HUMA Committee Report
If you have any questions or comments regarding the accessibility of this publication, please contact us at accessible@parl.gc.ca.
Definitions of the groups designated in the Employment Equity Act and regulations have remained essentially the same since the first Act was passed in 1986. “Aboriginal peoples” are “persons who are Indian, Inuit or Métis.” “Visible minorities” are those persons “other than aboriginal peoples, who are non-Caucasian in race or non-white in colour.” “Persons with disabilities” are defined as those persons: who have a long-term or recurring physical, mental, sensory, psychiatric or learning impairment and who
For persons with disabilities, the current Employment Equity Act of 1996 added the following qualification that the definition: includes persons whose functional limitations owing to their impairment have been accommodated in their current job or workplace.61 During the Committee’s hearings, some witnesses expressed concern about various elements of the definition for three of the four designated groups. Regarding visible minorities, for example, the Committee heard conflicting views. Some witnesses from visible minority groups argued in favour of breaking down the definition of visible minorities into various sub-groups. Others supported retaining the definition in the Act and opposed any statutory breakdown, division or specification that would create additional hierarchies of disadvantage or discrimination. This latter argument is based on the view that existing regional or local flexibility in the development and implementation of employment equity measures allows employers, unions and other stakeholders to take sub-group labour market availability into account.62 Some Aboriginal and Métis organizations also raised issues with regard to how the definition works. They believed that a more specific definition that identified sub-groups of Aboriginal people would allow the Act to serve its purposes better. Right now, we’re all clumped in. We don’t know where the barriers lie in terms of First Nation Aboriginal people. (Joanne Green, Manager of Human Resources, Assembly of Manitoba Chiefs)63 In its presentation, the Métis National Council identified what it considered as a problem that links definition and identification of a person who is Métis. The Council told the Committee that currently, there is no means of validating people who claim to be Métis. In consequence, individuals could claim Métis status for employment equity purposes, particularly in seeking employment in the public service and no possibility of verifying this exists. As a result, some people would be qualifying for employment equity related measures without qualifying as Métis in the eyes of the organizations of Métis people. In their view, the number of Métis in the public service might, therefore, be inflated. You talk about a certain number of aboriginal people having been employed pursuant to the Employment Equity Act. What percentage of that aboriginal component is actually Métis? We just don’t know simply because there’s no way of identifying from the federal government’s perspective who [are] the Métis…. Those kinds of statistics could be kept, and we could ensure that when it came to our people, there was employment equity. (Mr. Gérald Morin, President, Métis National Council)64 The Committee acknowledges that the definitions of the various designated groups take a broad brush approach that may not easily accommodate the distinctions that some of the groups would like to see. The Committee, however, does not believe that a redefinition of various groups and splitting them into sub-groups for the purposes of the Employment Equity Act would be useful. At the same time, we do believe that better data collection and analysis of the sub-groups could provide a better basis for identifying barriers and enabling the Act to work in the interests of all the designated groups (See Recommendations 18 and 20 below). While the Committee does not believe that changes to the definitions of three of the four designated groups are required, we have taken another view for persons with disabilities. The Committee is aware that the definition of disability remains an issue that stretches far beyond the confines of the Employment Equity Act. In fact, last June in our report prepared jointly by the Sub-Committee on the Status of Persons with Disabilities and the Sub-Committee on Children and Youth at Risk, A Common Vision, we recommended that a taskforce study the harmonization of definitions of disability and report back in June 2002.65 In its response, the government accepted this recommendation. Although we are waiting for Human Resources Development Canada’s progress report with anticipation, the Committee was also made aware during the review of the Employment Equity Act, that there are specific concerns with the definition of disability in the Act that need to be addressed immediately.66 Employer representatives, notably the Canadian Bankers Association and Federally-Regulated Employers in Transportation and Communications (FETCO), put forward a case that the definition in the Act inappropriately links ‘disability’ and ‘disadvantage’ given that many working people with disabilities do not consider themselves disadvantaged in employment and, therefore, do not self-identify on workforce surveys. As a result, they claim that employer statistics under-represent the number of people with disabilities. Many working people with disabilities do not consider themselves to be disadvantaged. This results in a reduction in the number of people who self-identify on workforce surveys and contributes to under-reporting of industry data and a less than clear and fully-developed picture of how employment equity is progressing in the marketplace. (Ms. Elisabetta Bigsby, Senior Executive Vice-President, Human Resources and public Affairs, RBC Financial Group, Canadian Bankers Association)67 Both groups of employers pointed to the existing definition of disability as contributing to a lack of clarity and causing problems for employers in collecting their data regarding representation of persons with disabilities. The reason, they argued, is because it combines into a long statement issues about having a disability, the perception of disadvantage and accommodation. Several employers, therefore, argued in favour of “decoupling” the definition so that people could identify themselves as having a disability without having to state that they feel themselves disadvantaged in the workplace. [H]ow can one ensure that the questions being asked identify the population with disabilities, as defined in the act or the program or the service, if those data are going to be used to assess the impact of those programs and services? (Ms. Adèle Furrie, Consultant)68 The Committee received other evidence that the definition in fact is We were also told that clarifying the definition of disability could be done in such a way that it would be consistent with the way that the availability data were produced in the Health and Activity Limitation Survey (HALS) of 1991 and, we understand, have been be assembled for the Participation and Activity Limitation Survey (PALS) of 2001. This would increase the comparability between the representational data and the availability data and help to rectify a long-standing problem. So if this change is made to the employer questionnaire, then at least there would be a consistent approach between the availability data and the employer data, but — and it’s a big but — the employer still has to convince the employee that there is anonymity in the responses to the questionnaire being filled in and handed back to the employer. The proposed change to the questionnaire might accommodate this to some extent. (Ms. Adele Furrie, Consultant) 69 Recommendation 17 The Committee recommends that the Government of Canada amend section 3 “Interpretation” of the Employment Equity Act and all related regulations or guidelines pertaining to the definition of persons with disabilities. A definition that received a considerable amount of support and that the Committee believes merits serious consideration is:
For greater clarity, in responding to any questionnaire prepared by an employer for employment equity purposes, any person who indicates that one of (a), (b), (c) or (d) applies to him/her will be considered as a person with a disability. While the Committee supports retaining the current definitions with the exception of modifications to the definition of persons with disabilities, we also heard evidence in favour of some statistical sub-divisions of the currently-existing designated groups. This particularly concerns individuals who are members of more than one disadvantaged group where additional information about these sub-groups would further the purposes of the Act. The Centre for Research Action on Race Relations (CRARR) put forward the case that it might be of some value to collect statistics on visible minorities who are also members of official language minorities (English-speaking and French-speaking). In this regard, CRARR also suggested that it might be important to gauge the representation of visible minorities to make all data on representation available on a regional basis to allow for more effective tracking of progress particularly in Ontario, British Columbia and Quebec. While CRARR was the only witness to put forward this suggestion, many others, however, addressed the question of the need for more information about what has come to be known as “double or triple jeopardy.” This is a term used for an individual who is a member of more than one designated group, for example, a woman who is Aboriginal, or a person with a disability who is a member of a visible minority group. In particular, many people mentioned that there is no publicly available data regarding many of these groups especially in terms of their labour force availability. In its presentation, the Assembly of First Nations (AFN) pointed to this as a problem for Aboriginal people with disabilities generally and for Aboriginal women with disabilities in particular. There is no data provided specifically with reference to First Nations People with disabilities or aboriginal peoples with disabilities, and their corresponding rate of employment within either the public or private sector. This data is categorized under either “people with disabilities” or “aboriginal people” and does not provide a clear enough picture. (Ms. Marie Frawley-Henry, Director, International Affairs, Assembly of First Nations)70 In its report, A Commitment to Merit, the Committee that reviewed the Employment Equity Act in 1995 recognized the need to deal with the issue of double counting or double jeopardy. We share that Committee’s view that this should be addressed. In employment equity reports and in external availability data, aggregating information about individuals who belong to more than one designated group creates an incomplete or misleading picture of the level of representation/availability and nature of the disadvantages for certain groups of individuals. The Committee heard that the data has been collected to allow the study of the impact on the employment situation of an individual who belongs to more than one designated group. In addition, more information on multiple disadvantages will be available for more detailed study when the results of the 2001 census and the 2001 PALS become available next year. Unfortunately, the recommendation made in 1996 has not been implemented and therefore we have incorporated it in this report with the expectation that this reiteration will result in action. Recommendation 18 The Committee recommends that the Labour Branch of Human Resources Development Canada, in conjunction with Statistics Canada, develop a means to separately identify individuals who are members of more than one designated group and to provide a comparative analysis of the disadvantages in employment that may result from belonging to more than one designated group.* The Employment Equity Act in section 9.1 requires an employer to conduct a workforce analysis to determine the nature of representation of designated groups. This means that an employer must compare the internal representation of designated groups to the external availability of these groups in the labour force. This comparison is made for each occupational group and geographical location from which an employer recruits. Given these factors, progress or success is determined by the extent to which workplace representation mirrors labour force availability. (a) Representation in the Workforce Since it was first brought into effect 15 years ago, the Employment Equity Act and its predecessor legislation have contained requirements for employers covered by the Act to achieve a ‘representative’ workforce — that is to employ a proportion of designated group members in each occupation equal to their proportionate representation in the labour force from which employers recruit. The present Act (Section 9) requires employers to collect information and to analyse the composition of their workforce to determine the extent to which each designated group is represented in each occupational group. Employees who are members of the four designated groups are asked voluntarily to self-identify and an employer is allowed to count only those who do so for the purpose of calculating the representativeness of the employer’s workforce. Employers who appeared before the Committee told us that since the implementation of the first Employment Equity Act 15 years ago, they had invested significant resources in a range of initiatives including the development and implementation of systems to collect analyse and report data in order to fulfil their obligations under the Act. In this context, some members of the Committee would like to see employers report employment data by temporary, permanent, part-time and full-time status to enable us to see the real picture. Some employers expressed concerns about the process by which representation is determined. FETCO, for example, argued that self-identification should not remain the sole basis for the collection of representational information. The Canadian Bankers Association pointed out that representation for a particular employer was calculated as a percentage of the total number of employees in the enterprise rather than as a percentage of those who complete the self-identification questionnaire. As long as the self-identification process remains the sole basis of statistical data and results, under-reporting of designated group representation in our respective workforces will persist. Self-identification therefore remains an issue for all FETCO members, large and small, and an impediment to gaining accurate workforce representation data. (Ms. Hélène Gendron, Chair, Employment Equity Subcommittee and Senior Manager, Employment Equity and Official Languages, CBC/Radio Canada, Federally Regulated Employers, Transport and Communications)71 FETCO believes that there is still some unwillingness by employees to complete a self-identification questionnaire as well as to self-identify. In part, employers stated that this resulted from employees not wanting to be looked upon as owing their situation to membership in a designated group but to be recognized as achieving success as a result of talent and performance. The Committee believes that the rationale that led to the provision in the Act for voluntary self-identification remains as valid today as when the original Act was passed 15 years ago. For some individuals, fear of discrimination in the workplace has not diminished — for example, people who believe that they would be stigmatized by virtue of having a mental illness. We believe that the need to maintain individual privacy continues to be important and that the rights of individual members of designated groups should be respected. In addition, the Committee is aware that census and the post-censal survey (Participation and Activity Limitations Survey) both use voluntary self-identification to establish overall labour force availability for the four designated groups. To change the method for identifying designated group members in workplaces, therefore, would cause serious difficulties in making comparisons and setting benchmarks. The Committee also notes that Section 25 (1.1) (b) of the Act allows an employer to pass on doubts about under-representation due to unwillingness to self-identify to a compliance officer who is supposed to take this into account while conducting an audit. (c) New Indicators and Employment Equity The Committee believes that establishing outcomes and providing indicators to allow Canadians to measure the success in achieving these outcomes is essential in dealing with employment equity. Obviously, statistical measures of representation are one of the important ways that this can be done. We are also fully aware that the use of voluntary self-identification as a means of gathering data about the representation of designated groups is imperfect. Although we are not prepared to suggest an immediate alternative, we believe that it is time that work began to supplement a strictly numerically‑based approach to measuring progress and success in achieving equity in the workplace. Qualitative measures need to be considered that reflect the true nature of employment equity as something that exists apart from legislation such as the type and level of employer-sponsored training or the nature and amount of consultation between employers and employees. The issues are much deeper and broader than can be addressed entirely in legislation or by the efforts of employers, important though those aspects are. Indeed achieving continuous progress in employment equity involves fundamental, on-going societal change. (Ms. Elisabetta Bigsby, Senior Executive Vice-President, Human Resources and Public Affairs, RBC Financial Group, Canadian Bankers Association)72 Members of the Committee were impressed by the comments of some employers who spoke about the need for additional qualitative measures. Other employers, such as the Federally Regulated Employers in Transportation and Communications put forward the case that numerical data should not be the only manner of determining an employer’s effectiveness and success in managing employment equity. We look very closely at both quantitative and qualitative goals for employment equity efforts within our industry, and it has been very important to the achievement of those qualitative and quantitative goals to have a robust discussion about the business case for employment equity. (Ms. Lesya Balych‑Cooper. Vice-President, Diversity and Workplace Equity/EAP, Bank of Montreal, Canadian Bankers Association)73 Many of these, naturally, are internal to the functioning of an enterprise: supportive workplaces, managerial competency, association with the community and customers, as well as corporate image among them. Others may be related to the changing nature of work and societal expectations of what is appropriate treatment of workers. There are also qualitative differences that are specific to, and different from, the designated groups or society as a whole. There are issues facing the employment of women that are very, very different from the issues facing employment of persons with disabilities, Aboriginal people and visible minorities and within the visible minority population there are different issues for some of the sub-groups….I think you should look at these four groups, look at what the issues are that face them in the workplace and consider different strategies for the different groups. (Ms. Adèle Furrie, Consultant)74 The Committee is aware of work to develop qualitative indicators that can measure the success of other social and employment initiatives such as the various components of the Social Union Framework Agreement, the Early Childhood Development Initiative, and the social integration of persons with disabilities. Treasury Board Secretariat and the Auditor General of Canada are exploring ways of reporting on progress throughout the federal government in ways that reflect the reality of how the government’s activities impact on society. Employment equity measures should not be held captive solely to statistics that we know do not tell the whole story. It is time that the federal departments and agencies that administer employment equity measures and compliance move forward in how they perceive and measure success. Recommendation 19 The Committee recommends that the Minister of Labour consult with employers, employee representatives, members of designated groups, the Canadian Human Rights Commission and other stakeholders to identify and put in place a set of qualitative societal and employment indicators that will assist in the measurement of the success of employers in achieving equity in the workplace. During our hearings, the Committee was told that Statistics Canada’s Employment Equity Data Program unfortunately no longer exists. This program conducted research into the issues beyond the labour force availability data to other sources and other types of indicators of success. The Committee believes that in order to find other qualitative and quantitative ways of measuring success, such research must be ongoing. This type of measurement would also be useful, in conjunction with statistical information about the various sub-groups of Aboriginal people or visible minorities (mentioned above). Recommendation 20 The Committee recommends that the Minister of Labour establish a research program involving Human Resources Development Canada and Statistics Canada to conduct work into the development of alternative data sources and societal indicators that measure the progress in achieving employment equity. As a priority, this research program should address issues related to those that are members of more than one of the designated groups and sub-groups of existing designated groups. Currently, availability for Aboriginal people, women, and visible minorities is measured by data collected in the census of population conducted every five years by Statistics Canada. The questions in the 2001 census are essentially the same as those used in 1996. For persons with disabilities, availability data is currently derived from Statistics Canada’s Health and Activity Limitation Survey (HALS), a post-censal survey of people with disabilities first carried out in 1986 and then in 1991. Because this survey was not conducted in 1996, these out-of-date statistics will be in use until the Participation and Activity Limitation Survey (PALS) data is ready sometime in December 2002. Dr. Douglas Norris from Statistics Canada told the Committee that by about June of 2003, the data would be available both from the PALS and the census so that the labour force availability data could be produced according to the specifications from HRDC and the Interdepartmental Working Group on Employment Equity Data. All availability data is based on voluntary self-identification as people fill out their census-related forms. Methods and questions for the census and post-censal surveys used to collect the statistics on the availability of the four designated groups are developed by the federal departments with employment equity-related mandates. The Interdepartmental Working Group on Employment Equity Data is chaired by a representative from Human Resources Development and consists of other representatives from Statistics Canada, Treasury Board Secretariat and the Canadian Human Rights Commission. Labour market information is provided to enable an employer to assess availability for any job or occupation in a region in Canada. Information on various geographic areas is provided to employers by province and territory as well as the 25 census metropolitan areas. These statistics are broken down by working age population, workforce occupation and education. Many of our witnesses expressed their frustration that statistics about the labour force availability for persons with disabilities are not up to date. This situation has an impact far beyond calculating the labour force availability for the purposes of the Employment Equity Act. It also means, for example, that all federal and provincial governments are using outdated sources of information about people with disabilities in devising their policies and programs. The Committee that conducted the previous review of the Employment Equity Act recommended that a post-censal survey should take place in 1996. Our witnesses have pointed out that the decision not to proceed has had negative consequences. Employers who are trying to fulfil their obligations under the Act, and those who are trying to assess the progress of employment for people with disabilities are now feeling the effect of the failure to implement this recommendation. One expert witness pointed to another problem with the labour force availability data for persons with disabilities. The PALS does not provide the same detail for geographic regions and selected large urban centres as the data for women, Aboriginal peoples and members of visible minorities. This means that people with disabilities will be at a disadvantage compared to other designated groups because employers will not have the same amount of detailed information for them as for the others. Recommendation 21 The Committee recommends that:
The Committee notes, as did several witnesses, that the overall labour force availability benchmarks used to assess progress for federally regulated employers are different from those applied to federal departments and agencies. As indicated elsewhere in this report, some of this difference is attributed to the fact that the labour force availability benchmarks used in the federal public service only include Canadian citizens, a situation which arises from the preference citizens receive pursuant to the Public Service Employment Act. The Committee does not support the use of different criteria to construct labour force availability benchmarks for the public sector, since this practice makes it more difficult to compare employment equity progress in the public and private sectors. In addition, we do not believe that the current preference afforded Canadians will be practical in meeting federal public service labour needs in the years ahead, given the prospect of labour force ageing and labour shortages. Hence, the Committee believes strongly that the labour force availability benchmarks applied to the federally regulated private sector be applied to all employers covered under the Act. Recommendation 22 The Committee recommends that the labour force availability benchmarks applied to the federally regulated private sector be applied equally to all employers, including federal departments and agencies, covered under the Employment Equity Act.
|