1. Introduction: A Report Card on the Employment Equity Act

The year 2002 was pivotal in the history of the Employment Equity Act and of its implementation as a legislative review of the Act took place and an independent evaluation was conducted to measure the program’s effectiveness. This year-end review examines the conclusions of these assessments, and reports on the progress of the designated groups, employers and the Commission’s audits.

Key points in the year-end review include:

• The Act is working well and is still needed, but some fine-tuning is recommended.
   

• The Commission’s recommendations on the review of the Act focussed on three key priorities: improved enforcement measures; a concerted employment strategy for persons with disabilities; and clarifying employers’ obligations.
   

• Since the Act’s inception in 1986, all designated groups have made progress. Persons with disabilities, however, are still severely under-represented in the private sector and, despite recent progress, visible minorities continue to be under-represented in the public service.
   

• In five years, the Commission has audited 51.1% of employers subject to the Act, representing 75.4% of the workforce. The Commission has developed a streamlined audit approach to complete the audit of small employers representing the remaining quarter of the workforce.
   

• While most employers only comply with the Act when they are audited, they do so voluntarily, without need of enforcement measures.
   

• The Commission’s audits not only ensure that employers comply with the Act, but also lead to improved representation of the designated groups.
   

• An independent assessment of the Commission’s employment equity program found that the Commission is effective in fulfilling its mandate.
   

• Key issues in the coming years include: the changing demographics of Canada, the need to ensure that visible minorities in the public sector and persons with disabilities in the private sector have equal access to jobs, the future of the Embracing Change initiative in the public service, the recommendation to include employees of Parliament under the Act, and changing the human resources practices of the public service.

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2. Program Evaluation and Stakeholder Consultations

In conjunction with the five-year review of the Act, the Commission undertook an independent evaluation of the audit program including a survey of employers’ views.

Surveying employers

In October 2001, the Commission engaged Consulting and Audit Canada (CAC) to review its employment equity audit program and to conduct a mail survey of 177 employers who had either been audited or were under audit.

Some key results were:

• Between 90% and 100% found that the Commission is providing useful information on the requirements of the Act, depending on the type of information.
   

• All those who responded found the compliance reports provided by the Commission to be useful to them, and 78% did not find them too complex; similarly, 98% found the interim reports useful and 84% did not find them too complex.
   

• 60% found that the Commission uses the appropriate balance between persuasion and enforcement.
   

• 91% of employers were familiar with the Commission’s annual report on employment equity and 78% found it useful.
   

• 81% of employers believed that the actions taken as a result of audits will lead to increased representation levels, 76% felt that they will lead to eliminating barriers, and 56% felt that they will achieve full representation.

These results helped shape the Commission’s position, which it presented to the House of Commons Committee reviewing the Act, that the current legislation is working well, and that improvements should be made by fine-tuning and better articulating its requirements.

The survey respondents also suggested improvements to the Commission’s compliance program.

• Only 57% felt that the information on the Act given by the Commission, Human Resources Development Canada and the Treasury Board Secretariat was consistent.
   

• 58% of employers believed that the audit process could be more flexible, while three-quarters wanted it to be more streamlined.

As a result, by the end of 2002, discussions were well underway to develop Memoranda of Understanding with Human Resources Development Canada, the Treasury Board Secretariat and the Public Service Commission to provide better delineation of roles and responsibilities, and better consultation on information provided to employers. The Commission has also developed a streamlined approach to audits for smaller employers.

In general, this first independent assessment of the Commission’s work with employers covered under the Act confirms that the Commission is on the right track.

Evaluation results

In addition to conducting a survey of employers, Consulting and Audit Canada completed its evaluation by reviewing documents, manuals and audit files, and interviewing 29 key persons from the Commission, federal departments, and private sector employment equity consultants.

Principal findings included:

• Employers should be provided with more education about how to comply with the Act, and the Commission’s role in education and promotion should be clarified. The Commission made a similar recommendation to the House of Commons Committee reviewing the Act.
   

• Most employers comply with the requirements of the Act only when audited.
   

• Employers currently rely to a large extent on the Commission for information about audit requirements and find the Commission’s audit reports useful as they work to become compliant.
   

• Most stakeholders support the Commission focussing its audits on large employers to maximize the benefits of audits.
   

• Most employers consider the Commission’s efforts to enforce the Act appropriate.

Overall, Consulting and Audit Canada’s evaluation found that the Commission is effective in fulfilling its mandate, and the majority of recommendations endorsed the Commission’s current practices.

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3. Shaping the Future of Employment Equity in Canada: A Review of the Act

Parliamentary Review

The Employment Equity Act has existed for more than 15 years and requires a Parliamentary review every five years. On December 3, 2001, the House of Commons designated the Standing Committee on Human Resources Development and the Status of Persons with Disabilities to conduct the latest review.

Consultations with stakeholders

To prepare for the Parliamentary review, the Commission first participated in the nation-wide consultations held by Human Resources Development Canada in the fall of 2001.

In January 2002, the Commission issued a discussion paper with 15 proposed changes to the Act. The discussion paper provided the basis for consultations with 32 organizations representing employers, unions, designated groups and advocacy groups.

"The Committee believes that the successful implementation of employment equity requires more cooperation 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." Report on the review of the Act by the Standing Committee on Human Resources Development and the Status of Persons with Disabilities, June 2002

All organizations supported the existing legislation. Advocacy and labour groups, however, frequently mentioned concern with the low level of initial compliance and the time it takes many audited employers to come into compliance. There was strong support for clarifying the requirements of the Act. The need for more promotion of the employment equity program and its benefits, as well as more detailed education concerning how employers can achieve compliance, were also recurring themes.

The Commission submitted a report on the Act, based on the employer survey and stakeholder consultations, to the House of Commons Committee in April 2002. The report included 20 recommendations focussing on three key priorities:

• improved enforcement measures;
   

• a concerted employment strategy for persons with disabilities; and
   

• clarifying the requirements of the Act by better articulating employer obligations.

Additional recommendations included a stronger approach toward education and promotion; an enhanced role for unions; and a more solid framework for the Federal Contractors’ Program.

House of Commons Committee Report

The Committee’s hearings on the review of the Employment Equity Act took place between December 2001 and April 2002. During this period, the Committee canvassed the views of almost 100 witnesses representing designated groups and employers covered under the Act, federal contractors, experts, employment equity practitioners, labour representatives, as well as departments and agencies involved in the administration of the Act. The Commission appeared twice before the Committee to present its mandate and its views, and to provide answers to members of the Committee.

The Committee issued its report in June 2002, summarizing its findings in these words:

Almost every witness who appeared before the Committee during its review expressed the opinion that there is a continuing need for this legislation. In addition to enhancing fairness in the Canadian workplace, employment equity was also touted as good for business and crucial in helping employers prepare to meet their future skill needs as the workforce ages and a growing proportion of visible minority and Aboriginal workers contribute to labour force growth. (...)

Our report does not call for a significant departure from the current Act at this time; a position expressed by most of the witnesses who generously shared with us their considered views, expertise and experience on this very important matter. The recommendations in our report are best characterized as directions for fine-tuning administrative processes, clarifying legislative ambiguity, enhancing awareness and supporting the labour market development needs of disadvantaged workers. We recognize that there is a need to focus more resources in specific areas, particularly in terms of facilitating greater access to employment for persons with disabilities and Aboriginal people. We recognize that there is a need for more employment equity promotion and education as well as guidance and advice. We believe that there is some scope for administrative improvements and clarification of statutory requirements under the Act. In our opinion, the success of employment equity requires a policy perspective that addresses both sides of the labour market and, in this context, we maintain that greater emphasis must be afforded to skill acquisition initiatives, an area within the constitutional jurisdiction of the provinces, for members of designated groups.

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The Committee made 29 recommendations and adopted a resolution calling for the government to respond by November 2002.

The Committee’s conclusions were very similar to those reached by the Commission: that there is widespread support for the Act and that it should be maintained. Key was the proposal to develop an integrated strategy to promote the employment of persons with disabilities and Aboriginal peoples. The Committee found that both of these groups had not fared as well as was expected since the 1986 Employment Equity Act came into force. In its report to the Committee, the Commission pointed out that, for persons with disabilities to occupy their place in the Canadian labour force, a concerted strategy needed to be devised over and above the requirements of the current Employment Equity Act.

"As the Committee reported, the Act has worked. Employers, initially reluctant to engage in the process, told the Committee reviewing the Act in 2002 that they support employment equity principles and objectives." Government’s response to the report on the review of the Act by the Standing Committee on Human Resources Development and the Status of Persons with Disabilities, November 2002

The Committee also agreed with the Commission on the need to enhance the education of employers and to provide them with assistance in hiring members of designated groups.

Other recommendations put forward by the Commission, and endorsed by the Committee, included an overhaul of the Federal Contractors Program, inclusion of Parliament under the Act, the need for consistent standards of reporting data by employers in the public and private sectors, inclusion of the obligation to provide accommodation, and clarifying the requirements of the Act.

The Committee also reviewed the work of the Commission, which was given the mandate of ensuring compliance with the Act when it was last revised, in 1995. In an endorsement of the Commission’s work, the Committee recommended 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."

Although the Committee agreed with most of the Commission’s recommendations, it did not endorse the proposals to include in the Act requirements for better accessibility for persons with disabilities, accountability of management, and to assess whether designated groups are clustered at lower levels of the organization. Both the Commission and Human Resources Development Canada believe that these requirements are implicit in the legislation, and the Commission will continue to include them as assessment factors in the conduct of audits.

The Commission was pleased by the report, and in September 2002, the Chief Commissioner wrote to key ministers and to the Clerk of the Privy Council recommending that departments implement the Committee’s recommendations.

The Government’s Response

On November 8, 2002, the Minister of Labour tabled the government’s response to the report issued by the House of Commons Committee. Overall, the government made few concrete proposals, and committed to further study most of the recommendations put forward by the Committee. The government also committed, among other things, to developing an employment strategy for persons with disabilities and Aboriginal peoples, to enhancing education and technical support for employers, and to breaking down barriers to the recognition of credentials obtained abroad. The Commission will work with the various federal departments involved to fulfill the government’s commitments.

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