The New, Improved Brand of Employment Equity

 

On December 12, 1994, the federal government introduced Bill C-64, “An Act Respecting Employment Equity.” During the last federal election, the Liberal Party released its “Red Book.” In the Red Book, the Liberals indicated that they would be extending employment equity to cover the federal public service that had been exempted under the Mulroney government’s Employment Equity Act, which had come into force in 1986. The Liberals also promised to utilize the Canadian Human Rights Commission as an employment equity enforcement mechanism. What follows is a preliminary discussion of some of the issues that arise under Bill C-64.

1. PURPOSE OF THE LEGISLATION
Bill C-64 does not change the purpose of the 1986 Employment Equity Act. It remains focused on anti-discrimination. This can be contrasted with the Ontario Employment Equity Act which was proclaimed into force in September, 1994. The Ontario act sets as its goal the representation of the four target groups within the workplace in numbers reflecting their representation in the population as a whole. The act is, therefore, more focused on results as opposed to process.

2. DEFINITION
The 1986 act and the Ontario legislation define a person with a disability in terms of “limitations at work” or “disadvantagement in employment.” The new federal definition adds the following words: “… and includes persons whose functional limitations owing to their impairment have been accommodated in their current job or workplace.” It is crucial that the definition selected be comparable to figures generated by the Health and Activities Limitations Survey (HALS), 1991. This survey does a preliminary screening based on whether a person has a “limitation in an activity of daily living.” It then raises the issue of limitation at work. Apparently, in 1991 the issue of job accommodation was raised. It was found that a small number of persons with disabilities identified themselves as having had an accommodation made for them at work; however, they did not indicate that they were limited at work. It was decided by Statistics Canada that both groups should be included for purposes of establishing availability data for employment equity.

On the basis of the foregoing, it would be difficult to argue that this definition is inappropriate. If one reviews the Statistics Canada publication “Adults with Disabilities: Their Employment and Education Characteristics” (June, 1993), it will be noted that the number of employed persons who reported themselves as being limited at work changed from 53 percent in 1986 to 34 per cent in 1991. Arguably, some of the change can be seen as support for the view that once a person has been successfully accommodated, that person might no longer be self-identified as “limited at work.” Bearing in mind that the purpose of employment equity at least partially is to secure accommodations for those who require them, it stands to reason that employers who successfully accommodate an employee should not be penalized for having done so.

Adelle Furrie from Statistics Canada indicated that the group of people who considered themselves to be in receipt of an accommodation and not limited at work was relatively small. It may become larger. On balance, however, it would appear that the change in the definition is justifiable. Remaining issues that require clarification include the context in which the disability question can be posed, and the sanctions which will be applied when employers use an illegal definition. Under the Ontario legislation, a specific question must be posed. This minimizes the potential of game-playing by employers seeking to inflate representation rates. The inability of government officials to compel compliance by employers who had broadened the 1986 definition proves that sanctions are necessary.

3. JURISDICTION
As promised, the federal government has extended the Employment Equity Act to cover public employers. The act does not specifically change the coverage for federal employers in the private sector. Section 39 (2) of the bill provides a legislative mandate for the federal Contractors Program for Employment Equity. It states that “the core requirements of that program are [to be] compatible with the principles of employment equity reflected in this act.” There is, as a result, a legislative mandate for the program, as well as some assurance of comparability between legislated employment equity and the program.

4. EMPLOYERS’ OBLIGATIONS
The employers’ obligations under the new legislation will be the same as those imposed under the 1986 act.

Goals for individual employers are to be established based on the performance of all other employers or, alternately, “availability” (i.e. the percentage of persons who have worked within an occupational group). Availability is unfair to persons with disabilities because as a group they have high education levels but are denied the opportunity of actually working in the occupation for which their education prepares them. As a result they are qualifiable but not qualified. Availability rates are, therefore, lower than for the other three target groups where there is a much higher correlation between educational achievement and employment.

5. LIMITS ON OBLIGATIONS
This is a new section which is presumably intended as reassurance to employers. There is a section that states that employment equity does not require an employer to take steps that would “cause undue hardship to the employer.” This raises questions about whether the “undue hardship standard” in the Canadian Human Rights Act, which would be applied in individual cases, is the same standard as that applied to the effects of an employment equity plan for workplace as a whole. This section also states that there is no obligation on an employer to “create new positions in its work force.” The most effective means of finding competitive employment for persons with severe disabilities requires considerable flexibility in the way in which work is structured. If existing job classifications are maintained, this could have a discriminatory impact on persons with disabilities. Job classifications are usually developed with the capabilities of an able-bodied employee in mind. This section may impose limitations on the obligation to restructure work.

6. THE ROLE OF TRADE UNIONS
Under the Ontario Employment Equity Act, trade unions, where they exist, are given responsibility for negotiating employment equity with the employer. Under the federal act, the employer is to consult with “employees’ representatives.” Where there is a trade union, that union is to be the representative. The act makes it clear that consultation “is not a form of coÄmanagement.”

7. SENIORITY
According to the “Renaud” case, human rights legislation takes precedence over a collective agreement. As a result, a clause in a collective agreement which has a discriminatory effect can be changed in order to end the discrimination. As a consequence, it is possible that seniority rights may be seen as having a discriminatory effect on persons with disabilities. During the original discussions, employment equity discussions between the trade union movement and persons with disabilities in Ontario, it was agreed that seniority would not be considered a barrier for purposes of layoff and recall, but that for all other purposes it would be considered a barrier and, therefore, subject to employment equity. As the Ontario bill was further reviewed, the protection for seniority rights was extended to cover all other seniority rights except those which had been found to be discriminatory following a hearing under the Human Rights Code. This favourable treatment for seniority rights is duplicated in Bill C-64.

8. SELF-IDENTIFICATION
In the Ontario act, an employee has an absolute right to “self-identify” or not. Under Bill C-64, employers may ask employees for the right to identify them as being members of target groups. It may be difficult for employees to refuse such a request made by an employer. This would appear to erode the right of “self-identification.” It could also make comparisons between HALS availability data and an employer’s representation rate less meaningful.

9. LEGAL OBLIGATIONS
It will be important to determine the extent to which employers must remove barriers and establish goals and timetables that will accomplish the goal and the objectives of employment equity. On the surface, the obligations are comparable between the federal and Ontario statutes. On closer analysis, however, the Ontario statute requires that an employment equity plan “would, if implemented, constitute reasonable progress toward achieving compliance with the principles of employment equity.” Bill C-64 provides that the plan “constitutes reasonable progress toward implementing employment equity as required by this act.” This is more limited, for the reasons outlined in section 1 of this article, above.

Once a plan has been established, the Ontario statute requires that employers use “all reasonable efforts” to implement the plan, while the federal statute speaks of making “reasonable efforts.”

10. PUBLIC INFORMATION
As had been the case under the 1986 act, the Minister of Human Resources Development shall be required to prepare a consolidation of the individual employer reports and to make this public. The Ontario Employment Equity Commission will have the authority to require the employer to file a copy of its Employment Equity Plan. There are also mechanisms for allowing employees to have access to the plan. Access to this information is far more problematic under the proposed federal legislation. It would appear that access to the plan could only be secured by the Canadian Human Rights Commission should it undertake an “audit” of the employer. Furthermore, all information gathered as a result of an audit must be kept strictly confidential and cannot be used for any other purpose (e.g. forming the basis for a human rights complaint).

11. ENFORCEMENT
Under the Ontario legislation, an individual (i.e. a person with a disability) could initiate litigation if an employer failed to take steps required by an employment equity plan or failed to achieve the goals set out in the plan. There is no provision for individually initiated applications under Bill C-64. In the Ontario legislation, the Employment Equity Commission has exclusive jurisdiction to initiate an inquiry into whether or not an employment equity plan complies with the legislation. Under Bill C-64, both the content and implementation of the plan are left to the Canadian Human Rights Commission. This raises a number of issues. First is the question of resources. The government has indicated that the Canadian Human Rights Commission will not be receiving any additional money with which to fulfil its responsibilities under the new act. The Disabled People for Employment Equity Human Rights Group (DPEEHRG) filed nine complaints in 1988. A number of those complaints remain uninvestigated to this date. It is, therefore, possible that the legislation will not be implemented, because the commission lacks the resources to fulfil its mandate. It is also clear that the commission’s interpretation of the legislation will prevail. If the commission adopts a conservative interpretation, it will not be possible to review this decision through the courts.

The issue of imposing fines is left to the Minister of Human Resources Development. This Department has not been aggressive in enforcing the current Employment Equity Act.

12. BARRIER REMOVAL
It is crucial that a positive duty to accommodate be understood to exist in employment equity. Section 10 (1) (a) of Bill C-64 speaks in terms of “reasonable accommodation.” This language is not as strong as speaking in terms of “accommodation to the point of undue hardship.” Under the Ontario act, an employer is required to identify barriers to the achievement of employment equity and to describe how those barriers are to be removed. Bill C-64 requires only that shortÄterm measures (defined as those to be taken within a one- to three-year period) be set out in the plan. As a result, it is not necessary to describe how the barriers will be removed. This means that there is no assumption that barriers will ultimately be removed.

13. POLICE AND THE MILITARY
The Mulroney government introduced a bill to amend the Canadian Human Rights Act which was never passed. In it, there were provisions which would have altered the duty to accommodate persons with disabilities if the “operational effectiveness” of the military, police or security forces was affected by a human rights order. In Bill C-64, there is authority to make similar exceptions to the general rule by passing regulations. This sets a negative precedent and perhaps raises questions about whether the Mulroney proposal will be revived in the upcoming amendments to the Canadian Human Rights Act.

14. HUMAN RIGHTS AMENDMENTS
Under both the Ontario and new federal legislation, a Human Rights Commission can refuse to deal with a human rights complaint if it feels that it could be adequately dealt with through the employment equity process. Under the Ontario act, failure to meet goals set out in the plan does not constitute discrimination. Bill C-64 goes further and would preclude filing a human rights complaint on the basis of statistical information showing that a designated group is under-represented in the employee’s work force. This would preclude human rights complaints such as those launched by DPEEHRG in 1988. Tribunals under the Canadian Human Rights Act will lose their authority to make certain kinds of remedial orders, including the imposition of goals and timetables or the performance of “positive measures.” This would preclude orders such as that made in the “Action Travail des Femmes” case.

15. CONCLUSIONS
It should not be surprising that employers have not objected to Bill C-64. Many of their concerns have been addressed in the legislation.

There are many ways in which the federal legislation could be strengthened in order to bring it closer to the Ontario legislation. The Ontario legislation also has its difficulties. However, on balance, it would appear to be substantially stronger then the federal act.

The disability community may wish to consider which areas require immediate attention and, as well, which of the other target groups may be interested in working together on these issues.

 

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