It is a difficult time for anyone who works in the human rights space, like we do at Rubin Thomlinson LLP. Diversity, equity, and inclusion (DEI) programs are severely under attack and are being dismantled, at least south of the Canadian border, in the public and private sectors. I fear that Canada is not far behind.
I worry about job loss for those who work in DEI programs, many of whom, I suspect, are members of marginalized groups. I also worry about increased hostilities in the workplace and that some will feel emboldened to say out loud what they would typically utter only behind closed doors. I worry about the continued and increased use of the derogatory term "DEI hire" to undermine the work and competence of those in the workplace who are from marginalized groups.
As a lawyer, I am also worried that some believe that the absence of a DEI program in the workplace means that legal protection from discrimination, and the corresponding behavioural obligations that employees have, disappear. That is not the case.
The law in Ontario requires that employees be provided with a discrimination-free workplace. This has been the case for quite some time, and long before most organizations and employees became familiar with the term "DEI."
For example:
- The Ontario Human Rights Code (the "Code") protects every person from discrimination with respect to employment (amongst other things). Specifically, the Code states that every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status, or disability.
- Also under the Code, every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of one of the prohibited grounds of discrimination listed above.
- The Ontario Occupational Health and Safety Act requires employers to protect workers against harassment in the workplace, which includes workplace sexual harassment.
Moreover, in unionized workplaces, the protection against discrimination and harassment is typically entrenched in the collective agreements that govern the relationship between employers and unions.
To comply with their legal obligations, such as those listed above, it is prudent for organizations to have compliance measures in place. Such measures can include, for example, training employees to ensure that they know what they need to do to avoid breaking the law.
One of the benefits of DEI programs is that they can help organizations comply with their obligations to provide a discrimination-free workplace. In other words, DEI programs can form an important part of an organization's overall compliance strategy. (To be clear, there are other reasons why such programs are important, and I am not suggesting that DEI programs should exist solely to fulfill a compliance obligation.)
For example, DEI programs can provide training to employees on topics that can help them become more aware of their conduct in the workplace and unconscious biases that they hold. These programs may also involve measures aimed at improving an organization's hiring and promotion practices, which can be fraught with favouritism and impermissible considerations, such as race, age, sex, sexual orientation, and gender expression.
If DEI programs provide compliance support to organizations, it seems to follow that organizations create a legal risk by removing them. Without DEI programs, I wonder, how will employees understand the way in which their actions can infringe the human rights of others in the workplace? This is not something that people know innately. The use of corporate policies, while also an important part of any compliance program, is not enough to help employees gain the understanding that they need.
We are hearing whispers of employees believing that DEI is now a thing of the past. This should worry organizations as this line of thinking may cause employees to engage in behaviour that infringes human rights laws. I suspect that these employees may not be aware that, legally, they can be personally liable for their own discriminatory behaviour, despite the absence of a DEI program in the workplace (for example, as a result of an application against them at the Human Rights Tribunal).
The main takeaway, from a compliance perspective, is that organizations need to take a hard look at the effects of dismantling their DEI initiatives. They also need to consider whether doing so will actively encourage employees to act in a way that is inconsistent with the human rights of others in the workplace. I suspect it will be difficult for organizations to, on the one hand, dismantle DEI initiatives, and on the other, convince their employees that a discrimination-free workplace is important. This inconsistency in messaging, I predict, is likely to spell trouble for employers.
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