'We need to see what's really happening under these broad categories of data, in order for us to understand who is being left out,' legal expert explains how data can fail EDI efforts
For HR departments, developing clear, substantive anti-discrimination policies is a crucial first step to countering racial discrimination in the workplace. But as the $2.5 billion class action lawsuit against the federal government shows, policies alone can fall short.
The suit, known as the Black Class Action lawsuit, is being heard in federal court this week, in which a group of Black federal employees is alleging systemic discrimination within the federal government. This lawsuit, representing around 45,000 Black federal employees and job applicants dating back to 1970, highlights claims of widespread barriers to hiring, promotion, and advancement for Black public servants.
The lawsuit argues that despite government policies intended to support diversity and inclusion, racial discrimination has left many Black employees marginalized, especially in senior roles.
These claims resonate beyond the public sector, legal experts say, urging employers to examine how their workplace discrimination investigations are conducted and how policies can genuinely support equitable treatment.
“There has to be a very substantive, written policy, because if you don’t have a written policy in place, there’s too much wiggle room. It has to be mandatory,” says Kalim Khan of Affinity Lawyers.
However, he adds that even well-designed policies can be circumvented, leaving employees vulnerable.
“If you’ve got a good, well-written, exhaustive policy, it will protect all the employees, generally speaking,” says Khan. “But because I’m a bit cynical, even the policy can be skirted around.”
Workplace anti-discrimination policies are essential, but not always sufficient
The lawsuit reveals how policy adherence can mask deeper biases within organizational practices, and Khan stresses the need for HR professionals to go beyond surface-level compliance.
Employers should view policies as frameworks, not foolproof solutions, he says. No amount of policy work can fully insulate against discrimination unless leaders foster an organizational culture that respects and values equity; adhering strictly to written policies may meet legal requirements, but it doesn’t always translate into fair treatment.
“When they talk about the spirit of the law versus the letter of the law, I’m thinking about the policies,” Khan says.
“It really doesn’t matter, because you could still be racist against your Black employee, yet adhere to the letter of the law, but in spirit, you’re screwing them,” he explains. This divide between the letter and spirit of policies means that superficial compliance can coexist with discriminatory treatment.
Khan adds that discrimination often reflects a complex web of socio-economic factors and historical injustices. These factors can also affect such things as employee performance and perceptions of reliability.
“The counter argument would be, ‘Well, wait a minute, he’s always late because of socio-economic reasons, and he’s living in a single-parent home… he’s actually got three jobs, and you don’t know about it,” Khan says, explaining that for these reasons HR must consider the full context of each case rather than rely on rigid interpretations of policy violations.
The role of introspection in HR
A deep commitment to equity requires that HR departments engage in self-reflection and recognize their own biases.
“We’re all racist, that’s the actual sad reality,” Khan asserts. “We really kind of want to be introspective and honest. I am racist. The person next to me is racist. Well, how do we actually peel that onion and actually be honest about it, rather than just politically correct about it?”
To Khan, genuine introspection is key to an equitable workplace. However, he questions whether most workplaces are prepared for this level of self-scrutiny, especially at the leadership level. For organizations to meaningfully address discrimination, leaders must move beyond the “superficial veneer” and confront uncomfortable truths.
“Do you have employers who are willing to sit with the HR department, their legal department … where you actually have that kind of profundity of honesty? I don’t think so. I don’t think society is ready for that, let alone the employment space,” Khan says.
Strive for diverse representation
As is being discussed in the Black Class Action lawsuit certification hearing this week, the federal government has been accused of consistently passing over qualified Black employees for leadership roles, which has perpetuated an implicit bias against racialized candidates.
“In a country like Canada, with that diversity we have with people coming from different parts of the world, different backgrounds, etc., there's always this kind of implicit, underlying, unspoken barrier,” says Kofi Achampong, legal advisor for the Black Class Action Secretariat (BCAS).
“You might hire someone for a technical role here and there, but when it comes to more senior roles that require a person to be front facing, to take on leadership, there's always a certain sense of, ‘well, that person looks a certain way, or has a particular background, and oftentimes that means that racialized candidates are left out.”
Conduct regular audits to uncover biases
Employers need to be aware that even if they follow policies and meet legal standards, they can still unintentionally create barriers for racialized employees, that might go unnoticed but for intentional data audits.
Achampong emphasizes that “just because you have a policy in place or you are following the law, doesn’t mean that your other barriers and practices are not leading to what’s called adverse effects discrimination.”
This means that employers must continually evaluate how policies impact marginalized employees in practice, by examining statistics like discrimination and promotion data. Conducting regular, unbiased audits can help organizations identify patterns of unequal treatment and address any discrepancies.
“Statistics are now becoming a means by which courts and litigants can really demonstrate and show that a particular practice or organization isn't sincerely trying to meet equity targets and diversity targets, and so that becomes one of those things that very quickly highlights what's really happening in the workplace,” says Achampong.
“Increasingly, what we're seeing is this call for more disaggregated data. We need to see what's really happening under these broad categories of data, in order for us to understand who is being left out, and left out for unjust and unfair reasons.”
Achampong stresses that anonymity can play a critical role in encouraging employees to report discrimination. Implementing whistleblower protections and ensuring anonymity can help employees feel safer in bringing forward complaints without fear of retaliation.
Plus, treating each complaint with urgency and timeliness is a demonstration that the organization is serious about tackling discrimination, especially with more serious claims.
“When you allege the discrimination in the workplace, you're now a target oftentimes,” Achampong says.
“Your human resource department has an obligation to investigate the allegation. There's no one size fits all kind of approach to these kinds of things. But what a court is going to want to see is that you have a reasonably sound policy in place, that's responsive, that's urgent.”
