HUMA Committee Meeting
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37th PARLIAMENT, 1st SESSION
Standing Committee on Human Resources Development and the Status of Persons with Disabilities
COMMITTEE EVIDENCE
CONTENTS
Thursday, January 31, 2002
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The Chair (Mrs. Judi Longfield (Whitby--Ajax)) |
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Professor Carol Agócs (Department of Political Science, Faculty of Social Science, University of Western Ontario) |
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The Chair |
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Professor William Black (University of British Columbia) |
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The Chair |
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Ms. Mary Margaret Dauphinee (University Adviser on Equity, Queen's University) |
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The Chair |
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Ms. Monique Guay (Laurentides, BQ) |
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Prof. Carol Agócs |
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Prof. William Black |
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Ms. Monique Guay |
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Ms. Mary Margaret Dauphinee |
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The Chair |
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Mrs. Carol Skelton (Saskatoon--Rosetown--Biggar, Canadian Alliance) |
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Prof. William Black |
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Mrs. Carol Skelton |
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Prof. Carol Agócs |
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Mrs. Carol Skelton |
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Ms. Mary Margaret Dauphinee |
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Mrs. Carol Skelton |
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Ms. Mary Margaret Dauphinee |
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Mrs. Carol Skelton |
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Prof. Carol Agócs |
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Mrs. Carol Skelton |
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Prof. William Black |
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Mrs. Skelton |
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The Chair |
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Ms. Raymonde Folco |
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Prof. William Black |
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Ms. Raymonde Folco |
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Prof. William Black |
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Ms. Raymonde Folco |
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The Chair |
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Prof. William Black |
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Ms. Raymonde Folco |
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The Chair |
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Ms. Libby Davies (Vancouver East, NDP) |
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Prof. William Black |
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Ms. Mary Margaret Dauphinee |
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Ms. Davies |
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Prof. Carol Agócs |
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Ms. Libby Davies |
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Ms. Mary Margaret Dauphinee |
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The Chair |
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Prof. William Black |
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The Chair |
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Mr. Alan Tonks (York South--Weston, Lib.) |
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Ms. Mary Margaret Dauphinee |
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Mr. Tonks |
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The Chair |
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Mr. Alan Tonks |
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The Chair |
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Mr. Larry Spencer (Regina--Lumsden--Lake Centre, Canadian Alliance) |
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Prof. Carol Agócs |
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Ms. Mary Margaret Dauphinee |
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Mr. Larry Spencer |
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Prof. Carol Agócs |
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Prof. William Black |
| Â | 1255 |
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Mr. Larry Spencer |
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Prof. William Black |
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The Chair |
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Prof. William Black |
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The Chair |
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Ms. Mary Margaret Dauphinee |
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The Chair |
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Mr. Gurbax Malhi (Bramalea--Gore--Malton--Springdale, Lib.) |
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Prof. William Black |
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Mr. Gurbax Malhi |
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Prof. William Black |
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The Chair |
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Ms. Libby Davies |
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Prof. Carol Agócs |
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Ms. Libby Davies |
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The Chair |
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Prof. William Black |
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Ms. Mary Margaret Dauphinee |
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The Chair |
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Mrs. Carol Skelton |
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Prof. William Black |
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The Chair |
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Mr. Larry Spencer |
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Prof. Carol Agócs |
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Mr. Larry Spencer |
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The Chair |
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Ms. Monique Guay |
| · | 1305 |
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The Chair |
CANADA
Standing Committee on Human Resources Development and the Status of Persons with Disabilities |
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COMMITTEE EVIDENCE
Thursday, January 31, 2002
[Recorded by Electronic Apparatus]
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[English]
The Chair (Mrs. Judi Longfield (Whitby--Ajax)): It's time to call the meeting to order. I want to thank the witnesses for waiting so patiently in our absence.
Without further ado, I'm going to turn it over to our witnesses. Our first one is Dr. Carol Agócs from the University of Western Ontario. We also have Mr. William Black, from the University of British Columbia; and Mary Margaret Dauphinee, from Queen's University.
Madam Agócs, the clerk tells me you will be first.
Professor Carol Agócs (Department of Political Science, Faculty of Social Science, University of Western Ontario): I appreciate the opportunity to attempt to assist the committee in its deliberations concerning the review of the Employment Equity Act, and I look forward to your questions.
As a Canadian, I regard it as a privilege to speak about the Employment Equity Act, because this legislation has been recognized by several other countries as a model for their own legislative efforts to ensure a workplace that is fair to all and free of systemic discrimination. These countries include South Africa, Northern Ireland, Australia, and the Netherlands.
It is also noteworthy that throughout the history of its development, our federal Employment Equity Act enjoyed the active support of the Liberals, the Progressive Conservatives, and the New Democratic Party, reflecting the broad significance of this legislation for Canadians.
As a researcher, I've had the opportunity to follow the development of employment equity in Canada since the early 1980s. Of particular and consistent concern is the question of the act's effectiveness in reducing inequality in employment for visible minorities, aboriginal people, persons with disabilities, and women of all groups. It is possible to draw some conclusions about this question on the basis of available research using the report submitted by employers covered by the act, including the federal government. Other resources include academic studies, including my own research, and the evaluation studies that were part of previous reviews of the act.
My reading of this evidence has led me to several conclusions and suggestions, which I would like to summarize. First, as a general comment on the legislation, my view is that the logic of the Employment Equity Act is sound. The act has demonstrated its value as a means of identifying and addressing systemic discrimination in larger organizations that employ people in the federal and federally regulated sectors.
There is evidence from research in Canada and in other countries that employment equity can get results. It is capable of reducing inequality and disadvantage, especially for women and visible minorities. When employers take action to identify and remove discriminatory barriers and when they implement special measures to improve representation and respond to special needs, then we see a reduction in inequality. That is, we see some shrinking of the pay gap and some improvements in the representation of previously unrepresented groups in workplaces and in management.
However, there is clearly a gap between the act's purpose and intent and its results. No doubt you are aware that in Canada we have yet to see improvements in the representation, retention, pay, and career development of aboriginal people and people with disabilities. The representation of women, except for aboriginal women and women with disabilities, has improved, but we still see job ghettos in which women are concentrated while they are still underrepresented in some types of well-paying jobs. Visible minorities, too, have improved their representation in some types of jobs, but both women and visible minorities continue to be poorly represented in senior management. There is also evidence of a continuing pay disadvantage for the equity groups in comparison with their white, able-bodied, male peers. In short, we have yet to create a workplace in Canada in which there is equality of opportunity and results.
Why have results under the Employment Equity Act fallen short of expectations? I would like to suggest three possible reasons.
The first and most important is that there is a gap between policy and practice. There is often a failure by the employers to fully implement employment equity policy, and therefore a failure to get the results that are possible and that policymakers may have expected and hoped for when they enacted employment equity legislation. The central issue is that a policy that is not implemented can't get results. Just being covered by employment equity isn't enough if employers are not required to take action to reduce discrimination. Employers need to have clearly specified requirements for accountability and for accommodating employees' needs, and effective arrangements to ensure employers' timely compliance with employment equity requirements.
Research findings tell us that employment equity gets the best results when employers are required to set goals for the representation of the designated groups and to take action toward those goals. This tends to happen only when government monitors and enforces compliance and when there is the possibility of meaningful sanctions for failure to demonstrate results within a reasonable timeframe, taking business conditions into consideration.
There are benefits for business, too, in ensuring that all covered firms are on a level playing field with clear requirements and clearly understood consequences.
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I am suggesting then that employment equity policy is basically sound, but some limited revisions to the act could provide more effective arrangements for holding employers accountable for implementing that policy.
Second, there is considerable misunderstanding and misinformation among employers and the general public regarding the purposes and requirements of employment equity. This seems to indicate the need for resources that would allow government to undertake a program of public information and education, to ensure that employers, unions, and others were fully informed about employment equity and its benefits. Meeting this need would not require any change in the act, just an injection of resources to permit HRDC to deliver additional services to employers and others.
Third, we know that the implementation of the act needs to become more effective in addressing the specific barriers that impede the full participation of aboriginal people and people with disabilities in employment. Addressing the under-representation of these groups is challenging and requires more focused efforts by employers, more resources for facilitation by government, and more collaboration with non-profit organizations that have the needed expertise and community connections.
A fruitful approach would be to encourage partnerships between employers who wish to hire and retain persons with disabilities and/or aboriginal people, and community-based organizations that understand what needs to be done to remove the barriers. Often, these organizations lack the resources to provide the assistance employers need. This kind of collaborative approach would not require any change in the Employment Equity Act, just the commitment of modest resources to a new initiative.
In summary, the Employment Equity Act is sound and necessary legislation for Canada, as well as a model for other progressive countries that share our belief in fairness.
The effectiveness with which the act is implemented can be improved in three key ways: first, by ensuring that employers face consequences for lack of effort in achieving the purposes of the act; second, by doing more to educate employers and the public; and third, by fostering collaboration among community organizations, employers, unions, and government.
Human Resources Development Canada and the Canadian Human Rights Commission, who are responsible for translating the values and principles of the Employment Equity Act into practice, deserve to have the resources and legislative tools they need to make good legislation as effective as it is capable of being in practice.
Thank you.
The Chair: Mr. Black.
Professor William Black (University of British Columbia): Thank you very much.
I would very much like to thank the committee for the chance to make this presentation today. I was a member of the Canadian Human Rights Act review panel from 1999 to 2000, and I'm going to focus primarily on the findings and recommendations of that panel, although I should say I'm speaking on my own behalf today. I'm especially pleased that the commission is carrying out this study, because our mandate was to look just at the Human Rights Act, not at the Employment Equity Act, and we faced some frustration, because of course the commission has responsibilities under both acts and we were somewhat limited in looking at the interaction between them. So I'm very pleased that the committee will have the opportunity to look at some of the matters we were not able to examine fully.
The first point I wanted to make was that we found that systemic inequality remains a very significant problem in Canada. Rather than go into detail on that, I might just say I agree fully with the presentation you just heard and add that those facts and the facts I know you've received from HRDC and from the Human Rights Commission were completely confirmed by the consultations the panel held as we went across the country hearing from groups about these issues.
So there is a problem that needs to be solved. I agree that there has been progress, particularly some progress involving equality for women and members of visible minorities. I think that process shows that legislation is worthwhile, that it can achieve something, but the results to date, I agree fully, show there's much that remains to be done.
Our panel also concluded that the Canadian Human Rights Act and the Employment Equity Act each play an important role. I think it's probably fair to say that the Employment Equity Act is the primary protection against systemic discrimination and the primary way to promote employment equity, but each statute has its own advantages and disadvantages. One of the things I want to suggest today is that the acts should be evaluated to make sure they're working seamlessly together and that they reinforce one another.
Each has the same goal, but they use very different strategies to achieve that goal, and the different strategies have their own strengths and weaknesses. The strategy under the Canadian Human Rights Act is to wait for a complaint, and it's a complaint about past discrimination. There is a remedy awarded only after a tribunal has found that an employer was at fault and has violated the act in the past. This general strategy has a number of weaknesses that the Employment Equity Act was designed to correct.
In the first place, people often don't have the information they need to file a complaint. If I, a person with a disability, am told, “I'm sorry, you didn't get the job, there are better qualified candidates”, I may have no information to show that isn't the entire explanation. But if you look at the entire pattern of hiring over a period of time, you may see that this regularly happens to people with disabilities and that something else might be going on. So often the complaints never get filed.
If they do get filed, there's a very heavy burden on the people who file that complaint. In theory, the commission does all the work, but the research we did showed that in practice, there's very little likelihood of success unless the complainant, which is usually an organization, stays involved, and many organizations just don't have the resources to do that for several years, which it often takes.
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The third problem is that the need to find fault produces defensiveness on the part of employers instead of a cooperative spirit where we can look for solutions that work well for the groups affected, the groups protected, and for the employers.
Finally, our research showed that even where there has been a systemic case that went all the way through the Canadian Human Rights Act system, the remedies often weren't monitored. Indeed, the very first case was a case involving Action Travail de Femmes, and they made a presentation to us showing that 14 years after that case was decided, the remedy still hadn't been fully implemented. So there are many problems with relying just on the Canadian Human Rights Act.
The Employment Equity Act takes quite a different strategy. It emphasizes prevention of future discrimination rather than a finding of past fault. As you know, it starts with surveys to determine the composition of the workforce and the representation rate of the protected groups. If it's found that those groups don't have the percentage of jobs one would expect based on the percentage of qualified people for those jobs, then an employer is to identify the causes of that, to look for the barriers that create that situation, and third, to develop plans to achieve equality over time. That avoids the fault finding. That means we don't wait for a complaint before trying to do something about the issue, and those are big advantages.
However, there are two advantages the Canadian Human Rights Act has that are important to think about. One is that the idea of being able to file a complaint gives the people affected by inequality some way to start the process. Those people have no way to have input to say this employer should be audited immediately under the Employment Equity Act. There's no process for community input. Under the Canadian Human Rights Act they can file the complaint. Second, the Canadian Human Rights Act provides a remedy for past discrimination that isn't available under the Employment Equity Act.
For all those reasons we concluded that both were needed; each had its own advantages. We did have some concerns about the record to date, and again, I agree with what's been said. One is the slow progress under the Employment Equity Act in that the audits haven't proceeded as fast in part because so many of the employers were found not to be in compliance at the time of the first audits.
A second concern we had was about the effect of the amendments that were made to the Canadian Human Rights Act as a result of the last Employment Equity Act reform. Those amendments were somewhat of a trade-off, saying that in exchange for some changes under the Employment Equity Act new limitations were put into the Canadian Human Rights Act. I might mention three. First, you can't use the reports under the Employment Equity Act to start a complaint; second, the commission can't use information they gained under the Employment Equity Act when they're dealing with a human rights complaint; and third, if an employer is covered by the Employment Equity Act, the Human Rights Tribunal in a Canadian Human Rights Act case can't award systemic remedies.
The problem is that people have sometimes lost their protection under the Canadian Human Rights Act before the Employment Equity Act has perhaps even conducted an audit and therefore, at least for a period of time, have no protection under either act. Therefore, I think those amendments deserve re-examination, and our panel recommended this, that those limitations, those amendments in 1995, deserve re-examination during this review.
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Our panel didn't think we should just go back to the old system, which relied primarily on the Canadian Human Rights Act. For all the reasons I've described, that system has not worked well. But we thought there were ways to be fair to both sides, by revisiting them and making modifications to them, in a way that made both acts more effective and work together more efficiently.
Thanks very much.
The Chair: Madam Dauphinee.
Ms. Mary Margaret Dauphinee (University Adviser on Equity, Queen's University): Thank you very much for allowing me to participate. I've been working in the human equity and human rights area now for 30 years, and I never get tired of telling you how important this act is to all of us. It is important to business, government, designated groups, and practitioners. That's really a policy statement that confirms our commitment to fairness in this country.
I've read the Canadian Human Rights Commission report and discussion paper, and I'm not going to repeat any of the information that's in there. For a while there I thought you might have believed we'd gotten together beforehand, but we didn't, so you're going to get some extra information.
I have to agree with the request for clarification of the language in the act, especially in the standards. I had the opportunity to be one of the consultants that did the employment equity review of the Canadian Human Rights Commission. It had to be done outside because they do the internal ones.
The clustering analysis they talk about in their paper, as well as the employment system's review, was problematic. Having already done a review as an outsider, the issues they bring to you in their discussion paper are valid.
My areas of concern and the things I'm interested in are accountability and enforcement, education, and resources. Accountability is not clarified the way it should be in the act at the present time, and it really needs to be corrected.
Many organizations have top-level declarations of support, but this is not understood or implemented. I can't tell you how many organizations receive the letter from CHRC or the federal contractors program and all of a sudden become equity organizations. Everybody runs around like chickens with their heads cut off, looking for data and trying to implement the program, so they can write this 20- to 70-page report that says how much good-faith effort they have.
I think we need to have something in accountability and enforcement that doesn't make us reactive to the federal contractors program or to the Canadian Human Rights Commission. We welcome them when they come in because we've been implementing employment equity the whole time--every day, every minute. We just have to tell them to look around, because we've really done it. That's what we have to aim for with the act.
That leads me right into education, because the act says we're supposed to have an education component in both CHRC and the federal contractors program. It's great that we get data and information from both organizations, as members who fall under the act, but what an opportunity to have a marketing and a communications plan developed in both those areas that would sell employment equity in this whole country, even if we don't fall under the legislation. Let's talk to everybody out there and get the education. We talk about marketing; let's market employment equity.
Finally, on resources, I know how hard it is to hear that we need more resources, but we do, just to do the communications, the equity marketing plan, and all the things we've talked about. What does it take? CHRC admitted it takes three years to complete a file and seven to nine years for the federal contractors program. All they're asking for is good-faith effort. I think we have more to do.
I'm not going to repeat the things Carol and Bill said; I agree with them totally. I'd like to leave a lot of room for us to talk, so I'll stop there.
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The Chair: Thank you very much. I know the committee will appreciate it.
Through prior arrangement on the opposition side, it was agreed that Madame Guay would lead off. She has a very pressing engagement.
[Translation]
Ms. Monique Guay (Laurentides, BQ): Thank you, Madam Chair.
I realize that we're pressed for time because of the vote. That's unfortunate, because we have one less hour to work.
The information that you have provided to us today is extremely valuable, given your status as experts in this field. I hope we will receive additional documents to assist us in our review of the Employment Equity Act.
As you know, only the Quebec and federal governments have employment equity legislation in place. You are scientists and you have been working in this field for years. For the sake of comparison, can you highlight the strong points of each respective law? How might one law benefit the other? Could some of the provisions of the Quebec legislation be incorporated into the federal act, and vice versa?
Currently in Quebec, we are in the midst of a recruitment campaign. Earlier, Ms. Dauphinee, you talked about doing some marketing. Currently, we have launched a major media campaign in the province of Quebec to get people interested in seeking employment in the Quebec government. We are complying with the provisions of the Employment Equity Act and are targeting persons with disabilities, ethnic minorities and women. I'd like to hear your views on the subject. Then, I'll have a second question for you.
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[English]
Prof. Carol Agócs: Something is going on in Quebec that is very interesting and important in terms of public education and the level of public information and support that seems to be out there. I've been impressed with that. I don't have any real research findings to substantiate that, but my impression is that there is a high level of public support.
The legislation, of which I must say I have a limited knowledge, strikes me as effective for the public sector to which it applies, and that is the broader public sector. But what we would all like to see is for the impact to be broad in reach and also to include the private sector.
Prof. William Black: es, I agree with that. I think we have things to learn under both. The Quebec legislation is more recent, and as we've learned with the federal legislation, it sometimes takes some time to identify both the strengths and weaknesses. But I agree fully that it provides a nice standard of comparison that can help us to identify ways in which the federal Employment Equity Act has both strengths and maybe some weaknesses as well.
[Translation]
Ms. Monique Guay: I also agree with you. There is room to improve the legislation. I'm very surprised to see that there have been no cases prosecuted under the act, merely complaints filed. After all, the law has been on the books for some time now. This means that there must be some major shortcomings. It's not normal for people not to be able to press charges under the act. Yet, it's extremely difficult for the average person to do so.
Here in Ottawa, the provisions of the Employment Equity Act do not extend to House of Commons and Library of Parliament employees. The government needs to set an example in its own backyard. That would be a positive first step.
I have one last comment, Madam Chair, and then I will let the witnesses respond.
According to April 1, 1999 figures on employment in the federal public service --I mentioned these figures at the last committee meeting, but I would like to quote them again at this time -- when we look at the progress women have made in terms of employment in the public service, we note an increase in the number of women applying for jobs. However, there are far fewer women than men in positions where salaries are in the $45,000 and over range. The number of women in management positions isn't increasing. In the $95,000 to $100,000 range, the ratio is 679 men to 98 women. Therefore, there is still a tremendous amount of work to do to improve this situation. I'm not talking about the situation of aboriginals or cultural communities either. A balance must be struck between the Canadian Human Rights Act and the Employment Equity Act. Therein lies the problem, in my view, and we need to work on this area. Now is the time to hear some recommendations, now that we have an opportunity to revise the Employment Equity Act.
[English]
Ms. Mary Margaret Dauphinee: I agree. Also, if you look at the numbers, I don't think it's any different in most of our organizations, and you'll find it's white women as well. Women who are in double jeopardy are not in those groups in anywhere near the numbers they should be.
Of course, throughout my career I have talked about goals and timetables and how employment equity programs cannot work without them. We're talking short-term as well, affirmative action programs. They have to be short-term; they have to be understood and monitored and have an end.
Without some of these extra efforts--and the positive programs, as they're called sometimes in the federal public service--I don't think you're going to see the breakthroughs. People in business and other areas have to understand that they are allowed to create these positive programs. When you talk about positive programs or short-term affirmative action efforts, they say it's illegal. So our communication, our marketing, our understanding of the act and of the rules is not there. We have a lot of work to do.
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The Chair: I hope you're able to get it in when someone else asks a question because we've gone over our limit considerably.
The order will be Ms. Skelton, Madam Falco, and then Ms. Davies.
Mrs. Carol Skelton (Saskatoon--Rosetown--Biggar, Canadian Alliance): Thank you, Madam Chair.
Thank you very much for coming here this morning. We really appreciate it.
Both ladies talked about marketing programs. Would you agree with that, Mr. Black, and could you give me an example of improved marketing that you would like to see?
Prof. William Black: These people may be more... I'm the lawyer in this group, but the whole philosophy underneath the Employment Equity Act is that employers will take steps to identify the problems and find their own solutions to them.
Part of the marketing is to convince employers that this issue should be just as important as other legal requirements for them, just as important as accounting rules or anything else. But also there are many employers who would like to comply with the Employment Equity Act who don't know how. Another part of the education campaign should be to provide assistance to those employers to help them do what they want to do but don't presently have the knowledge and resources to do.
Mrs. Carol Skelton: Have either of you ladies done studies on how much a program like this would cost and put together a package of how the government or an organization could do it properly?
Prof. Carol Agócs: It's outside my expertise, I'm afraid, to work out those kinds of details. But it seems to me there are very good resources within HRDC to be able to do precisely that--to cost out the key issues around education and marketing needing to be addressed, working together with community organizations that have the expertise to identify the barriers and tell us why we don't have more aboriginal people in the workforce, in the public service, for example. I think we have good resources available for this.
Mrs. Carol Skelton: Comments, Mary?
Ms. Mary Margaret Dauphinee: When I was director of equal opportunity for the City of Toronto, we caused quite a bit of consternation when we developed our own contract compliance program. We did a marketing campaign. It was much smaller than the one you would be talking about here, but we were able to do it within the funding given to us there. I would be glad to find out this information for you and get it to you. Then you would have to multiply it by the thousands, of course.
Mrs. Carol Skelton: I would like that, if you would, please.
Ms. Mary Margaret Dauphinee: We did it with all the businesses working with the City of Toronto that received grants, in exactly the same way as you would do it, but on a much smaller scale. We had the certificates, publicized all the requirements, and things like that. Maybe I can dig back and provide this information to the committee to show you how.
Mrs. Carol Skelton: That would be very good. I would appreciate it.
Dr. Agócs, when you were doing your presentation you talked about meaningful sanctions against people. Could you tell me what you mean by that, please?
Prof. Carol Agócs: The legislation requires monetary sanctions only for failure to submit the required reports to the government, not for failure to actually implement the employment equity plan the employer has made. I see that as problematic. It is important to emphasize that employers need to submit the reports that are required, because they are the basis for developing of the plan. But I think it's also important to have some way to stimulate employers to take action, to commit themselves to the plan that after all they have developed, based on their own knowledge of their business and their conditions, to put that plan into action. So I would like to see some possibility of sanctions for failure to take action.
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Mrs. Carol Skelton: Dr. Black.
Prof. William Black: I would add to that a point I was going to make earlier. The act specifies that there is an employment equity review tribunal. After an employer is audited, after they haven't complied with the audit, after they haven't complied with directions by the commission, the commission can go to the tribunal, but the legislation says they can only do so “as a last resort”. I agree fully that the emphasis should be on conciliation and working with employers to try to get solutions. I think that's the way to go. But for the minority of employers who maybe are not working as is required to get to this place, that “as a last resort” language may give the wrong signal and suggest to them that there's never going to be any enforcement. Our panel thought that was language the committee might want to re-examine.
Ms. Carol Skelton: Thank you.
[Translation]
The Chair: Thank you.
Ms. Folco.
Ms. Raymonde Folco: Mr. Black, I found your presentation and the comparison between the Employment Equity Act and the Canadian Human Rights Act to be extremely interesting. However, you stopped short of making any suggestions. In other words, you compared the two pieces of legislation and pointed out that there was room for improvement. Are you know prepared to make some suggestions to us?
[English]
Prof. William Black: I'd be happy to get back to you afterwards. I haven't recently looked at the Quebec legislation in as much detail as I probably should. Oh, you mean the two federal.
Ms. Raymonde Folco: I'm not speaking about Quebec.
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Prof. William Black: I think there are some possibilities. Let me just throw out some possibilities for consideration by the commission.
One would be this rule that you can never start a complaint based on the statistics that are public in the employment equity reports. There are times when those statistics won't be a strong indication of discrimination, and perhaps there should be some regulations that say there has to be statistically significant under-representation. It seems to me there are circumstances in which those statistics would logically give rise to starting a complaint. I want to emphasize that this would not be the use of statistics to find a violation, but simply to start the process of an investigation.
In terms of the remedial powers under the Canadian Human Rights Act, definitely, it would be unfair to employers to say, we're telling you to do one thing under the Employment Equity Act and something inconsistent under the Human Rights Act. So I take the point that there should be coordination and that we should be giving one message to employers. At the same time--and I think I'm speaking on behalf of our panel on this one--it may go too far to say that you can never give a systemic remedy of the type you could give before 1995 under the Canadian Human Rights Act. In other words, even after a Canadian Human Rights Tribunal has found there is systemic discrimination, it's ongoing, it will cause discrimination in the future, the present language says they can't do anything about that. They can't give an order to take steps to eradicate the effects of that discrimination. I think that's another matter where we could be more subtle in our solution and make sure the tribunal didn't give some kind of inconsistent remedy, but some remedy was available after such a finding.
[Translation]
Ms. Raymonde Folco: Madam Chair, Mr. Black has raised an important point in mentioning the relationship between the two acts. Would it be possible to conduct a more in-depth analysis of this relationship? Mr. Black's suggestions could provide us with a solid base for making recommendations concerning the Employment Equity Act. Could such an analysis be carried out and ultimately lead to suggestions and recommendations for improving the legislation?
[English]
The Chair: Mr. Black, has your panel actually prepared any studies that could be released to the panel that would assist in what Madame Folco is asking?
Prof. William Black: We did have some research papers. Of course, our panel is no longer in existence, but the Department of Justice would have access to those.
I must say, though, that probably more work needs to be done precisely because our mandate was just to look at the Canadian Human Rights Act. We were somewhat limited in proposing solutions to the Employment Equity Act.
[Translation]
Ms. Raymonde Folco: Madam Chair, I think we need to conduct a more in-depth analysis. If we could do that now, we would have some data or information that might lead to recommendations. These could possibly be included in our report and indeed become an important component of that report
Thank you.
[English]
The Chair: Thank you.
Next we move to Madam Davies.
Ms. Libby Davies (Vancouver East, NDP): Thank you very much.
I would certainly concur with the comments Madame Folco has made. I think Mr. Black really placed it as needing to have a sort of seamless interaction between the Canadian Human Rights Act and the Employment Equity Act. I don't think we've gotten into that at all. It's probably something well worth pursuing.
First of all, thank you for coming today, and I wish we had more time to discuss these very important issues with you.
I did note that all of you really focused on a couple of things. One was compliance. I think there really are some serious issues about compliance--we don't have time to go into questions--but also about resources.
Madam Chair, when we heard from the Treasury Board, unfortunately we didn't question them about the resource levels or the budget levels. It may well be that at some point we need to get a handle on that and look at the budgetary commitments that are actually carrying out this program, whether it's education or compliance or whatever it is. I hope there will be an opportunity where if need be we can call back Treasury Board to actually look at some of the budgetary or resource requirements.
The question I wanted to focus on was actually touched on in your brief, Professor. The issue is that there is a really serious flaw in the act in that it does not deal with multiple grounds. While the act requires compliance for levels of representation and so on for the various target groups, it does not actually deal with this very serious situation of under-representation of, for example, women who are also visible minorities, aboriginal women who are disabled, or women who are disabled. It seems to me that this is an area we really haven't considered at all.
I would just ask you if you could comment on that. One, does it exist anywhere else? Two, do you see that as something we should be looking at to actually expand the cover so it's clear that issues around under-representation on multiple grounds is something that will be covered by the act? That's one question.
The second question at this time is this. To me it seems incredible that under this act, which is so important, Parliament itself is not covered. As we know, this is a situation that's very pertinent to the Canadian Human Rights Act as well. In fact, there was a case today that was reported in Quorum about a situation regarding age and the Canadian Human Rights Act. Please share any opinions you have on that too.
From your point of view, is there any reason that Parliament as an institution itself shouldn't be covered, that we should be exempt from employment equity?
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Prof. William Black: Our panel recommended that employees of Parliament be covered under the Canadian Human Rights Act. While we couldn't do so under the Employment Equity Act, I'm sure if we'd had the power to do so, we would have made the same recommendation.
Ms. Mary Margaret Dauphinee: We ran into the same upheaval with the counsellors at the University of Toronto with our sexual harassment policies, all the different policies from equity. It was voted on, and they were covered from then on.
Now, the investigations were done from outside, not by the staff. People were brought in; we had a roster of lawyers to do the investigations and things like that.
Ms. Libby Davies: But I'm not just talking about the political parties. There are thousands of people who work here, in many different capacities and multiple grounds.
Prof. Carol Agócs: I think it's very important. I think it would be very helpful to give more profile to the issue of multiple grounds in the reports that are produced annually under the act. I think it's an issue that employers need to be more aware of than they are.
I view employment equity in implementation as a problem-solving exercise. Key to the problem-solving exercise is what's called the employment system review, which is where the employer takes a look at what barriers could explain why they don't have more aboriginal women or more visible minority women in certain kinds of jobs, and so on. It becomes very concrete at that stage--to identify the barriers and how they prevent the equal participation of any particular group.
I think a focus on the employment system review with more detail, more spelling out of what that should consist of, would be helpful in identifying the particular needs and barriers surrounding doubly disadvantaged people.
Ms. Libby Davies: As I understand it now—if I could, Madam Chair—the data are there, but the employers are not required to actually report it on the basis of multiple grounds. Maybe there are some who do, because they flag it as an issue, but as I understand it, it's actually not required under the current system. So it is actually something that I think is fairly major in terms of a flaw with the act.
Ms. Mary Margaret Dauphinee: But I think we do report on male and female in each of the designated groups, so we get at the information in that way. The data are there. As you say, part of the employment systems review is what you're going to do about it.
I'd like to also answer your education point. You asked for Treasury Board information. If you took a look at all the dollars spent on education and marketing by HRDC on other areas and took 1% of it, we in the employment equity area would be very happy.
The Chair: Professor Black, you've referred to your panel several times, and I think it might be very interesting for the members of the committee to know a bit about it. Perhaps you could just briefly describe your mandate.
Prof. William Black: It was called the Canadian Human Rights Act Review Panel. It was appointed by the Minister of Justice. We filed a report in June 2000. The chair of the panel was former Justice La Forest from the Supreme Court of Canada. My other colleagues were Harish Jain, who works in commerce, and Renée Dupuis, who is a lawyer in Quebec City and is an expert in aboriginal issues. We conducted broad research, summaries of which are available. We conducted consultations across the country with employers, trade unions, and groups representing women, people with disabilities, and so forth. Our report primarily concerned the Canadian Human Rights Act and a different structure for the commission, but because the commission has responsibilities under the Employment Equity Act as well, we did get into that in our report.
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The Chair: Thank you.
I wanted that on the record for the committee.
Mr. Tonks.
Mr. Alan Tonks (York South--Weston, Lib.): Thank you, Madam Chair.
First, I'd just like to thank you all for being here. I'm sorry, but I had to go to another committee meeting for a moment, so if I'm asking questions that are redundant, please bear with me.
I want to follow up on what my colleague Libby Davies asked, and on that last point that you made, Mary.
I just might say it's a pleasure to see Mary. She was with the City of Toronto when I was with Toronto, although we were there in difference capacities. I remember when we were breaking ground on the search for and the spirit of employment equity in terms of fair wage proposals, contract compliance, and pay equity issues. We were attempting, as a government, to bring in those we were doing business with, to take the lead to make them comply, in a bumping and nudging way, with the spirit of the employment equity legislation. Mary was instrumental in that, and I thank her for her leadership at that time.
Let me get to my question. It would seem to me that in most firms and in the government, in terms of the spirit of promoting within the designated groups, it's a matter that, inasmuch as we need not take unqualified people, the issue would be how to bring things up within those designated groups in order to deal with them on a level playing field. The question asked by Ms. Davies dealt with, I think, the resources available against the challenge in terms of bringing those percentages up.
We don't seem to have a firm handle on that. You said you'd be very happy if you were able to get it to 1%. In terms of funds allocated under labour market development strategies and so on, is it your feeling that we're not meeting the designated groups because we aren't able to draw in the resources? And would you think it's 1%, or should we recommend a percentage from within those programs to be absolutely focused on designated groups? What's your feeling on that? I'll leave it wide open.
Ms. Mary Margaret Dauphinee: I have to say that, yes, any funds at all that you could allocate to the designated groups in terms of equity would be welcome, but I think we'd have to do a little bit more work on exactly what the percentage would be. I used that percentage because, at the university, we say that if we could have even 0.5% of the dollars allocated to grants, we could have just a wonderful employment equity program at the university level. One half of one percent would give us the money we need to implement that.
You talked about education and getting people ready to come to jobs. I've always said I should be in the delivery rooms of every hospital, starting to talk about employment equity, but they wouldn't let me in. We need to get to the young people of today as soon as possible, so maybe they'd let me into kindergarten or something like that. That's where we need to start. If we're talking about young people getting ready for the jobs of the future and for the jobs we have now, we have to work on employment equity at every level and at every age for our children. I remember I used to say that it's for my daughter, and I'm now saying it's for my great grandchildren.
Mr. Alan Tonks: Thank you.
The Chair: We have a little bit of time left, Mr. Tonks.
Mr. Alan Tonks: No, I'm fine, Madam Chair. Thank you.
The Chair: Mr. Spencer, and then Mr. Malhi.
Mr. Larry Spencer (Regina--Lumsden--Lake Centre, Canadian Alliance): My head spins with some of this. Everything I hear is for going into this more and more. That always brings up red flags for me, maybe rightly so and maybe not rightly so. But I have a couple of questions here.
Let's take a little broader view. We've seen some major changes around the world in the last number of years—in my lifetime, it's just 25 years.
An hon. member: Oh, oh!
Mr. Larry Spencer: Apartheid is gone. Segregation in the U.S. has largely diminished, although I won't say it doesn't exist. We can't say prejudice doesn't exist in Canada. Even though we like to say it doesn't, I think this program says it does. That's why we have this program, right? But at the same time, things have been improving overall.
One question to which I don't have the answer—it could be a very simple yes or no—is whether or not the United States has such a program. Would their gains in these areas be attributed to a program like this?
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Prof. Carol Agócs: There's a fair amount of research about the U.S. experience with affirmative action, which is their version of employment equity. It's different from employment equity, but it addresses some of the same problems. The research evidence I've seen on this is that the U.S. affirmative action program was effective in getting improvements for women and for blacks in respect of bringing them into the workforce and, to some extent, assisting them in entering jobs where they weren't before, as long as the government was putting resources into the program and enforcing it. But the politics in the U.S. over time were such that those resources and that commitment were withdrawn, and there is evidence in the research that the results were worse or were not evident after that withdrawal of support and commitment.
So what seems to be important is that employers are responsible for setting goals and for working toward those goals, and that's really some of the evidence on which I base the remarks I made earlier. It's very important evidence for us.
Ms. Mary Margaret Dauphinee: When President Reagan put forward the motion to do away with affirmative action in the United States, 100 Fortune 500 companies went to meet with him to tell him not to do it. After having implemented the affirmative action program, they were finding that their workforces were much more productive, that it had really helped them in building workplace equity and a workforce that was diversified. I'm sure that's on the record and you could find that information, because Peter Robertson, who has since passed away, was part of the group that pulled the Fortune 500 people together.
Mr. Larry Spencer: I think we'd all agree, a diversified workforce is to our advantage, and we would work to that. We don't want to establish old boys' clubs everywhere we go.
I understand that Ontario abolished the work equity program about six years ago. Are there statistics to show how the record is going in Ontario? Are they making gains or are they falling back?
Prof. Carol Agócs: Since the repeal of the legislation, we don't have the data to be able to answer your question. Without the employment equity legislation to require employers to collect the kind of information you would need to answer your question, we can't say.
Prof. William Black: Indeed, the repeal in Ontario forbade employers to gather that type of information.
I just want to reinforce that one of the great strengths of the Employment Equity Act, I think, is that the reports provide hard data of the extent of the problem and where the problem exists and where it doesn't exist. So it isn't a parliamentary committee or people like us who are saying there's a problem; there are annual data that show where it exists, and that means you can target your resources at the places where there's a real problem. That seems to me a tremendous advantage of the Employment Equity Act.
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Mr. Larry Spencer: I have one last, easy question. Has there ever been a case presented to the Human Rights Commission, or any case, of reverse discrimination? Has anyone filed complaints about being left out because of the act?
Prof. William Black: There have been past complaints. They haven't been evident recently, precisely because our Constitution explicitly says it is consistent with equality to eradicate the effects of past discrimination, that equality should be measured by whether everybody gets their fair share of jobs. So that's explicit in our Constitution. The Supreme Court of Canada has explicitly said that isn't discriminatory, if the purpose is to give everybody their fair share of jobs. So that kind of argument, which has been a big part of things in the U.S., just hasn't gone on in Canada recently.
The Chair: Professor Black, as a follow-up, with the data collected under the employment equity requirements, I know you would want to say that they also highlight those organizations and companies that exceed the requirements of the act.
Prof. William Black: Absolutely. That's what I meant by saying it allows you to focus your resources. When they're in compliance, the monitoring completely shifts gear to just asking if there is reasonable progress, so once the audits are over, a completely different process is in place.
The Chair: I think it's also important, when we're doing this, to focus on those who aren't complying, but also give an opportunity for those who are more than complying to showcase their best practices. I think that serves as an incentive for the others.
Ms. Mary Margaret Dauphinee: They do that with the awards and things like that.
The Chair: Yes, I think that's a very important part.
Thank you.
Mr. Malhi.
Mr. Gurbax Malhi (Bramalea--Gore--Malton--Springdale, Lib.): This is a great concern, not to me only, but for the members of Parliament especially from Toronto, Vancouver, Calgary, Montreal, and Winnipeg. Can anything be done in the employment equity law or policy to divert the federal standard, so that obstacles are reduced, allowing immigrants who are professionals to more quickly be certified through their associations?
Also, the Canadian Human Rights Commission monitors and enforces the Employment Equity Act. Might it also monitor the certification standards and procedures of professional associations?
Prof. William Black: I certainly agree with you, there is a real problem. There are some limitations on what the federal government can do, because many of the professions come within provincial jurisdiction. That's why I personally think it was such a shame that Ontario withdrew from this area. The federal government can give encouragement, but they probably can't tell, for example, a law society legally what standards to apply. However, I should emphasize that provincial human rights legislation, in my opinion, forbids practices that are not justifiable and that tend to exclude people or not take account of qualifications that were obtained outside Canada. So one possible avenue is to use your rights under the Ontario Human Rights Act, the B.C. one, and so on.
Mr. Gurbax Malhi: Do you have any suggestions as to having a federal body that regulates all, not having us blame the provinces, the provinces blame the federal government--a federal body that can regulate all these associations, so they can do something?
Prof. William Black: You might want to talk to the Department of Justice's constitutional lawyers, but I think there would be limitations on how far the federal government could go, just because many of those powers are, under the Constitution, allocated to the provinces. I share your concern and I wish I could give you a more positive answer, but I think there are some limitations.
The Chair: I know we're scheduled to stop at one o'clock. With the committee's indulgence, I'll have one short question from each party.
I'll start with Madam Davies--please be very brief.
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Ms. Libby Davies: I'm following up on Mr. Malhi's question. It came up on Tuesday as well. Because the Employment Equity Act is based on labour market availability, and because there's actually a rule that excludes non-Canadian citizens, we do have this situation where visible minority representation in the public service is actually lower than in the private sector, the ones that are federally regulated. I think in the private sector they're actually slightly exceeding what their availability pool is, but in the public sector it's only at 5.5%. I wondered if you had a comment on that. Is that a major factor, that we are excluding non-Canadian citizens? That's not considered to be part of the hiring availability. I look at it as having an impact on the number of people who can apply, and we seem to be very down in that area; it's half what it should be. I just wondered if you had any comments on that.
Prof. Carol Agócs: It looks like a barrier. I'm not aware of any data to document the extent to which it is a barrier. I think it would be worth looking into.
Ms. Libby Davies: But it is interesting that the private sector, which doesn't have that barrier, presumably, is actually meeting its goals for visible minorities. It's something we could question them on.
The Chair: Professor Black.
Prof. William Black: I could quickly add that the Supreme Court of Canada has struck down the requirement that you be a citizen to be a lawyer. There might be some reason to examine whether those citizenship requirements are really needed.
A second point is about the availability of data. We have a new census. We have a new chance to get more accurate data on this. One possible subject for this committee's investigation might be how to make the best use of that in light of recent immigration patterns so we aren't relying on out-of-date data that underestimates how many members of some of these groups exist and so on.
Ms. Mary Margaret Dauphinee: Especially people with disabilities. There are studies going way back to 1991. They're not thinking of doing one until next year, so...
The Chair: Ms. Skelton.
Mrs. Carol Skelton: Mr. Spencer has something to ask too.
The Employment Equity Act has been in effect since 1996. Do you think it's been in effect long enough for the changes to be appropriately assessed at this time and for anyone to recommend changes already? Do you think it should be?
Prof. William Black: We now know some changes are needed. I'm sure in five years we'll have even more information, but I think there's adequate information, especially with regard to some of the questions like resources, education, and so on, that we're in a position to know what needs to be done there.
The Chair: Mr. Spencer.
Mr. Larry Spencer: I just have one comment, and that is that I believe it's morally right for an employer to practise employment equity. I'm in favour of that. Let's just remind ourselves that so many times we hear the idea that you can't legislate morality, yet we are legislating morality for employers. We have had the courage to do that. I was just going to challenge us: let's not forget to have the courage to do it in any other area that might involve morality, because we're doing that.
Prof. Carol Agócs: We encourage employers to take care of the health and safety of their employees, and that is in part a moral commitment to health and well-being.
Mr. Larry Spencer: We do it all the time, but we just forget how broad the morality becomes. Even laws against bank robbers deal with morality.
[Translation]
The Chair: Ms. Guay.
Ms. Monique Guay: With all due respect, I have to totally disagree with my colleague. Promoting employment equity for women is not a moral issue, but rather a matter of justice and equity. The same holds true for cultural minorities and persons with disabilities. I don't share his view in the least. However, that's my opinion.
I think we've gone around the table once and any suggestions you might like to make could prove important to helping us continue the good work we are presently doing. We really need to look at a simpler way of applying the Canadian Human Rights Act and the Employment Equity Act. A connection between the two must be drawn.
In conclusion, I'd just like to say that Part II of the Canada Labour Code respecting health and safety in the workplace has been revised. Some of the fines that employers face have been increased. Had we not taken this action, employers might not necessarily have increased safety in the workplace. We are forcing their hand. It's not a moral issue, but rather a question of employee safety, health and welfare. Obviously, if we make no effort whatsoever, either on the employment equity front or in the area of health and safety, anyone is free to do whatever he or she wants. Therefore, I think it's important for us to revise the legislation and again, I want to stress the importance of your sending us any pertinent information or suggestions.
Ms. Dauphinee, you have a number of suggestions. Forward them to the committee so we have something to work with.
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[English]
The Chair: Thank you.
On behalf of the committee, I want to thank our three witnesses today. You have provided us with some very valuable information. We appreciate the years and years of work you have in the field. You truly are experts in this field, and we appreciate you coming to share the benefit of all the work you have done.
You may want to monitor our hearings as they continue on, and if at some point you feel there's something that needs to be said, then please feel free to call us to make an additional submission. We would be most happy to entertain and include it as part of our deliberations.
I thank you on behalf of all members.
The meeting is adjourned.