I. THIS REPORT

Purpose of Document

This document constitutes the Canadian Human Rights Commission`s formal recommendations to the House of Commons Standing Committee on Human Resources Development and the Status of Persons with Disabilities on amendments to the Employment Equity Act and Regulations. It follows-up on the Discussion Paper released by the Commission on January 15th, 2002, which outlined a series of proposed amendments to the legislation.

Employer Survey

Attached as Appendix 3 are the results of the Employer Survey conducted as part of an independent evaluation of the Commission`s Employment Equity Program undertaken by Consulting and Audit Canada. Findings from the survey provide useful information which support many of the recommendations in this Report.

II STATUS OF AUDITS

Number of employers

As of March 2002, the Commission has audited or initiated audits of 235 employers. These represent 80% of the employee population, and 50% of the total 476 employers covered by the Act. This includes all public service departments of 100 and more employees and 99% of the public service population, 82% of private sector employees and 43% of employees working for separate employers such as the Canada Customs and Revenue Agency.

Employers in Compliance

There are currently 82 employers in compliance. This number should be close to 100 within the next six weeks. Of those, only 8 were in compliance at the time of the initial audit. This means that the Commission has been required to negotiate undertakings, then return to do a follow-up audit in just about every case.

As a consequence, the 235 employers in the audit pool thus far have required 391 audits. On the average, it takes up to 3 years before the Commission is able to issue a final finding of compliance to an employer who required undertakings.

Rate of Compliance

In about 80% of all cases, employers were in compliance when the Compliance Review Officer returned to do a follow-up audit. Where employers have demonstrated good progress in the implementation of their undertakings but some areas still need improvement, the Commission gives a three-month extension to enable them to complete the work. Most employers require such extensions, but the process has enabled them to reach compliance. This demonstrates that the cooperative approach required by the Act works well in general.

Directions & Tribunals

To date, the Commission has issued 22 directions to employers, most of whom had failed to take the corrective actions that were negotiated. One employer had failed to cooperate with the auditor. Six employers to whom directions had been issued have achieved compliance. Four others have been referred to tribunal, although no tribunal hearing has yet taken place. The twelve others are still under audit or the direction has not yet expired.

The Commission withdrew its reference to the tribunal in two cases where the employer reached compliance before the hearing, and there are signs that this may happen in other cases as well.

III RESULTS OF CONSULTATIONS

Consultation Participants

The Discussion Paper provided the basis for consultations with various groups with an interest in the Act. Thirty-two organizations representing employers, unions, designated groups and advocacy groups were sent the discussion paper, attended a consultation session and or submitted comments. They are listed in Appendix 2. The Discussion Paper was also placed on the Commission’s website with an invitation to comment. The objective of this consultative process was to gain insight into these groups’ particular concerns, both generally with the Act and specifically with the proposed recommendations.

Reaction to Discussion Paper

Significantly, all organizations supported the existing legislation. Advocacy and labour groups frequently mentioned, as a source of concern, the low level of initial compliance, as well as the time it takes many audited employers to come into compliance. There was resounding support for clarifying the requirements of the Act as intended by most of the Commission’s recommendations. The need for more aggressive promotion of the employment equity program and its benefits, as well as more detailed education concerning what employers must do to achieve compliance was also a recurring theme.

Additional Issues Raised

A number of additional issues were raised which, although they do not have a direct bearing on the Commission’s enforcement mandate under the Employment Equity Act, are no less critical to the achievement of a representative workforce for members of designated groups. The Commission feels it has an obligation to bring these issues to the Committee’s attention. These issues are included as recommendations in this Report.

Recommendation not pursued

The legislation currently provides no guidance on what constitutes acceptable long term representation goals. The great majority of employers provide qualitative goals. The Discussion Paper included a recommendation to define representation goals as numerical goals for achieving full representation where attaining this goal is expected to take more than three years

There was very little support for this recommendation. The Commission recognizes that this would have presented a complex exercise for employers, and that the same results can be achieved by simpler, existing means. The Commission will not pursue this recommendation.

IV IDENTIFYING KEY PRIORITIES

Parliament Can Set the Pace

The fact that the Parliamentary workforce is not included in the legislation was outlined in the Commission’s Discussion Paper. During the course of consultations, it became clear that Parliament would send a strong message if it were to include its own workforce under the aegis of this legislation, and make employment equity principles and values a key priority in the administration of its own human resources.

Priorities

In terms of key priorities which have the potential for the most positive impact, the following have been identified:

1. Strengthening the Enforcement Process

The enforcement process as elaborated under the Act was initially designed to handle human rights complaints and is proving to be inefficient in an employment equity context. There needs to be a better mechanism to allow for more expeditious legal proceedings once a case has been referred to Tribunal, and for stronger enforcement against employers who fail to act on their employment equity plans.

2. A concerted strategy for persons with disabilities

Persons with disabilities are still being denied their fair share of employment opportunities and are far from achieving full representation in the workforce. It is doubtful that on its own, the Employment Equity Act will attain this goal. In addition to clarifying accommodation and accessibility standards in the legislation, the Commission has included a series of recommendations dealing with a comprehensive approach for this group.

3. Giving the Commission a Clear Mandate

The legislation should ensure that the obligations of employers are well understood, and that the mandate of the Commission is clearly articulated. The Commission’s recommendations in this respect are intended to improve the administration of its enforcement mandate, based on the experience of the last four years. These recommendations do not represent additional work for employers, but rather confirm current audit practices.

V RECOMMENDATIONS

Framework

The recommendations put forward in this Report are based on the Commission’s experience with its compliance mandate over the past four years, and the results of recent consultations.

Recommendations which were already included in the Discussion Paper are identified as such, and the input received from participants to the consultation process is summarized.