Employment equity, human rights, and workforce adjustment

What is employment equity?

Women, Aboriginal Peoples, persons with disabilities, and racialized persons (referred to as “visible minorities” in the Employment Equity Act) have faced disadvantage and discrimination and continue to face disproportionate levels of unemployment, underemployment, and barriers in the workplace.

Employment equity is designed to address and remedy these inequities by:

  • increasing the representation of people from these four “designated groups” in the workplace to a level that reflects their representation in the labour market; and
  • identifying and eliminating barriers in the workplace that prevent designated group members from accessing jobs, promotions, training, etc..

In accordance with the Employment Equity Act (“EE Act”), departments must have employment equity plans that set out:

  1. their goals for the hiring and promotion of the four designated groups;
  2. positive policies and practices to address hiring, training, promotion and retention; and
  3. measures to eliminate barriers. Departments must report statistics to Treasury Board on the workplace representation of the four equity groups, as well as on their rates of hiring, promotion, and “separation”. “Separation” refers to the number of employees removed from the public service payroll. This could be through layoff, termination, the end of a determinate employee’s term, retirement or resignation.

Why are employment equity considerations important in downsizing and workforce adjustment situations?

  • Employers have a legal obligation to ensure there is no discrimination in the workplace, including in situations of restructuring and layoffs.
  • Employers covered under the EE Act have an obligation to endeavour to achieve and maintain a workforce that is representative of the population, and to eliminate discriminatory barriers.
  • Employees from the four designated equity groups face discrimination in the workplace and society and often face the worst impact when workplaces reorganize or downsize.
  • Once they are out of work, persons with disabilities, Aboriginal peoples, and racialized persons are more likely to encounter difficulties re-entering the job market. The unemployment rates for these groups are much higher than the overall Canadian unemployment rate.

What do we need to look out for?

1. Disproportionate impact of layoffs on equity groups

It is important that the union be aware of the impact of downsizing and workforce adjustment on equity groups, and take action where there appears to be a disproportionate impact on one or more equity groups. For example, during the major cuts to the public service in the mid-1990s, Aboriginal peoples were separating from the public service at a rate of 11 to 13 percent per year, while the average for the public service was about 10 percent per year. This means that there appears to have been a greater impact of the cuts on Aboriginal peoples. A similar situation occurred with persons with disabilities. PSAC took up this issue with Treasury Board when we became aware of the situation.

Public service cuts could have a greater impact on equity groups in several ways:

  • in all occupational categories, one or more equity groups could be declared affected or surplus at a higher rate than non-equity groups;
  • the downsizing could be focusing principally on occupational categories that have higher rates of representation for the equity groups; or
  • the downsizing could be focused on particular departments, sections, or programs that have higher rates of representation for the equity groups.

As noted above, under employment equity, departments must track rates of separation. Where there is a higher rate of separation for one or more equity groups than their rate of representation, or a higher than average rate of separation, this is cause for concern and departments should investigate why this is happening. Are there barriers in the process that have a negative impact on the equity group(s)? Is discrimination occurring? If so, discrimination and barriers must be removed. In addition, departments should consider the effect that this will have on the overall rate of representation of the equity group(s) and take measures to ensure that the rate does not fall below their “workforce availability”, that is, their representation in the outside labour market.

  • PSAC components should ask for information about the current representation of equity groups in the workplace and information about how designated group members are affected. If possible, the employer should provide a breakdown of “affected” employees by equity group (numbers and percentages) compared with their overall representation. (Note, however, that the employer does not have to provide this breakdown if the numbers are so small it would jeopardize employee confidentiality. In this case, they should provide the information in a way that will not do so, e.g. by summarizing it.)
  • PSAC components should ask for the department’s information on rates of separation for the entire workforce and for the four equity groups.
  • Where the information provided shows a greater impact on one or more equity groups, the component should raise the issue with the department and ask what they intend to do to address the situation. Note that under the EE Act, departments must consult with unions on the implementation of employment equity. This consultation is normally done through a joint employment equity committee or union-management consultation committee, but such issues can also be addressed by a WFA committee. Where applicable, the union representatives on both types of committees (EE and WFA) should share information and strategies.
  • Employment equity representation can be included in the merit criteria (as an organizational need) when the department is selecting employees for retention or layoff, if it is supported by the department’s employment equity or human resources plan. The component should advocate for this when discussing merit at the WFA committee, since it is one way to prevent or address a situation where layoffs are having a greater impact on equity groups. For more information, see the Fact Sheet on Merit.

2. Duty to Accommodate

The duty to accommodate requires employers to make every reasonable effort, short of undue hardship, to accommodate workers who fall under a ground of discrimination within human rights legislation. The grounds are: race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.

Duty to accommodate can include eliminating or modifying policies or practices that have a discriminatory impact, or making modifications to the worksite or to an employee’s job duties to meet disability-related needs. The duty to accommodate is an obligation under human rights legislation. As well, under employment equity legislation, employers must take measures to ensure accommodation for the designated groups.

The employer’s duty to accommodate may come into play in a WFA situation, particularly in the case of employees with disabilities. The search for a “reasonable job offer” for employees with disabilities must take into account any accommodation needs.

For example, in situations where there is a relocation or where the job offered is at a different worksite, management must consider whether the proposed work site is accessible and allows for accommodation, if any needed special transport arrangements are available, and other such considerations.

As well, for Aboriginal persons, there could be restrictions with respect to relocation based on the cultural needs of this community.

The employer’s duty to accommodate means that policies and procedures must be flexible and must not be applied in a mechanical way. The employer should not insist on a job offer without taking into account the accommodation needs of the employee, even if such a job offer would technically be considered a “reasonable job offer” under the WFAA. The employer must also meet any needs for accommodation during the assessment process when employees are being selected for retention or layoff. The Public Service Commission’s document entitled “Guidance Series - Selecting Employees for Retention or Layoff” states that managers must respect the duty to accommodate during the assessment process. When the employer is communicating to employees during the WFA process, employees should be invited to identify any accommodation that may be needed during the assessment process.

  • The component should remind employers of their duty to accommodate during the WFA process and raise any circumstances that come to their attention where the employer is not providing accommodation.
  • If a member is not being properly accommodated, they may file a grievance under the No Discrimination clause of the collective agreement or, in the case of a failure to accommodate during an assessment process, a complaint with the Public Service Staffing Tribunal under section 65 of the Public Service Employment Act.

3. Discrimination

Discrimination (intentional or unintentional) can also play a role during the WFA process; for example, in how employees are selected for layoff. The process of selecting employees for retention or layoff involves an assessment of merit. This is not in reverse order of merit, as in the 1990s, but involves a different type of assessment in which management determines merit criteria and then assesses employees based on these criteria. In these situations, merit is applied in the same way that it is applied during the staffing process. Managers can determine the person who is the “right fit” for the job. Sometimes, intentionally or unintentionally, this can be used as a way to screen out a person based on a characteristic such as their disability, ethnic origin, sex, etc. As in staffing competitions, where discrimination, based on one of the 11 grounds under the Canadian Human Rights Act, occurs in the assessment of merit, this is an “abuse of authority” and can be challenged through a complaint process. For more information, see the Fact Sheet on Merit.

  • If a member has been discriminated against in the application of merit, he/she may file a complaint with the Public Service Staffing Tribunal under section 65 of the Public Service Employment Act.

For more information:

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September 17, 2013
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