July 21, 2021
Many now agree: it’s imperative that workplaces be both diverse and inclusive. Perhaps the most often-quoted (and definitely most succinct) distinction between diversity and inclusion is that of diversity expert Verna Myers: “Diversity is being invited to the party. Inclusion is being asked to dance.” Diversity is about the workplace composition: who’s sitting around the table. Inclusion is about whether and how the people sitting around the table are included in the workplace: are their input and opinions welcomed and embraced. And while diversity has a role to play in achieving inclusion, most experts indicate it’s not enough. Here’s the legal imperative to achieve both a diverse and an inclusive workplace, and three legal tools to help get you there.
The Diversity & Inclusion Imperative
It seems trite to say that workplace diversity and inclusion is a business imperative. Numerous studies indicate highly inclusive organizations grow more and grow faster and are more innovative than less-inclusive ones. The Canadian labour pool in 2031 will reflect the growing diversity of the Canadian population; by 2025, nearly 75% of the Canadian workforce will be millennials – a demographic that places much greater emphasis on diversity and inclusion as a criteria in their employer selection (and in their purchasing decisions). And an organization’s diversity and inclusion practices – or lack thereof – can also have a reputational impact on an organization, either positive or negative. Diversity and inclusion is also an economic imperative. In May 2021, after observing the business benefits of diversity and inclusion generally, the Governor of the Bank of Canada explained how, “[d]iversity and inclusion make the entire economy stronger.” And it’s a governance imperative. The rapidly accelerating adoption of ESG (Environment, Social and Governance) principles is driving more organizations to focus on DEI (Diversity, Equity and Inclusion) in their leadership ranks and throughout. But beyond the business, economic, and ESG imperatives, there’s a legal imperative to foster a diverse and inclusive workplace.
No Discrimination. Every Canadian jurisdiction has human rights laws that impose on employers a legal duty not to discriminate in employment based on a host of enumerated “protected” personal characteristics (sometimes called grounds). The characteristics that human rights laws protect vary depending on the applicable human rights law, but they’re generally similar, and typically include family status, gender identity & expression, sexual orientation, sex, religion, mental disability, physical disability, age and race, ancestry, and place of origin.
Duty to Accommodate. Embedded in this discrimination prohibition is employers’ legal duty to accommodate an employee’s protected personal characteristic to the point of undue hardship: to take steps to offset the discriminatory impact of a workplace rule, policy, requirement, or practice by adjusting, revising, or eliminating it. “Undue” hardship is a high threshold assessed based on a variety of factors. Accommodation isn’t about ensuring an employee remains in the workplace; it’s about taking steps so an employee’s protected personal characteristic isn’t the basis for excluding them from it.
Penalties. The price of workplace discrimination (including a failure to accommodate) can be high. Human rights tribunals have broad authority to remedy a case of discrimination, and fashion a solution that’s appropriate to make the complainant employee “whole”. This includes one or more of: a monetary award to compensate an employee for the distress and humiliation of being discriminated against, and for any resulting loss of income; an order that an employer stop discriminatory conduct and rectify the discrimination against the employee; and an order that an employer implement training, policies, or procedures to address the discriminatory conduct.
3 Legal Tools to Help Foster a Diverse & Inclusive Workplace
1. Workplace Policies
Workplace policies are the rules by which the workplace runs. What they say and how they’re applied significantly impacts the workplace culture. Review your existing policies carefully, honestly, and critically, with a view not only to eliminating any barriers to protected groups, but to promoting inclusion of those groups. Think about the employee groups (women, pregnant women, 2SLGBTQ+, religious groups, mentally or physically disabled groups, for example) it affects both on its face – and in practice. If you identify problems, change the policy to address them. If you don’t identify a problem, still be prepared to change the policy or try to make adjustments to accommodate individual or groups of employees if a problem later arises. If you identify any policy gaps that could be helpful to advance your diversity and inclusion objective, fill them. When conducting your review, take care to ensure your policies are well-drafted and properly implemented, and consider:
Direct & Indirect Discrimination. Human rights laws prohibit both direct and indirect (or “adverse effect”) discrimination. Direct discrimination is usually easy to identify; “no women”, for example. Indirect discrimination can be more difficult to identify, and reflects the focus of anti-discrimination law on the effect, rather than the intent to discriminate. This requires employers to think hard about how a workplace requirement (a rule, policy, or practice, or how one is applied) might impact a variety of employees in non-obvious ways. For example, a rule that all employees must wear a hat as part of uniform might seem fine on its face, but adversely affects employees whose religion requires they wear a hijab.
Gender-neutral language. Words matter: it signals to all employees that the organization is welcoming. Ensure policy language is gender neutral. Use “they” instead of “he” or “she”, “theirs” instead of his or hers.
Employee feedback. Listen to – even consider eliciting – employee feedback about policies with an open mind and think hard about whether it’s valid, even if it comes in the form of a complaint or a criticism: does the policy have an effect that wasn’t obvious on its face, but is adverse in practice? Is the requirement really – reasonably and genuinely – connected to the job in a tangible sense? Is there a way to change or modify it to address the issue the employee(s) has raised? Once you’ve listened and thought hard about it, act accordingly.
Here are five policies areas to cover in your review:
Hiring Policy. Hiring policies might be about the diversity of who you get in the door, but you need diversity to achieve inclusion. When reviewing or creating hiring policies and practices, consider:
Workplace Flexibility Policy. Workplace flexibility policies often first bring to mind the needs of working parents or employees with family obligations. And certainly an increasing number of employees are struggling to meet the competing demands of their employers and those of their families, a challenge the COVID-19 pandemic has heightened. But workplace flexibility policies can also be attractive to – and sometimes necessary for – other employees with protected personal characteristics, such as those with physical or mental disabilities, or due to their religious beliefs. Workplace “flexibility” can take many forms, but common examples include flextime (setting daily hours within a range), working some or all hours remotely from home or another location, working a compressed work week, and working part-time rather than full-time. When reviewing or creating a workplace flexibility policy, however, keep in mind the legal issues that workplace flexibility entails. For example, even if an employee works from home or another remote location, employment-related statutes continue to apply to employees, and to impose obligations on their employers. And take care to ensure that neither the policy itself nor the way in which you administer it isn’t directly – or indirectly – discriminatory.
Dress Code Policy. Employers are entitled to mandate workplace dress codes, but remember: one size does not fit all. Dress codes often conflict with an employee’s right to be free from discrimination under human rights laws, sometimes in unexpected ways. For example, a rule that all female employees must wear a skirt and all male employees must wear pants as part of uniform appears neutral, but could adversely affect LGBTQ2+ employees. Even in the case of safety and health hazards, the employer can’t just assume a dress code requirement is a bona fide occupational requirement: it must specifically identify the issue and justify it, and meet its duty to accommodate the employee to the point of undue hardship.
Gender Diversity Policy. One of the most important things an employer can do to support gender diversity in the workplace is to implement gender diversity policies. Incorporate into the policy transition guidelines for transgender employees that are both flexible enough to easily individualize for the particular needs of a transitioning employee, and specific enough to offer a consistent framework.
Workplace Respect Policy. The #metoo movement has elevated workplace sexual harassment to the top of most employers’ minds. Sexual harassment is discrimination based on the protected ground of sex. But physical or verbal harassment based on any other ground protected by human rights laws is also discriminatory For example, harassment based on race is discrimination based on race. Every Canadian jurisdiction has an occupational health and safety regulatory scheme dealing specifically with workplace violence. In a growing trend, many OH&S legal regimes also specifically address workplace harassment, whether or not discriminatory. This includes those of Newfoundland & Labrador, New Brunswick, Prince Edward Island, and most recently, federally. These regimes typically mandate harassment and violence risk assessments, policies, training, and complaint responses. Even if there’s no OH&S harassment regime that applies, however, a workplace respect policy is a key tool to foster a workplace that’s both diverse and inclusive.
Policies are empty words unless an organization effectively implements those policies. And a critical element of policy implementation is training, not just of the employees to whom they apply, but also of the managers and supervisors who enforce them. Managers and supervisors are the organization’s “boots on the ground”. If an organization wants to be diverse and inclusive, it must ensure its managers and supervisors understand that goal and can support it.
External training. Education and continuous learning is key to fostering an inclusive work environment. Diversity and inclusion, and the related employer’s legal obligations and employee rights, might be one of those cases in which a substantive training session, with a variety of professionals with relevant expertise, customized to the workplace and policy, is most effective.
Application. To support diversity and inclusion, managers and supervisors must understand both the policy on its face – and how to apply it. Because indirect discrimination is a particular concern in the context of workplace diversity and inclusion, training that provides practice applying the policy, for example with case examples, is especially helpful.
Accommodation flags. Train managers and supervisors to watch for and recognize common flags that could indicate an accommodation need, and how to respond if they see one. An employer’s duty to accommodate an employee under human rights laws is triggered when an employee informs the employer of the need – or when the employer ought to have reasonably known of the need. Early identification and resolution of such needs not only protects the employer from potential discrimination claims; it also marks the employer as genuinely interested in and committed to creating an inclusive workplace.
3. Corporate Governance Practices
An organization’s governance practices can play an important role in creating a diverse and inclusive workplace. “Corporate governance” generally describes the processes, practices, and structures through which a corporation manages its business and affairs and works to meet its objectives. Even small organizations can benefit from good governance as a business imperative. If you’re serious about achieving both workplace diversity and inclusion, make it a corporate governance priority: have a board member or committee take it on as an important project and allocate the necessary resources to do the project well. Consider:
Board Composition. An organization with a diverse and inclusive board composition reaps the benefits and sets the tone for the organization, sending a message to other stakeholders – shareholders, officers, and employees – about the organization’s commitment to diversity and inclusion.
Corporate Strategy. The Board doesn’t manage the organization, but it does hold those that do accountable. The Board can set an expectation that management weave diversity and inclusion initiatives into your corporate strategy,
Measure Performance. Develop specific metrics to assess your organization’s diversity and inclusion performance. Some organizations are legally mandated to measure and to report diversity metrics in relation to both their boards and their senior management teams. Current diversity requirements in Canadian law is limited to disclosure obligations. But data compiled on gender diversity reporting obligations suggests those that implemented key mechanisms achieved more success than those that have not. So even if your organization isn’t required to measure and report diversity and inclusion metrics, consider whether to voluntarily implement those mechanisms to advance your diversity and inclusion objective.
Please contact your McInnes Cooper lawyer or any member of our Labour & Employment Law Team @ McInnes Cooper to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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