Employment Equity Legislation

Table of Contents

1.  What is Employment Equity?
2.  What is the Current Legislative Framework?
3.  What Are the Main Steps of Employment Equity Work?
            Step 1
            Step 2
            Step 3
4.  What are the Critical Aspects of the Federal Employment Equity Act?


           Application
            Delegation in the Federal Public Service
            Work force Survey
            Designated Groups
            Employer Obligations
            Workforce Analysis
            Employment Systems Review
            Records
            Employment Equity Plan
            Consultation and Collaboration Provisions
            Reporting Provisions
            Compliance

Appendix A

Newfoundland Human Rights Code
Nova Scotia Human Rights Code
Prince Edward Island Human Rights Code
New Brunswick Human Rights Act
Quebec - Charter of Rights and Freedoms
Ontario Human Rights Code
Manitoba Human Rights Code
Saskatchewan Human Rights Code
Alberta Human Rights, Citizenship & Multicultural Act
British Columbia Human Rights Act
Northwest Territories Fair Practices Act
Yukon Human Rights Act

 

1.  What is Employment Equity?

Employment equity is a comprehensive program designed to overcome employment disadvantage experienced by women, visible minorities, persons with disabilities and Aboriginal Peoples. Employment equity speaks to removing employment barriers and the implementation of special measures.

2.  What is the Current Legislative Framework?

The only employment equity legislation that currently exists in Canada is the Employment Equity Act, 1995 (which amended the 1986 Act). Québec has an Affirmative Action Contract Compliance Program, which has stronger provisions than the Federal Contractors’ Program, but which has similar objectives. Ontario had a short lived Ontario Employment Equity Act, which was repealed in 1995.

However, most provinces and territories have human rights legislation that prohibits systemic discrimination and provides for "special programs" to overcome historic systemic discrimination. (see Appendix A for details). Therefore, the absence of specific employment equity legislation does not prevent unions from integrating special programs initiatives, which are meant to overcome historic systemic discrimination, into collective agreements or other labour management forums.

3.  What Are the Main Steps of Employment Equity Work?

A consistent approach to employment equity has evolved in Canada. This approach began with the tabling of the Royal Commission on Equality in Employment in 1984, the initial federal Employment Equity Act 1986, special programs undertaken by municipalities (particularly in male dominated sectors) as well as in post-secondary institutions. Employment equity legislation will provide an outline of the steps that the employer is required to take in order to be in compliance and describes the compliance framework. However, the main components of an employment equity approach will usually include the following:

Step 1: the collection of data on the actual representation of the "designated groups" in the employer’s workforce (though a voluntary self-identification questionnaire) and a comparison of this data against appropriate labour force statistics, in order to determine the degree of the underrepresentation, by each of the occupational groups, of equity group members. NOTE: The PSAC is of the view that lesbians, gay, bisexuals and transgendered individuals should be included as a designated group under the Employment Equity Act.

Step 2: carrying out a review of the employer’s employment systems, policies and practices in order to identify any employment barriers against equity group members. This process is called "an employment systems review" and should be carried out in a way as to review both formal (policies, collective agreements, procedures etc.) and informal (policy and collective agreement implementation, unwritten workplace rules etc.) that govern how recruitment is done, how hiring decisions are made, how equity members are treated when they’ve managed to make it into the workplace, how they are trained and promoted and finally how and why they leave.

Step 3: preparing an employment equity plan which:

a) specifies the positive policies or practices that are to be instituted in the short term for the hiring, training, promotion and retention of equity groups to correct the underrepresentation of designated group members.

establishes short term numerical goals for the hiring and promotion of equity groups in order to increase their representation in each occupational group where underrepresentation has been identified and, set out measures to be taken in each year to meet those goals.

b) specifies the measures to be taken for the elimination of any employment barriers identified.

c) establishes a timetable and accountability measures for the implementation of the plan.

4.   What are the Critical Aspects of the Federal Employment Equity Act?

Proclaimed in October 24, 1996 and a formal review process to take place by October, 2001.

The federal public service joined approximately 350 federally regulated employers with 100 or more employees who have been covered since 1986. Specific federal public service coverage includes:

-the portions of the federal public service set out in Part I of Schedule I of the Public Service Staff Relations Act

- the portions of the federal public service set out in Part II of Schedule I of the Public Service Staff Relations Act that employ one hundred or more employees

- other portions of the federal public service as may be specified by order of the Governor in Council on the recommendation of the Treasury Board. (e.g. RCMP, Canadian Forces)

Treasury Board and the Public Service Commission have delegated employment equity responsibilities to Departments and Agencies so that employment equity plans are developed by each Department and Agency, and "consultation and collaboration" with the bargaining agents occurs at that level. The central agencies maintain responsibility for public sector wide employment equity issues.

Is voluntary and confidential (can only be used for the purpose of employment equity implementation). Information on new hires and terminations are to be recorded.

Women, visible minorities, persons with disabilities and Aboriginal Persons. The Act provides definitions for three of the designated groups.

Employer Obligations are:

a) to identify and eliminate employment barriers against persons in designated groups that result from the employer's employment systems, policies, and practises that are not authorized by law.

b) to institute positive policies and practices and make such reasonable* accommodations that will ensure that persons in designated groups achieve a degree of representation in each occupational group in the employer's workforce that reflects their representation in the Canadian workforce or other designated comparator group.

In order to comply with these requirements, employers shall carry out the following activities:

Compares the numbers of each designated group in each occupational group of the employer’s workforce to the Canadian workforce. Workforce information is extrapolated from Statistics Canada Census information (1996) as well as the Health Activities Limitation Survey (last carried out in 1991). The labour market comparison is to be carried out :

- in the Canadian workforce, or

- those segments identifiable by qualification, eligibility or geography (where employer is reasonably expected to draw from)

Employment Systems Review:

Refers to both existing and new systems, policies, practices. The employment systems review (ESR) is to examine the following in order to identify employment barriers against the designated groups:

• recruitment, selection, hiring
• development & training
• promotion
• retention & termination
• reasonable accommodation of the desginated groups*

The Act states that the ESR is to take place only in relation to groups and categories where underrepresentation has been identified. (In the Federal Public Service, it is recommended that an ESR be carried out regardless of the workforce analysis results.)

* The Canadian Human Rights Act and jurisprudence no longer refer to "reasonable", but the EEAct has not been amended to delete this reference.

Employers are to maintain records on:

• each employees’ designated group membership
• each employees’ occupational group
• each employees’ salary & salary increases
• each employees’ promotions
• copy of workforce survey questionnaire
• summary of results of workforce analysis
• activities in systems review
• summary of results of systems review
• Employment Equity Plan
• monitoring of implementation of plan
• activities re providing information to employees

The employer shall prepare a plan that:

• specifies positive policies, practices for the hiring, training, promotion and retention to correct underrepresentation of the designated groups.
• specifies measures to eliminate barriers
• establishes a timetable
• where underrepresentation has been identified, establishes short term numerical goals for hiring and promotion of underrepresented designated group in each occupational group
• sets out the employer’s longer term goals (i.e. more than 3 years) for increasing representation in workforce & strategy to achieve

The employer must make all reasonable efforts to implement its employment equity plan and monitor its implementation on a regular basis.

Every employer shall consult with its employees' representatives by inviting the representatives to provide their views concerning the assistance that the representatives could provide to the employer to facilitate the implementation of employment equity in its workplace and the communication to its employees relating to employment equity. As well, the employees' representatives are to be invited to give their views with respect to the preparation, implementation and revision of the employer's plan.

The Act also states that the parties are to collaborate in the preparation, implementation and revision of the employer's employment equity plan.

Enforcement of the "consultation" provision is provided but unfortunately, not for the "collaboration" provision. National Joint Council guidelines deal with consultation/collaboration on employment equity in the federal Public Service.

Employee seniority rights with respect to layoff or recall under a collective agreement or pursuant to the established practices of an employer are deemed not to be employment barriers. Seniority rights that are not related to layoff or recall are deemed not to be employment barriers unless they are found to constitute a discriminatory practice under the CHRA. Rights acquired under workforce adjustment policies implemented when an employer is downsizing or restructuring, under a collective agreement or pursuant to an established practice are deemed not to be employment barriers unless they are found to constitute a discriminatory practice under the CHRA.

If it appears that seniority rights provided for under a collective agreement may have an adverse impact on employment opportunities of persons in designated groups, the employer and employee's representatives shall consult with each other concerning measures that may be taken to minimize the adverse impact.

Priorities for appointment under the Public Service Employment Act or regulations made by the Public Service Commission are not employment barriers. Workforce adjustment measures established by the Treasury Board, including measures set out in the Workforce Adjustment Directive, or by the Public Service Commission, are not employment barriers.

Private sector employers are to provide yearly statistical reports to Human Resources Development Canada (HRDC) which compare the representation of designated group employees to the workplace population in the areas of representation, hires, promotions and terminations. Employers are to also include a description of the measures taken by the employer to implement the plan as well as a description of the consultations between the employer and its employees' representatives.

They are required to provide a copy of the report filed with HRDC to the employees' representatives.

The Treasury Board is to report annually on:

The number of designated group employees compared to the total workplace population in all portions, in each province and in the National Capital Region; the occupational groups of employees and the degree of representation of designated group members in each occupational group; the salary ranges of employees and the degree of representation of designated group members in each salary range; the number of employees hired, promoted and terminated and the degree of representation of designated group members.

The Canadian Human Rights Commission is responsible for the enforcement of the obligations imposed on employers.

Compliance audits are carried out by the CHRC. In cases of non-compliance (which is specifically defined in the Employment Equity Act) and where the CHRC is unable to obtain a written undertaking to remedy the non-compliance, the CHRC may issue a direction requiring the employer to take actions to remedy the non-compliance and may subsequently apply to the President of the Canadian Human Rights Tribunal for a further order.

Where an employer or the CHRC makes a request, the President of the Human Rights Tribunal shall establish an Employment Equity Review Tribunal to consider the request. A tribunal may confirm, vary or rescind the CHRC's direction and make any other order it considers appropriate and reasonable in the circumstances to remedy non-compliance.