to have backup, says Wong.
“The first step would be to take a good look at how that program has been designed and how it's being applied, and make sure that it can be justified, and is not being applied in a manner that, in fact, may not live up to its objectives of ameliorating conditions of disadvantaged individuals or groups,” he says.
“Make sure that it is on solid ground if it were to go to before the tribunal.”
In the Horne v. Public Service Alliance of Canada decision, for example, employee testimony showed that pursuant to the employment equity plan, when a position became vacant, the employer conducted an equity analysis to identify gaps in workplace representation, found the tribunal:
“The analysis is based on the data that is collected in the federal census and is compared against Canada’s labour market availability and the results of the respondent’s internal employee self-identification forms… Human resources personnel then review this data to identify gaps for various equity-seeking groups and where gaps are identified, the respondent adds an equity designation for the position.”
It’s important for those who are creating the plans “to understand the legal context and understand their legal obligations,” says Campbell-Stevens.
From a practical side, it’s also important to try and ensure there's transparency and openness around why an initiative is being implemented, says Wong.
“That allows people to share their honestly held views about it — including if they are supportive or not supportive of it — without fear that they'll be ostracized or vilified for having a view on it.”
Building effective DEI programs
Both lawyers stressed the importance of evidence-based design and cultural alignment in DEI initiatives.
“Don’t make assumptions, and don’t rely on stereotypes; instead, really have evidence to support the implementation of any program,” says Wong.
Campbell-Stevens reinforces this view, advocating for stakeholder engagement.
“Engage those who it is intended to serve, hear from them, incorporate their voices and their participation,” she says, adding DEI cannot be a “box-ticking exercise” and must reflect the realities of the organization it’s designed for.
She also advised rooting initiatives in Canada’s legal and social framework.
“If they're grounded in our laws and our context, then they're not determined based on trends that may be shifting here and there — they're rooted in our obligation.”
Is DEI reaching the right people?
What’s clear from both experts is that legality isn’t enough. DEI programs must also be effective — and perceived as such.
“I think we're operating in a space right now where there may be some amount of uncertainty, not so much on whether they're on safe legal ground, per se, but the uncertainty may be around ‘Is this working? Is this right? Are we doing it the right way? Is this the best practice? Is it doing what we need to do?’” says Campbell-Stevens.
There’s an opportunity now to explore whether there's room for improvement, she says.
“One of the criticisms that has been rightly made of a lot of the initiatives and programs is that it's really organizations, one, either paying lip service to the notion of DEI, or [two] simply not being attuned or aware of whether those initiatives and programs are reaching the right people.”
Open and honest discussion about these issues is critical to ensure sustained progress when it comes to DEI, says Wong.
“It’s a good time for us all to reflect on where we've come with respect to EDI, what’s been done well and what can be done differently and better, and how things may need to be adjusted so that there can be sustainable progress,” he says, to avoid the pendulum-like swing seen in the United States.
