Introduction

Perspectives on Employment Equity

in Canada
CAROL AGÓCS

The Abella Royal Commission was struck in June 1983 at a time when
Canadian society and politics were embroiled in struggles surround-
ing social justice and inequality. The era of the 1970s through the mid-
1980s was marked by activism by advocates for women, racialized groups,
persons with disabilities, and Aboriginal peoples who were organizing
politically and raising demands that the inequality they experienced be
addressed. In 1982 Canada’s Charter of Rights and Freedoms was adopted,
influenced by a remarkable grass roots campaign by women across
Canada to ensure that gender equality rights would be protected. The
three major political parties adopted equity measures that resulted in an
increase in the number of women elected to Parliament, and women’s
voices began to matter in the politics of the time (Harder 2006, 68–70).
By the mid-1980s there had been nearly two decades of experience
with human rights processes marked by significant decisions of courts,
tribunals, and arbitrators, which set out workers’ rights and clarified
employers’ responsibilities for discriminatory acts in the workplace. Yet
the human rights system placed the burden of change largely on indi-
vidual survivors of discrimination, leaving in place the structures and sys-
tems that excluded and marginalized them. While human rights codes
and the Charter of Rights permitted employers to undertake voluntary
affirmative action, very few did.
Demands for a proactive and mandatory approach to addressing work-
place inequality found a response from the Liberal government of Pierre
Trudeau with the announcement of the Royal Commission on Equal-
ity in Employment and the appointment of Judge Abella, then of the
Ontario Provincial Court, as sole commissioner. Her terms of reference
were “to inquire into the most efficient, effective and equitable means of
4 Carol Agócs

promoting employment opportunities, eliminating systemic discrimina-

tion and assisting all individuals to compete for employment opportuni-
ties on an equal basis” (Abella 1984, ii). Only sixteen months after the
commission was announced, Judge Abella tabled her landmark report. It
was supported by extensive public consultations across Canada and by a
separate volume of thirty-four research reports by experts whose names
are still identified with path-breaking work on workplace equality.
The report’s publication in 1984 was an occasion for excitement
and hope among working people, equality-seekers, human rights advo-
cates, and others across Canada concerned about fairness and equality
in employment for women, racialized people (termed “visible minori-
ties” in the Employment Equity Act),1 Aboriginal people and persons with
disabilities – the four groups addressed in the Abella Report and desig-
nated by employment equity policy. When the federal Employment Equity
Act and Federal Contractors Program were enacted in 1986, there was
pride that Canada had taken the step of legislating a distinctly Canadian
approach to affirmative action, different from that of the United States,
that was mandatory, proactive, and designed to prevent discrimination in
the workplace, not just to deal with it after it has occurred (see chapter 1).
The Royal Commission Report and the Employment Equity Act posi-
tioned Canada as a policy leader in the 1980s and 1990s, because they
recognized the structural and systemic roots of inequality in employ-
ment and the need for systemic remedies. The report noted that the
concept of equality evolves over time and is best understood not as an
absolute state but as a long-term process of removing discriminatory bar-
riers and improving access to opportunities that are generally available
to members of social groups who are not subject to discrimination. The
principle that disadvantage and inequality arise in part from unfair and
discriminatory barriers – “arbitrary obstructions” (Abella 1984, 3) that
prevent people from fully using their abilities and that impede their
access to employment opportunity – underlies the logic of employment
equity policy. Many discriminatory barriers are built into the structure,
culture, and everyday practices in the workplace as a consequence of his-
torical patterns that persist, as well as newly evolving exclusionary prac-
tices that reinforce the privilege of dominant social groups. Systemic
barriers are behaviours that create disadvantage for groups identified
by gender, race, disability, Aboriginal status, or other ascriptive labels,
whether or not there is a conscious intent to discriminate. These barri-
ers may be unseen or unacknowledged by those who do not experience
them but who benefit from their exclusionary impact.
 Introduction 5

Abella proposed that equality in employment entails identifying and

removing, “barrier by barrier, discriminatory disadvantages,” replacing
them with inclusive and fair policies and practices, accommodating dif-
ferences among individuals that arise from their group identities, and
initiating supportive and positive measures as needed. Treating people
equally means acknowledging and accommodating their differences,
thus calling for differential rather than identical treatment in order to
address the realities of their lives. Differential treatment may produce
different results and solutions for different groups while respecting the
worth and dignity of all and the right of all to equal opportunity. This
vision of how to remedy systemic discrimination2 suggests that employ-
ment equity is a transformative process, since in theory it promotes
substantive equality, not by forcing members of designated groups to
assimilate to the workplace as it exists, but by changing the culture and
structure of the workplace to create fairness for all and remove a bias in
favour of white males (Abella 1984, 10).3
Based on recommendations and analysis of the Abella Report, the
Employment Equity Act set out a series of diagnostic, problem-solving, and
change actions that employers in the federal jurisdiction and federal
contractors are required to implement in the workplace. The Canadian
model4 of legislated and mandatory employment equity includes a num-
ber of steps that employers are to undertake.

CANADIAN MODEL OF EMPLOYMENT EQUITY

• Demonstrate top management commitment to comply with employ-

ment equity requirements
• Conduct a workforce census to identify representation of designated
groups, using self-identification
• Compare representation of designated groups in the employer’s work-
force with labour market availability data
• Report workforce data to the federal government, which reports pub-
licly on aggregate data as well as individual employer data5
• Set goals and timetables for improving representation
• Adopt “special measures” and positive policies and practices designed
to remove barriers to equality
• Review employment policies and practices to identify barriers to desig-
nated group representation (“employment systems review”)

(continued)
6 Carol Agócs

• Consult with unions

• Cooperate with periodic government audits of workplace representa-
tion data, employment systems reviews, goals and timetables, special
measures, and progress toward goals; authorities may issue directions
in case of failure to comply with legislated requirements

Thirty Years of Employment Equity

The chapters in this book look back at what the Royal Commission
Report achieved and at the strengths and weaknesses of the Employment
Equity Act, and also look ahead at the changing policy landscape and
the unfinished business of employment equity. The authors, as a group,
examine the development of employment equity through both scholarly
and practitioner lenses, drawing on the fields of law and the social sci-
ences as well as expertise on both Canadian and American experiences.
Chapter 1 recounts Justice Abella’s reflections on the learning and
theoretical work in which she engaged to generate the Royal Commis-
sion Report. It draws connections between this foundational work and
her contributions, in her current role as Justice of the Supreme Court
of Canada, to our evolving understanding of substantive equality. Chap-
ter 2, by Nan Weiner, explains the provisions of the Employment Equity
Act and how it is implemented. She then examines what previous aca-
demic research and her own analysis of the data reported by employers
under the act have shown about the effectiveness of the act in improv-
ing the representation of women, members of visible minorities, persons
of Aboriginal ancestry, and persons with disabilities. Weiner notes that
“Aboriginal peoples and persons with disabilities have not done well”
and that “women are regressing when one looks at overall representa-
tion” in workplaces covered by the act, and she draws implications for
reforming the Employment Equity Act and its implementation to make it
more effective in its purpose of improving employment opportunities
and outcomes for the designated groups.
In chapter 3, Raj Anand asks whether employment equity has brought
real change in pursuing its purpose of challenging systemic barriers to
equality in the Canadian workplace. Anand’s analysis probes how courts
and human rights tribunals have dealt with (or failed to address) sys-
temic discrimination and employment equity over the past quarter-
century. He highlights the dilemma that racialized groups face, in that
they continue to experience systemic barriers – some long-standing and
 Introduction 7

some in new forms – despite an increase in awareness of diversity and

equity policy in Canadian society.
Chapter 4, by Kim England, analyses previously unexamined data
to track the experience of women under employment equity, situating
her analysis within the theoretical perspective of intersectionality – the
interaction of gender with race, class, disability, Aboriginal ancestry, and
other dimensions of difference that shape women’s experiences and
locations in the hierarchy of oppression and privilege that character-
izes the labour market. England’s work examines disaggregated employ-
ment equity data for men and women to show the specific dimensions of
inequality faced by those who identify themselves as members of more
than one equity group. Among the trends noted are the plateauing of
gains for women and polarization between better-off and disadvantaged
women, as well as limited benefits of employment equity for women with
disabilities and Aboriginal women. England points to the need for a
broader policy framework as well as reforms to employment equity pol-
icy in order to address inequality for women.
In chapter 5, Michael Lynk examines the employment picture for
Aboriginal people against the background of the social and economic
inequality they suffer in Canadian society. While employment equity has
brought improvements in their presence in the federal public service, in
general their representation remains considerably below their availabil-
ity in the labour market, particularly in the private sector. The impor-
tance of employment equity policy for Aboriginal people will grow in
the future because of current trends toward urban residence and away
from residence in reserve communities, and because of the youth of the
Aboriginal population in comparison with the Canadian population as
a whole, which will result in their increasing importance in the labour
market. Lynk also explores the neglected question of whether Aborigi-
nal communities have made employment gains in the forestry and min-
ing sectors as a result of agreements they have negotiated with industry
and government. He concludes that formalized requirements that com-
mit employers to improving the representation of Aboriginal peoples,
whether through mandatory employment equity or negotiated agree-
ments, make a positive difference.
The situation of persons with disabilities in the labour force from the
1980s to the present is examined in chapter 6 by Marcia Rioux and Lora
Patton, who find that gains under employment equity have been “mod-
est, at best.” More effective employment equity implementation and
enforcement, together with broader pre-employment and accessibility
8 Carol Agócs

policy supports, are needed to attain a higher level of employment inte-

gration for people with disabilities. Rioux and Patton’s critique of existing
policy points toward ways that employment equity can be strengthened.
In chapter 7, Gerald Hunt, David Rayside, and Donn Short provide an
overview of human rights and employment for sexual minorities – gays,
lesbians, bisexuals, and transgendered persons – since the passage of
the Employment Equity Act, from which they were excluded. Basic human
rights for sexual minorities in Canada are a recent achievement, and
their progress in the workplace and community has been both rapid
and substantial. Yet inequality and a lack of inclusiveness persist, and the
authors argue for the inclusion of sexual minorities under the umbrella
of a more expansive employment equity policy.
Chapter 8, by Patricia Hughes, uses employment equity principles as a
lens through which to illuminate the conditions faced by vulnerable work-
ers whose precarious employment situation usually leaves them unpro-
tected by the human rights and labour standards enjoyed by workers in
standard jobs. These workers include those who hold part-time, tempo-
rary, and unstable jobs for which pay is low and there are few, if any, bene-
fits or union protections. Such jobs are disproportionately held by women
(particularly single mothers), members of racialized groups, immigrants
(including those in Canada on temporary government work schemes),
Aboriginal people, and persons with disabilities. Hughes discusses some
of the many systemic barriers that may impede the entry of vulnerable
workers into standard jobs that offer better security, pay, and legal protec-
tions, and argues for systemic remedies tailored to this group of workers.
A trade union perspective on employment equity is developed in chap-
ter 9 by Allison Pilon, focusing on the experience of the Public Service
Alliance of Canada, the largest union in the federal public sector. In dis-
cussing the history of the union’s involvement in the implementation of
employment equity, Pilon presents a view from the public service work-
place, examining the union’s efforts to make employment equity effec-
tive for its members through the consultation requirement contained in
the Employment Equity Act and collective bargaining.
In chapter 10, Mary Cornish, Fay Faraday, and Jan Borowy examine
human rights and labour jurisprudence since the Abella Report, identify-
ing the legal obligations for employment equity to which employers and
unions are now subject, whether or not they are covered by the require-
ments of the Employment Equity Act. They argue that employers and unions
can best carry out their duty to be proactive in providing an equitable
workplace by working together to implement the requirements of the
 Introduction 9

Employment Equity Act. In Ontario, action can be taken now to address sys-
temic discrimination within human rights and labour relations processes,
even in the absence of provincial employment equity legislation or effec-
tive federal policy covering more than a small fraction of employers.
Chapters 11 and 12 bring an international perspective to the discus-
sion of equality policy. In chapter 11, Michael Ashley Stein examines the
United Nations Convention on the Rights of Persons with Disabilities (2007),
with a focus on its employment equity mandate. He reviews consider-
ations and debates surrounding the adoption of the convention, with
particular attention to Canada’s role, and reflects on the relationship
between article 27 of the CRPD and the Employment Equity Act.
Chapter 12, by Natasha Martin, examines the persisting problem of dis-
crimination in employment in America, suggesting that equity “remains
elusive,” in part because a conception of equality envisioning colour-
blindness as an ideal, which took root during the civil rights movement,
has morphed into a narrative of “post-racialism” in the Obama era. Nei-
ther conception offers a realistic analysis of race-based discrimination in
the contemporary workplace; hence jurisprudence is not informed by
a grasp of the dynamics of discrimination and how to combat it. Martin
suggests that judicial decision-making on racial inequality, and on affir-
mative action as a remedy, has reached a stalemate and does not provide
appropriate guidance to employers on their responsibilities and oppor-
tunities to work toward an inclusive workplace.
Brian W. Burkett reconsiders the past and future of employment
equity in chapter 13, beginning with the ground-breaking nature of
the Abella Report and its imperfect reflection in the Employment Equity
Act. During the past three decades the idea of employment equity has
become politically charged, and this may account for the failure of the
provinces to enact and sustain legislation parallel to the federal act. Bur-
kett also argues that corporate attitudes have changed, pointing to the
rise of the Corporate Social Responsibility doctrine and the implemen-
tation of voluntary diversity programs. He surveys recent equality pol-
icy developments in other countries, noting that Canada’s Employment
Equity Act has failed to change in ways that improve its effectiveness.
Burkett concludes with a call for a new look at the future of employ-
ment equity.
The concluding chapter by Carol Agócs discusses the unfinished busi-
ness of employment equity and examines some of the reasons for the
disappointing results of the Employment Equity Act. The chapter also con-
textualizes the current and future challenges of implementing the act in
10 Carol Agócs

an economic and political environment characterized by globalization,

the restructuring of the economy and labour market, and the ascen-
dency of neoliberal ideology in Canadian politics and public policy.
Research evidence cited by the authors has shown that employment
equity policy can and does have a beneficial impact on representation,
career development, and pay for the equity groups when it is legislated,
mandatory, and formalized, and when employers’ compliance with its
requirements is monitored, with meaningful consequences for failure to
comply. All of the chapters in this book suggest that the Employment Equity
Act has made a positive difference for groups who experience employ-
ment discrimination in Canada, and they argue (with one exception)
that it should be retained and strengthened to make it more effective.
The final chapters suggest the need for a broad enquiry involving gov-
ernment, employers, the designated groups, and labour into how best
to address diversity and equity in the future, and propose multiple pol-
icy approaches to reducing inequality in employment. Several chapters
argue that employment equity legislation should be made more inclusive
and effective in removing systemic barriers on the basis of gender, race,
disability, Aboriginal ancestry, and gender identity and sexual orienta-
tion in today’s workplace.
After reviewing these in-depth analyses of the development of employ-
ment equity, what can we conclude about its effectiveness after thirty
years? An architectural metaphor might be appropriate: the house of
employment equity was well designed and was built upon a firm foun-
dation, but its construction was shoddy. The Royal Commission Report
set out a solid design and theoretical rationale for employment equity
policy in its time, but there were shortcuts and omissions as the house of
employment equity was being built. Some of the report’s key recommen-
dations were never implemented.
As Peter Graefe suggests, public policies are embedded within the
structure of economic and political power relations in a society, and
“can be seen as institutionalized compromises between social forces”
(Graefe 2007, 26). In the years following the passage of the Employment
Equity Act, successive Canadian governments embarked upon a long
disengagement from an equality and social justice agenda for public
policy, and reorientation toward a neoliberal market-oriented agenda.6
Employment equity remains a landmark in the field of international
equality policy, but it has not realized its transformative possibilities in
Canada.
 Introduction 11

NOTES

1 Visible minorities are defined in the Employment Equity Act as “persons, other
than Aboriginal peoples, who are non-Caucasian in race or non-white in
colour,” and who self-identify as such. The specific categories that are con-
sidered visible minorities include Blacks, Chinese, South Asians (currently
the largest group), Latin Americans, Filipinos, Southeast Asians, West Asians,
Arabs, Koreans, Japanese, multiple visible minority, and other visible minor-
ity (Statistics Canada 2008). Aboriginal peoples are defined as individuals
who identify themselves as members of First Nations, Metis, or Inuit peoples.
The 2011 census found that 19.1 per cent of Canada’s population identified
themselves as visible minorities and 4.3 per cent identified themselves as
Aboriginal. The use of the term visible minorities in this book reflects its use in
the specific context of discussion about the Employment Equity Act, but it is rec-
ognized that this is a contested concept. Employment equity is understood
as a policy that is intended to raise critical awareness of practices, including
racialization, that give rise to privilege and disadvantage within a context of
power relations.
2 For further discussion of systemic discrimination, including examples
and research relating to each of the designated groups, see Agócs (2002,
chapter 1).
3 In the Meorin decision the Supreme Court of Canada underlined the respon-
sibility of employers to change the workplace to accommodate diversity
among employees, rather than requiring individuals to assimilate to the
workplace as it is (British Columbia (Public Service Employee Relations Commission)
v British Columbia Government and Service Employees’ Union [1999] 3 SCR 3).
4 Agócs and Osborne (2009). The Canadian model was subsequently adopted
in Northern Ireland and South Africa (Horwitz and Jain 2009) and has influ-
enced policy in Australia and New Zealand.
5 Employers covered by the act are required to report annually to the federal
Labour Program of the Ministry of Employment and Social Development
Canada. These reports, as well as a summary of all reports submitted, are
available to the public. However, employers covered by the Federal Con-
tractors Program are not required to submit reports and there is no public
reporting on their results, although they are subject to compliance reviews
and must prepare reports as part of this process.
6 For discussion of the near-disappearance of gender from Canadian public
policy and the reframing of structural issues as individual questions of per-
sonal responsibility since the mid-1980s, see Brodie and Bakker (2008).
12 Carol Agócs

REFERENCES

Abella, Rosalie Silberman. 1984. Equality in Employment: A Royal Commission

Report. Ottawa: Minister of Supply and Services Canada.
Agócs, Carol, ed. 2002. Workplace Equality: International Perspectives on Legislation,
Policy and Practice. The Hague: Kluwer Law International.
Agócs, Carol, and Bob Osborne. 2009. “Comparing Equity Policies in Canada
and Northern Ireland: Policy Learning in Two Directions?” Canadian Public
Policy 35 (2): 237–62. http://dx.doi.org/10.3138/cpp.35.2.237.
British Columbia (Public Service Employee Relations Commission) v British Columbia
Government and Service Employees’ Union [1999] 3 SCR 3.
Brodie, Janine, and Isabella Bakker. 2008. Where Are the Women? Gender Equity,
Budgets and Canadian Public Policy. Ottawa: Canadian Centre for Policy
Alternatives.
Employment Equity Act, SC 1995, c 44, Minister of Justice. http://laws.justice.
gc.ca/PDF/Statute/e/e-5.401.pdf.
Graefe, Peter. 2007. “Political Economy and Canadian Public Policy.” In Critical
Policy Studies, ed. Michael Orsini and Miriam Smith, 19–40. Vancouver: UBC
Press.
Harder, Lois. 2006. “Women and Politics in Canada.” In Women, Democracy, and
Globalization in North America, ed. Jane Bayes, Patricia Begne, Laura Gonzalez,
Lois Harder, Mary Hawkesworth, and Laura Macdonald, 51–76. New York:
Palgrave Macmillan.
Horwitz, Frank, and Harish Jain. 2009. “Employment Equity and Black Eco-
nomic Empowerment in South Africa.” Paper presented to the British Acad-
emy in Partnership with the Nuffield Foundation, London, 3 November.
Statistics Canada. 2008. “Visible Minorities and Victimization.” Ottawa: Minister
of Industry.
Chapter 1

The Making of the Abella Report: Reflections

on the Thirtieth Anniversary of the Report
of the Royal Commission on Equality
in Employment
CAROL AGÓCS

Justice Rosalie Silberman Abella was the sole commissioner on the Royal
Commission on Equality in Employment, whose report was released in
1984. Equality in Employment: A Royal Commission Report (Abella 1984,
often called the Abella Report) was a landmark that fundamentally influ-
enced the fields of employment and human rights law, jurisprudence,
and public policy. It created the concept of employment equity, a dis-
tinctly Canadian policy to address inequality in employment on the basis
of gender, visible minority status, disability, and Aboriginal identity. Its
analysis and recommendations have shaped contemporary understand-
ings of the roots and impacts of inequality and discrimination, and the
meaning of equality, both in Canada and internationally. The discussion
of equality, systemic discrimination, and employment equity presented
by Justice Abella in her report is still cited today because it remains fresh,
insightful, and visionary – and because the work initiated by Justice
Abella remains unfinished.
The Abella Report was the basis of Canada’s Employment Equity Act (1986,
amended 1995),1 and it influenced constitutional provisions or legislation
subsequently adopted in South Africa, Northern Ireland, New Zealand,
Australia, Quebec, and Ontario. Employment equity in some form is now
included in many collective agreements and workplace policies volun-
tarily adopted by employers in Canada. To this day, Justice Abella’s model
of employment equity continues to inspire advocates who seek change in
the workplace so that it reflects the diversity of Canadian society.
On 30 October 2009, Justice Rosalie Silberman Abella of the Supreme
Court of Canada delivered the sixth Koskie Minsky University Lecture on
Labour Law, the highlight of a conference at the Faculty of Law, University
14 Carol Agócs

of Western Ontario, entitled “Equity in the Workplace: 25 Years after the

Abella Report.” In her address Justice Abella provided candid, reflective,
insightful, and often humorous reflections on the making of the Royal
Commission Report and recalled her experiences during that intensive
year. In this chapter, Justice Abella’s informal address forms the core of a
discussion of the report’s creation and legacy; the chapter quotes exten-
sively from Justice Abella’s lecture.
In her address Justice Abella developed themes that shed light on the
making of the Royal Commission Report and that help explain why it
continues to inform the thinking of equality-seekers, policymakers, and
jurists around the world. One of these themes is the importance of learn-
ing through listening to the voices of people speaking about their lives
and the challenges and realities they face. Justice Abella recounted how
listening with empathy changed her and enhanced her understanding
of discrimination. Another theme of her address was the importance of
made-in-Canada solutions to our national problems – solutions firmly
rooted in Canadian history, values, norms, and institutions. In develop-
ing her recommendations for employment equity Justice Abella studied
and largely rejected the American approach to affirmative action, includ-
ing quotas, the requirement that there be a prior finding of discrimina-
tion, and the individual rights model on which it is based. In setting out a
Canadian alternative Justice Abella devised new theories of the meaning
of equality that have informed theory, jurisprudence, and practice regard-
ing fairness in the workplace and laid a foundation for the Supreme Court
of Canada’s equality jurisprudence. These are the themes of this chapter.
On 4 October 2004 Rosalie Silberman Abella and Louise Charron
were sworn in as justices of the Supreme Court of Canada. In her speech
on this occasion, Beverley McLachlin, Chief Justice of Canada, observed
that the work of the Supreme Court calls for “the appointment of indi-
viduals who have demonstrated high competence in the law, unswerving
commitment to the ideals of judicial independence, profound humil-
ity in the performance of their judicial duty, and the ability to listen,
to empathize and, in the end, to decide” (McLachlin 2004). These are
qualities that Justice Abella had brought years earlier to her work as the
sole commissioner of the Royal Commission on Equality in Employment.

The Royal Commission on Equality in Employment: Context

and Creation

The Abella Report presents an analysis of the problem of inequality in

Canadian society, and, as such, it is part of a rich tradition of Canadian
 The Making of the Abella Report 15

social science, legal, and policy-oriented scholarship – frequently con-

tained in reports of federal royal commissions – that has shaped thought
and policy on this complex issue.2 The historical context in which the
Royal Commission Report on Equality in Employment was created and pub-
lished must be understood in order for contemporary readers to appre-
ciate fully the novelty and power of the ideas it developed.
In her remarks at her swearing-in, Justice Abella summarized the
remarkable revolution in Canadian law that had occurred in the 1970s
and 1980s and formed the backdrop for her Royal Commission Report:

From 1970, with the Report of the Royal Commission on the Status of Women,
the document that provided the ramp from the dislocating agitation of the
60s to the reconfigurating policies of the 70s, we launched a new journey
in this country which was, if not always about law, always about justice. We
got official bilingualism and multiculturalism, gave persons with disabili-
ties protected status in human rights codes, entered into serious dialogue
with Aboriginal people, welcomed waves of non-white immigrants, abol-
ished the matrimonial property regimes that for centuries had kept wives
on an economic continuum that ranged from invisible to inconsolable,
and watched women ponder competing visions of security as they made
the transition to a world with options. And then, with the Charter of Rights
and Freedoms over 20 years ago, our justice journey became a justice jug-
gernaut. We constitutionalized the protection of rights, gave independent
judges the authority to enforce them, and introduced the public to a new,
uniquely Canadian legal vision that rendered the status quo vulnerable to
heightened expectations. It was, as a result, a controversial vision. It still is.
(Abella 2004)

It was in this context of legal and policy transformation and reform that
Justice Abella, then an Ontario Family Court judge, was invited in 1983
by Lloyd Axworthy, Minister of Employment and Immigration in the Lib-
eral government of Pierre Elliott Trudeau, to take on the assignment of
being sole royal commissioner. The government took this initiative in
response to demands from women, persons with disabilities, and mem-
bers of visible minorities who were seeking affirmative action as a remedy
for the long-standing discrimination they faced. They were inspired in
large part not only by the American experience, but also by the progress
of francophone Canadians whose representation in the public service of
Canada had increased significantly following the introduction of affir-
mative action measures to remedy their under-representation (Abella
2009, 1).
16 Carol Agócs

On 27 June 1983, Lloyd Axworthy publicly announced the royal com-

mission, whose mandate was to study the employment practices of eleven
Crown corporations including Petro Canada, Air Canada, Canadian
Broadcasting Corporation, Export Development Corporation, Federal
Business Development Bank, and Canadian National Railway “as exam-
ples of what happens in a workplace, and as a metaphor for what the gov-
ernment can think about doing for everybody else” (Abella 2009, 1–2).
It was a complex mandate, on a shoestring budget, and in a tight time
frame: “It was a one-person, one-year, one million dollar Royal Com-
mission … At the same time, Donald Macdonald was travelling across
Canada for his 3-year Economic Union Royal Commission with 13 com-
missioners … The other study that was going on at the same time was
a 7-person, 2-year, four million dollar study on baby seals headed by a
Quebec Court of Appeal judge. So there we were with one year and one
million dollars to study why 60 per cent of the population wasn’t being
allowed fair access to the employment world” (Abella 2009, 1–2).3
Nevertheless Justice Abella took up the challenge, a large one for
someone in the early stages of a legal and judicial career, and with
two young sons. Prior to serving as royal commissioner, she sat on the
Ontario Family Court, having been appointed by Attorney General Roy
McMurtry in 1976 at the age of twenty-nine, pregnant with her second
son, and the youngest judge in Canada at that time, and only four years
after she was called to the bar. She had served as a commissioner on the
Ontario Human Rights Commission (1975–80), as a member of the Pre-
mier’s Advisory Committee on Confederation (1976–81), and as chair of
the Study on Access to Legal Services by the Disabled (1982–3). These
professional experiences were layered upon her personal history as a
child of survivors of the Holocaust who came to Canada as refugees in
1950 from a displaced persons camp in Germany, where Justice Abella
was born in 1946 (Abella 2009, 1–2).4

The Royal Commission as a Learning Process

In summing up her experience as royal commissioner, Justice Abella

recalled, “I learned an enormous amount. When I look back on the
Royal Commission 25 years later, what I remember most about that
whole experience was how much I didn’t know, and how much I learned
just by listening. The faces that I saw 25 years ago all across Canada are
still faces that I see when I judge. That experience completely changed
me. It was a process of ‘educating Rosie’” (Abella 2009, 1).
 The Making of the Abella Report 17

Justice Abella recalled, “I decided to be my own research director.

I sat down at 4 am the day after I was appointed and mapped out what
research I thought I needed. The next morning, I started calling peo-
ple I knew across Canada for suggestions of researchers. That’s how the
research program got started” (Abella 2009, 3).
Justice Abella commissioned twenty-nine research studies that together
provided scaffolding of current knowledge about economic and social
costs of employment discrimination; policy options for addressing
inequality in employment; the American approach to affirmative action;
policy-related ideas from all over the world; employment issues faced by
Canadian women, Aboriginal people, persons with disabilities and visi-
ble minorities; and constitutional issues and legal considerations (Abella
1985).
Justice Abella travelled across Canada to conduct her meetings with
only one person, Lori Brown, who was her secretary when she prac-
tised law in the early 1970s and later became a lawyer. Justice Abella had
learned from her experience working with the Ontario Human Rights
Commission that public hearings before television cameras tended to
inhibit frank and open discussion. So she decided to conduct informal
meetings and conversations recorded by a tape recorder, rather than
hold formal public hearings. Justice Abella recalled, “We sent out letters
of invitation for a 6-week, 17-city [tour] where we met with over a thou-
sand people. The only break I think we took was when my younger son
turned 7, when my husband and I took him and his brother to New York
to see Cats as a birthday present” (Abella 2009, 3).
Participants were told they would not be quoted in the report with-
out their approval, but were free to discuss their issues with the media if
they wished. “This approach proved effective, and the informal meetings
turned into a series of mini think-tanks with candid and vigorous discus-
sion by members of all the groups about their concerns” (Abella 1984,
vi). In each city Justice Abella met separately with individuals and organi-
zations representing women, members of visible minorities, Aboriginal
persons and persons with disabilities, labour, business, and government.
Before she started her cross-country meetings, Justice Abella first met
with the CEOs of the designated Crown corporations and found them
to be extremely helpful, cooperative, and generous with their time and
expertise. They were also “very frank” about whether equality policies
should be mandatory or voluntary: “The Crowns were open enough to
say that no business was going to do this unless they were required to do it.
The Crowns also felt that it would be unfair to single them out for policy
18 Carol Agócs

initiatives because they accounted for only a small portion of the feder-
ally regulated workplace. Not to make employment equity requirements
mandatory for the private sector at large would miss most of the work-
force, and also put the Crowns at a competitive disadvantage” (Abella
2009, 4–5).
This was confirmed by research from the Conference Board indicat-
ing that two things make affirmative measures work in a workplace: they
had to be mandatory and they needed the commitment of the CEO.

As for representatives from the business community, on the other hand,

there was a preference to let time and the marketplace solve the problem of
inequality. They advised, “wait until attitudes change and then behaviours
will change.” Or they said, “It’s insulting to these groups to require people
to hire them because it suggests that they don’t otherwise have merit.” But
when I asked members of the groups how they felt about this, they said,
“Attitudes are changed by behaviour. We don’t feel any worse about get-
ting jobs through affirmative measures than others feel about getting jobs
through the old boys’ network. If the merit system is what we’ve had until
now, we’ll rest our case.” So I was utterly persuaded that it had to be manda-
tory. (Abella 2009, 4–5)

Justice Abella also decided to meet with representatives from labour,

because “it was not going to work, in my mind, unless this was a col-
laborative process between business and labour.” Here the discussion
was about seniority in the context of a mandatory equity policy: “I asked
them what to do about seniority since business groups complained that
seniority gets in the way of hiring. Their response was ‘Seniority is … our
premier equity tool. It’s the way we ensure that people aren’t arbitrarily
fired’” (Abella 2009, 6).5
From her discussions with women, members of visible minorities,
Aboriginal people, and persons with disabilities, Justice Abella learned
about the unique issues each group confronted as well as the broader
social context of their workplace issues. This was reflected in the scope
of her analysis about discrimination and her policy recommendations,
which addressed pre-employment as well as workplace issues. In Justice
Abella’s words,

Women said, it’s not just about work, it’s about all of the things we need
to have access to in order to be able to work, like childcare, and it’s about
 The Making of the Abella Report 19

how we’re paid less. Aboriginal people said, it’s not just about how we’re
not hired, it’s about how they require Grade 13 to drive a truck, or it’s how
they hire people from the south and bring them up north rather than hir-
ing us. People who were non-white said, it’s about racism – we train people
and then they’re promoted over us. And it’s about how our culture isn’t
accommodated … And persons with disabilities said, we’re not a homoge-
neous group. Every single one of us is different, every one of us requires dif-
ferent things. We will never be hired unless the law insists we be hired. Our
pension system isn’t working. The sheltered workshop system isn’t working.
It was remarkable how it didn’t matter whether it was in Newfoundland
or Whitehorse, I heard the same thing from each group wherever I was in
Canada. All women, all persons with disabilities, all non-whites, all Aborigi-
nal people, had the same concerns. And so I quickly moved away from
thinking that the mandate was about 11 Crown corporations, and decided
that this was about the workplaces in Canada, period. (Abella 2009, 4–5)

The conversations Justice Abella had across Canada were the basis of
the learning process that produced the Royal Commission Report and
extended the horizon of its analysis, thus giving the report its profound
influence and staying power. It was a learning process centred on listen-
ing with an open mind and being receptive to the possibility of being
wrong, so that “the cerebral basket opens with the information that you
hear.” This formative learning experience, according to Justice Abella,
also changed her. “My opinions changed and I learned how to listen in a
different way” (Abella 2009, 14). “Each of us is limited by what we don’t
know. And each of us is limited by what others don’t know. With knowl-
edge comes understanding, with understanding comes wisdom and with
wisdom comes justice. And to have justice, we must never forget how the
world looks to those who are vulnerable. It was an incredible honour for
me to have had the opportunity to work on the Report. But I will never for-
get the people who taught me to see the world through their eyes” (15).
In her conversations across Canada, Justice Abella asked the groups
she spoke with what their views on affirmative action were. She found
that people were either confused about what they thought affirmative
action meant or unsure about whether it should be a remedy for inequal-
ity in Canada. It proved to be a polarizing term. To cool the rhetoric,
lessen resistance, and enhance the prospect of open-minded discus-
sion about a uniquely Canadian remedial approach to discrimination
in the workplace, Justice Abella recommended a new term and concept:
20 Carol Agócs

“employment equity,” “employment practices designed to eliminate dis-

criminatory barriers and to provide in a meaningful way equitable oppor-
tunities in employment” (Abella 1984, 7).

What Is Equality, and How Can We Attain It in Canada?

After her country-wide consultations, Justice Abella spent three months

reading legal, philosophical, and historical literature from around the
world about affirmative action, equality, discrimination, and employ-
ment practices. Except for the section on statistics, she wrote every word
of the report herself. The first chapter of the report was called “Defin-
ing Equality in Employment,” which began with Anatole France’s aph-
orism “The law, in its majestic equality, forbids the rich as well as the
poor to sleep under bridges, to beg in the streets, and to steal bread”
(Abella 1984, 1). It took her one month to write those eighteen pages,
and she considered it her biggest intellectual challenge in the report.
The Supreme Court of Canada had not yet defined what equality meant
when she wrote her report, but American courts had. Based on the 14th
Amendment, the American view was that equality meant the same or
identical treatment of individuals, an approach that Justice Abella found
too restrictive (Abella 2009, 7).6
As a result, Justice Abella considered and rejected the American “same-
ness” model as well as the individualistic and assimilationist assump-
tions that underlie American visions of equality: “If you treat everybody
the same, you won’t have ramps, and if you treat women the same as
men, you don’t take into account pregnancy, and if you treat whites the
same as non-whites, you don’t take into account racism, and if you treat
Aboriginal people the same as me, then you don’t take into account the
disadvantage of what it’s been like living in their disadvantaged circum-
stances” (Abella 2009, 7–8).
Another shortcoming of the American legal approach as a framework
for eliminating barriers, in Justice Abella’s view, was that affirmative
action was conceived as a fault-based remedy after a finding of discrimi-
nation has been made rather than something to be practised proactively
by all employers as “a systemic remedy to a systemic problem.”
Since the Canadian constitutional compact was about two culturally
different groups – the French and the English – coming together as
equals yet acknowledging and respecting each other’s differences, Justice
Abella did not see the American Melting Pot as an appropriate metaphor
 The Making of the Abella Report 21

for Canada. The Canadian Charter of Rights and Freedoms enshrines the
rights to be free from discrimination and to protect cultural diversity
(Abella 1984, 12–13). This human rights approach helped inform Justice
Abella’s formulation in her report of equality as a concept that “acknowl-
edged and accommodated differences so that the differences that kept
people out, are now looked at in order to bring them in. … Equality
is about acknowledging differences … What has to be done for differ-
ent groups is different … There’s no rulebook … Because differences
among groups are real, employers and service providers have a duty to
provide reasonable accommodation of differences (7–8).
She endorsed the approach articulated in the decision of the Supreme
Court of the United States in Griggs v Duke Power Co (1971), which
defined systemic discrimination as not being about intention or motives.
Instead, discrimination is identified by its impact, whether or not there is
an intention to discriminate: “You can have the best motives in the world
and still have an unrepresentative workplace. It’s about the results”
(Abella 2009, 8).
All this found expression in the first chapter of the Royal Commission
Report:

Equality in employment means that no one is denied opportunity for rea-

sons that have nothing to do with inherent ability. It means equal access
free from arbitrary obstructions. Discrimination means that an arbitrary
barrier stands between a person’s ability and his or her opportunity to dem-
onstrate it. If the access is genuinely available in a way that permits every-
one who so wishes the opportunity to fully develop his or her potential, we
have achieved a kind of equality. It is equality defined as equal freedom
from discrimination. Discrimination in this context means practices or atti-
tudes that have, whether by design or impact, the effect of limiting an indi-
vidual’s or group’s right to the opportunities generally available because
of attributed rather than actual characteristics. What is impeding the full
development of the potential is not the individual’s capacity but an external
barrier that artificially inhibits growth. It is not a question of whether this
discrimination is motivated by an intentional desire to obstruct someone’s
potential, or whether it is the accidental by-product of innocently motivated
practices or systems. If the barrier is affecting certain groups in a dispro-
portionately negative way, it is a signal that the practices that lead to this
adverse impact may be discriminatory. This is why it is important to look at
the results of a system. (Abella 1984, 2)
22 Carol Agócs

Justice Abella also looked at the American experience with quotas and
decided to reject them, because she found that quotas generally were
implemented in the lower-paying jobs of the workplace, not “all the way
through the occupational layers.” In practice, a quota that started as a
floor ended up becoming a ceiling. Justice Abella was also concerned
about recommending a bureaucracy whose mandate would be impos-
sible to implement: “You would be asking civil servants to say: ‘Let’s see,
you have 12 occupational categories, so you’ll need two of these, four of
these, five of these and one of these.’ And I thought, isn’t it better just to
make sure that the rate of change over time is reasonable, based on who
is in the workforce, how many openings you have, etc.” (Abella 2009, 9).

The Tempest: Reception of the Royal Commission Report

Justice Abella had been working under the radar and independently on
the report, giving no interviews or speeches during the year of her man-
date. Nor did she inform the government about what the report would
say before it was released. The evening the report was tabled in the House
of Commons – 20 November 1984 – Justice Abella was interviewed by
Barbara Frum on the CBC. The interview was followed by comments
from various stakeholders. Justice Abella recalled that the representative
of the association representing small businesses said, “These recommen-
dations are Gestapo-like tactics.” She had hope for a more favourable
reaction from the spokesperson for the National Action Committee on
the Status of Women, but NAC’s representative said, “No quotas? This
Report isn’t worth the paper it’s written on.” The person representing
persons with disabilities wasn’t as hostile, but said, “I don’t think it goes
far enough” (Abella 2009, 9).
In Justice Abella’s words,

I became a unifying force in this country: every single editorial from New-
foundland to Vancouver said, “this is awful, outrageous, untenable.”
But time is a wonderful thing … In March [1985] I got a call from Flora
MacDonald, the Minister of Employment and Immigration [in the Progres-
sive Conservative government of Brian Mulroney]. She had not seen the
report until the day it was released and I’d had no contact with the govern-
ment between the time it was released in November ’84 and March ’85. She
said, “I’m going to announce that I’m implementing employment equity.
I’ve talked it over with Prime Minister Mulroney, who wants to do this.”
And so, to my amazement, the legislation was introduced on June 27, 1986.
 The Making of the Abella Report 23

Three years from the date we were set up, there was an Employment Equity Act
in this country. Incredible. (Abella 2009, 10–11)

In her lecture, Justice Abella referred to several “ripples” that became

part of the legacy of legal and policy innovations emanating from the
Royal Commission Report. There was the landmark Supreme Court of
Canada decision in the case known as Action Travail des Femmes v CN Rail
(1987), which grew out of a complaint of systemic discrimination alleg-
ing that CN’s hiring policies and practices had excluded women from
access to blue-collar jobs in the Montreal region. The Court substanti-
ated the systemic complaint and assigned an employment equity remedy
requiring that one in four people hired should be women until CN Rail
achieved a representative workforce in that region. In his decision, Jus-
tice Dickson referred to the Abella Report, quoting Justice Abella’s defi-
nition of discrimination and adopting the term “employment equity” to
refer to a program whose purpose was to prevent further systemic dis-
crimination by an employer against a disadvantaged group (Canadian
National Railway v Canada 1987, 1118, 1138–9).
Then there was the Andrews (1989) case, the very first equality deci-
sion of the Supreme Court of Canada under the Charter. The Court
adopted the definition of equality from the Royal Commission Report,
not from American jurisprudence. The case was about a foreign-
trained lawyer who was refused admission to the Bar of British Colum-
bia because he was not a citizen. Justice Abella recalled, “I cannot tell
you how moving it was to me that the Supreme Court used my words
to strike down the citizenship requirement for lawyers. My father had
been a lawyer … [in Poland], and when he came to Canada in 1950,
he wasn’t allowed to practise law because he wasn’t a citizen. My father
died in 1970, a month before I finished law school, but Andrews closed
the circle” (Abella 2009, 9).
Justice Abella was also moved by another of the widening ripples cre-
ated by the Royal Commission Report – its international impact:

In 1989, I got a call from Northern Ireland. Two professors had been travel-
ling around to see what to do about the fact that Catholics were excluded
in Northern Ireland from employment opportunities. They went to the
United States to look at affirmative action measures. Then when they came
to Ottawa, somebody mentioned the Royal Commission Report. When they
read the Report, they told me, they decided to recommend to the govern-
ment of Northern Ireland that it base legislation on the concepts behind
24 Carol Agócs

the Report rather than using the American approach. The result was North-
ern Ireland’s Fair Employment legislation. (Abella 2009, 9)

Other jurisdictions, including Ontario, New Zealand, and South Africa,

also adopted employment equity policies based on the Royal Commis-
sion Report. Some of these initiatives were short-lived. As Justice Abella
wryly observed, “Ontario implemented employment equity. New Zealand
implemented employment equity. [Then] parties in each of those juris-
dictions ran for office with the promise of repealing employment equity.
They won. I was repealed in each. There aren’t a whole lot of people who
can say they’ve been repealed once, let alone twice, before the age of 50”
(Abella 2009, 13).

Substantive Equality under the Charter: Justice Abella’s Voice

on the Supreme Court of Canada

In 2004 Justice Rosalie Silberman Abella became the first Jewish woman
to be appointed to the Supreme Court of Canada, as well as one of four
sitting women justices, one of whom is the Chief Justice. Chief Justice
Beverley McLachlin noted that for the first time the Supreme Court
accurately reflected the place of women in Canada’s judiciary and legal
profession (McLachlin 2004).7
On the Supreme Court, Justice Abella continues to contribute sub-
stantially to the evolution of our understanding of substantive equality
under section 15 of the Charter of Rights and Freedoms. R v Kapp (2008),
a judgment written with Chief Justice McLachlin, breaks new ground by
clarifying the application of section 15 (2) of the Charter, which enables
governments to “proactively combat discrimination by developing pro-
grams aimed at helping disadvantaged groups improve their situation”
(R v Kapp 2008, introduction). In this case a government affirmative
action program giving Aboriginal fishers the exclusive right to fish for
salmon at the mouth of the Fraser River for a twenty-four-hour period in
1998 was upheld as constitutional in the face of an appeal by commer-
cial fishers, mostly white, who argued that the communal fishing licence
discriminated against them on grounds of race, and that section 15 (1)
of the Charter, which prohibits discrimination, had been violated. The
decision in Kapp found that section 15 (2) protects special programs
such as this against charges of reverse discrimination: a government
program does not violate the equality guarantee of section 15 (1) if it
has an “ameliorative or remedial purpose” and “targets a disadvantaged
 The Making of the Abella Report 25

group identified by the enumerated or analogous grounds” (R v Kapp

2008, para. 41). The judgment observed that sections 15 (1) and 15 (2)
“work together to promote the vision of substantive equality that under-
lies section 15 as a whole” (R v Kapp 2008, para. 16). Quoting the Abella
Report (1984, 3–14), the decision noted that section 15 (2) permits “a
group remedy for discrimination” and “encourages a comprehensive or
systemic rather than a particularized approach to the elimination of dis-
criminatory barriers.”
In Withler v Canada (2011), a judgment also written with Chief Justice
McLachlin, the nature of the Supreme Court’s section 15 (2) analysis
was further clarified. The issue was whether a federal program providing
death benefits to spouses discriminated against two widows on the basis
of age. The judgment observed that comparison within a historical and
sociological context is a critical part of an analysis of whether a law vio-
lates section 15 (1). It stated, “The theme underlying virtually all of this
Court’s sec. 15 decisions is that the Court in the final analysis must ask
whether, having regard to all relevant contextual factors, including the
nature and purpose of the impugned legislation in relation to the claim-
ant’s situation, the impugned distinction discriminates by perpetuating
the group’s disadvantage or by stereotyping the group” (Withler v Canada
2011, paras 39–40, 54).8
The judgment written by Justice Abella in Council of Canadians with
Disabilities v Via Rail Canada Inc. (2007) confirmed the right of persons
with disabilities to reasonable accommodation and removal of discrimi-
natory barriers such that they have “the same access as those without
disabilities.” It also clarified that reasonable accommodation “imposes
a duty on others to do whatever is reasonably possible to accommodate
this right,” limited only by proof that the removal of a discriminatory
barrier “imposes undue hardship” on the provider of services. Further,
“the point of undue hardship is reached when reasonable means of
accommodation are exhausted and only unreasonable or impracticable
options for accommodation remain” (Council of Canadians with Disabil-
ities v Via Rail 2007, paras 121 and 130).9 In the unanimous decision
of the Supreme Court of Canada in Moore v British Columbia (Education)
(2012 SCC 61), written by Justice Abella, discrimination was found to
have occurred when a school board facing budget pressures cancelled a
program that a student with a learning disability required in order to be
able to learn, and did not provide any alternative accommodation. Like
the decision in Council of Canadians with Disabilities v Via Rail, this judg-
ment endorsed the principle of substantive equality – that equality of
26 Carol Agócs

results necessitates the recognition and accommodation of differences

among people – rather than the notion of formal equality, or treating
everyone alike, regardless of their differences.10
The quest for justice and equality that was articulated in the Report of
the Royal Commission on Equality in Employment more than a quarter cen-
tury ago continues. Justice Abella’s report clearly and forcefully put the
right to freedom from discrimination, and the justification for affirma-
tive government efforts to end discrimination and ameliorate disadvan-
tage, on the legislative and judicial agenda in Canada. Justice Abella’s
life work of making the Charter’s promise of substantive equality a tan-
gible reality for all Canadians continues, and continues to demand the
engagement of all who share her vision.

NOTES

1 The 1995 act, which came into force 24 October 1996, replaced the Employ-
ment Equity Act, SC 1986, c 31, which came into force in 1987.
2 Other landmark works in this vein include John Porter, The Vertical Mosaic
(1965); the Report of the Royal Commission on Bilingualism and Bicultural-
ism (six reports published 1967–70); the Report of the Royal Commission
on the Status of Women (1970); and the Report of the Royal Commission on
Aboriginal Peoples (1996).
3 The thirteen-member Macdonald Royal Commission on the Economic
Union and Development Prospects for Canada was appointed by Prime
Minister Pierre Trudeau in 1982, and it reported in 1985 to Prime Minister
Brian Mulroney. The report made the case for free trade with the United
States, which Mulroney endorsed. The commission spent approximately
$21 million (Bradfield 1986, 125). Also see Macdonald (1985) and Laidler
and Robson (2005).
4 For more on Justice Rosalie Silberman Abella’s life story, see Bailey
Nurse (2006).
5 The Royal Commission Report recommended that seniority not be considered
a discriminatory barrier, and this recommendation was included in the 1986
Employment Equity Act, to which the report gave rise.
6 See Abella (1994) for further discussion of Justice Abella’s analysis of equal-
ity and discrimination in liberal democracies.
7 Following her work on the royal commission and preceding her appoint-
ment to the Supreme Court, Justice Abella served as chair of the Ontario
Labour Relations Board, chair of the Ontario Law Reform Commission,
 The Making of the Abella Report 27

justice of the Ontario Court of Appeal, Boulton Visiting Professor at McGill

University’s Faculty of Law, and Senior Fellow of Massey College at the Uni-
versity of Toronto.
8 The Court found that the Charter had not been infringed and the appeal
was dismissed.
9 The Court ruled in favour of the Council of Canadians with Disabilities.
10 For a rich discussion of conceptions of equality, see Sheppard (2010).

REFERENCES

Abella, Rosalie Silberman. 1984. Equality in Employment: A Royal Commission

Report. Ottawa: Minister of Supply and Services Canada.
– 1985. Research Studies of the Commission on Equality in Employment. Ottawa: Min-
ister of Supply and Services Canada.
– 1994. “Equality, Human Rights and Women.” 1994 Edmonds Lecture:
Women and Work, Winnipeg, MB, 7 March.
– 2004. “Remarks at the Swearing-in Ceremony of the Honourable Rosalie
Silberman Abella and The Honourable Louise Charron,” 4 October.
– 2009. “Reflections on the Abella Report: 25 Years Later.” Koskie Minsky Uni-
versity Lecture in Labour Law, University of Western Ontario, London, ON,
30 October.
Andrews v Law Society of British Columbia [1989], 1 SCR 143.
Bailey Nurse, Donna. 2006. “Just ‘Rosie.’” University of Toronto Magazine (winter).
http://www.magazine.utoronto.ca/winter-2006/rosalie-abella-supreme-court-
of-canada-women-judges/.
Bradfield, Michael. 1986. “Review Essay: Macdonald Royal Commission Report.”
Canadian Journal of Regional Science 9 (1): 125–37.
Canadian National Railway Company v Canada (Canadian Human Rights Commis-
sion) [1987] SCR 1114 (Action Travail des Femmes).
Council of Canadians with Disabilities v Via Rail Canada Inc. [2007] SCC (prelimi-
nary version).
Employment Equity Act, SC 1995, c 44.
Griggs v Duke Power Co, 1971, 401 US 424, 91 S Ct 849.
Laidler, David E.W., and William B.P. Robson, eds. 2005. Prospects for Canada:
Progress and Challenges 20 Years after the Macdonald Commission, Policy Study 41.
Toronto: C.D. Howe Institute.
Macdonald, D., Royal Commission on the Economic Union and Development
Prospects for Canada. 1985. Report, 3 vols. Ottawa: Minister of Supply and
Services Canada.
28 Carol Agócs

McLachlin, Beverley. 2004. “Remarks at the Swearing-in Ceremony of the Hon-

ourable Rosalie Silberman Abella and The Honourable Louise Charron,” 4
October.
Moore v British Columbia (Education) 2012 SCC 61.
Porter, John. 1965. The Vertical Mosaic. Toronto: University of Toronto Press.
R v Kapp [2008] 2 SCR 483, 2008 SCC 41.
Royal Commission on Aboriginal Peoples. 1996. Royal Commission Report on
Aboriginal Peoples. Ottawa: Aboriginal Affairs and Northern Development
Canada. http://www.aadnc-aandc.gc.ca/eng/1307458586498/1307458751962.
Royal Commission on Bilingualism and Biculturalism. 1967. Royal Commission
Report on Bilingualism and Biculturalism. Ottawa: Queen’s Printer.
Royal Commission on the Status of Women. 1970. Report of the Royal Commission
on the Status of Women in Canada. Ottawa: Queen’s Printer.
Sheppard, Colleen. 2010. Inclusive Equality: The Relational Dimensions of Systemic
Discrimination in Canada. Montreal and Kingston: McGill-Queen’s University
Press.
Withler v Canada (Attorney General) [2011] SCJ no. 12 (preliminary version).
Chapter 2

Employment Equity in Canada: What Do

the Data Show about Its Effectiveness?
NAN WEINER

The Abella Royal Commission (1984) provided the research and analy-
sis for understanding systemic discrimination and the need to redress it
proactively. The commission’s mission was to “increase the opportunities
of employment of women, native people, disabled persons and visible
minorities … [and] to inquire into the most efficient, effective and equi-
table means of promoting equal employment opportunities, eliminat-
ing systemic discrimination and assisting all individuals to compete for
employment opportunities on an equal basis” (Abella 1984, ii).
Two programs emerged from the Abella Report: the Legislated Employ-
ment Equity Program (LEEP) and the Federal Contractors Program
(FCP). Over time LEEP has come to cover federally regulated industries
(e.g., banking, communication, and transportation), the federal public
service, and some other federal organizations and agencies (e.g., Cana-
dian Forces). The FCP covers federal contractors (those who do business
with the federal government). Employers under LEEP are all covered
by the federal Employment Equity Act, the legislative framework for LEEP.
FCP employers are covered by provincial legislation; however, in choos-
ing to bid on contracts with the federal government they agree to imple-
ment employment equity if awarded the contract. Only employers with
at least 100 employees are covered in both programs. Until 2013, fed-
eral contractors with a single contract of at least $200,000 were covered.
However, in 2013 the Harper government raised the contract threshold
to $1 million “to support the Government’s commitment to reduce regu-
latory red tape burden for small-to-medium-sized employers,” thus also
substantially reducing the FCP’s coverage (Labour Program 2013). The
distinction between LEEP and FCP comes in the enforcement mecha-
nisms of the programs, discussed later. Table 2.1 shows the number of
30 Nan Weiner

Table 2.1. Employers and Employees Covered by Federal Employment Equity

Efforts, 2007

Regulated Public service Contractors

Number organizations and separate program
covered (LEEP) employers (LEEP) (FCP)* TOTAL

Employers 546 90 940 1,576

Employees 733,517 388,253 1,150,000 2,371,770

*Scope: $13 billion in contracts were covered by the FCP from 1986 to 1997 (Erridge
and Fee 2001, 62).
Source: Table 1, “Overview,” Canadian Human Rights Commission Annual Report (2008).

employees and employers covered by the two programs in 2007. Less

than 1 per cent of employers are covered by these two programs, while
about 13 per cent of the labour force is covered.
Key to both programs is the understanding that systemic discrimina-
tion requires employers to take proactive steps to redress the problem.
Employers must look for and identify the effects of systemic discrimi-
nation and, if found, correct them. This is different from a complaint-
based approach such as is used in human rights legislation.
Employment equity has been in place since 1987 for at least some
employers. Over time the understanding of how employment equity
should work has increased; further, the two programs have been brought
into line with each other and the enforcement mechanisms have become
stricter. Still the question remains, how effective is employment equity at
achieving the mission set out in the Abella Report? This chapter reviews
the data from the annual reports provided by LEEP employers, program
evaluation of LEEP, and academic research. First, however, the next sec-
tion provides a review of the employment equity (EE) process as set out
in LEEP and FCP.

Employment Equity Process

Both the LEEP and FCP programs require four steps (HRSDC 2010):

1 commitment, communication, and consultation

2 problem identification
3 development of a three-year EE plan
4 implementing, sustaining, reviewing, and revising the plan
 Employment Equity: What Do the Data Show? 31

Human Resources and Skills Development Canada (HRSDC) col-

lects data and publishes annual reports for employers covered by LEEP,
but not FCP. Further, enforcement differs for the two programs. LEEP
employers are audited by the Canadian Human Rights Commission
(CHRC) because they are federally regulated organizations and thus
under the jurisdiction of the Canadian Human Rights Act. However, FCP
employers are monitored by HRSDC Labour Programs because they are
not subject to federal legislation.
The CHRC audit process was a significant addition to the revised
Employment Equity Act of 1995. Between 1997 and 2006, CHRC did 300
audits of federally regulated employers and government departments
and agencies (CHRC 2009, 1). The audit process is in two parts: pre-
liminary assessment (to ensure organizations are in compliance with the
steps in the EE process); and progress assessment (to ensure organiza-
tions are fulfilling their goals, e.g., achieving representation), which is to
take place three to five years after the employer is found to be in compli-
ance with the preliminary assessment.
Although the audit process emphasizes negotiations and persua-
sion rather than stronger deterrents, the reality is that employers typi-
cally have only completed their workforce survey, needed to file annual
reports, and may have developed an EE plan, but have not done much
else until the audit begins. The same holds for FCP employers whose EE
plans are reviewed by HRSDC.

How Effective Is the Employment Equity Act ?

The ultimate goal of employment equity is to achieve representation for

members of each of the four designated groups throughout the organi-
zational hierarchy and to have employment systems that meet the needs
of all employees (designated and non-designated). Representation is
considered to have been achieved when the proportion of each desig-
nated group (DG) within various occupational groupings within an orga-
nization is equal to the availability of the DG in the labour force. Thus,
one of the key ways to assess the effectiveness of the Employment Equity Act
(EEA) is to look at changes in representation for each of the DGs. There
are twenty-one years of data from LEEP employers on representation. In
addition, there has been some, though not extensive, academic research
on employment equity. Both of these are examined.
32 Nan Weiner

Data from LEEP Employers

Four charts from the HRSDC 2008 Employment Equity Annual Report1 are
provided below. Each shows the data for one of the four designated
groups for employers in federally regulated industries, but does not
include Federal Public Service or FCP employers. These charts show the
level of representation compared to the level of availability. To provide a
clearer picture of current events, the availability level for 2006 has been
added so that for the last two years (2006 and 2007) representation can
better be compared to relevant availability. These charts provide infor-
mation about overall representation only, which masks different repre-
sentation at different occupational levels. For example, a DG’s overall
representation could be consistent with its representation in the pop-
ulation, but members of the DG could be concentrated in lower-level
occupations.
Before discussing the representation for each DG, it is necessary to
comment on the data. The availability data are captured in the long
form of the census, which asks people which of the fourteen occupa-
tional groups they worked in over the last seventeen months and about
their ethnicity and race. Since the census is conducted every five years,
the availability data are always out of date, except for the data on women,
which are measured annually. This is particularly an issue for visible
minorities, a group that is rapidly increasing in the labour force every
year. Because the availability data include only those who have had actual
work experience in the previous seventeen months, they do not capture
all those who are qualified (for many occupations) and available for
work (e.g., those graduating from school). The availability data thus pro-
vide an underestimation of actual available labour. Employers are using
availability data to set EE goals, which are more relevant to the past.
On the other hand, the fourteen occupational categories used in EE
are very broad, comprising somewhat more specific occupational group-
ings, which may still be rather broad. For example, under Professionals
there are three sub-occupations2 related to human resources: Specialist
in HR, Personnel and Recruitment Officer, and Training Officer. On the
other hand, there is a very broad sub-occupation of Professional Occu-
pation in Business Services to Management, which is a kind of catch-all
for many non-financial, non-HR jobs. Depending on the kind of work
within a particular organization, these sub-occupations may or may not
provide a good reflection of the work done within the organization, and
 Employment Equity: What Do the Data Show? 33

Figure 2.1. Representation and Availability of Women in the Federally

Regulated Private Sector

Source: HRSDC, Employment Equity Act: Annual Report 2011.

this affects the accuracy of the availability data. In addition, the availabil-
ity data for the smaller populations of DGs (persons with disabilities and
Aboriginal peoples) are less stable than for women and visible minori-
ties. As can be seen in figures 2.1 to 2.4 the availability data move up
or down every five years as the new census data come in. This, in part,
reflects some of the difficulties in reliably collecting data from these two
groups. Overall, while the availability data are imperfect, they do provide
a decent guide, and employers are allowed to use other data if relevant
to helping them identify availability for their organization.
Figure 2.5 shows a comparison of the four DGs for the fourteen
occupational groupings. In addition, because having DG members in
decision-making positions within organizations is of key importance, the
representation of each designated group in managerial jobs is discussed
below.
Looking at representation over time, the graph for women (figure 2.1)
shows that representation has always been below availability, though it was
very close in 1990 and 1993. Surprisingly, the gap between representa-
tion and availability has been increasingly widening since 2001, because
availability has increased somewhat while representation has fallen even
more. On the other hand, the gap for women in senior management
jobs has been decreasing slightly. Their availability was 25 per cent (2001
34 Nan Weiner

census) while representation in 2007 (the last year examined for this
chapter) was 22 per cent (up from 20 per cent in 2001). For middle man-
agers, women’s representation of 42 per cent (2007) is greater than avail-
ability (38 per cent for 2001) (HRSDC 2008, 5).
The second graph (figure 2.2) shows the data for visible minorities.
Here there is a steep, upward slope in representation. In fact, repre-
sentation has been above availability since 2007. Like the other desig-
nated groups, representation (5.4 per cent) for senior managers is below
availability (8.2 per cent) based on 2001 availability. However, for mid-
dle managers, representation (13 per cent) is slightly above 2001 avail-
ability (12 per cent), having increased from 9 per cent in 2001 (HRSDC
2008, 8).
Figure 2.3 for Aboriginal peoples shows a steady but not very steep
upward slope indicating slight continuous improvement since 1987. Rep-
resentation has increased from 1.6 per cent in 2001 to 1.9 per cent in
2010, well below 2006 availability of 3.1 per cent. Representation has
never been particularly close to availability. Managerial data show that
Aboriginal peoples are far below availability for senior managers. In
2007, just less than 1 per cent (0.9 per cent) of Aboriginal people were
in senior management, compared to availability of 2.5 per cent in 2001.
For middle managers, representation is closer to availability, 1.1 per cent

Figure 2.2. Representation and Availability of Members of Visible Minorities in

the Federally Regulated Private Sector

Source: HRSDC, Employment Equity Act: Annual Report 2011.

 Employment Equity: What Do the Data Show? 35

Figure 2.3. Representation and Availability of Aboriginal Peoples in the

Federally Regulated Private Sector

Source: HRSDC, Employment Equity Act: Annual Report 2011.

compared to 1.4 per cent for 2001 availability. Interestingly, for super-
visors in craft/trades, Aboriginal peoples have higher representation
(3.4 per cent in 2007) compared to availability of 1.7 per cent (2001
availability) (HRSDC 2008, 6).
The group that lags behind most is persons with disabilities. Its graph
shows little sustained upward movement since 1987 (figure 2.4). Repre-
sentation has always been significantly below availability. (Interestingly,
availability has declined for this group, which may be a function of dif-
ferent people feeling comfortable identifying themselves as “disabled.”)
Still, among senior managers, representation (2.6 per cent) is above
2001 availability (2.1 per cent), and representation for middle manag-
ers (2.6 per cent) is almost the same as 2001 availability (2.7 per cent).
Because of the likely higher age level of those in managerial jobs overall
and because people become more disabled as they age, it is likely that
these demographics reflect individuals who have become disabled after
attaining their managerial positions rather than the status of people with
existing disabilities being hired and promoted.
Figure 2.5 compares the achievement of employment equity among the
four designated groups in the fourteen occupational groupings tracked
for federally regulated employers. The index of representativeness (IR)
36 Nan Weiner

Figure 2.4. Representation and Availability of Persons with Disabilities in the

Federally Regulated Private Sector

Source: HRSDC, Employment Equity Act: Annual Report 2011.

is derived by dividing representation by availability. An index of 1.0

means that representation = availability and EE is achieved. An index of
less than 1.0 indicates under-representation, while an index greater than
1.0 refers to concentration of the DG in an occupation. The index allows
a comparison across the four designated groups. That is, because each
DG’s representation is divided by their availability, the index provides
a common metric. Figure 2.5 shows the index by occupational group-
ings for the four designated groups for federally regulated employers.
It shows:

• Aboriginal peoples have achieved representation in only two occupa-

tions (supervisor in crafts and trades, and other manual workers).
• Persons with disabilities are under-represented in all but three occu-
pations – senior managers, middle managers, and supervisors, per-
haps because older individuals have become disabled.
• Visible minority groups have an index above 1.0 in nine out of the
fourteen occupations. They are under-represented in senior manage-
ment, semi-professionals, skilled sales and service, semi-skilled man-
ual, and other manual workers.
 Employment Equity: What Do the Data Show? 37

Figure 2.5. Federally Regulated Employers Index of Representativeness,

2007, with 2001 Availability Data

Source: HRSDC, Employment Equity Act: Annual Report 2008; index calculated from
data provided on pages 13, 19, 25, and 33.

• Women show a pattern similar to that for persons with disabilities –

they are below availability in all occupations except middle managers
and supervisors. They are almost at availability for intermediate sales
and service. It is often assumed that women have made significant
progress as a result of employment equity, but as shown in figures 2.1
and 2.5, their level of representation does not equal availability either
overall (figure 2.1) nor in most occupational groupings (figure 2.5).
• For senior managerial jobs, persons with disabilities show over-
representation (IR of about 1.25), while for the other three groups
representation is below availability. For women, the index is 0.88,
for visible minorities 0.66, and Aboriginal persons are particu-
larly low, with an index of only 0.36. The data for middle managers
are encouraging, since three of the designated groups have either
over-representation (women 1.13; visible minorities 1.08) or near-
representation (persons with disabilities 0.96), while Aboriginal
38 Nan Weiner

peoples have an index of 0.79. Middle managers are an obvious

feeder group for senior managerial jobs.

While these findings are disheartening, it appears that employers in

the LEEP are doing better than non-LEEP employers. A program evalua-
tion of LEEP employers for the period 1987 to 1999 found that while rep-
resentation for the four designated groups was consistently below their
availability, the growth rate for women and visible minorities was greater
among LEEP employers than for the general labour force (HRSDC
2005). Further, for each of the four designated groups, there was a posi-
tive correlation between growth in representation and the number of
years an employer was covered under LEEP. Other findings from this
research (HRSDC 2005) showed that employer size is related to repre-
sentation. Larger organizations (more than 500 employees) employed a
larger proportion of women, persons with disabilities, and visible minori-
ties, while smaller organizations (fewer than 500 employees) employed
proportionately more Aboriginal people.
Data for the federal public service are presented in figure 2.6 for the
index of representativeness for 1998 and 2008. Figure 2.6 shows that in
1998 the indices for women and Aboriginal peoples were both above
availability (1.0 and 1.6 respectively), and persons with disabilities had
an index of 0.8, while visible minorities were lowest (0.6). By 2008 the
women’s index remained unchanged (1.0), while the other three other
groups all improved. Aboriginal peoples moved from 1.6 to 1.8, persons
with disabilities doubled from 0.8 to 1.6, and visible minorities increased
from 0.6 to 0.9. It is interesting to note that visible minorities lag behind
in the federal public service, though they are the only group that is above
availability among employers in federally regulated industries.
The federal public service has a different way of grouping jobs into
occupations. Table 2.2 provides these data as of 31 March 2008 (TBS
2009). Availability figures are not given. In managerial (executive) jobs,
women have a 42 per cent representation rate, compared to 7 per cent
for visible minorities, 6 per cent for persons with disabilities, and only
3 per cent for Aboriginal peoples.
Among the designated groups employed in the various occupations,
virtually everyone employed in administrative support jobs is a member
of one or more of the designated groups (81 per cent of administrative
jobs are held by women, 10 per cent by visible minorities, 8 per cent by
persons with disabilities, and 5 per cent by Aboriginal peoples). Within
 Employment Equity: What Do the Data Show? 39

Figure 2.6. Index of Representativeness for Designated Groups in Federal

Public Service, 1998 and 2008

Source: Treasury Board Secretariat of Canada, “Employment Equity in the Public

Service of Canada 2006–2007 and 2007–2008” (appendix 2, table 1) (2009).

executive positions 41.7 per cent are held by women, 6.7 per cent by vis-
ible minorities, 5.7 per cent by persons with disabilities, and 3.4 per cent
by Aboriginal peoples.

Academic Research

All but one piece of research referenced here is Canadian. Table 2.3
highlights the variables studied for the designated groups and the top-
ics covered. The table shows very little research on Aboriginal peoples
and persons with disabilities, perhaps because they are the two smallest
groups. However, since these two designated groups have made the least
progress, a case could be made that they require the most research. In
the only research to focus on persons with disabilities (England 2003),
men and women with and without disabilities were compared within
six large banks. England found occupational segregation was based on
gender rather than disability status. Most men, regardless of disability
status, were employed in middle-management jobs; however, for men
Table 2.2. Distribution of Public Service of Canada Employees by Designated Group According to Occupational Category and Group*

Aboriginal Persons with Persons in a visible

All employees Women peoples disabilities minority group
Occupational category
and group # # % # % # % # %
Executive 4,898 2,042 41.7 165 3.4 278 5.7 326 6.7
Scientific and professional 27,350 12,385 45.3 697 2.5 1,094 4.0 3,662 13.4
Administrative & Foreign 90,284 55,832 61.8 4,121 4.6 5,554 6.2 8,533 9.5
Service
Technical 17,422 5,663 32.5 612 3.5 896 5.1 1,106 6.3
Administrative support 26,849 21,719 80.9 1,395 5.2 2,093 7.8 2,730 10.2
Operational 19,951 3,948 19.8 1,200 6.0 1,086 5.4 850 4.3
TOTAL FEDERAL PUBLIC 186,754 101,589 54.4 8,190 4.4 11,001 5.9 17,207 9.2
SERVICE

*FAA, schedules I and IV Indeterminates, Terms of Three Months or More, and Seasonal Employees – as at 31 March 2008.
Note: Internal representation is based on those who have voluntarily chosen to self-identify to date as an Aboriginal person, a person
with a disability, and/or a person in a visible minority group.
Source: Treasury Board Secretariat of Canada, “Employment Equity in the Public Service of Canada 2006–2007 and 2007–2008”
(appendix 2, table 3) (2009).
Table 2.3. Summary of Canadian Research on Employment Equity by Variables Studied and Designated Groups

Designated groups

Aboriginal Persons with

Variables studied peoples disabilities Visible minorities Women

Characteristics of organizations
Organizational size
Industrial sectors
Employment effects
Occupational effects
Part-time vs full-time employment
Occupational segregation
Characteristics of employment equity
Covered by EEA vs those not
covered
Presence of EE directives, or
statistical evidence vs no mention
of EE
Formalized EE program
Outcomes
Good outcomes of EE
Erridge and Fee (2001)*
Re-employment after layoff
Backlash is problematic
Jain & Lawler (2004) Stewart & Drakich (1995)
Jain & Lawler (2004)
Jain & Lawler (2004)
Jain & Lawler (2004)
England (2003) England (2003)
Leck & Saunders Leck & Saunders Leck & Saunders (1992) Jain & Hackett (1992)
(1992) (women) (1992) (women) (women) Leck & Saunders (1992)
Glastra, Schedler, & Kats Jain & Hackett (1989)
(1998) Ng & Wiesner (2007)
Jain & Hackett (1989)
Leck and Saunders (1996) Stewart & Drakich (1995)
Leck, St Onge, & Leck, St Onge, & Leck, St Onge, & Leck & Saunders (1992)
Lalancette (1995) Lalancette (1995) Lalancette (1995) Leck (2002)
Leck, St Onge, & Lalancette
(1995)
Antecol & Kuhn (1999)
Falkenberg & Boland (1997)

*Looked at FCP program overall rather than specific designated groups.

42 Nan Weiner

with disabilities the second-most-populated occupation was clerical,

compared to professional for men without disabilities. Women, regard-
less of disability status, were most likely to be found in clerical jobs. Occu-
pational segregation had declined, with more women, including women
with disabilities, in managerial positions. The studies that included
Aboriginal peoples looked at all the designated groups (Leck and Saun-
ders 1992; Leck, St Onge, and Lalancette 1995) and did not study char-
acteristics of Aboriginal peoples specifically.
The basic findings from the other research are summarized below.
The most interesting study (Ng and Wiesner 2007) addresses the com-
mon concern that EE will mean hiring fewer qualified people. Using
business students, Ng and Wiesner examined hiring into non-traditional
jobs, i.e., women into policing and men into nursing. They manipulated
the relative qualifications between traditional and non-traditional can-
didates for the two jobs, and also manipulated whether there were EE
directives, statistical data on EE results, or no information on EE. The
authors found that the qualification of candidates is taken into consider-
ation when employment equity is being emphasized, though not in the
way opponents of EE assume. Business students showed a bias towards
less-qualified men but not women. Obviously, qualifications are impor-
tant because they are assumed to be related to performance, a factor not
examined in the present study. However, some studies, including some
done in the United States (Neumark, quoted in Ng and Wiesner 2007;
Holzer and Neumark 2000; and Koretz, quoted in Leck 2002) indicate
that while EE efforts may lead to individuals with lower qualifications
being hired, this does not mean lower performance. This could be due
to more rigorous selection or to unnecessary job requirements (formal
qualifications), which may create barriers to the hiring of designated
group members, and the EE process seeks to remove such barriers.
The characteristics of organizations affect the success of EE. Large
organizations did better for visible minorities (Jain and Lawler 2004),
while smaller universities did better for women (Stewart and Drakich
1995). Characteristics of the employment/job situation can affect rep-
resentation levels: occupational segregation in banks is more linked to
gender than to disability status (England 2003). The characteristics of
EE also have an effect. Organizations that highlight EE, by providing
an EE mission statement and under-representation data, increase hir-
ing into non-traditional jobs (Ng and Wiesner 2007), and formalized EE
programs produce better results (Leck and Saunders 1992, 1996). Stew-
art and Drakich (1995) found that universities with more active EE pro-
grams did better, while Jain and Hackett (1989) found that enforcement
 Employment Equity: What Do the Data Show? 43

is critical to getting results. A number of studies focus on outcomes.

White women have benefited more than women of colour from EE
efforts (Leck and Saunders 1992). The gender wage gap has closed more
rapidly in organizations with formalized EE programs (Leck and Saun-
ders 1992). EE results in improved HR practices, increased representa-
tion and improved status of women, and narrowing of the wage gaps
between men and women (Leck 2002). Erridge and Fee (2001) found
that EE changes attitudes, and Antecol and Kuhn (1999) found that EE
helps women get re-employed after layoffs. These authors also found that
men feel more discriminated against in organizations with EE programs,
while Falkenberg and Boland (1977) found that backlash is problematic.
Jain and Lawler (2004) looked at the progress of visible minorities
between 1987 and 1999 across the country. In addition to finding that
large employers did better in increasing representation than smaller
ones, they found that the Atlantic provinces did better than expected
relative to local labour market conditions. Visible minorities did best in
supervisor, clerical, and craft and trade positions but were substantially
under-represented in manual, sales, professional, and managerial jobs.
In the industry sector, equity was higher in banking than in commu-
nication and transportation. Visible minorities were found dispropor-
tionately in the secondary labour force (temporary and part-time work)
compared to permanent, full-time work.
Much of the research has focused on being required to do EE (ver-
sus not) and having a formalized EE program (Glastra, Schedler, and
Kats 1998; Jain and Hackett 1989, 1992; Leck 2002; Leck and Saunders
1992, 1996; Leck, St Onge, and Lalancette 1995; and Stewart and Dra-
kich 1995). In all situations institutionalizing EE had positive effects.
In terms of outcomes, a few studies have looked at the effect of EE on
closing the wage gap (Leck 2002; Leck, St Onge, and Lalancette 1995).
They find that organizations subject to the Employment Equity Act are
slowly closing the wage gap and that organizations with more formalized,
comprehensive, and supported EE Programs are closing the wage gap
more rapidly. A study by Antecol and Kuhn (1999) found some evidence
that employment equity coverage in a pre-separation job reduced the
relative amount of time it takes women, compared to men, to become
re-employed. This effect operates largely through highly significant dif-
ferences in the rate at which women and men are recalled to the pre-
separation employer.
Erridge and Fee’s (2001) research was atypical because it focused spe-
cifically on the Federal Contractors Program. They found the program
44 Nan Weiner

stronger in policy than in implementation, in part as the result of under-

funding, so assessments of employers’ progress cannot be done more
often. Workplace Equity officers of HRSDC are responsible for assess-
ing FCP employers. FCP has consistently been the “weak sibling” of EE
and so does not get as much attention as LEEP. However, Erridge and
Fee do find that the numbers do not tell the whole story. They note that
there have been “qualitative changes in the attitudes of employees and
employers toward equity, in addition to increasing awareness” (68).
Leck (2002) argues against the premise that the benefits from EE
would have been gained without employment equity programs as a result
of economic, societal, or demographic pressures. She highlights three
major benefits resulting directly from EE: improved human resource
practices due to policy changes that support EE; increased presence and
improved status of women due to their representation in the workplace
and in more positions of power; and a narrowing of the wage gap between
men and women, in part due to the increase in the number of women
in higher positions within organizations. Taggar, Jain, and Gunderson
(1997) have pointed out that much of the research on EE does not allow
a clear determination of the impact of LEEP, since organizations not cov-
ered by LEEP are not included in the studies, and therefore it cannot be
determined if other factors are affecting the changes. It is difficult to get
non-LEEP employers to take part in such research, since they typically
see nothing in it for them but have to spend time on surveys.

Do We Have the Act We Should Have?

Over the years various parties have made recommendations for changes
to the 1995 EEA. Both the CHRC (2002) and the Parliamentary Com-
mittee on Human Resources Development and the Status of Persons
with Disabilities (Longfield 2002) felt that the act is basically sound and
that fine tuning is needed, rather than an overhaul. In addition, recom-
mendations have been made from other sources including Bakan and
Kobayashi (2000) and the LEEP Program Evaluation (HRSDC 2005).
These are highlighted below.
DGs face issues in the public sector different from those in the private
sector. Persons with disabilities and Aboriginal peoples have not done as
well among federally regulated employers, while visible minorities have
done poorly in the federal public service. At present there is no differ-
entiation between what is required of employers in federally regulated
industries and the federal public service, nor is there any difference in
 Employment Equity: What Do the Data Show? 45

what is required to achieve EE for the four designated groups. Further,

employment equity as currently constructed cannot deal with individu-
als who are members of more than one designated group. It has long
been hypothesized that women who are also disabled or also a member
of a visible minority face double or triple jeopardy. Without the ability to
track such individuals, there is no way to test this hypothesis. For exam-
ple, England’s (2003) research showed that being a woman had more
impact than being disabled, but more needs to be done in order to assess
the implication of being a member of more than one designated group.
A number of aspects of EE are encouraged by HRSDC and CHRC
but are not enshrined in the act or the FCP. This can confuse employ-
ers. Clarity is needed on exactly what employers are required to imple-
ment under the requirements for “special measures” and reasonable
accommodation. The latter differs from the human rights requirement
of “duty to accommodate short of undue hardship”; such inconsisten-
cies are difficult for employers. Further, certain practices have become
standard requirements by CHRC but they are not included in the EE Act
(e.g., cluster analysis,3 setting goals in percentage terms, setting goals up
to twice availability where there is a large gap between availability and
representation). This can create unnecessary conflict between employ-
ers and the regulatory agency.
In the Federal Contractors Program, the criteria for inclusion are
high: 100 employees and formerly a contract of at least $200,000, recently
raised to $1million. In the United States, for example, contractors with
a single contract of $25,000 are included. Thus, a country with a popu-
lation ten times larger than Canada’s has a cut-off for inclusion in its
contractors’ program that was one-eighth the size of the FCP before the
change in threshold. Lowering either of the two Canadian criteria would
mean many more employers would be included, and these are likely to
be medium-sized and smaller employers. It might make sense for such
employers to have different requirements to achieve EE. For example, the
employment systems review might be simplified. Currently an extensive
process requires employers to examine their own organization to identify
barriers that actually exist. It is hard to argue with such an organization-
specific approach. However, it is likely that employment equity could be
done more efficiently: employers and employee representatives could
consider barriers that have been identified in other organizations as
likely causes for the under-representation that exists within their orga-
nization. Means to redress these barriers would be implemented. Only
if these measures did not result in representation matching availability
46 Nan Weiner

would an ESR unique to an organization be necessary. Since much of

new employment is generated within medium and small employers, find-
ings ways to extend EE coverage to these employers could have a substan-
tial impact on elimination of discrimination in the Canadian workplace.
Two agencies, HRSDC and CHRC, have different roles to play with
LEEP employers. HRSDC provides consultative services, while CHRC
audits compliance with EE requirements. However, there are concerns
that the two agencies provide different advice4 and that once an audit
begins, employers want only to work with CHRC (given that CHRC will
have the ultimate say on whether the employer is in compliance). Nei-
ther agency has sufficient resources to provide the consultative role
that employers need. Coordination between HRSDC and CHRC has
improved, though it could be better. Employers like the negotiations
and persuasion approach of CHRC (2003), but perhaps more frequent
use of a tribunal would lead to more EE efforts among employers. Such
social programs as EE require getting and keeping management’s atten-
tion, and a tribunal hearing can achieve that. Finally, some recommend
that more effort to increase public awareness about the benefits of EE
would lead to less backlash. HRSDC and CHRC have been working on
the recommendation for better educational and/or training material for
employers, and there is now considerable material accessible on the web.

Conclusion

We Canadians like to think of ourselves as very tolerant and socially pro-

gressive, but on EE we need to be wary of arrogance. Gains have been
made, but it is essential to always consider how much remains to be done.
Consider the study by McGuire, Garavan, Saha, and O’Donnell (2006),
which compared Canadian and Irish managers and found that national-
ity was linked to having positive values towards EE: Irish managers scored
higher. Further, one cannot presume that progress, once made, cannot
be lost. Consider women (as can be seen in figure 2.1, the HRSDC’s
graph comparing representation and availability). The gap between
2010 representation compared to 2006 availability data is greater than
it has ever been in the twenty-one years that data have been collected.
Problems are more related to a lack of will and effort than lack of
understanding of the solutions. For example, in its 2007 annual report,
CHRC identified proactive steps that employers can undertake to
increase representation of designated groups. These include meaning-
ful consultation with employee representatives, which creates better
 Employment Equity: What Do the Data Show? 47

decision-making and buy-in in addition to reducing backlash; ensuring

ongoing resources are applied to employment equity, not just while an
audit is being conducted; integrating EE into corporate culture and busi-
ness planning, in part by rewarding managers at all levels for making
positive contributions; and engaging in positive practices such as ensur-
ing temporary and search agencies are sensitive to an employer’s com-
mitment to hiring designated group members.
The evidence shows that EE makes a difference and has done so over
time. Still, some of the concerns have been around for a long time. Ini-
tially, the EEA required only that employers collect and report data on
representation. The 1995 amendments required that employers inves-
tigate why they have under-representation for certain DGs in particu-
lar occupations (employment systems review) and then develop an EE
plan. Still what happens in practice is that employers collect the data
(and in the case of LEEP, employers report them) but then often do
nothing more until they are contacted by CHRC (for LEEP employers)
or HRSDC (for FCP employers). This has been true since the act was
initially amended (Agócs 2002, 266) and continues today, more than fif-
teen years later. This holds true for FCP employers too.
Requiring employment equity of employers leads to results. We now
have enough experience and understanding that it might be time to
consider differentiating EE for different kinds of organizations (e.g.,
federal public service compared to federally regulated employers) and
for different DGs. Aboriginal peoples and persons with disabilities have
not done well among employers in federally regulated industries, and
women are regressing in overall representation. There could be ways to
simplify EE practices and expand EE to medium and smaller employers,
by having organizations review EE best practices and identify those likely
to be of use in their organizations, rather than spending resources on
their own employment systems review.

NOTES

1 This report was issued in mid-2009 and shows data up to 2007. As of late
August 2010 the 2009 Annual Report was not available online. Furthermore,
after 2006, information needed to develop availability data is not being col-
lected, since the mandatory long form census was discontinued.
2 Referred to as four-digit National Occupational Classification code.
3 Cluster analysis examines the relationship between designated group mem-
bers and non-DGs in each occupational grouping in terms of their salaries.
48 Nan Weiner

4 CHRC (2003, issue 1) notes that 48 per cent of public sector employers and
37 per cent of private sector employers reported getting contradictory infor-
mation from the two agencies.

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