3.1 ACCOMMODATION POLICIES AND PROCEDURES

From our Discussion Paper

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.

A precedent for such a requirement already exists under the Canada Labour Code in terms of a harassment policy. As a result of this existing requirement, it has been the Commission’s experience that most federal employers who have been audited do have a good harassment policy that has been well communicated to staff and managers, often strongly enforced, and not infrequently the subject of significant training initiatives.

To assist employers, the Commission first developed and provided to employers who requested, a generic accommodation policy and procedures which were consistent with the standards established by the Supreme Court in its Meorin and Grismer decisions. Subsequently, since December 5, 2001, the Commission has also made available "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.

The Discussion Paper outlined two proposals. First, the Act be amended to clarify the obligation to accommodate by explicitly stating a requirement to have and to communicate both 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. Second, as the Canadian Human Rights Act includes the concept of the "duty to accommodate to the point of undue hardship," the discussion paper also proposed that the Employment Equity Act should be amended to replace "reasonable accommodation" with the same concept.

Consultation Results

With one exception, employer organizations did not object to a requirement for a written policy and procedures that have been appropriately communicated to managers and employees. One organization did report that some of its members opposed such a requirement.

Most of the advocacy groups, especially those representing persons with disabilities and unions, vigorously supported this recommendation. The need for employers to have mandatory written accommodation policies was also singled out as an issue in the Minister of Labour’s Report to the Committee.

Indeed, during the Commission’s consultations, some groups provided detailed comments on the duty to accommodate and expressed a perception that there is a long distance to go before the concept is fully in practice in Canadian workplaces. Labour organizations argued strongly for a requirement to include accommodation within collective agreements.

Recommendation 4

Amend the Act to clearly establish an obligation to accommodate by explicitly requiring employers to develop and effectively communicate a written policy and procedures - based on the duty to accommodate to the point of undue hardship and the standards established by the Supreme Court.

The Regulations should provide direction on what are these minimum standards in order to guide the content for such a policy and procedures. The Committee may wish to consider the Canada Labour Code’s requirement for a harassment policy as a precedent.

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.

3.2 ACCESSIBILITY

From our Discussion Paper

The Commission’s assessment factors currently include accessibility in the workplace as an assumed requirement under the meaning of accommodation. This issue should be explicitly addressed in the Act and be given operational definition within the regulations. The standard of undue hardship would apply to this requirement as well.

The Discussion Paper proposed that the Act and the Regulations be amended to specify clearly a requirement to ensure accessibility in the workplace.

Consultation Results

Generally, employers were not opposed to accessibility requirements but definitely wanted to see exactly what might be required. Participants from one organization wanted it clarified that the employer was not responsible for accessibility in transportation to a work site as opposed to entry into and movement in the workplace. There was also an opinion expressed that there should be no obligation to ensure accessibility unless a need arose to accommodate a specific employee, a reactive approach also supported by several others. Another organization raised questions concerning provincial and municipal jurisdiction over building standards.

Organizations representing persons with disabilities were particularly favourable to this recommendation. As with accommodation, this requirement is seen as particularly important if progress for this designated group is to be achieved. Other advocacy organizations and unions also supported the recommendation. A few organizations mentioned the importance of providing accessibility in transportation to the work site, although it was acknowledged that this may not necessarily fall within the bounds of this legislation.

Recommendation 5

The Commission maintains its view that the Act should be amended to clarify that a pro-active requirement to ensure accessibility into and within the workplace is an integral component of the duty to accommodate. Careful attention will be required in drafting Regulations to ensure the standards to be met by the employer are reasonable but effective.

3.3 EMPLOYMENT EQUITY POSITIVE MEASURES PROGRAM

A good program cancelled

A related issue is the recent announcement by the Treasury Board that its Employment Equity Positive Measures Program will not be renewed after March 31, 2002.

This program was designed as a temporary program scheduled to end in 2002. The Treasury Board Secretariat had committed to evaluate its results before contemplating extending it. The Commission understands that the main reason for cancelling the program is the unavailability of additional funds to continue with this initiative.

From its work with departments, the Commission believes that this program has been a critical part of the Public Service’s positive response to its obligations under the Act. The year 2001 marked some encouraging signs of progress, especially for visible minority groups and persons with disabilities, the two groups which have traditionally been at a worst disadvantage in the Public Service.

The Commission particularly regrets the closing of the Public Service Commission’s Enabling Resource Centre for Persons with Disabilities. This Centre offers critical support and advice to managers and employees about physical accommodation of persons with disabilities. This comes at a time when the demand on these services will become even more pronounced as the representation of persons with disabilities is increasing in the Public Service.

There is no doubt that the recent signs of progress made in the representation of designated groups in the Public Service are partly attributable to the sort of programs and practices which have been promoted through this Special Measures Program.

The Commission strongly believes that similar programs will be needed as long as these groups continue to be consistently under-represented in this country’s public service.

Recommendation 6

The Committee may wish to review with the Treasury Board the feasibility of continuing to fund the Employment Equity Positive Measures Program.

3.4 COMPREHENSIVE STRATEGY

Issues discussed

All organizations representing persons with disabilities expressed the view that first, the progress of this designated group under the Employment Equity Act has been marginal and second, that a multi-tiered strategy is required if this is to change. The Commission’s experience to date suggests that there is considerable merit to both components of this argument. Several other advocacy groups also expressed concern about the particularly difficult situation for women, aboriginal persons and visible minorities with disabilities.

Specific issues were raised by a number of organizations concerning existing economic disincentives for persons with disabilities who join the labour market. For example, it was felt that the disability income programs should be revisited so that persons with disabilities do not lose health benefits and tax credits when they find what are often low paying jobs.

Dissatisfaction with what are seen as the limits of the government’s "In Unison" paper was expressed. The Employability Assistance for Persons with Disabilities was criticized as lacking many of the components of its predecessor, the Vocational Rehabilitation for Disabled Persons Agreement.

One organization strongly urged the Commission to recommend that the Minister responsible for HRDC send a directive to all provincial and territorial ministers responsible for post-secondary education and skills training to ensure that they are in compliance with the Supreme Court of Canada’s decisions in Eldridge, Eaton, Mercier, Granovsky and Grismer.

There is a strong view that neither post secondary education nor training - both institutionally and on-the-job - are sufficiently open to persons with disabilities and that this is a major contributor to this group’s inability to access jobs.

Some groups believe a strong, enforceable Canadians with Disabilities Act is required. Several groups believe that, either as part of the requirements of the Employment Equity Act or a Canadians with Disabilities Act, employers should be required to establish advisory committees on disabilities with employee and outside representation.

Recommendation 7

The Commission recommends that the Committee propose a broader, integrated employment strategy for persons with disabilities which would not replace but complement the Employment Equity Act.

3.5 FUNDING SUPPORT FOR PROMOTING EMPLOYMENT

Issues discussed

Advocacy groups across the board vigorously raised the issue of the impact of significant reductions to their funding. This is not simply a case of organizations having fewer resources to engage in political advocacy.

At a time when employers are increasingly seeking assistance to access, train, and retain designated group employees, as well as educate their employees and managers, proven programs are being shut down or significantly curtailed because of funding cuts. Employers may well find that the assistance they were counting on to meet their employment equity goals will no longer be available. Nowhere is this more important than in the recruitment and assistance provided to persons with disabilities.

Suggestions received

Some organizations suggested that consideration should be given to establishing and funding a working group of organizations involved in designated group service delivery to ensure a closer working relationship with employers who currently lack the expertise to effectively recruit, select, and retain designated group workers.

As one submission stated "Our organization, as well as an increasing number of community based groups working in the area of race and ethnic relations, are finding it difficult to participate in community consultations and education.

Many organizations do not have the infrastructure and research capacity required as a result of changes in funding to these groups."

It is interesting to note that employer groups too, have raised questions about the programs and supports available to assist them in meeting their employment equity goals and objectives. While employers should be urged to significantly increase their willingness to provide fee-for-service - as they do already for many other human resources services - public funding will continue to be a requirement.

A Matter of Fairness

It is worth noting that the need to develop a systematic and integrated approach to equity in the labour market that went beyond employment equity was the subject of Chapter Five of A Matter of Fairness, the 1992 report of the Special Committee on the Review of the Employment Equity Act. Entitled A National Employment Equity Strategy, this chapter identified a range of initiatives required to make employment equity work effectively.

The Committee discussed the need for a systematic fostering of partnerships between government agencies, employers and designated group service organizations. These partnerships were required to enhance the availability of services to designated groups including training, education, referral services, and employment support programs. Such initiatives must be designed as supply side requirements that would complement the employment equity demand side initiative.

Although the Committee reported in 1992 that designated group organizations had urged the federal government to provide increased assistance so they could play effective roles, the Commission heard often during the consultations that funds had been substantially cut rather than increased.

Common Vision

We also note that in its report, Common Vision, your own Sub-Committee on the Status of Persons with Disabilities recommended that "a comprehensive labour market strategy for persons with disabilities should build on the existing activities of the organizations that assist people with disabilities gain employment while avoiding any duplication or overlap."

Recommendation 8

The Commission urges the Committee to seek input on the impact of funding cuts on the services provided to employers by advocacy groups and NGOs to assist employers to hire designated group members, and how this has affected the success of employment equity plans.

The Committee should support HRDC’s and Labour’s plans to develop a responsive approach towards fostering partnerships designed to assist employers recruit and retain designated group members.

3.6 THE ROLE OF ADVOCACY GROUPS

Issues discussed

Many of the advocacy groups pointed out that the existing Act does not provide any role for advocacy groups or NGOs involved with designated groups. In the most extreme case, one group indicated that it paid little attention to the Employment Equity Act because it could play no role. Other organizations, however, suggested that consideration should be given to:

• developing a National Employment Equity Strategy mandated by legislation and involving all national groups in partnership with key government actors such as Human Resources Development Canada and the Department of Labour;
• amending the Employment Equity Act to make it mandatory for employers to fund workplace equity committees (this, the Commission has found, is a common but not a universal practice by employers);
• requiring employers to establish their own disability advisory committees consisting of employees and community members with disabilities.

Consultation strategy

One of the recommendations from the Canadian Human Rights Act Review Panel, under the Chair of the Honourable Gérard V. La Forest, was to the effect that a process be established to ensure that advocacy groups have a way of giving input into the Commission’s implementation of its responsibilities under the Employment Equity Act .

As stated in our Discussion Paper, the Commission is committed to developing and implementing an on-going consultation strategy to ensure that advocacy groups and other interested organizations are kept informed of progress made by the Commission in the execution of its enforcement mandate.

Recommendation 9

The Commission recommends that the Committee review the current role of advocacy groups under the Act and propose means by which to ensure greater co-operation between employers and these organizations.