The buzz on diversity & inclusion… and the law

Diversity and inclusion (“D&I”) has been much discussed at conferences and webinars, and a “buzz” word lately in the corporate world. If you follow any of the job boards, D&I positions are popping up every day with creative titles and at all levels. I have seen some of my former colleagues in HR and in Employee Relations with their portfolios transformed to be now in charge of D&I initiatives.

For those of us who have been championing gender equality and anti-racism in the workplace for some time, it feels like the world is finally catching up. We are not the lonely voice in the room anymore, but has the law caught up?

I recently spoke to the Law Times to answer the question of whether D&I is regulated. In other words, as an employer, am I legally required to have a D&I program?

The answer is… sort of.

There is legislation with basic obligations that touch upon D&I:

1. The Human Rights Code. It prohibits discrimination in employment based on protected grounds including race, place of origin, gender, sexual orientation, religion, disability, family status.

2. The Employment Equity Act for federally regulated employers, which aims to achieve equality in the workplace and “to correct the conditions of disadvantage in employment experienced by women, Aboriginal peoples, persons with disabilities and members of visible minorities…”

3. The Pay Equity Act for federally regulated employers recently came into force, which aims to achieve pay equity through proactive means by “redressing the systemic gender-based discrimination in the compensation practices and systems of employers that is experienced by employees who occupy positions in predominantly female job classes...” Note that Ontario, Quebec, Manitoba, Nova Scotia, New Brunswick and PEI have pay equity legislation for the public sector, but not for the private sector. Saskatchewan, Alberta and British Columbia have no specific legislation on pay equity.

4. Accessibility legislation. This includes the Federal Canada Accessible Act, and provincial legislation such as the Ontario Accessibility Standards for Ontarians with Disabilities Act. These legislation aims at the removal of barriers in employment, buildings, and the provision of services, amongst others.

5. The Workers Compensation Act and related policies, which are designed to address harassment and bullying in the workplace.

The current state of the law is a bit of patchwork, with many gaps remaining. Employers can meet their strict legal obligations in bits and pieces, but they are not legally required to have a fulsome D&I program. So why do it? As a lawyer and a workplace investigator, I can tell you that organizations where D&I is not entrenched, have lower psychological safety and a higher degree of workplace conflict. They are at a higher risk of litigation. If you still think that a Board of Directors or an executive team of mostly the same gender or the same race will keep your organization and your employees thriving in today’s world, then think again*. But also ask your MBA’s and they will tell you all about the business case for D&I. I quote in my presentations from this McKinsey study, full of gems and available for free.

*I briefly worked for an organization with zero diversity in its board and executive team and it was hell on wheels. I don’t list it on my Linkedin profile. So don’t go looking for it.

This blog is not intended to serve as legal advice, and only provides general information.

Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

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