Guide to Implementing the Policy on Employment Equity in the Appointment Process

This Guide is provided by the Public Service Commission to help human resources advisors support deputy heads in developing organizational approaches.

Table of Contents

1. Introduction
2. Context
3. Legal Basis
   1. Employment Equity Act
   2. Canadian Human Rights Act
   3. The New Public Service Employment Act
      1. Employment Equity and Merit
      2. Employment Equity and Area of Selection
4. Why a Policy?
   1. Policy Statement
   2. Policy Requirements
      1. Accommodation
      2. Assessment Tools without Bias which do not create Systemic Barriers
      3. Employment Equity and Area of Selection
   3. Other Requirements
5. What Else Is New?
   1. Recourse

I. Introduction

This guide has been designed to assist human resources advisors in understanding the expectations of the Public Service Commission's (PSC) Policy on Employment Equity in the Appointment Process. It will explain in practical terms, the changes and flexibility in the new Public Service Employment Act (PSEA) as they relate to employment equity in the appointment process and it provides practical information on how organizations can integrate Employment Equity in to the appointment process.

This guide and the Policy on Employment Equity in the Appointment Process only refer to Employment Equity as it pertains to the appointment process.

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II. Context

The cultural and social diversity of Canada provides the public service with a large pool of highly-qualified and diverse perspectives, talents and skills from which to draw upon.

Canadian law has reinforced and built upon the recognition of the values of diversity and inclusiveness, and recognized the need for positive measures such as employment equity policies and programs.

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III. Legal Basis

The following statutes form the legal foundation for employment equity measures in general, and for the PSC Policy on Employment Equity in the Appointment Process in particular.

i. Employment Equity Act

The Employment Equity Act (EEA), as the primary statute for employment equity in Canada, aims to achieve equality in the workplace and to correct conditions of disadvantage in employment for four designated groups: Aboriginal peoples, women, members of visible minorities and persons with disabilities. The EEA requires both the PSC and the Treasury Board to share responsibilities for employment equity according to their respective mandates. Treasury Board, or the Public Service Human Resource Management Agency of Canada (PSHRMAC) acting as the employer's administrative agency, is responsible for the government's overall policy on employment equity. The PSC is responsible for creating an appointment system that is bias and barrier-free and ensuring the accommodation of persons in the appointment process.

ii. Canadian Human Rights Act

The Canadian Human Rights Act (CHRA) establishes in part, the principle of equal opportunity and it prohibits discrimination in employment practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted. It outlines the legal obligations to provide accommodation - to the point of undue hardship and allows for special programs to reduce disadvantages.

iii. The new Public Service Employment Act

The preamble to the new PSEA identifies representativeness and diversity as being integral to the composition of the public service. It refers to Canada benefiting from a public service where appointments are based on merit and a public service that is representative of Canada's diversity whose members reflect a myriad of backgrounds, skills and professions.

a. Employment Equity and Merit

The new PSEA also defines merit (s.30). An appointment is made on the basis of merit when the person appointed meets the essential qualifications of the position.

In addition, the deputy head may establish and apply any asset qualification, operational requirement or organizational need, currently or in the future in order to find the 'right fit' for the organization. The deputy head may also apply the current and future needs of the public service, identified by the employer and deemed to be relevant by the deputy head.

Deputy heads will be able to identify employment equity objectives as an organizational need. Of course, when employment equity objectives are established as an organizational need, that being as part of the established merit criteria, there should be a link to the employment equity plan or human resources planning objectives.

For example, a deputy head having established employment equity objectives, could apply this organizational need at any stage of the process, e.g. early in the process after a sufficient pool of designated groups members have been identified, or at the end of the process after all other merit criteria have been assessed. In other cases, a deputy head could have established the employment equity objectives as an organizational need but chose not to apply this merit criterion in the appointment process because other circumstances have changed the situation, such as changes in the representation level of the organization, the requirement to appoint a person with priority entitlement, or the need to apply other criteria.

b. Employment Equity and Area of Selection

Subsection 34(1) enables the establishment of areas of selections based on geographic, organizational, occupational or belonging to any of the designated groups.

What does this mean?

The last criterion is an important enabling provision of the new PSEA, allowing an area of selection to be limited based on membership in one or more employment equity group. Of note, a deputy head is not required to have an employment equity program in order to limit an area of selection; however, the PSC Policy on Area of Selection requires that this decision be consistent with the organization's employment equity or human resources planning.

Subsection 34(2) enables the expansion of an area of selection to persons who are members of an employment equity group.

What does this mean?

This means that geographic, organizational or occupational criteria may be expanded to provide for greater participation of employment equity group members. It states that belonging to any of the designated groups, as defined by section 3 of the EEA, may be used to determine the area of selection.

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IV. Why a policy?

Canadians expect that their needs, concerns and interests will be reflected in the services, programs and policies provided by the federal government. Meeting these expectations requires a public service that is competent, non-partisan and representative of the population it serves. A diverse labour force enhances creativity and innovation, provides a broader range of skills and decisions that take into account varying perspectives.

The Policy on Employment Equity in the Appointment Process builds on the legal obligations under the EEA and the CHRA, and sets out the PSC's expectations regarding the integration of employment equity in the appointment process. It is a key policy in supporting the values of fairness, access and transparency throughout the appointment process. The Policy on Employment Equity in the Appointment Process is overarching and it is fundamental to good human resources management. Its policy requirements can be found in a number of the individual policies. The PSC policies are binding on deputy heads.

i. Policy Statement

Employment equity objectives are integrated into the design of appointment processes.

The EEA stipulates that organizations must identify and eliminate employment barriers against persons in designated groups; the CHRA prohibits discrimination in employment practices and addresses the obligation to provide accommodation. The policy statement reflects these obligations by requiring that employment equity objectives be built into appointment processes from the outset. Inclusion by design is key to supporting an organization's commitment to, and accountability for employment equity.

ii. Policy Requirements

The Policy Requirements address three specific topics:

• Accommodation;
• Assessment Tools without Bias which do not create Systemic Barriers; and
• Employment Equity and Area of Selection.

a. Accommodation

Deputy heads must:

"Accommodate the needs of persons through all stages of the appointment process to address, up to the point of undue hardship, disadvantages arising from prohibited grounds of discrimination".

The duty to accommodate refers to the obligation of an organization to take measures to eliminate disadvantages to employees and persons applying for employment in the public service that result from a rule, practice or physical barrier that has or may have an adverse impact on individuals or groups protected under the CHRA or identified as a designated group under the EEA. As a first step, employers are required to design inclusive and barrier-free employment systems, processes and practices. Where barriers cannot be removed, individuals must be accommodated, up to the point of undue hardship.

Undue hardship describes the limit beyond which employers and service providers are not expected to accommodate, taking into consideration issues of health, safety and cost. Organizations are expected to exhaust all reasonable possibilities for accommodation before they claim undue hardship.

Persons participating in assessment processes are responsible for making their accommodation needs known and for providing sufficient information to persons responsible for assessment to make appropriate accommodation arrangements.

The Canadian Human Rights Commission advises that the duty to accommodate recognizes that true equality means respecting people's different needs. Needs that must be accommodated could be related to a person's gender, age, disability, family or marital status, ethnic or national origin, religion or any of the other attributes identified in the two above-mentioned federal Acts.

What does this mean?

In order to meet the duty to accommodate obligations, advertising employment opportunities should be in a manner that is accessible to persons with disabilities.

When scheduling interviews or examinations, consideration should be given to accommodation of needs, for example where the scheduling of an interview conflicts with a person's religious observations.

Organizations should familiarize themselves with the obligations of accommodation as outlined in the CHRA or the EEA.

b. Assessment Tools without Bias which do not create Systemic Barriers

Deputy heads must:

"Use assessment tools and processes that are designed and implemented without bias and do not create systemic barriers".

These are tools and processes that do not restrict or exclude persons in designated groups and do not discriminate on any prohibited ground of discrimination. They are inclusive in their design and implementation.

Assessment tools without bias refers to the elimination of prejudices and biased attitudes.

What does this mean?

Deputy heads must choose or develop assessment instruments that provide persons with an equitable opportunity to demonstrate that they meet the merit criteria. This allows for the fair assessment of all persons and provides more accurate appointment process results.

c. Employment Equity and Area of Selection

Deputy heads must:

"Be able to demonstrate that a decision to limit the area of selection to members of one or more of the designated groups is consistent with the organization's employment equity plan or human resources plan".

What does this mean?

In order to demonstrate that the values of fairness, access and transparency are respected, and to be able to justify why the area of selection was limited to members of designated groups, deputy heads are required to ensure that the decision to limit an area of selection is consistent with their employment equity plan or human resources planning. In other words, there exists a situation of under-representation in their organization and the decision to limit an area of selection is not an arbitrary decision, but can be substantiated.

The new PSEA gives the authority to open an area of selection only to members of designated groups, as defined by the EEA. The PSC policy requires that this be linked to the organization's employment equity plan or human resources planning. Deputy heads should be aware that they will need to be able to demonstrate that this decision, outside of employment equity under-representation, is consistent with the CHRA.

iii. Other Requirements

This section in the policy lists requirements found in other legislation and policies that deputy heads must respect. This includes provisions of the EEA, the CHRA, the Treasury Board/Public Service Commission Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Service, and the Charter of Rights and Freedoms.

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V. What Else is New?

i. Recourse

Under the new PSEA, recourse to the Public Service Staffing Tribunal (PSST) is available to unsuccessful persons in the area of selection for advertised internal appointment processes and is available to any person in the area of selection for non-advertised internal appointment processes. This will include members of designated groups in the area of recourse, when the area of selection has been limited to members of designated groups.