Affirmative Action and

Employment Equity

Employment Equity

Ensuring that employers identify and remove employment barriers...and take appropriate special measures to ensure the representation of disadvantaged groups consistent with their availability in the labour force

““You do not take a person who, for You do not take a person who, for years, has been hobbled by years, has been hobbled by chains...and then say you are free to chains...and then say you are free to compete with all the others, and still compete with all the others, and still just believe that you have been just believe that you have been completely fair.”completely fair.”

Lyndon B. Johnson, 1965Lyndon B. Johnson, 1965

DC

What is Employment Equity?

Developed by Judge Rosalie Silberman Abella, Commissioner of the Royal Commission on Equality in Employment (1984),

Goal is to describe a distinct Canadian process for achieving equality in all aspects of employment.

This term was meant to distinguish the process from the primarily American "Affirmative Action" model as well as to move beyond the "Equal Opportunity" measures available in Canada at that time.

Recognizing that "systemic discrimination" was responsible for most of the inequality found in employment, the Commission outlined a systemic response and chose the term "Employment Equity" to describe the process.

Employment Equity: Why?

Groups in society that have faced historical and continuing discrimination

Systemic barriers to employment of disadvantaged group

underrepresented in overall workforce underrepresented in specific industries/job categories – e.g. pink

ghetto underrepresented in upper management – e.g. “glass ceiling”

Time alone will not correct the problem – requires government intervention

http://www40.statcan.gc.ca/l01/cst01/demo50a-eng.htm

Total population 31,241,030Visible minority population 5,068,095Not a visible minority 26,172,9402006 Stats Can

“The American Dilemma”

strong American commitment to strong American commitment to political principlespolitical principles

egalitarianism – “all men are egalitarianism – “all men are created equal”created equal”

individualism and personal individualism and personal libertyliberty

emphasis on freedom from emphasis on freedom from governmentgovernment

history of slavery, racism and history of slavery, racism and segregationsegregation history in conflict with principle of history in conflict with principle of

egalitarianismegalitarianism solutions (usually relying on solutions (usually relying on

government) in conflict with government) in conflict with principle of individualism and principle of individualism and limited gov’tlimited gov’t

DC

Programs and policies to actively encourage/enforce Programs and policies to actively encourage/enforce proportional representation of disadvantaged groupsproportional representation of disadvantaged groups

Employment Equity in Canada

Canadian Charter of Rights and Freedoms: S.15(1): Every individual is

equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, sexual orientation, age or mental or physical disability.

S.15(2): Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical ability.

DC

Employment Equity is an on-going planning process used by an employer to:

Identify and eliminate barriers in an organization's employment procedures and policies;

Put into place positive policies and practices to ensure the effects of systemic barriers are eliminated; and

Ensure appropriate representation of "designated group" members throughout their workforce.

How it is actually done.

Requirements employers required to collect data on target groups attempt to identify reasons where under-

representation occurs identify barriers to employment implement plan to remove barriers set own goals (including timetables) for addressing

under-representation

The goal of Employment Equity is to:

eliminate employment barriers for the four designated groups identified in the Employment Equity Act : women, persons with disabilities, Aboriginal people, members of visible minorities;

remedy past discrimination in employment opportunities and prevent future barriers;

improve access and distribution throughout all occupations and at all levels for members of the four designated groups;

foster a climate of equity in the organization.

In Canada, there are two Federal Employment Equity Programs:

Legislated Employment Equity Program (LEEP): Under the LEEP, the following employers are subject to the Employment Equity

Act:

All federally regulated employers with 100 or more employees, including organizations in industries such as banking, communications, and international and interprovincial transportation. In 2000, there were approximately 394 such employers (private-sector employers and Crown corporations), representing approximately 612,344 employees.

All federal departments, representing approximately 155,360 employees. Other parts of the public service, including the Canadian Forces and the Royal Canadian Mounted Police may be specified by order of the Governor in Council, on the recommendation of the Treasury Board, as being required to comply with the EE Act.

Federal Contractors Program (FCP):

Under the FCP, employers with 100 or more employees who have secured a federal goods or services contract of $200,000 or more are required to sign a certificate of commitment to fulfill their mandated goal of implementing employment equity in their workplace.

As of May 1, 2002, there were approximately 891 federal contractors, representing approximately 1,082,184 employees.

Counter Argument

The Charge of Reverse Discrimination

For many people, the treating of some groups more favourably than others in order to rectify historical inequalities runs contrary to the principles of free enterprise and democracy.

Those who receive preferential treatment are not usually those who were originally discriminated against, and those who were responsible for past discrimination.

We are paying for the attitudes and behaviours of ancestors.

http://www.pbs.org/now/shows/434/video.html

OJEN LAW DAY: TRAILBLAZERS

LAW FEILD TRIP

History of Employment Equity 1950s-1960s New employment statutes in most Canadian jurisdictions prohibited racial and religious discrimination and prescribed equal pay for men and women.

1960: The first Canadian Bill of Rights was introduced.

Equal Opportunity: one of the first concepts commonly used to define equality in employment for all Canadians. Equal Opportunity was based on the notion that if discrimination in employment ended, all Canadians would have equal access to equal employment opportunities. However, Equal Opportunity programs did not result in any significant redistribution in the employment of disadvantaged group members in the Canadian workforce.

1970s Increased pressure from women and minority groups led federal, provincial and municipal governments to establish special programs to improve the employment situation of these groups.

Human Rights Commissions were established in all provinces by the mid-1970s.

1977: Parliament enacted the Canadian Human Rights Act.

It applied to federal and federally regulated bodies and aimed to protect Canadians from discrimination based on any of the 10 grounds: race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability and conviction for an offence for which a pardon has been granted. Sexual orientation was added to the list of prohibited grounds of discrimination in 1996.

1978: The federal government launched a voluntary Affirmative Action Program aimed at private industry.

1979: Federal contractors and Crown corporations were included and the program was administered through the Canada Employment and Immigration Commission. The targeted groups were: Aboriginal peoples; Blacks in Nova Scotia; persons with disabilities; and women. 1980s 1980: A pilot Affirmative Action Program was established in three federal government departments (Canada Employment and Immigration Commission, Secretary of State and Treasury Board Secretariat). In 1983, this initiative was extended to all departments within the

federal public service. The groups targeted were: Aboriginal peoples; persons with disabilities; and women.

1981: The Government of Canada created a Parliamentary Special Committee on the Disabled and the Handicapped. The report stemming from this committee, entitled Obstacles, was the first federal government examination of the issues faced by persons with disabilities.

These voluntary affirmative action programs did not bring about significant changes in employment opportunities for disadvantaged group members.

1983: The Royal Commission on Equality in Employment was established to address the lack of progress experienced through voluntary affirmative action programs.

The Commission was instructed to "explore the most efficient, effective and equitable means of promoting equality in employment" for the four designated groups: women, Aboriginal peoples, persons with disabilities, and visible minority persons.

1984: Judge Rosalie Abella released the Commission's report and coined the term Employment Equity to describe the Canadian approach to dealing with employment disadvantage.

Also in 1984, Equality Now, the report of the Parliamentary Special Committee on Participation of Visible Minorities in Canadian Society, set out that committee's recommendations on improving race relations in Canada.

1985: In June, the federal government responded to the Commission's report by introducing Bill 62: a Bill with respect to Employment Equity.

In addition, Section 15 fo the Charter of Rights and Freedoms came into effect, further strengthening the idea of workplace equality.

This "Equality Rights" section contains protection against discrimination and makes a provision for special affirmative action programs. Subsection 15(2) acknowledges that equality requires conditions of disadvantage to be addressed. This means that the argument that employment equity is 'reverse discrimination' is not legally valid. Employment equity does not target individuals or groups for exclusion, as does discrimination; rather, employment equity seeks to include groups that are proven to have been excluded in the past.

1986: The Employment Equity Act was passed. Its purpose was to:

"achieve equality in the workplace so that no person shall be denied employment opportunities or benefits for reasons unrelated to ability and, in the fulfillment of the goals, to correct the conditions of disadvantage in employment experienced by women, Aboriginal peoples, persons with disabilities, and visible minority people 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."

Highlights:

Legislated Employment Equity Program (LEEP) became fully operational in 1988. Employers received two years to set up their employment equity processes.

Federal Contractors Program (FCP) became fully operational in 1988 and was established by government policy, not legislation. 1990s 1995: The second Employment Equity Act received royal assent in 1995 and came into force on October 24, 1996. Built on the framework provided by the earlier legislation, it focuses on clarifying and enforcing the employer obligations in the Act. The Act covers private

sector employers under federal jurisdiction as well as almost all employees of the federal government.

Major changes under the Act:

Canadian Human Rights Commission given the authority to audit all federally regulated employers' employment equity processes.

All federal departments fall under the Employment Equity Act (they do not report to HRDC)

Federal Contractors Program responsibilities stated in the legislation. [Section 42 (2)]

Section 44(1) called for a review of the Employment Equity act in five year. 2000s 2001-2002: The Standing Committee on Human Resources Development and the Status of Persons with Disabilities heard testimony from witnesses in response to the Subsection 44(1) review clause. For more Employment Equity information, click on the following: What is Employment Equity? Important Dates in Employment Equity

Employment Equity - Important Dates 1978:Government launched a voluntary affirmative action program aimed at private industry. Canadian Human Rights Act

came into force, proscribing discrimination, including discriminatory policies and practices in employment and permitted special programs to eliminate or reduce disadvantage. 1979:Federal contractors and Crown Corporations included. On Nov 6, Action Travail des Femmes filed a complaint against Canadian National Railway alleging discriminatory hiring and promotion practices. It was one of the first complaints, alleging systemic discrimination practised against an identifiable group. 1980:Pilot affirmative action program in three federal departments: CEIC, Secretary of State, and TBS. 1982:Canadian Charter of Rights and Freedoms constitutionally affirmed the right to equal protection and benefit of the law and that such protection does not preclude special programs to ameliorate conditions of disadvantage. 1983:Affirmative Action Program introduced to bring about the equitable representation and distribution of women, Aboriginal peoples and persons with disabilities in the federal Public Service. Special Measures Programs launched to encourage the recruitment of designated group members. July 27: Royal Commission created under the chair of Judge Rosalie Abella to study equal employment opportunities. 1984:On Nov 29, the Abella Commission’s report, "Equality in Employment" tabled. Employment equity is defined as a strategy to "open equitably the competition for employment opportunities to those arbitrarily excluded". 1985:Visible minorities were included as a designated group in the Public Service and a service-wide survey was carried out to provide numerical information. 1986:Three major initiatives announced in response to the Abella report:

Employment Equity Act proclaimed on Aug 13, covering federally regulated companies with 100 or more employees (about 5% of the Canadian labour force),

Federal Contractors’ Program established, and an Employment Equity Policy covering the whole public Service introduced.  1987:On June 25, the Supreme Court of Canada reversed the Federal Court of Appeal’s decision, re-instating a Tribunal order

requiring Canadian National Railway to hire one woman in every four hires into unskilled blue-collar jobs. The original complaint was filed by Action Travail des Femmes. 1988:First annual report under the Act submitted. Minister tabled first Annual Report in Parliament in December. In the Public Service the Special Measures Programs introduced in 1983 were consolidated and renewed for five years. 1989:Treasury Board introduced a policy of the Provisions of Services for Persons with Disabilities, the most progressive of its kind in Canada. 1990:Based on employer reported data under the Act, the Canadian Human Rights Commission began voluntary joint reviews, seeking to negotiate corrective action. Third party complaints, based on these data, were also investigated. Employment and Immigration Canada issued a discussion paper in advance of the first House of Commons committee review of the Act. 68 written briefs were submitted and meetings were held with stakeholders. 1991:A Parliamentary Committee, chaired by Allen Redway, conducted public hearings at which over 45 witnesses appeared and 58 written submissions were received. The Committee’s Report, "A Matter of Fairness", recommended the inclusion of the federal Public Service, an elaboration of guidelines to assist employers, and the empowerment of the CHRC to monitor and enforce the Act. 1992:Public Service Reform Act transformed employment equity policies in the public service into mandatory requirements under the Financial Administration Act and the Public service Employment Act. June 18: Royal assent given to a Bill modifying six federal laws pertaining to persons with disabilities. Two of these, a TBS responsibility, were the Access to Information Act and the Privacy Act. These Acts were modified to facilitate access to government records and to personal information in alternate format for persons with a sensory disability. 1994:March: President of the Treasury Board tabled first annual report on the state of EE in the Public Service. April: Treasury Board implemented Special Measures Initiatives Program, replacing the former Special Measures Program. Greater emphasis placed on innovation, flexibility, and changing corporate culture. 1994:Based on Red Book commitments, on December 12 the Minister of Human Resources Development tabled Bill C-64 to replace the Employment Equity Act. In accordance with section 13(1) of the Employment Equity Act, 1986, the Standing Committee on Human Rights and the Status of Disabled Persons under the chair of Dr. Rey Pagtakham began, in November, to conduct a review of the existing Act as well as a review of Bill C-64. 1995:June 21: Standing Committee’s Report tabled. September 25: Standing Committee reported back an amended Bill C-64 to the House of Commons. December 15: Senate passed Bill C-64 and the governor-general gave Royal Assent. 1996: October 24: The new Employment Equity Act came into force. Section 44(1) called for a review five years from this date. 2001:Meetings were held with stakeholders across the country and a report was drafted for the use of the Standing Committee on Human Resources Development and the Status of Persons with Disabilities.