LEGISLATIVE REVIEW OF
THE EMPLOYMENT EQUITY ACT

V. POSSIBLE RECOMMENDATIONS FOR CHANGE

General considerations The Commission believes that it is premature to call for fundamental changes to the Act. A basic question that need to be answered is whether or not the present Act achieved its primary objective of reducing the under-representation of members of designated groups in the workforce. The definitive answer to that question will only become apparent when the Commission starts monitoring employers who are in compliance for reasonable progress over the next year.

This being said, the Commission's experience over the last four years suggests the possible need for a number of changes. These are intended to clarify important standards and improve the administration of the Commission's enforcement mandate.

These recommendations will be adjusted to reflect the results of consultations and of the program evaluation currently taking place.

1. Clarifying statutory requirements

In undertaking its mandate to enforce compliance with the Act's requirements, the Commission initially identified twelve statutory requirements which it considers to be integral to the legislation. These requirements, attached as Annex 2, have been outlined in the Commission's Framework For Compliance Audits Under The Employment Equity Act which, in turn, has been distributed to all employers covered by the Act.

To-date, the validity of these twelve statutory requirements has not been challenged but, once scheduled Tribunals commence, the existence of one or more of the Act's major requirements may be questioned.

Recommendation 1

Amend the Act so that the twelve statutory requirements are clearly articulated, including how each requirement relates to the other. These requirements could then be defined in greater operational detail in the regulations.

2. Clarifying Specific Elements of the Statutory Requirements

Under the twelve statutory requirements, the Commission has established a total of 46 assessment factors used to determine compliance with the legislation. These are described in Annex 2.

These factors are based both on concepts explicitly stated in the legislation as well as standards which it is reasonable to assume must be met if the intent of the legislation is to be achieved. In some cases, employers have challenged the standards used under the assessment factors which has created delays and Tribunal challenges to the Commission's mandate. The potential also exists in a number of areas for future challenges. The Commission is thus seeking clarification of the following factors in the new legislation:

2.1 Clustering Analysis

A clustering analysis is not specifically identified in the Act nor described in the Regulations. It is, however, an important requirement in order to assess the impact of promotion systems and processes.

Section 26 of the Regulations requires employers to collect and report data on the salary quartile in each occupational group in their workforces. These data provide information about the distribution of designated groups compared to others within the occupational groups. The data enable an employer to determine whether or not designated group members are disproportionately clustered in lower levels compared to other employees.

If designated group employees are concentrated in lower levels, this is an indication that there may be obstacles to promotions which require attention and action. Currently, the Commission requires such an analysis only where there is significant under-representation.

Recommendation 2

Amend the regulations to require a concentration analysis for all occupational groups and categories where numbers warrant.

2.2 Employment Systems Review Objective

The current Act and Regulations require an employer to review its employment systems, as well as policies and practices, to identify barriers to members of designated groups for occupational groups in which under-representation has been found. The Commission's Assessment factor 3.5 requires that "the results of the systems review must be documented and provide probable explanations for the under-representation found in each occupational group".

In two Tribunal challenges filed by employers and subsequently withdrawn by them, the requirement that the employment systems review provide a probable or reasonable explanation for the under-representation in an occupational group has been challenged. Should such a challenge ever be upheld, the Commission would have no meaningful grounds on which to assess the validity of an employer's findings and hence no means of measuring compliance with the requirement to complete an employment systems review. Subsequently, there would then be no meaningful basis on which to assess whether or not an employment equity plan would lead to reasonable progress if implemented.

Recommendation 3

Amend the Act to clarify the objective of the employment systems review and its relationship to both the workforce analysis and the employment equity plan.

2.3 Accommodation policies and procedures

The Act, in section 2, defines employment equity as the accommodation of differences and later requires employers to make "reasonable accommodations as will ensure that persons in designated groups achieve a degree of representation in each occupational group" s.5(b), and to specify "the positive polices and practices that are to be instituted ... for the making of reasonable accommodations..." s.10(1)a.

In order to give content to these requirements, the Commission requires that an employer have a written accommodation policy and procedures covering areas related to the four groups and that this policy has been communicated to employees and managers within the organization. It has been found that without this basic tool, employees are not aware of their rights, nor are managers aware of their obligations.

Recommendation 4

Amend the Act to clarify the obligation to accommodate by explicitly stating a requirement to have and to communicate a written policy and procedures - based on the duty to accommodate to the point of undue hardship. The Regulations should provide direction on the minimum content for such a policy and procedures. A precedent for such a requirement already exists under the Canada Labour Code in terms of an harassment policy.

As the Canadian Human Rights Act includes the concept of the "duty to accommodate to the point of undue hardship," the Employment Equity Act should also be amended to replace "reasonable accommodation" with the same concept.

2.4 Accessibility

While the Commission's assessment factors currently include standards related to accessibility to the workplace as an assumed requirement under the meaning of accommodation, this issue should be addressed in the Act and be given operational definition within the regulations.

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Amend the Act and the regulations to clarify a requirement to ensure accessibility to the workplace.

2.5 Special Measures

Section 2 of the Act sets out "The Purpose of the Act" and states "that employment equity means more than treating persons in the same way but also requires special measures and the accommodation of differences." Subsequently, however, the Act never again uses the term "special measures" although it does use the term "positive policies and practices". Thus, the employment equity plan must specify " the positive policies and practices that are to be instituted by the employer in the short term for the hiring, training, promotion and retention of persons in designated groups..." s.10 (1)a

In assessing compliance, the Commission interprets the Act's statutory requirement to be that "the employment equity plan must specify short-term positive policies and practices, as well as special measures aimed at providing opportunity to members of under-represented designated groups with respect to hiring, training, promotion and retention."

Generally, positive polices and practices are considered to be first, good employment equity and harassment policies and second, initiatives open to all employees but having particular benefits for designated group members. Special measures are those initiatives which involve conscious decision making based on gender, race, disability, etc. Such measures have to be designed based on the Commission's policy on special measures relating to section 16 of the CHRA, i.e. tailored to a situation of demonstrable disadvantage, temporary in nature, and designed in a manner which prevents undue exclusionary effects on non-designated group members.

The Commission also requires that the positive polices and practices and special measures proposed by the employer in the employment equity plan be sufficient to ensure that the short term hiring and promotion goals are achieved. In the two cancelled Tribunal appeals mentioned above, the employers argued that this standard was not required by the Act.

Recommendation 6

Amend the Act to articulate clearly the requirement for special measures and that the employment equity plan must have sufficient positive polices and special measures to ensure short term hiring and promotion goals are achieved. Amend also the regulations to specify that a required part of positive policies and practices will be employment equity and harassment policies that must be communicated to managers and employees.

2.6 Hiring and Promotion Goals

Section 10(1)(d) of the Act establishes a clear requirement to develop short term hiring and promotion goals for each occupational group/category where under-representation has been found. Section 10 defines short term as one to three years.

The Commission requires that where there are areas of significant under-representation, short term hiring and promotion goals must be greater than the availability in the relevant labour market. Some employers have vigorously challenged this standard. Section10(2) of the Act, however, sets out the variables which must be considered when establishing appropriate goals. These include such things as turnover and hiring rates as well as the degree of under-representation. As goals must never be set below availability (otherwise, discrimination is still taking place), the consideration of the above variables is only logical if the establishment of goals above availability were envisioned by the Act. Indeed, section 11 sets as the standard for the employment equity plan, "reasonable progress." Thus the Commission requires goals above availability when the achievement of reasonable progress in closing gaps necessitates such goals.

Recommendation 7

Amend the Act to clarify the requirement to establish hiring and promotion goals at no less than availability and above availability when the analysis of the variables established in section 11 indicates that this is necessary in order to achieve reasonable progress towards full representation during the term of the employment equity plan.

2.7 Representation goals

Section 10(1)(e) requires the employment equity plan to set out longer term goals (longer than three years) for increasing the representation of persons in designated groups in the employer's workforce. Neither the Act nor the Regulations currently provide any guidance on what constitutes acceptable long term goals. As the Act requires numerical goals for hiring and promotion but not for retention, there is no clear performance measure required for either obtaining full representation or making reasonable progress towards full representation.

Recommendation 8

Amend the Act to define representation or long term goals as numerical goals for obtaining full representation where achieving this goal will take more than three years.

2.8 Accountability

Under the statutory requirement for monitoring, review, and revision of the employment equity plan, the Commission includes a standard requiring that the employer's managers are clearly accountable and committed to the organization's plan. While accountability is not specifically cited in the Act, it is the Commission's position that, given the Act's requirement that the plan ensure "reasonable progress" and considering the basic principles of effective management, requiring accountability in the plan is consistent with the Act.

Recommendation 9

Amend the Act to include an explicit provision for accountability with the minimum requirements for acceptable accountability mechanisms outlined in the Regulations.

3. Public Service Reporting Requirements

Under the existing Act and Regulations, private sector employers, Crown corporations, and separate federal public agencies are required to report by 14 occupational groups based on groupings under the National Occupational Classification system. This information is publicly available.

Federal departments and agencies under Treasury Board Secretariat, however, are required to report only by the six public service occupational categories which are broad and gather quite disparate types of jobs into each category.

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Recommendation 10

Amend the regulations to require each federal department and agency to report using the same 14 occupational groups used by the private sector.

4. Legal proceedings

As stated earlier, Section 22(2) elaborates a Guiding Policy

for the conduct of audits. It requires that, wherever possible, cases of non compliance be resolved through persuasion and the negotiation of written undertakings, and that directions be issued and cases be referred to Tribunal only 'as a last resort'.

The Commission agrees with the first part of this article which sets the tone for conducting the audits in a spirit of cooperation. However, the latter part of this article which requires that directions and orders be issued "only as a last resort" should be reconsidered, and a more expeditious process is needed to bring non-compliant cases to tribunal.

To date, roughly 80% of employers have fulfilled the terms of their undertakings and reached compliance at the stage of the follow-up audit, a ratio which the Commission considers very encouraging. In cases where the employer has shown good faith but some of the work is flawed, the Commission has granted a three-month extension.

However, in those 20% of cases where employers have failed to fulfill the terms of their undertakings, the process requires the Commission to first issue a direction giving additional time for employers to comply; only if employers do not comply with the direction can cases be referred to tribunal, where it can take up to another year before a hearing can be scheduled. Three tribunals have been scheduled thus far, and no hearing has yet been held.

It is clear that the enforcement process, which was initially designed to handle complaints, is inefficient in an employment equity context, and that there needs to be some mechanism which will allow for more expeditious legal proceedings.

In addition, given that the Commission's mandate is now four years old and that we have established good standards by which 80% of employers have been able to achieve compliance, the Commission believes that the "last resort" requirement may no longer be necessary to ensure fair and reasonable enforcement of the Act.

Recommendation 11

That the Act be reviewed to put in place a more efficient and expeditious enforcement process.

Recommendation 12

That the second part of Article 22(2) dealing with the requirement to take enforcement action only as a 'last resort' be deleted from the legislation.

5. Failure to make reasonable progress

Once employers have been found in compliance, the Commission monitors their performance to ensure reasonable progress is being made as measured by the achievement of hiring and promotion goals. If there are indications that reasonable progress is not being made, the Commission may re-open the audit.

Currently, if the employer is subsequently found not to have made "reasonable efforts" to implement the employment equity plan, the Compliance Review Officer must negotiate undertakings in an attempt to obtain compliance with the need to implement the plan. A failure to make "reasonable efforts" may include the failure to remove barriers and/or to implement other initiatives outlined in the employment equity plan that was originally found in compliance.

A re-opened audit would consider environmental changes which may have legitimately had a negative impact on the ability of the employer to implement the plan. In such a case, or if the employer has made reasonable efforts to implement the plan but the results have not been as forecast, it is appropriate to negotiate undertakings to improve future performance. If an employer, however, has simply not made reasonable efforts to implement the plan, a stronger enforcement measure would be more effective.

Recommendation 13

That the Act be amended to permit the issuance of a direction or a referral to tribunal where an employer has not made reasonable efforts to implement the organization's employment equity plan.

6. Inclusion of Senate and House of Commons Staff

Currently the House of Commons and Senate staff are not included under the Employment Equity Act, an omission which the Commission considers to be an unnecessary anomaly. As an employer, Parliament should not only be exemplary but also be prepared to meet all the equity standards required of other federal employers.

Recommendation 14

That the Act be amended to include the work forces of the Senate and the House of Commons under the Employment Equity Act.

7. Complaints based on patterns of discrimination

Consequential amendments passed along with the Act significantly curtail the ability of the Commission and Tribunals to respond effectively to complaints under section 10 of the CHRA, which allege patterns of discrimination. In subsequent Annual Reports, the Commission has recommended that consideration be given to rescinding these amendments. In particular, section 50 of the EE Act states:

Where a Tribunal finds that a complaint against an employer is substantiated, it may not make an order pursuant to subparagraph 53(2)(a)(i) requiring the employer to adopt a special program, plan or arrangement containing:

(a) positive policies and practices designed to ensure that members of designated groups achieve increased representation in the employer's workforce; or

(b) goals and timetables for achieving that increased representation.

This restriction severely limits the ability of a Tribunal to deal effectively with patterns of discrimination and their past effects. Section 10 complaints usually deal with specific, problematic areas within an organization which may not be considered as part of a compliance review. There would be little difficulty in integrating any Tribunal decision requiring remedial action into the context of a compliance review.

Recommendation 15

That the legislation be amended to repeal the consequential amendment, section 50, that prohibits a tribunal from issuing a remedy.

VI. CONCLUSION

The Commission's experience enforcing the Employment Equity Act over the last four years suggests that it is too early to consider extensive revisions to the Act's framework. It's the Commission's belief, however, that the above draft recommendations would provide clarity to the existing Act and regulations, assist employers in meeting their obligations, and provide a stronger enforcement mechanism. Once consultations are completed and the results of the program evaluation are received, final recommendations for inclusion in a submission to the Parliamentary Committee will be completed.

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