HUMA Committee Report

The Employment Equity Act encourages employers to co-operate and work with the CHRC in fulfilling their employment equity obligations. The approach adopted is largely a non-adversarial one, involving persuasion and, wherever possible, negotiation. The Committee supports the continuation of this approach and would like the CHRC to assume a more supportive role to help employers achieve compliance.

Most members of the Committee believe that the non-adversarial approach to enforcement pursued under the Employment Equity Act is the most appropriate and effective way of encouraging employers to comply with their obligations under the Act. We are resistant to the idea of establishing a more court-oriented enforcement approach like that pursued in the United States for several reasons, not the least of which is the high cost and lengthy litigation associated with many of these cases. In fact, we were informed that the Equal Employment Opportunity Commission in the United States is now trying to utilize mediation rather than the courts to settle affirmative action disputes.

… I believe that as we've gained more experience and as the EEO laws have evolved, we have introduced new management practices that have helped us steer many of these disputes out of the court system into more practical administrative actions. We have a very strong mediation program. The mediation program we have takes on average about 84 days to process the dispute, as compared to 180-some days of investigating a complaint and all that. (Ms. Cari Dominguez, Chair, U.S. Equal Employment Opportunity Commission)⁷⁵

Most members of the Committee do not support, at this time, the CHRC’s proposals to develop a more expeditious process for establishing legal proceedings once a case has been referred to Tribunal and to eliminate the last part of sub-section 22(2) of the Employment Equity Act which requires that directions be issued and cases referred to Tribunal only “as a last resort.” Members of the Committee do not share the CHRC’s view that these words send the wrong message.⁷⁶

1. Compliance Audits

The CHRC is responsible for conducting audits to ensure that federally regulated private sector employers, Crown corporations, federal departments and agencies, and separate employers comply with the Act.⁷⁷ The Commission has identified 12 statutory requirements⁷⁸ for the purposes of enforcing compliance under the Act.

To date, the CHRC has initiated or completed audits in 41 out of 65 federal departments and agencies accounting for more than 97% of employees in this category of employers covered under the Act; 8 out of 15 separate employers covering about 94% of workers employed in these organizations; and 166 of the 397 federally regulated private sector employers accounting for roughly 77% of the covered workforce in the private sector. In most of these audits, at least one follow-up audit was necessary before employers could be declared in compliance with the Act. Of the 215 employers for which the CHRC has initiated or completed an audit, 73 (or one-third) were in compliance with the Act as of 2001.⁷⁹

Since conducting its first audit, only 20 directions⁸⁰ have been issued by the CHRC and about 80% of employers have complied or continue to work toward compliance. While some witnesses complained that only one-third of the employers who have been audited thus far have been found to be in compliance with the Act, most members of the Committee are heartened by the fact that the CHRC has had to issue so few directions since 1998. We believe that most employers genuinely want to comply with the Act, but many need help to do so. We also believe that the CHRC may need additional resources to provide this guidance as well as complete its first audit cycle. In terms of the latter, we were told that the Commission has 15 auditors and it takes on average 10 to 12 months to complete an audit. In view of the fact that the CHRC must still initiate audits for more than one-half of the audit population (i.e. 261 employers), we are concerned that it may take too long to initiate these audits as well as conduct follow-up audits and commence monitoring for reasonable progress among employers who have complied with the Act.

It's not that the Act doesn't have problems or that we're all perfect, it's more that since it was changed in 1995 and the enforcement mechanisms were set up, we haven't had a chance to find how it best operates. We've heard from the Commission about the resource problem they have. Could it not be that it takes so long because they are running into that kind of problem, much more than the fact that people don't want to comply? This is a question we are asking ourselves at this point. We think it may be an aspect, because some of our members who have been audited have had to go through two auditors, sometimes three. So it's not so much that we think it's not working, it's just that it needs some time. We are learning, the Commission is learning. This enforcement mechanism is rather new. I don't think that there is a whole lot of expertise out there, and we should give it some time to build the expertise. Then we can reflect and find out the lessons we can draw from that, so that we can be more efficient and maybe take less time. That is basically what we feel at this time. Let it run at least one full course. (Ms. Hélène Gendron, Chair, Employment Equity Subcommittee, and Senior Manager, Employment Equity and Official Languages, CBC/Radio Canada, Federally Regulated Employers, Transport and Communications)⁸¹

Recommendation 23

The Committee recommends that the Canadian Human Rights Commission be provided with sufficient resources to conduct compliance audits and follow-up audits more quickly and to facilitate employers in fulfilling their obligations under the Act.*

2. Monetary Penalty for Non-reporting (Part III)

According to section 36 of the Employment Equity Act, the Minister of Labour has the authority to impose a fine on an employer who fails to file an employment equity report or who knowingly files a report containing false or misleading information. The monetary penalty cannot exceed $10,000 for a single violation or $50,000 for subsequent violations. Although the subject of monetary penalties did not receive a great deal of attention during our hearings, the Committee observes that this provision of the Act only applies to private sector employers. And, like our predecessors who conducted the last review of the Employment Equity Act, we believe that both public and private sector employers should be subject to the same monetary penalties under the Act.

Recommendation 24

The Committee recommends that the monetary penalty for not reporting or for false reporting be applied uniformly to all employers covered under the Act.

3. Complaints Based on Patterns of Discrimination

According to the CHRC, consequential amendments that were passed along with the current Employment Equity Act limit the ability of the Commission and Tribunals to respond effectively to complaints alleging patterns of discrimination under section 10 of the Canadian Human Rights Act. Specifically, the Commission recommends that section 50 of the Employment Equity Act be repealed. This section prohibits a Canadian Human Rights Tribunal from ordering an employer that is subject to the Employment Equity Act to adopt a special program, plan or arrangement containing positive policies and practices or goals and timetables to increase representation. While the Committee did not receive a great deal of testimony on this issue, most members of the Committee are reluctant to support the CHRC’s proposal. One of the reasons for this is that we feel that only tribunals established to deal with employment equity cases should be responsible for issuing employment equity orders (the orders can be broader than just the employment equity plan). As expressed in the report entitled Employment Equity: A Commitment to Merit, we echo the view that the current structure minimizes the potential for an employer to be subject to two employment equity orders from two different tribunals under different pieces of legislation.

Several witnesses suggested that the Canadian Human Rights Act be amended to permit section 10 complaints based solely on data provided in employment equity reports. Others absolutely rejected such a proposal. While the CHRC acknowledges that the current statistical limitation restricts the rights of Canadians to pursue section 10 complaints, it recognizes that section 48 of the Employment Equity Act is necessary to ensure full and open co-operation of employers during a compliance audit.⁸² Most of us still concur with the view held at the time these amendments were made to the Canadian Human Rights Act; that is, that the Employment Equity Act provides a better method of addressing situations where numerical under-representation is the only indication of a potential case of systemic discrimination. We would also add that the current statistical limitation is prudent in view of the fact that the data collected under the Employment Equity Act is not always reliable.

Numerical employment equity data and reports represent only one tangible measure by which to ascertain employment equity issues and progress. However, FETCO firmly believes numerical data should not be the only or primary focus for determining an employer's effectiveness and success in managing employment equity. That's why FETCO would not support a recommendation to have complaints submitted strictly on the basis of statistical information. (Ms. Hélène Gendron, Chair, Employment Equity Subcommittee, and Senior Manager, Employment Equity and Official Languages, CBC/Radio Canada, Federally Regulated Employers, Transport and Communications)⁸³

4. Public Access to Compliance Reports

Currently, the Employment Equity Act protects the information collected during an audit. A few witnesses expressed the need for more openness and suggested that the information contained in employers’ reports and CHRC audit reports should be publicly available. While employers’ co-operation with CHRC auditors is enhanced through confidentiality, the Committee recognizes that this competes directly with the public’s right to know who is complying and who is not complying under the Act. The Committee believes that the successful implementation of employment equity requires more co‑operation among employment equity partners. Employers have an interest in establishing stronger partnerships as do labour and other employment equity advocacy groups. These partnerships can best succeed in a more open environment, including the sharing of information.

Recommendation 25

The Committee recommends that the government examine the merits of allowing the Canadian Human Rights Commission to make public executive summaries of each compliance report, summarizing the extent of compliance with the statutory requirements (including an employer’s employment equity plan) in a manner that is consistent with the Access to Information Act.*