Introduction
The determination of the Employment Equity Act was generated to guarantee that there are one and the same chances for all people that exist in Canada. The Employment Equity Act primarily aims four assemblies of the population that involve females of the country, aboriginal peoples, individuals with disabilities, and observable subgroups of the population. Furthermore, the Employment Equity Act assists as a significant part of the employees because it traces any discernment and eliminates it efficiently.
If the Employment Equity Act is applied appropriately, the Act will guarantee that people in the labour force are given the opportunity of the equivalent admission to job openings along with identical management in the place of work. A lot of entities accept as true that managers are not very expected to encounter the conditions of discernment as they go through the acquisition procedure, along with correctly applying the Act in a specific labour force. As a result, the complication of the Employment Equity Act is reasonable; though it is not obligatory to ensure the Act is applied in countless places of work in Canada.
The following report aims to evaluate the effectiveness of the Employment Equity Act, especially focusing on the section written for Aboriginal Peoples and Person with Disabilities. In order to do so, several features should be included in the paper. First of all, the history of the legislation will be discussed in order to begin to assess the law from the moment of its implementation. Furthermore, various articles of legislation and their applicability to human resources will be considered. Moreover, challenges that the Employment Equity Act has posed will be observed along with the recent changes that have been made to the legislation and their effectiveness. The last section of the report will provide several recommendations to advance the Employment Equity Act.
History of the Employment Equity Act
The Employment Equity Act of Canada was first conceived in 1986 by Judge Rosalie Silberman Abella, Commissioner of the Royal Commission (SOURCE) and aimed to protect specific groups in the labour market against discrimination. The EEA aims to allow equity in the workplace for women, persons with disabilities, aboriginals and visible minorities. This Act is enforced in not only the public sector but also in portions of the federal public administration (schedule I to IV and V). Ontario enacted their EEA two years later in 1988. In Ontario, the EEA covers both the public and private sectors of the workforce.
In order for an employer to conduct and uphold the standards of the EEA, they are expected to run job and workplace analyses regularly. They are obligated to make sure if there is a sector lacking one of the protected groups, that they find out the reason behind it and find a way to fix the problem. The EEA states that each employer must state clear and positive policies that the employer must follow in every stage from recruitment to acceptance of the job, and in the workplace. In accordance with paragraph 9(1)(b), employers are obligated to remove any barriers that would discriminate against employees, to the point of undue hardship.
Two years later, in 1988, groups who were all interested in the equality of the workplace created a coalition. The coalition’s mission was to convince the federal government that the equality program in place needs to become more effective. For years after the creation of the EEA, it seemed as if it was not going to go anywhere or get any better, but that was until 1993 when the EEA began to cover both public and private sector workplaces.
At this time there was also an agreement formed with the government of Nunavut. It became Article 23 in the Agreement: “each government organization shall prepare an Inuit employment plan to increase and maintain the employment of Inuit at a representative level.” (SOURCE) By 1996 representation of Aboriginal Persons had finally been pushed forward. The federal government, the assembly of Manitoba Chiefs and also the Canadian Human Rights Commission had finally come to an agreement; increase the representation of our Aboriginal Persons.
The beginning of the 2000s brought on more changes to the Employment Equity Act. Another push towards hiring 1-in-5 minorities was created by the Embracing Change Initiative, included in this was funding towards reaching the goal, which never managed to achieve their goals, even though this became the first voluntary act by employers. In 2004 the Senate Standing Committee on Human Rights decided it was time to interview different witnesses of Employment Inequality.
Finally, by 2006, the Federal Government released the Public Service Employment Act; it contained rules and regulations towards employment and staffing in the public sector. In 1995, when the Conservatives took control of the government, they placed a cap on public sector pay equity funding, which ran out in 1999.
In the end, Canada is trying to make sure that every one of its citizens is treated fairly and equally, including employers, who are only obligated to follow this Act to the point of undue hardship, at which point excluding one of the protected groups no longer becomes discrimination.
Legislative Provisions and Its Applicability to Human Resources
The main applicable provisions from the Employment Equity Act, which need to be considered by Human Resources are under articles I to IV of the Act. These articles specifically involve principles, interpretation, obligations, and audit and enforcement by the Commission, pertinent for ensuring that the public sector engages in employment practices that will increase the representation of women, visible minorities, Aboriginal persons and persons with disabilities, to ultimately have workforces that truly represents its society (“Employment Equity Act (S.C. 1995, c. 44)”). An overview will be discussed below to the significances of the articles for guiding human resources to advise employers and ensure policies and practices are in accordance with the Act.
Article I: Employment Equity
Article I of the Act, outlines five principles of employment equity applied throughout the public sector, which are: duty to ensure recruitment and employment is free of barriers, including systemic and deliberate discrimination against members of the four designated groups; assurance that positive and supportive measures are taken without causing undue hardship to the employer; and making certain efforts are made to reflect the four designated groups within all occupational categories and at all levels of employment (“Employment Equity Act (S.C. 1995, c. 44)”).
Section 9 & 10
The article also outlines obligations when implementing employment equity initiatives. Under section 9 of the Act, an employer needs to analyze and review the representation of the designated groups employed in the workforce, to which the review will enable the employer to remove barriers, including procedures and policies that are unfavourably affecting the designated groups.
Further to the review and analysis, an employer is obligated to prepare an employment equity plan which will include the information on eliminating barriers, the necessary measures that will be taken to correct the underrepresentation, and specify the goals and timetables for short-term and long-term for the matters discussed, in addition to the composition for increasing the representation of persons in the designated groups (“Employment Equity Act (S.C. 1995, c. 44)”).
Section 18
Under section 18 of the Act, reports of private-sector employers outlines the responsibility of private-sector employers to prepare an annual report which will contain: industrial sector; location; the total number of applicants; and with appropriate qualifications along with information for applicants from the designated groups and the number employed in all occupational groups, highlighting the designated groups within; the salary ranges of employees highlighting the designated groups within; and the number of employees promoted and terminated for all designated groups. The report shall then be filed with the Canadian Human Rights Commission on or before June 1 in each year, in addition, made available to employee’s representatives and employees (“Employment Equity Act (S.C. 1995, c. 44)”).
Thus, it is the responsibility that Human Resources encourages and is committed to implementing employment equity practices and policies, guided by article I, to ensure administration of recruitment and selection, and employment practices comply with legislation.
Article II: Compliance
Article II of the Act, dictates the duty of the Canadian Human Rights Commission to assure that employers are complying with an article I of the Act. The Commission will audit organizations with more than 500 employees, which indicate the representation of the members of the designated group below the average with a comparison with its sector. The Commission will inform these employers about a possible audit, in which the employer has two weeks to provide the Commission with a workforce analysis.
If the analysis indicates a good demonstration of the designated group, they will receive a report from the Commission regarding accomplishments and challenges. However, if the employer fails to demonstrate good representation, an audit will be conducted that will include an on-site visit that includes interviews with employees, managers and union representatives, with an overall duty to provide a report specifying actions the employer will take to comply with the Act (“Employment Equity”).
The aforementioned are applicable to Human Resources as it is a shared responsibility with the employer to investigate any failures and communicate strategies to ensure efforts to upgrade the employment equity program to be in good practice by creating formalized and objective policies, provide training on employment equity to personnel that are involved with workforce decisions, and deliberation on strategies to increase diversity.
Article III: Violations
As having the “traditional roles of obtaining, maintaining, and retaining an optimal workforce” it is the duty of Human Resources to not only ensure that a productive workforce is maintained but to participate in ensuring the organization is not in violation with regarding laws governing the employment relationship (Schwind, 2013). Thus it is of great importance that Human Resources reviews and understands article III of the Act, which outlines what constitutes a violation of the employment equity legislation.
Under section 35 of the Act, violations are described as failing to file an employment equity report, exclusion of essential information as outlined in section 18, and providing false or misleading information in the report that employer knows, to be untrue (“Employment Equity Act (S.C. 1995, c. 44)”). If a violation is found the employer will have an opportunity to “present evidence and make representations” to the alleged violation, therefore, it is critical that Human Resources maintains appropriate records of human resource management endeavours.
Article VI: General
Under section 42 (3), it is important to note that the Minister makes available labour market information of the designated groups “in the Canadian workforce in order to assist employers in fulfilling their obligations” (“Employment Equity Act (S.C. 1995, c. 44)”). Accordingly, the Government of Canada provides tools, resources, publications and databases to assist employers and Human Resources in fulfilling their obligations. It should also be noted that section 44(1), review of the operation the of Act, states that at the end of every five years, a committee of the House of Commons will conduct a comprehensive review of the provisions and operation of the Act. As a result, employers and Human Resources need to be vigilant of any changes to the Act that may arise from the review.
Overall it is of importance that human resource professionals are aware of all provisions of the Employment Equity Act to ensure company policies and practices, in regards to employment relation management, are inclusive, non-discriminatory, free of violations, valid, and up-to-date, to integrate the principles and goal of the Act fully.
Challenges that the EEA has posed
There is the good intention behind the Employment Equity Act, but like every other legislation, it does not come without challenges. A few of the main challenges that the Employment Equity Act creates is the lack of understanding surrounding the Act, it is federally regulated, and there is a lack of punishment for those who do not follow the legislation. The positive thing about these issues is that they can be improved for the future.
The first main challenge in relation to the Employment Equity Act is the ignorance surrounding the Act. More specifically, entry-level employees may not be informed on how the Act is applied within an organization. This happens when CEOs and government officials neglect to inform employees about how a certain percentage of the workforce should include the disadvantaged groups. As a result, entry-level employees may feel reverse discrimination and resent the practice within the company (Falkenberg & Boland, 1997). Not only are these employees impacted by ignorance surrounding the Act, but employers are also subjected to a lack of knowledge and understanding. This maybe because of how unspecific the legislation is in regards to the extent of changes that need to be implemented by employers (Falkenberg & Boland, 1997).
The second issue in relation to the Employment Equity Act is that it is regulated at a federal level. With a focus on federal employers, this disregards provincial employers requiring a separate form of legislation altogether. As far as regulation goes, the Act is tracked** by the Commission when they conduct random audits on companies with 500 or more employees (Canadian Human Rights Commission, 2015). This, in itself, poses an issue. If organizations with less than 500 employees are not even subjected to being audited, then there is a large number of companies possibly not following the legislation. Thus, it is difficult to regulate who is actually applying the Act (Government of Canada, 2015).
The third challenge of the Employment Equity Act is that there is a lack of punishment for organizations who do not follow the law. Consequences for employers are carried out by the Commission when they conduct random audits on the company ensure they are complying with the Act (Canadian Human Rights Commission, 2015).
The problem is that the punishment is very weak. If an employer is not abiding by the legislation, then the Commission will issue a letter to the employer so that changes can be made within four months (Canadian Human Rights Commission, 2015). If no action has been taken to correct the equity discrepancy, then the Commission will impose corrective measures (Canadian Human Rights Commission, 2015). Ultimately this random audit lacks incentive for employers to apply the Employment Equity Act within their organizations. Especially if they are caught, they have four months to start to change their practices.
Overall the challenges of the Employment Equity Act arise out of systemic issues that include a lack of knowledge and understanding, the federal focus, and the lack of consequence. The fortunate thing about these challenges is that steps can be taken to combat these issues.
Recent Changes that Have Been Made to the Legislation
The Canadian government adopted a report in 2000 that was released by the Task Force on the Participation of Visible Minorities in the Federal Public Service. It offered a three-year funding plan to “shape a federal public service that is representative of its citizenry”. The government set up different developmental programs to assist visible minorities in the workplace (or lack thereof). With the help of these developmental programs, 3000 visible minorities were hired between 2003 and 2004.
On April 3, 2001, Deputy Minister Ranald A. Quail became the head of the Task Force on Modernizing Human Resources Management. This program was developed to update modern policies, legislations and institutional framework. Bill C-25 was passed on November 7, 2003. This Bill (Public Service Modernization Act) changed how recruiting and hiring was done.
The duty to accommodate became part of the Employment Equity Act in 2002. The Act aimed to rid the workplace of any barriers workers with disabilities may face, and to allow them an equal opportunity just like any other employee. Different guidelines (Guidelines for Fair Assessment in a Diverse Workplace: Removing Barriers to Members of Visible Minorities and Aboriginal Peoples and Guide for Assessing Persons with Disabilities in the Appointment Process) were published in 2002 to help employers, and HR Managers understand how and what to do when dealing with accommodating disabled workers.
While a small amount of progress had been made since the Employment Equity Act was implemented, in 2004 the Federal Pay Equity Task Force took a look at Canada’s statistics and noticed protected groups were still suffering pay discrepancies, and that tougher action in the law must be taken to protect them. The Canadian Centre for Policy Alternatives report, “A Living Wage as a Human Right” explains how this discrimination and lack of strict laws makes it harder for many average workers to make a living.
In 2006 Canada passed a Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13) which contained provisions on the Employment Equity Act in the public service. During 2007, and again in 2010, the Senate Standing Committee on Human Rights developed two different reports. The first one, entitled “Employment Equity in the Federal Public Service – Not There Yet” stated that there was not enough progress being made towards Employment Equity.
The second report the Senate released in 2010 had more research into the topic. It detailed “the failure of the federal public service to achieve employment equity after 15 years under the Act” (Public Service Alliance of Canada, 2013). In 2012, the Federal government removed legal requirements for Federal contractors and left the Minister to decide requirements. Then in 2013, again, the Federal government reduced the number of employers that were covered and reduced any requirements.
Recommendations to Improve the Legislation
The first recommendation that can be made to improve the Employment Equity Act is to increase its scope. Currently, it only applies employers under federal jurisdiction with 100 or more employees. This means the majority of Canadians are employed in organizations not covered by the Act. Increasing it beyond just federally regulated businesses, so it represents a greater proportion of the Canadian workforce, would have better results for the affected groups.
Another recommendation for improving the legislation would be to increase the level of government involvement. Henry and Jain (1991) suggested inequality has been prevalent for so long that current voluntary programs won’t work, and the only remedy would be increased government intervention. There are currently no incentives for employers to comply with the Act, and few sanctions are ever imposed on employers who do not adhere to the rules of the Act.
The Employment Equity Review Tribunal may impose fines of up to $50,000 for continued violation of policies, but this does not pose a meaningful deterrent to a lot of employers. (Mentzer, 2002) There needs to be increased monitoring of how programs are implemented within businesses, incentives for complying with all program requirements, which would compel organizations to develop and regulate their own equality programs (Falkenberg & Boland, 1997), and meaningful penalties for continual non-compliance.
There is also currently insufficient monitoring of equity programs. The government Evaluation of Employment Equity Programs, published in September this year, found that the performance measures in place to monitor the effectiveness of the programs were being underused. There needs to be better, and more frequently produced, evaluations of how the Act is working in order to determine improvements that can be made to the programs more accurately. Further, these performance measures do not provide an accurate idea of program outcomes because they focus more on compliance with reporting than on whether the business is actually adhering to the standards the Act is designed to promote. (Evaluation, 2015)
A final suggestion of how to improve the legislation is to increase understanding and change employer and employee perceptions of the Act. Falkenberg and Boland (1997) argue that employee participation is vital to the success of programs. They propose educating workers to change their attitudes and prejudices towards designated groups, as well as about the reasons for the Act, and discriminations faced by the target groups. Without this, and an understanding of the reasons behind the policy, they say employees will be resentful of what they may perceive as reverse discrimination within the Act.
With regard to the Aboriginal population, the government Evaluation of Employment Equity Programs (2015), found that it is increasing at twice the rate of the general population, and this obviously, in turn, means that there will be soon more Aboriginal peoples looking for work. The report stated that policymakers do not currently consider Aboriginal communities to be a source of skilled workers. Therefore they and employers need to be educated that Aboriginals’ skills and potential are being underused, and should be more actively explored, particularly in times of skills shortages.
With relation to people with disabilities, the need to accommodate goes beyond hiring requirements and covers the job itself. Vital to the employment of people with disabilities was the degree to which employers’ were willing and able to accommodate them. The report found that employers were focused on obvious disabilities and needed more education on less obvious ones, such as hearing, learning, and mental disabilities and the accommodations they might require, such as the provision of interpreters or tele-typewrites, as well as a better recognition and understanding of mental health problems. Many employers cited the cost of accommodation as the main barrier to hiring someone with a disability. However, the report suggests the estimated cost of providing the necessary accommodation would be less than $500 per person.
The forecasted increase in the rate of growth in all designated groups over the coming years will almost certainly increase the number of those people in need of support, meaning we have to correct these policies now, to ensure smoother transitions into the workforce for disadvantaged groups in the future.
Conclusions
The insinuations of the Employment Equity Act appear to be reasonable, and if applied properly, the Employment Equity Act could and will be operative and efficient. Nonetheless, in a case, if the Act is not being applied reliably, the inferences could be observed that it appears to be not essential in Canada. The Employment Equity Act is covered with decent objectives because it strives for eliminating the obstacles that females of the country, aboriginal peoples, individuals with disabilities, and observable subgroups of the population are facing; although discernment is made deceptive up to this day. As they go through the acquisition procedure, the managers are obliged to search for and discover the best applicant for the occupation rather than employing a person based on the evaluation of their gender or position in the society.
The Quality that is proposed by a singular person should reproduce the way they are able to donate an affirmative development and affluence among the employees. These qualities should have a leading role and be searched for while employing a person. Due to the fact that the Employment Equity Act is not correctly applied and exposed to have defects, variations should be implemented to the Act to make it work efficiently and assist the manager along with the workplace surroundings. The changes should be made in accordance with the historical past of the Employment Equity Act. The existing Employment Equity Act has to be adapted so that it can be applied appropriately, constructing it the way it would be essential to apply.
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