Overview of the Employment Equity Act (1996) from a Public Service Perspective

Table of Contents

1. Employment Equity Act (1996)

2. Coverage

3. A single Act

4. Purpose of the Act

5. Designated Groups

6. Similar obligations for every employer

7. Provisions for the federal Public Service

8. Reporting on progress and achievements

9. Ensuring Compliance

10. Regulations

Employment Equity Act (1996)

The new Employment Equity Act, received royal assent on December 15, 1995. The Act and its Regulations subsequently came into force on October 24, 1996 creating a new legislative framework for employment equity that governs both private and public sector employers under federal jurisdiction. These employers must comply with all requirements of the new Act by October 1997, one year after it has come into force.

Coverage

Private and public sector employers under federal jurisdiction that employ 100 or more employees are subject to the legislation. Approximately 900,000 employees or about eight per cent of the Canadian labour force is covered.

A single Act

The new Employment Equity Act incorporates certain employment equity provisions of the Financial Administration Act (FAA) and the Employment Equity Act (1986) under a single and more comprehensive regime. Upon the coming into force of the new Act, the 1986 Act, its Regulations and the relevant provisions of the FAA were repealed.

Under the new Act, the employer's obligations for the Public Service are not substantially changed from those previously contained in the Financial Administration Act. These obligations are now, however, more precise. The audit and enforcement mandate of the Canadian Human Rights Commission in the new Act, is a significant change for both the Public Service employer and other employers covered under the Act.

Purpose of the Act

The Act's purpose is "to achieve equality in the workplace so that no person shall be denied employment opportunities or benefits for reasons unrelated to ability and ... to correct the conditions of disadvantage in employment experienced by women, aboriginal peoples, persons with disabilities and members of visible minorities by giving effect to the principle that employment equity means more than treating persons in the same way but also requires special measures and the accommodation of differences."

Designated Groups

The four groups designated for employment equity purposes continue to be:

- women
- persons with disabilities
- Aboriginal peoples
- persons in a visible minority

Similar obligations for every employer

Employers in the private sector, the federal Public Service (i.e., departments and agencies for whom the Treasury Board is the employer), and other public sector employers are subject to similar obligations under the Act to implement employment equity by:

• identifying and eliminating barriers to employment that affect persons in designated groups, and
• instituting positive policies and practices, and ensuring reasonable accommodations for persons in the designated groups.

The purpose of these obligations is to ensure that the representation of persons in the designated groups in the employer's workforce reflects their presence either in the Canadian workforce, or, in segments of the workforce that the employer would reasonably draw upon for staffing purposes. A 'segment of the workforce' might be defined by criteria such as qualification, eligibility or geographical location.

To meet these obligations, every employer is required to:

• conduct an analysis of its workforce to ascertain representation. Only those employees who self-identify as Aboriginal peoples, persons in a visible minority or persons with disabilities can be counted. Data for women as a designated group may come from gender information collected for other purposes. Managers may not identify employees as being members of designated groups in place of the employee's self-identifying;
• review employment systems, policies and practices to identify and eliminate barriers against designated groups;
• undertake policies and programs to correct under-representation and provide for reasonable accommodation of differences in the workplace;
• prepare a plan with qualitative and numerical goals as well as activities and timetables for achieving them;
• inform employees of the purposes of employment equity, the key measures for implementing employment equity and progress achieved; and
• consult with its employees' representatives on implementing employment equity and communicating to employees on related matters. There is also a duty on both parties to consult and collaborate on developing the employment equity plan as well as implementing and revising it.

Provisions for the federal Public Service

The new Act takes into account the particular circumstances of the Public Service, including the respective legislated responsibilities of the Public Service Commission and the Treasury Board. The Treasury Board and the Public Service Commission are both deemed to be responsible for discharging the employer's obligations within their respective areas of responsibility.

The Treasury Board and the Public Service Commission may, for the purpose of carrying out their employer's obligations, delegate any of their powers to department deputy heads.

Reporting on progress and achievements

Private sector employers will file their reports with Human Resources Development Canada (HRDC). The Minister of HRDC will table annually, in Parliament, a consolidated report on the state of employment equity in the private sector as a whole.

The President of the Treasury Board will table an annual report in Parliament on the state of employment equity in the Public Service.

Other public sector employers will prepare a similar report. They will provide a copy to the President of the Treasury Board. These reports will be tabled in Parliament at the same time as the President's report on the Public Service.

A copy of every employer's report will be filed with the Canadian Human Rights Commission. Every employer will be required to provide a copy of its report to its employees' representatives.

The Public Service Commission in its Annual Report to Parliament will report on the implementation of employment equity within the scope of the Commission's legislated responsibilities for staffing in the Public Service.

The Canadian Human Rights Commission will report on the findings of employment equity audits in its Annual Report.

Ensuring Compliance

The Canadian Human Rights Commission is responsible for ensuring that employers comply with the requirements of the Act. The Commission is authorized to conduct an audit of every employer governed under the Act.

If an audit reveals non-compliance, the Commission's compliance officer is expected to negotiate a written undertaking from the employer to take specific measures to remedy this.

When the compliance officer fails to obtain a written undertaking from the employer, the Canadian Human Rights Commission has the power to issue a direction to the employer to take action as specified.

Tribunal rulings constitute a final step if an employer fails to act on a written undertaking or disagrees with a direction. Either the employer or the Canadian Human Rights Commission can make a request for the matter to be reviewed by an Employment Equity Review Tribunal.

An order of a Tribunal is final and, except for judicial review under the Federal Court Act, is not subject to appeal.

No order can be made, or direction given, that would:

• cause undue hardship on the employer;
• require an employer to hire or promote unqualified persons;
• with respect to the public sector, require that people be hired or promoted in a manner inconsistent with merit under the Public Service Employment Act;
• require an employer to create new positions;
• impose a quota on an employer; and
• fail to take into account the specific factors set out in the law for establishing numerical goals.

Regulations

The Act states that the Minister responsible for the Act may develop regulations and recommend their approval by the Governor in Council. The Treasury Board must be consulted on any regulation having an impact on the public sector.

The Act also provides for regulatory means to be used for adapting the requirements of the Act to take into account the operational effectiveness of the Royal Canadian Mounted Police, the Canadian Forces and the Canadian Security Intelligence Service. ___________
This overview is not a legal document. To consult the Employment Equity Act and Regulations please see the Department of Justice homepage (http://canada.justice.gc.ca).