Publications by Section

Legislative Review of the Employment Equity Act

1. SETTING THE PACE BY INCLUDING PARLIAMENTARY EMPLOYEES

Initial recommendation

The Discussion Paper recommended that Parliament include its own workforce under the aegis of the Employment Equity Act. Virtually all organizations supported this recommendation. As an employer, Parliament would set the tone and demonstrate clear commitment were it prepared to meet all the equity standards required of other federal employers.

Recommendation 1

The Commission recommends that employees of the Senate, the House of Commons and the Library of Parliament be included under the Employment Equity Act.

2. STRENGTHENING ENFORCEMENT MEASURES

2.1 LEGAL PROCEEDINGS

From our Discussion Paper

The current enforcement process, which was designed to handle human rights complaints, is inefficient in an employment equity context. It does not provide an appropriate means by which to ensure that cases referred to Tribunal are dealt with expeditiously.

In addition, the second part of sub-section 22(2) of the Act which requires that directions be issued and cases be referred to Tribunal only ‘as a last resort’ sends a wrong message to employers. There is also a concern that this concept may be adjudicated some day by a tribunal as having content the legislators never intended. This could unduly lengthen the amount of time an employer is given by a tribunal in a prospective ruling to comply with the Act.

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, an approach which has brought about positive results.

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. If employers do not comply with the direction, cases are then referred to tribunal. However, once this stage is reached, it can take up to another year before a hearing is scheduled. The Commission has scheduled three tribunals thus far, and no hearings have yet been held.

There needs to be some mechanism which will allow for more expeditious legal proceedings once a case has been referred to Tribunal. In addition, given that the Commission has established consistent 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.

Consultation Results

Employers generally expressed the view that the 80% compliance rate suggested that changes to the enforcement process were not necessary. One organization, however, suggested that a "mediation process" designed to seek a solution to disagreements prior to the issuance of a direction or the referral to a tribunal might be considered.

In essence, the requirement to negotiate and persuade employers, as well as the general practice of providing extensions to employers who have demonstrated good faith efforts in fulfilling their undertakings, provides compliance review officers with the opportunity to mediate differences. There was some confusion about the meaning of "more expeditious legal proceedings" with employers understanding this to mean a more rapid use of directions and referrals to tribunals. It was explained that the recommendation referred only to the period between the referral to a Tribunal and the point at which the Tribunal heard the case.

Advocacy groups and unions not only strongly supported both recommendations, but expressed considerable concern about the low level of initial compliance and the time it takes most employers to achieve compliance without enforcement. Also, as expressed by one witness at the Committee who was also a member of the Canadian Human Rights Act Review Panel, "I agree fully that the emphasis should be on conciliation and working with employers to try to get solutions.... But for the minority of employers who maybe are not working as is required.... that "as a last resort" language may give the wrong signal and suggest to them that there’s never going to be any enforcement".

Recommendation 2

The Commission recommends that the Act be amended to include a process to ensure that once an employer or the Commission has sought a tribunal, an initial assessment of merit is conducted within a specified period of time.

The Commission continues to believe that the second part of sub-section 22(2) dealing with the issue of last resort should be deleted from the legislation.

2.2 FAILURE TO MAKE REASONABLE PROGRESS

From our Discussion Paper

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.

The Discussion Paper proposed that the Act be amended to permit the Commission to issue a direction or a referral to tribunal where an employer has not made reasonable efforts to implement the organization’s employment equity plan.

Consultation Results

Except for a generally conservative approach towards any move to increase the Commission’s enforcement capabilities, employer organizations had few comments on this proposed amendment. As the Commission will only commence monitoring for reasonable progress in 2002, no employer has yet been subject to a re-opened audit.

Most advocacy groups and unions supported the proposal with some expressing the belief that it was crucial in order to ensure employment equity plans are implemented rigorously. A number of submissions expressed the belief that in the past, employment equity plans, once developed, have not been implemented. This view is represented by one written submission which urged "that the Commission show employers as soon as possible that it will be equally zealous in its second stage audits – that is ensuring that organizations act on their plans and meet their numerical goals."

One advocacy group also suggested that, instead of referring to "all reasonable efforts", the Act should use the phrase "best efforts". However, ‘reasonable efforts’ is a commonly used legal term which can be found in several pieces of legislation, such as the Criminal Code. It also clearly conveys the Employment Equity Act`s guiding policy of persuasion and flexibility which remains an important aspect of the assessment of progress made by employers.

From the Employer Survey

It is significant that, when surveyed on this question, a full 81% of the 55 employers who responded believed that the actions taken as a result of the audits would lead to increased representation levels, while 76% felt that these actions had eliminated, or would eliminate the barriers in their organization.

Although one quarter did not respond to a follow-up question asking if they would eventually reach full representation, 56% responded in the affirmative. Considering that employers are usually very cautious about making this type of commitment, this is an encouraging result. (Appendix 3, Question 19).

Conclusion

There is no evidence at this time that most employers will not consciously implement their plans once they are found in compliance. Those who do not, however, should be subject to enforcement action without a prior need to negotiate undertakings and subsequently be re-audited to ensure compliance.

Recommendation 3

The Commission continues to believe that the Act should be amended to permit the Commission to issue a direction or request a tribunal where an employer has clearly failed to make reasonable efforts to implement the organization’s employment equity plan.