Yes, employment equity programs, aimed at ameliorating employment conditions for “disadvantaged groups”, are permitted across Canada; however, significant differences exist in provincial laws, regulations and even the terminology used (See Table 1 and Appendix B). In this section, we review key information and considerations on how to create a “special program”—a term specifically referring to employment equity programs—that will help your organization foster greater employment equity.

Special programs are designated by different names in Canadian law and policy. Section 15(2) of the Federal Charter calls them affirmative action programs. The Federal Employment Equity Act uses the term employment equity. Human rights codes generally prefer the term special programs, with some variations across provinces, including affirmative action, ameliorative programs, employment equity programs, etc.

Although there is not a singular precise definition, “disadvantaged” is the term that nearly all governments use to refer to groups who have experienced historic barriers to full participation in social, cultural, economic, and political life in Canada.

The purpose of the Federal Employment Equity Act is to promote equality in the workplace for groups that face disadvantages in employment. It achieves this by allowing special measures that address their unique needs and experiences. The Act identifies the following four designated groups as:

Women: All people who identify as women, whether they are cisgender or transgender women.

Aboriginal (referred to presently as “Indigenous”) peoples: persons who are Indians, Inuit or Métis

Persons with disabilities: persons who have a long-term or recurring physical, mental, sensory, psychiatric or learning impairment and who

• consider themselves to be disadvantaged in employment by reason of that impairment, or
• believe that an employer or potential employer is likely to consider them to be disadvantaged in employment by reason of that impairment
• and includes persons whose functional limitations owing to their impairment have been accommodated in their current job or workplace

Members of visible minorities: persons, other than Aboriginal peoples, who are non-Caucasian in race or non-white in colour.

Similarly, Quebec’s laws and its Human Rights Commission recognize that the following groups have historically suffered discrimination in the labour market: women, Indigenous peoples, visible minorities, linguistic and ethnic minorities, and people with a disability.

The Human Rights Commissions (HRC) of Saskatchewan and B.C. recognize disadvantaged groups. B.C.’s HRC includes Indigenous peoples, racialized individuals, people with disabilities, women, and transgender people. Saskatchewan’s HRC recognizes Indigenous people, members of visible minority groups, individuals with disabilities, and women in underrepresented occupations. Additionally, Saskatchewan has introduced Employment Equity Targets for these groups (see Appendix C).

With the exception of these, no other province or territory defines disadvantaged groups or specifies what “disadvantaged” means.

In Canada, the Federal government, provinces, and territories have each established specific rules in their jurisdiction’s human rights laws to govern employment equity programs adopted by private employers.

Although the exact wording differs by jurisdiction (see Appendix B), each government requires the program to work to ameliorate (or improve) the conditions or welfare of “disadvantaged groups”. For example, Section 15 (2) of the Federal Charter reads as follows: “Section (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

Some laws add the requirement that the program achieve or be reasonably likely to achieve that objective (see for example, Section 42 (1) of the BC Human Rights Code in Appendix B).

Similarly, the Supreme Court of Canada and Court of Appeal of Ontario have ruled that federal and Ontario programs must have a rational connection between the ameliorative objective and the employment equity measures employed to achieve them.

While the Canadian Charter of Rights and Freedoms authorizes affirmative action programs in section 15(2), the federal charter only governs the relationship between private persons and the government in all its forms. It does not apply to the relationship between two private individuals, such as an employer and a potential employee.

The Federal Employment Equity Act only applies to federally-regulated and private sector employers with over 100 employees. Therefore, for the vast majority of organizations in the Canadian ENGO sector, these obligations do not apply. Possible exceptions may include Indigenous-led organizations operating on reserve, and organizations with over 100 employees who receive over $1,000,000 in federal government funding via grants. If in doubt, please contact a lawyer familiar with the rules in your jurisdiction.

All Canadian provinces and territories have enacted their own human rights legislation to protect everyone’s rights and freedoms. These laws each contain rules that enable employers to develop and implement employment equity programs in various circumstances. As such, you should focus on the legal requirements in the provincial/territorial jurisdiction you are operating in, while being mindful of guidance from provincial and territorial HRCs.

There is a wide range of support available, and the role and powers of each HRC is stated in that province or territory’s human rights legislation. Some HRCs provide no written guidance or application forms, and some simply list an email address and phone number for questions and support. Other HRCs provide various levels of written guidance ranging from step-by-step guides, to considerations for specific parts of the process (such as data collection), to fulsome processes to apply for program pre-approval. Some HRCs even provide direct assistance. You can find information and HRC contacts for each jurisdiction in Appendix B of this toolkit.

What is Program Pre-Approval?

Pre-approval is the process by which organizations submit their proposed special programs to their local HRC for review and approval before implementation. This ensures the program meets the criteria outlined in the relevant Human Rights Codes, with particular emphasis on equality and non-discrimination principles.

The HRC evaluates whether the program is designed to address systemic barriers faced by the specific disadvantaged groups targeted, and ensures the program aligns with the requirement of providing equal treatment through substantive equality rather than formal equality.

The role of the HRC is to guide and approve these programs to ensure compliance with the Human Rights Code, ensuring that they do not unintentionally discriminate against other groups. This process ensures that special programs are focused, justifiable, and proportional to the issues they are designed to address.

Before implementing a special program you should consider whether or not you will apply for pre-approval with your local HRC. While special program pre-approval is not required in most jurisdictions (or even possible in others), having your program pre-approved can offer some protection in the event that a complaint against your program is made. Here is a snapshot of the pre-approval landscape across Canada.

Table 1: Provincial and Territorial Special Program Pre-approval Landscape

*Quebec is the only province in Canada where employment equity is required for public bodies with over 100 employees and private companies that pass the same threshold and apply for or receive $100,000 or more in contracts (including sub-contracts) or subsidies from the government.

The real question for ENGOs operating in provinces and territories where pre-approval is possible is: to apply, or not to apply? While there is no one clear answer for ENGOs in Canada, here we share some pros, cons, and key questions to consider.

Pre-Approval Pros

Some Protection from Legal Challenges: In some jurisdictions there is a clear benefit: getting special program pre-approval means that the program obtains some protection from legal challenges by other groups claiming it discriminates against them. In these jurisdictions, pre-approved programs may be deemed to not violate the prohibitions on discrimination in their human rights legislation.

Less Program Development Work for Your Organization: Given that HRCs are the experts, getting pre-approval means you can benefit from their expertise and avoid reinventing the wheel, which could mean less staff time and resources to develop the program.

Pre-Approval Cons

More Program Responsibilities to the HRC: With HRC support comes ongoing responsibilities to the HRC. If you obtain program pre-approval, you may need to:

• Make any program revisions the HRC requests.
• Provide periodic updates and final reports to the HRC.
• Apply for program renewal, and make their requested changes, if any.

Depending on the jurisdiction, programs may be approved for 6 months or up to 5 years. Just like a grant application, be ready to show that your program did what it said it was going to do, or if not, to demonstrate what obstacles you encountered.

Key Questions to Consider

Still not sure whether to apply? As a general guideline, the greater the scope of your special program, the more you should consider applying for pre-approval. Planning to hire one Indigenous employee for one short-term contract position in one province, is quite different from planning to hire numerous BIPOC employees for various long-term staff roles across five provinces.

Again, there is no one-size-fits-all-ENGOs solution. Ask yourself these questions to get a sense of your potential special project scope and comfort with potential risks:

• What is the scope of your special program?
  • How long do you plan to run your special program?
  • How many job postings might the program include?
  • In how many provinces and territories might your special program run?
• Risk assessment: How comfortable are you with the risks if you don’t get pre-approval?
  • Dealing with potential legal action from people who feel your special program discriminates against them, along with the time and expenses associated with defending a program in court.

If you decide not to get pre-approval, you can still contact your HRC to see what informal support, advice, and guidance they can offer. Some HRCs will even deliver presentations to your organization. Why not leverage HRC staff expertise to set your program up for success?

Employment equity is all about levelling the playing field for people from equity-deserving groups. As we have seen, this concept of substantive equality is supported and enshrined in the Federal Charter, as well as in federal and provincial/territorial laws. Regardless of these protections, we cannot ignore the possibility of legal challenges from groups other than those that your special program aims to benefit (often called ‘reverse discrimination’). The most important part of special program design to avoid such concerns is that programs must respond to a proven need and real disadvantage.

Human rights legislation in most provinces and territories requires that ameliorative programs be reasonably likely to achieve their goal (generally to improve the conditions of a disadvantaged group). Most provincial and territorial human rights legislation identifies protected grounds of discrimination: groups that are protected from discrimination in employment hiring or general employment practices. These have been listed in Appendix B per province and territory, where available.

There is no guaranteed way to prevent a person from claiming that your special program is invalid or discriminatory against them. Someone can believe that your program is invalid, regardless of whether it was properly designed or approved by your local Commission, and challenge it in court. They could even bring a challenge that is bound to fail just to draw public attention, or apply pressure to have the rules changed. While they can present a legal challenge, it does not mean they will win.

The Supreme Court of Canada (SCC), and Court of Appeal of Ontario have issued decisions that you may be able to rely on in your province to argue that a person excluded from an affirmative action program lacks the standing to bring a discrimination challenge to the program. Indeed, the SCC has repeatedly reaffirmed that section 15(2) of the Charter protects special programs from challenges of reverse discrimination. Similarly, the Court of Appeal of Ontario has ruled that its local human rights law gives affirmative action programs an exemption from scrutiny by persons who are not part of the disadvantaged group the program was designed to address. In other jurisdictions, protections of special programs are embedded in local human rights codes, and some courts have rejected claims of reverse discrimination against special programs.

What’s the best way to put your special program in a stronger position to make it less likely that a claimant will succeed? Follow the steps we have laid out here: develop a good rationale and provide evidence of a problem, set requirements that do not unnecessarily exclude individuals, and track how well the program is working.

It’s also about communication: organizations should clearly communicate the rationale, explain the benefits, and provide updates on the progress made to staff, Board, and other relevant stakeholders. Such conversations, while difficult, can be incredibly valuable and rewarding for organizations. Often, what starts as a special project can end up becoming a larger project that benefits more equity-deserving groups, and improves organizational policies, processes, and culture in deep, transformational ways.

If the term “data collection” incites panic, we get it. But consider the advantages to your special program: data collection allows organizations to monitor, evaluate, and address systemic or other forms of discrimination. Collecting qualitative or quantitative data is a good way to see if a special program is needed.

Data can be collected to see if certain groups are under-represented or if other forms of hardship, inequality, or disadvantage exist. It can also help examine whether employment and service practices are equitable or to address known issues within the organization or sector.

When collecting data, it’s important to focus on both internal and external sources. For instance, external data, like provincial or national census information, can help highlight disparities between the target group and the broader population. Internal data, such as staff demographic surveys, can reveal areas where diversity may be lacking. Regularly updating this data ensures that any initiatives or special programs are based on the most current evidence, helping to better support the case for addressing inequalities.

Overall, there is no strict, legal requirement to collect data prior to starting your special program. But remember, if a complaint is brought against your program and investigated by the appropriate HRC, or if you plan to obtain program pre-approval, it is possible that you will be asked to provide relevant data.

What risks do you run by not gathering data at the start of your program? The recognition of Indigenous and racialized people as a group that needs more equity in both federal and Quebec laws should give organizations confidence to adopt special programs for those groups. If someone challenges your program, you can make this argument confidently and may even succeed without having any data.

However, this does not eliminate the possibility that an HRC (or the courts) may ask you for external and/or internal data. Programs that are not informed by data run the risk of being viewed as arbitrary, poorly designed, or even invalid. By definition, programs not based on data cannot set targets (and thus cannot achieve or evaluate them), and do not know the degree of underrepresentation in their organization.

External Data Considerations: Population data (typically obtained from government census and statistics sources) can show what the levels of demographic diversity are across specific geographic areas, for certain identities, or any combination of these factors. Start by looking at profile data from the latest national census. While provincial and territorial data sources may be more current for data such as total population, that data will likely not include as much information as the national census. Use your judgement to choose the data that best makes the case for your special program. When in doubt, contact Statistics Canada. Their staff can be quite helpful in pointing you in the right data direction. In addition, consider contacting your local HRC to see what data assistance they may be able to provide.

Internal Data Considerations: Organizational demographic data can prove a lack of diversity of specific groups within your organization. Organizations may hire an external consultant to conduct a “EDI Audit” or they may choose to conduct their own internal surveys. Either way, best data practices indicate that surveys should be anonymous, allow for participants to voluntarily self-identify, and data should be aggregated/disaggregated accordingly to protect confidentiality. If this sounds too complex, consider that hiring an external consultant is the easiest way to obtain this data. Doing it yourself internally could be as simple as a 5-question survey conducted using free, online survey tools such as Google Forms.

For each of the four designated groups listed in Part 2, employers may be able to avoid gathering external data or developing their own targets. Gathering such data is nonetheless recommended in order to assess the degree to which members of those groups are represented and qualified in their given community. They further need their own internal data to assess the degree to which these groups are represented, and develop targets/a plan for the recruitment and promotion of such individuals.

For more information on data collection see Appendix C.