Reports

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Regrets

Enforcement measures

Parliament provided that the Employment Equity Act was to be enforced by the Canadian Human Rights Commission in a spirit of cooperation by negotiating undertakings in cases of non-compliance. Voluntary observation of the law is one characteristic of a genuinely free and democratic society.

Four years after conducting its first compliance audits, the Commission finds that this approach has been effective in most cases. With 73 employers in compliance, and only 20 directions issued, about 80% of employers have complied or continue to work toward compliance, without the Commission having to resort to more energetic enforcement measures.

Directions

Nonetheless, there are cases where the Commission has no choice but to issue a direction. In 2001, it issued five directions to employers, all for failure to fulfil their undertakings. These were issued against the Laurentian Bank of Canada, DHL International Express, Westcan Bulk Transport, AT&T, and Adby Transport.

These five directions, in addition to the 15 directions issued from 1998 to 2000, make a total of 20 since the Commission began its audits. A list of the employers under direction is included in section 12 of this report.

Of the 20 employers to whom directions have been issued, four have since complied with the Act, one is very close to compliance, five are currently under audit, another five are at the tribunal stage, and five others have directions that will expire in 2002. Encouragingly, most are still working toward compliance.

Tribunals

Of the 215 employers under audit, the Commission has referred three cases to a tribunal sine 1998: Conair Aviation, Nesel Fast Freight, and Natural Resources Canada. The Commission has since withdrawn the case of Conair Aviation, because it is now in compliance with the Act.

Four employers have asked the tribunal to review the direction issued to it by the Commission: Environment Canada, Natural Resources Canada, DHL International Express, and the Laurentian Bank. The first three have since withdrawn their application, leaving only one challenge standing.

None of these cases has yet been heard by an Employment Equity Review Tribunal. The first hearings may take place in 2002.

Delays in implementing the Act are unacceptable

As was the case in previous reports, the Commission deplores that very few employers are in compliance with the Act's requirements until the Commission begins its audit.

In fact, of the 215 employers for whom audits were initiated or completed, only 8 (or 4%) were in compliance during the audit's first stage. In many cases, it appears that compliance audits are a catalyst for employers to start complying with the Act.

Employment systems reviews

Employment systems reviews are a crucial stage in developing sound employment equity programs. These reviews will identify, in employment policies and practices, intrinsic barriers that negatively impact the employment of women, Aboriginal persons, members of visible minorities, or persons with disabilities.

Too often, employers do not pay enough attention to employment systems reviews, in which too little time and too few human and financial resources are invested. Employers are often reluctant to admit that these barriers exist, even though data often show that employment and advancement opportunities for members of designated groups are unfairly limited compared with those enjoyed by other employees. In these cases, when built-in bias is evident, arguing that employment policies and practices are "neutral" is not enough.

Barriers should be eliminated first, and their effects then offset

Similarly, the Commission's auditors often note that many employers do not pay enough attention to identifying and eliminating barriers, but rush to implement positive practices or take special measures to hire and promote more members of designated groups. This approach may be doomed to failure unless employers first thoroughly review remaining barriers.

Realistic goals should be set

In addition, there is sometimes great reluctance among employers to set progressive short-term hiring and promotion goals. Often, no matter how extensive the under-representation, timid goals are set; sometimes employers even set hiring goals that are lower than the Canadian labour market availability of members of designated groups. This perpetuates under-representation and defeats the Act's purpose. The Commission must then request that more appropriate goals be set before employers are found in compliance.

The Act also requires employers to consider several factors in setting these goals, including the extent of under-representation and employee turnover. In many cases, the Commission notes that goal-setting is arbitrary or sketchy rather than a well-thought-out strategy.

Training and attitudes should be emphasized

Corporate culture and attitudes are not subject to detailed review, even though they very often harbour the most insidious barriers.

For instance, some managers and employees mistakenly believe that visible minorities do not have the required education and credentials to hold certain kinds of jobs, when studies and availability data clearly show the opposite. Similarly, auditors have been told that workloads are too heavy for persons with disabilities -- a generalization that disregards the very real abilities that such people bring to their jobs.

Although one should not conclude from these examples that Canadian workplaces are rampant with discrimination, they do point to possible barriers that may affect the employment opportunities of designated groups.

Fortunately, when employers see problems of this type, they usually have the right instinct of investing in employee training and awareness. But the employment systems reviews being audited sometimes fail altogether to investigate these possible barriers, and the Commission must ensure that employers take appropriate measures to remove them.

Shortcomings in the public sector persist

Last year's report criticized certain shortcomings in human resources management in the public sector. Unfortunately, the Commission is obliged to do so again this year.

• The Profile of Public Service Leadership Competencies, published by the Public Service Commission, still does not include a clear competency concerning diversity.
• The Performance Management Program (PMP) does not automatically include, among managers' commitments, a performance indicator to measure improved representation of members of designated groups.
• We find that hiring systems are consistently subjective and lack structure. When coupled with attitudinal problems, this may significantly impact the employment of members of designated groups.

The Canadian Forces, RCMP, and CSIS are still left out

In passing the new Employment Equity Act in 1995, Parliament provided that it would apply to the Canadian Forces, the Royal Canadian Mounted Police (RCMP), and the Canadian Security Information Service (CSIS). But the Governor in Council -- in effect, the Cabinet -- can decide when the Act will apply. Six years later, these provisions are still not in force -- a situation the Commission has criticized for the past two years and, unfortunately, is obliged to criticize again this year. While preparatory work has been done to bring these organizations under the Act, no regulations had yet been published at the end of 2001. There is no possible justification for continued failure to remedy this shortcoming.

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