The Employment Equity Program

Employment Equity Overview

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

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 ¹. Employment equity speaks to removing employment barriers and the implementation of special measures.

2- What is the Current Legislative Framework?

The Employment Equity Act, 1995, applies to workplaces with 100 or more employees in the federal jurisdiction only. Employers in the federal jurisdiction are: federal government departments, agencies and Crown corporations; chartered banks; airlines; television and radio stations; interprovincial communications and telephone companies; buses and railways that travel between provinces; First Nations; and other federally regulated industries, such as certain mining operations. In addition, there is a Federal Contractors Program, which requires that any provincially-regulated organization that has 100 or more employees and a contract with the federal government of $200,000 or more must implement employment equity.

Only one province, Quebec, has employment equity legislation the covers some of its provincially-regulated employers: the Act Respecting Equal Access to Employment in Public Bodies covers public sector employers in Quebec such as school boards, municipalities, transit authorities, universities and colleges, health and social services, and other “public bodies”. Québec also has an 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 Ontario had a short lived Ontario Employment Equity Act, which was repealed in 1995.

Only one territory, Nunavut, has legislation that governs employment equity, in this case for Inuit peoples. Article 23 of the Nunvaut Land Claims Agreement sets out an objective for the Government of Nunavut to increase Inuit participation in government employment to a level which reflects their representation in the population of Nunavut, and to develop employment and training programs in order to achieve such representation.

Most other provinces and territories have employment equity policies that apply to provincial/territorial government employment. It is also important to note that all 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). In other words, provincial human rights legislation specifically allows for employers to develop employment equity programs. 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. 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 under-representation, by each of the occupational groups, of equity group members.

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:

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 under-representation 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 under-representation has been identified and, set out measures to be taken in each year to meet those goals.

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

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

Step 4: Review and revision: The Employer should monitor the implementation of the Plan, and there should be a periodic review and revision 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 every five years. Note: a review took place in 2001/2002 (see PSAC's Submissions) but the subsequent review, which was to take place in 2006, has not yet been initiated

Application:

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 administration set out in Schedule I or IV to the Financial Administration Act

- the portions of the federal public administration set out in of Schedule V to the Financial Administration 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)

Delegation in the federal Public Service:

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.

Work force Survey:

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.

Designated Groups:

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

Employer Obligations are:

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

Workforce Analysis:

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 as well as the Participation and Activity Limitation Survey (PALS) (Note: the Census and PALS are carried out only every four years and so the data used is always somewhat outdated). 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 designated groups*

The Act states that the ESR is to take place only in relation to groups and categories where under-representation 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.

Records:

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
Employment Equity Plan:

The employer shall prepare a plan that:

specifies positive policies, practices for the hiring, training, promotion and retention to correct under-representation of the designated groups.
specifies measures to eliminate barriers
establishes a timetable
where under-representation 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.

Consultation and Collaboration Provisions:

Every employer shall consult with its employees' representatives (i.e. union representatives in unionized workplaces) 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.

Reporting Provisions

Private sector employers are to provide yearly statistical reports to Human Resources and Skills Development Canada (HRSDC) 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 HRSDC to the employees' representatives.

The Treasury Board (through the Office of the Chief Human Resource Officer, formerly the Canada Public Service Agency) 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.

Compliance:

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), the CHRC will negotiate a written undertaking by the employer to take specific measures to remedy the non-compliance. Where the CHRC is unable to obtain a written undertaking with the employer, 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.

APPENDIX A

SPECIAL PROGRAM PROVISIONS
PROVINCIAL AND TERRITORIAL
HUMAN RIGHTS LEGISLATION

Sec. 19 of the Newfoundland Human Rights Code
Sec. 6 (i) of the Nova Scotia Human Rights Act
Sec. 20 of the Prince Edward Island Human Rights Act
Sec. 13 of the New Brunswick Human Rights Act
Sec. 86 of the Quebec - Charter of Human Rights and Freedoms
Sec. 14 of the Ontario Human Rights Code
Sec. 11 of the Manitoba Human Rights Code
Sec. 47 of the Saskatchewan Human Rights Code
Sec. 11 of the Alberta Human Rights, Citizenship & Multiculturalism Act
Sec. 42 of the British Columbia Human Rights Code
Sec. 67 of the Northwest Territories Human Rights Act
Sec.13 of the Yukon Human Rights Act
Sec. 7(2) of the Nunavut Human Rights Act

1 NOTE: The PSAC is of the view that people that identify as lesbian, gay, bisexual or trans should also be included as a designated group in employment equity.

Date Modified : 2010/07/12

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