Equity, diversity, and inclusion in the workplace
Judicial interpretation of employers’ obligations to create a sufficiently equitable, diverse, and inclusive workplace—an important issue in previous years—will gain increased prominence in 2023. Equity, diversity and inclusion issues have been squarely raised in several recent cases:
- In Thompson v. Canada, a group of self-identifying Black employees of the Public Service of Canada sought to bring a class proceeding in Federal Court about systemic discrimination in the workplace. The claim, commenced in 2021, alleges that Canada is liable to current and former Black employees for failing to abate this discrimination and thereby compounding the disadvantage of Black workers2.
- In Lewis v. WestJet Airlines Ltd, the British Columbia Supreme Court considered whether claims based on gender or racial discrimination are well-suited to private law and the Class Proceedings Act, or if they should instead be heard by human rights administrative bodies. In that case, flight attendants tried to bring a class proceeding against their employer alleging that exposure to systemic sexual harassment was a breach of their employment contract. The claim was dismissed because the court found the core of the allegation to be about gender-based harassment, and thus came within the ambit of the Canadian Human Rights Tribunal.
- In Fraser v. Canada (AG), the Supreme Court considered a similar issue in the context of an RCMP pension plan that prohibited employees from purchasing credits in the plan for periods where they had participated in the RCMP’s job-sharing program4. The Court concluded that the facially neutral provision discriminated against women, who were the primary participants in the job-sharing program, thereby infringing the equality guarantee contained in section 15 of the Charter of Rights and Freedoms. Employers and plan sponsors will want to watch how expansively Fraser is interpreted by lower courts.
It is clear that courts are taking notice of the ways in which workplace policies and actions can amplify pre-existing issues of equity, diversity, and inclusion. It remains to be seen what steps the law, both public and private, will dictate an employer take to abate these issues. We expect that Canadian courts will continue to weigh in on the nature of these obligations in 2022.