HUMA Committee Report
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Under the Employment Equity Act (Section 18), federally regulated private sector employers are required to file reports with Human Resources Development Canada (HRDC) on or before 1 June each year on the nature of their workforce for the previous year. They are to include information on the total number of employees, as well as the number of employees from designated groups by industrial sector, geographic location, employment status, occupational category, salary range, hirings, promotions and terminations. HRDC then consolidates this data and uses it to prepare an annual report that is to be tabled in Parliament before 31 December. This report compares the representation of the designated groups with their labour force availability. Private sector employers who fail to file their annual report are liable to a fine of up to $50,000. According to Section 21 of the Act, the President of the Treasury Board is required to prepare a similar annual report on the state of employment equity in the public service (those included in Part I of Schedule I to the Public Service Staff Relations Act) for each fiscal year. In addition to the aforementioned employers, there is a group of 15 separate employers that is also required to report under the Act. According to section 4(c) of the Act, these employers are portions of the public service of Canada set out in Part II of Schedule I of the Public Service Staff Relations Act, that employ 100 or more employees. This includes, among others, the Canada Customs and Revenue Agency, the Canadian Security and Intelligence Service, Parks Canada, and the Office of the Auditor General. Although these separate employers submit their annual reports to the Treasury Board Secretariat, these reports are tabled in Parliament without any analysis or consolidation. (a) Equality and Comparability The Committee heard evidence that all employers should be required to report on the same basis. The Canadian Human Rights Commission and other witnesses recommended that federal departments and agencies should report on the same occupational basis (i.e. 14 occupational groups) as private sector employers. Currently, separate employers that are also federal agencies are required to submit their reports according to the 14 occupational groups. Federal departments and agencies report on the basis of six occupational categories. The Committee supports standardizing all reports because we are aware that it is difficult to compare progress and performance between some public sector employers and others as well as between the public and private sectors when the basis for comparison is not uniform. Apart from this, we are aware that no agency has the responsibility for monitoring, vetting or ensuring consistency of the reports from separate employers in the federal public sector. There is no annual report on their progress. The Committee supports the position of the Canadian Human Rights Commission that it is appropriate that the reporting status of separate employers should be clarified and that they should be treated in the same way as other federal employers and private sector employers. In the interests of consistency and fairness, the Committee believes that comparative information should be available from all those who are required to file reports under the Act. Recommendation 9 The Committee recommends that all employers, including individual federal departments and agencies (those set out in Parts I and II of Schedule I of the Public Service Employment Act) as well as Parliament and the Library of Parliament, file their employment equity reports with the Minister of Labour. The Minister of Labour should be responsible for tabling in Parliament a consolidation of these reports, including a comparison of the public and private sectors. For greater clarity, all reports filed with the Minister should contain information in accordance with the prescribed instructions. Recommendation 10 The Committee recommends that all federal departments and agencies report on the same occupational basis as private sector employers. Following the review of the reporting requirements due on 1 January 2004 (see Recommendation 11), if the government modifies the basis on which occupational data are reported, the modified approach should apply equally to all employers. While employers did not ask for the requirement for an annual report to be changed, some employers believed that the reporting requirements of the Act imposed a considerable burden without any appreciable benefit in terms of their operations. They recommended that the reporting requirements be closely examined with a view to redirecting resources toward results. … our members and the department have made it known that they want to spend less time on a report which essentially ends up being shelved. (Ms. Hélène Gendron, Chair Employment Equity Sub-committee and Senior Manager, Employment Equity and Official Languages, CBC/Radio Canada, Federally Regulated Employers, Transport and Communications)48 On the other hand, many of our witnesses recommended that the annual reporting system should remain in place. Some employers reported to the Committee that they had put the systems in place and that these reporting tools had become part of their ongoing work methods although they did not want the preparation of statistical reports to become more complex. Still other witnesses, including the Canadian Human Rights Commission (CHRC) and some representatives of designated groups, want employers to report more data and analysis than is currently required under the Act. The Committee agrees that reporting requirements impose a delicate balancing act with two sides to it: ensuring accountability through reporting and, at the same time, limiting the burden of reporting and audit requirements. We are also aware that most employers have invested resources in putting a reporting system into place and that changes could result in additional costs to them as well as to taxpayers. Limited corporate resources need to spend time implementing change, rather than spending time responding to government information requests. (Mr. John Crockett, Consultant)49 We recommend amending section 18 of the Act to provide for private sector employers to file reports every second year rather than every year, at their option. Then a task force of stakeholders should be set up to determine how reporting could be changed to reduce its dominance. The whole issue of the reporting requirements is fraught with a lot of hidden issues and a lot of stakeholder considerations. (Mr. Philip McLarren, President, McLarren Consulting Group Inc.)50 As far as reporting is concerned, there are areas that the Committee believes are worth exploring. There does, for example, seem to be a recognized need for more information about those who are members of more than one designated group but until the stage is properly set, the Committee is not prepared to recommend that employers report on this type of representation. We have dealt with this elsewhere in this report. In addition, the Committee heard the employers who appeared before us speak about the success of various initiatives and interventions that they have undertaken to increase their representation of designated groups (e.g. outreach programs, apprenticeships, recruitment activities, training, etc.). The effect of the reporting requirement is to put too much emphasis on numbers and not enough on developing systems, procedures and practices that will cause those numbers to change dramatically. Throughout the Act, pre-eminence of corrective action is emphasized, beginning with the purpose statement. It is time to balance numerical reporting with encouragement and direction on how to change practices to make employment equity effective. (Mr. Philip McLarren, McLarren Consulting Group, Inc.)51 Many of our witnesses told us that employment equity should be much more than collecting and analysing statistical data. In fact, Section 5 of the Act sets this out very clearly: Every employer shall implement employment equity by:
Statistics are the means not the end. In light of our view that increased emphasis should be placed on qualitative measures, we feel that increased reporting of these measures would be beneficial. In fact, many employers already include their qualitative initiatives in the information that they submit annually. But the Committee believes that this is not utilized as effectively as it could be. One way of proceeding, for example, might be to allow employers to alternate their reporting: one year employers could report on their representational statistics and the following year report on their qualitative measures and programming. The Committee believes that this solution might, in fact, provide a more complete picture of progress and achievements than annual reports devoted solely to statistics. Recommendation 11 The Committee recommends that the Labour Branch of Human Resources Development Canada, in consultation with the Canadian Human Rights Commission, conduct a study of reporting requirements under the Employment Equity Act. This study should involve all stakeholders, government departments and agencies (including separate employers), designated groups, unions and employee representatives, and federally regulated private sector employers. It should specifically address the reporting obligation under the Act as well as the feasibility of biennial statistical reports, and the possibility of biennial reports on qualitative measures. This report should be tabled with the House of Commons Standing Committee on Human Resources Development and the Status of Persons with Disabilities no later than 1 January 2004.* 2. Clarifying Statutory Requirements Several witnesses, including the CHRC, indicated that some employers are confused as to the scope of certain requirements outlined in Part I of the Employment Equity Act and there is a need for greater operational clarity. Pursuant to section 2 of the Employment Equity Act, employment equity means more than treating people in the same way. It also requires “special measures” and the accommodation of differences. Since the term “special measures” is found in the purpose section of the Act, it is arguable that its meaning would apply to an interpretation of the word “measures” found elsewhere in the Act. Section 10 of the Act specifies the content of an employer’s employment equity plan and requires that the plan specify “positive policies and practices” that employers are to use in the short-term to provide opportunities to under-represented designated groups with respect to hiring, training, promotion and retention; and “measures” to be taken by employers in the short term to eliminate employment barriers. The Committee is hard-pressed to view short-term positive policies and practices, and measures or special measures as mutually exclusive. Nevertheless, we recognize that the limited reference to “special measures” in the Act and the reference to “measures” in paragraph 10(1)(b) of the Act, coupled with the CHRC’s interpretation of this section as being a reference to special measures are causing some consternation and we agree that clarification of this matter would be helpful. The key message that I'd like to leave you with today is that for employment equity legislation to work effectively, there must be mechanisms built in so that significant and highly specialized supports can be in place for both the employers and the employees with disabilities. In fact, as it states in section 2 of the act, by giving effect to the principle that employment equity means more than treating persons in the same way, it also requires special measures and the accommodation of differences. I believe you need to invest much more in these special measures and accommodations. (Mr. Gary Birch, Executive Director, Neil Squire Foundation)53 Recommendation 12 The Committee recommends that the Act be amended to clarify the term, “special measures” and articulate the requirement for these special measures in an employer’s employment equity plan. The Employment Equity Act (i.e. sections 5 and 10) requires employers to specify policies and practices for accommodating designated persons who are under-represented The current act requires employers to make “reasonable accommodations” to the designated groups. This section is vague and unclear in its interpretation and does not provide adequate protection to persons with disabilities requiring accommodations related to their disabilities in the workplace … AMC recommends that the Employment Equity Act be amended to provide maximum protection for persons with disabilities by making changes to the provisions from “reasonable accommodations” to that of the “duty to accommodate to the point of undue hardship” (Ms. Joanne Green, Director of Human Resources, Assembly of Manitoba Chiefs).54 Several witnesses recommended that the term “reasonable accommodation” be replaced by “duty to accommodate up to the point of undue hardship.” The latter is similar to the wording used in section 15 of the Canadian Human Rights Act. The Canadian Human Rights Act incorporates the duty to accommodate up to the point of undue hardship into the bona fide occupational and justification defences available to employers and it limits the factors for assessing undue hardship to health, safety and cost. While the accommodation phraseology in the Employment Equity Act may not exactly mirror that found in the Canadian Human Rights Act, it is important to note that section 6 of the Employment Equity Act does clarify that employers are not required to undergo “undue hardship” while taking measures to implement employment equity. Some of our witnesses thought that term “reasonable accommodation” was too vague and needed to be defined. This may not be necessary, however, in view of the evolving case law in this area. In the recent decision British Columbia v. British Columbia Government and Service Employees’ Union, [1999] 3 S.C.R. 3 (commonly known as the Grismer decision) the Supreme Court of Canada addressed the issue of employers’ duties to accommodate employees in the process of eliminating barriers to employment. The Court clearly stated that employers designing workplace standards owe an obligation to be aware of both the differences between individuals, and differences that characterize groups of individuals. In other words, they must build conceptions of equality into workplace standards. The Court recognized that a number of factors may be considered when assessing an employer’s duty to accommodate an employee to the point of undue hardship (i.e. financial cost, relative interchangeability of the workforce and facilities, and the prospective substantial interference with the rights of other employees). The Court also noted that none of these factors are carved in stone, except to the extent that they are expressly included or excluded by statute. Finally, the Court stressed that in all cases, such considerations must be applied with common sense and flexibility in the context of the factual situation presented in each case. According to the CHRC’s report to the Committee, it recommends that employers be required to have a written accommodation policy for each group designated under the Act. We were told that a precedent for such a requirement does exist under the Canada Labour Code with respect to harassment policy. Moreover, the CHRC has provided interested employers with a generic accommodation policy that is consistent with the standards set out by the Supreme Court of Canada in its decisions in British Columbia v. British Columbia Government and Service Employees’ Union, [1999] 3 S.C.R. 3 and British Columbia v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 (referred to respectively as the Meorin and Grismer cases). The Committee commends the initiatives pursued by the CHRC to educate and support employers who are interested in developing accommodation policies. In particular, we acknowledge its publication entitled A Place for All: A Guide To Creating An Inclusive Workplace, which provides employers with clear guidelines for developing and implementing their own accommodation policy and procedures. Recommendation 13 The Committee recommends that the government amend the Employment Equity Act to replace the term “reasonable accommodation” with the term “duty to accommodate up to the point of undue hardship”, and that the Minister of Labour explore legislative measures to require employers to have an accommodation policy and to amend the Employment Equity Act accordingly. Currently, section 9 of the Employment Equity Act requires employers to conduct a review of employment systems, policies and practices in accordance with the regulations in order to identify employment barriers against persons in designated groups. The CHRC requires that the results of this review be documented. This requirement has been challenged, but the challenges filed by employers have been withdrawn prior to a Tribunal decision. Some witnesses identified the employment system review as a key element in successfully implementing employment equity in the workplace. Perhaps the most essential element of the planning process is the employment systems review. It identifies what needs to change in order to remove barriers to designated group members and to enable employment equity to be realized. Employers are expected to know how to identify activities that are barriers causing under-representation and what interventions should apply. In fact, many employers are not clear as to what are possible systemic causes of under-representation, much less how to eliminate the causes. We recommend the audit review process should incorporate as a guideline a list of interventions proven successful in enabling dramatic change and suggest respondents use the guideline to indicate those interventions that have been applied, other interventions attempted, and results achieved — both positive and negative — by each intervention. (Mr. Philip H. McLarren, President, McLarren Consulting Group Inc.)55 During the consultations held by the CHRC, some employer groups expressed concern that the employment systems review is not an exact science and any legislative requirement that mandates that all barriers be identified might result in an impossible standard.56 The Commission was also told that the development of additional guides would be useful to employers in helping them meet their employment systems review Recommendation 14 The Committee recommends that the Employment Equity Regulations be amended to require employers to document their employment systems review and that the Canadian Human Rights Commission provide a clear set of standards to help employers conduct this review. (d) Hiring and Promotion Goals According to section 10 of the Employment Equity Act, employers with an under-represented workforce must prepare an employment equity plan that contains, among other things, short-term numerical goals for hiring and promoting under-represented persons in designated groups. The CHRC would like to see these goals established at a level no less than labour force availability. The Committee is not opposed to this benchmark, but as a practical matter questions whether it is reasonable to expect employers to meet these hiring and promotion goals in the short term, particularly in cases of significant under-representation. Furthermore, the Committee wonders if it is reasonable for the CHRC to expect employers to establish goals in excess of labour force availability, given that these benchmarks are supposed to refer to the total supply of workers with specific human capital characteristics in a given labour market. And, it is quite possible that a significant proportion of the supply of a particular group of designated workers in a given occupation and region of the country is already employed, since availability benchmarks include both employed and unemployed individuals. In any event, the Committee is uncertain about the significance of a minimum benchmark for short-term numerical goals, since any numerical goal that produces long-term under‑representation would cause the CHRC to require an employer to continue to strive for a representative workforce. In spite of these observations, the Committee acknowledges that there is some disagreement with respect to this issue, since the matter is before a few Tribunals and decisions are pending. The CHRC has adopted a minimum standard that says employers must set goals at least equal to census data availability percentages for designated groupings. This standard is impractical in many cases. Census data are quite appropriate as benchmarks, but not as standards — especially minimum standards. Examples of this issue are included in our written presentation. When census data are treated as minimum standards rather than as benchmarks, employers are inclined to view them as maximum goals or quotas. Without the psychology of minimum standards, employers may be more inclined to set targets above the census data benchmarks, and more importantly, make realistic plans to achieve them. (Mr. Philip H. McLarren, President, McLarren Consulting Group Inc.)57 Recommendation 15 The Committee recommends that the Minister of Labour examine the Employment Equity Act to determine if it is necessary to clarify the magnitude of hiring and promotion goals required for the purposes of paragraph 10(1)(d) of the Act.* The Committee has no doubt that the establishment of employment equity processes in the workplace are more complete and effective when employee representatives are closely involved in the development and implementation of an employment equity plan. This is why section 15 of Employment Equity Act requires employers to consult and to collaborate with employee representatives regarding the preparation, implementation and revision of the employment equity plan, and the communication of this plan to employees. Several witnesses, mainly unions, recommended that the Employment Equity Act be amended to require employers to participate jointly with employee representatives in developing and implementing an employment equity plan. In addition, some witnesses suggested that when workers are represented by a bargaining agent, employers should be required to negotiate employment equity as part of a collective agreement. Several union representatives stated that employers interpreted “consultation” as seeking information from the bargaining agents and that “collaboration” did not exist. Many recommended either co-managed agreements or the formation of joint workplace committees on employment equity or both of these. The Act gives employee representatives the right to be integrally involved at every stage of the employment equity process, by requiring employers to engage in consultations and to collaborate with employee representatives. However, our experience has shown us that most employers did not consult. Employers should be obligated to develop and implement employment equity jointly with unions. (Canadian Labour Congress, Brief) 58 Some members of the designated groups expressed concern about giving labour unions a greater role in achieving employment equity by changing the Employment Equity Act. Some Aboriginal organizations, including the Métis National Council told the Committee that the unions “haven’t really gone to bat for the aboriginal people or for our issues.” They cited instances where unions blocked the hiring of qualified Métis people to protect existing job-holders.59 These sentiments were echoed by some witnesses from other designated groups who believe that the seniority provisions in collective agreements (protected in Sub-Sections 8 (1) and (2) of the Act) operate to the detriment of the members of designated groups. The Confédération des organismes de personnes handicapées du Québec put forward a recommendation that the word “seniority” be replaced by “measures negotiated with respect to seniority” in sections 8 (1), (2) and (3). Others expressed the view that unions needed to move proactively to educate their members on employment equity. The Federally Regulated Employers in Transportation and Communications (FETCO) supported the need for consultation and collaboration with unions and employee representatives. They did not believe, however, that legal or legislative measures should specify how to carry this out. They argued that as employers with ultimate responsibility for results, they were in the best position to determine the appropriate type and level of consultation and sharing of information. In addition, employers need flexibility to put in place consultation measures that are appropriate to their organizational structure and requirements. In its report and recommendations to us, the Canadian Human Rights Commission made the argument that the more the unions are involved in the employment equity process, the better the results for the workforce. In terms of consultations, where these are done properly, they have the potential to harness the broad experience of the employer’s diverse workforce, substantially improve the information base on which decisions are made, tap into a valuable source of creative solutions, and significantly increase the changes for support of the resulting [employment equity] plan. (Canadian Human Rights Commission, “Legislative Review of the Employment Equity Act”)60 While the Committee supports a stronger requirement for employers to consult and collaborate with employee representatives, it does not believe that employee representatives should co-manage employment equity or that employers should be forced to negotiate employment equity in a collective agreement. In the former case, employee representatives are not subject to the enforcement provisions of the Act, nor should they be. And in the latter case, the Committee does not believe that it is in a position to impose on the negotiating parties what should, or should not, be in their collective agreements. It should be up to employers and employees whether employment equity is negotiated as part of a collective agreement. At the same time, the Committee was extremely impressed by the commitment of our witnesses who represented the labour movement to make employment equity work better. Representatives came up with many suggestions that the Committee believes would be worthwhile to pursue. Much of this collaboration could take the form of better information and education of employees, as many of the unions pointed out in their briefs to us. We also think that unions have an important role to play in informing workers about the importance of responding to the workforce survey. This is dealt with in another section of this report. Recommendation 16 The Committee recommends that, in consultation with employers, employees and employee representatives, the Minister of Labour examine ways to strengthen the requirement for employers to consult with employee representatives, including unions. This examination should include specifically looking at whether the existing statutory requirement for “consultation” and “collaboration” between employers and employees’ representatives required in Section 15(3) of the Act should be included as part of the functions of the Canadian Human Rights Commission in assessing an employer’s compliance.
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