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Employment equity (Canada)

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Employment Equity Act
Act of Parliament
Long titleAn Act respecting employment equity
Dates
Royal assentDecember 15, 1995
CommencementOctober 24, 1996
Status: Current legislation

Employment equity, as defined in federal Canadian law by the Employment Equity Act (French: Loi sur l’équité en matière d’emploi), requires federal jurisdiction employers to engage in proactive employment practices to increase the representation of four designated groups: women, people with disabilities, visible minorities, and Indigenous peoples.[1] (The actual legislation uses the term "Aboriginal peoples" for Indigenous peoples). The act states that "employment equity means more than treating persons the same way but also requires special measures and the accommodation of differences".[2]

The act requires that employers remove barriers to employment that disadvantage members of the four designated groups. Employers are required to institute positive policies for the hiring, training, retention, and promotion of members of the designated groups. Examples of positive policies include recruitment in Indigenous communities, job advertisements in minority-language newspapers, or an apprentice program directed toward people with disabilities.

History

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The roots of employment equity are in the 1984 Abella commission, chaired by Judge Rosalie Abella. She considered a U.S. term, "affirmative action", but decided not to use it because of the emotions and ill will surrounding affirmative action.[3] In its place she created the term "employment equity" for the Canadian context. Abella's report later became the foundation of the Employment Equity Act of 1986, later amended as the Employment Equity Act of 1995. The purpose of the act, as stated in the legislation itself, is:

The purpose of this Act is 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 that goal, 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.[2]

Designated groups

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The Employment Equity Act designates four groups as the beneficiaries of employment equity:[1]

  1. Women
  2. People with disabilities
  3. Aboriginal peoples, a category consisting of Status Indians, Non-status Indians, Métis (people of mixed Indigenous-French ancestry in western Canada), and Inuit (the Indigenous people of the Arctic). The term "Indigenous" is now preferred, although the actual wording of the law uses "Aboriginal".
    Main article: Indigenous peoples in Canada
  4. Visible minorities The term "racialized persons" is now preferred, although the actual wording of the law uses "visible minorities".
    Main article: Visible minority

Coverage

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The Employment Equity Act is federal legislation, and as such, applies only to a narrow group of industries that are federally regulated under the Canadian constitution: banks, broadcasters, telecommunication companies, railroads, airlines, private businesses necessary to the operation of a federal act, maritime transportation companies, other transportation companies if inter-provincial in nature, uranium-related organizations, federal crown corporations, and corporations controlled by two or more provincial governments.[4] Overall, federal employment equity legislation covers 10% of the Canadian workforce.[5] Thus the scope of the Employment Equity Act is quite limited, and the vast majority of employers, including nearly all retailers and manufacturing companies, fall outside its jurisdiction.

The Canadian federal government also administers the Federal Contractors' Program (FCP). This is not under the Employment Equity Act, but rather is a non-legislated program that extends employment equity to organizations beyond the scope of the act that provide eligible goods and services to the federal government.[6] The FCP states that suppliers of goods and services to the federal government (with some specified exceptions) must have an employment equity program in place.

Some provinces use the term "employment equity" in conjunction with their enforcement of provincial-level human rights legislation (for example, British Columbia).[7] The government of Quebec requires that employers show preference to people with disabilities, which could be considered a form of employment equity.[8] However, while every province has human rights legislation to prohibit discrimination against women and various minorities, no province has a law that is an analogue to the federal Employment Equity Act.

Regulatory oversight

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Oversight of employment equity is shared among three federal government agencies. For private sector employers that are federally regulated, Employment and Social Development Canada collects data from employers and conducts research related to the Employment Equity Act.[1] The Treasury Board Secretariat oversees the administration of employment equity in the federal government itself. The Canadian Human Rights Commission deals with both private and public sector employers that are federally regulated, and is responsible for conducting audits of employers' compliance.

In addition to the above, Employment and Social Development Canada is responsible for oversight of the Federal Contractors' Program.[1]

Controversy

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Employment equity is surrounded with controversy, as has occurred with similar programs in the U.S. and other countries. Opponents of employment equity argue that it violates common-sense notions of fairness and equality.[9] Economists Cristina Echavarria and Mobinul Huq propose that employment equity be redesigned so that employers are required to remove barriers to men applying for female-dominated jobs, as well as barriers to women applying for male-dominated jobs.[10]

On the other hand, proponents maintain that employment equity is necessary to amend historic wrongs and to ameliorate the economic differences among groups.[11][12] A particular point of contention has been the category visible minorities, which lumps together numerous ethnic groups, some of whom are affluent and some of whom are severely disadvantaged.[13][14][15]

Some argue that the act should have been stricter. Others have argued that employment equity should rely more on moral suasion rather than legal remedies.[16] Among those who argue for strictness, the act has been criticized as an example of "soft-law", meaning token penalties combined with an overly casual use of compliance statistics.[17] Other researchers have argued for a more conciliatory approach based on self-regulation, employee participation, and appeals to employers’ sense of self-interest.[18] Some have also contended that employment equity is in conflict with the Canadian Human Rights Act which prohibits discrimination on the basis of gender, race, ethnicity, and certain other grounds,[19] since biasing hiring practices to prefer designated groups is necessarily discriminatory against non-designated groups. However, the equality section of the Canadian Charter of Rights and Freedoms explicitly permits (but does not require) affirmative action type legislation. Subsection 2 of Section 15 states that the equality provisions do "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 disability."

In July 2010, controversy arose when a Caucasian woman, Sara Landriault, was barred from applying for employment in a federal agency because she was not in a racial minority. This incident led Stockwell Day, then president of the Treasury Board of Canada, to announce a review of employment equity.[20]

Distinct from other human rights concepts

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Section 15 of the Canadian Charter of Rights and Freedoms states in Subsection (1) that, "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, age or mental or physical disability." Subsection (2) states that "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 disability."

The Canadian Human Rights Act has long prohibited discrimination on the basis of gender, race, ethnicity, and certain other grounds.[21] The Canadian Human Rights Act continues to be in force alongside the Employment Equity Act. The key distinction between the two laws is that the Canadian Human Rights Act merely prohibits discrimination, whereas the Employment Equity Act requires employers to engage in proactive measures to improve the employment opportunities of the four specific groups listed above.[1] Note that the Canadian Human Rights Act protects a wider range of minorities (such as sexual minorities and religious minorities), while the Employment Equity Act limits its coverage to the aforementioned four protected groups. In Canada, employment equity is a specific legal concept, and should not be used as a synonym for non-discrimination or workplace diversity.

Employment equity should not be confused with pay equity, which is an entirely distinct concept.[22][23] Pay equity, as a Canadian legal term, refers to the legal requirement that predominantly female occupations be paid the same as predominantly male occupations of equal importance within a given organization.

One way of understanding the distinction between employment equity and pay equity (comparable worth) is to note that they take different approaches to dealing with the problem of predominantly female occupations being underpaid. Employment equity aims to increase the number of women in well-paid occupations. In contrast, pay equity implicitly recognizes how difficult it is to integrate predominantly male occupations, and instead aims to increase the pay of predominantly female occupations. Employment equity addresses the situation of Indigenous peoples, visible minorities, and people with disabilities, whereas pay equity addresses solely the dilemma that predominantly female occupations tend to be underpaid.

References

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  1. ^ a b c d e "Frequently Asked Questions on Employment Equity". Canadian Human Rights Commission. 27 August 2009. Archived from the original on 27 September 2007. Retrieved 10 December 2016.
  2. ^ a b Employment Equity Act (1995, c. 44) Act current to May 28, 2024
  3. ^ Abella, R. S. (1984). Report of the Commission on Equality in Employment. Ottawa: Government of Canada. ISBN 0-660-11736-3.
  4. ^ "Federally Regulated Businesses and Industries". Human Resources and Skills Development Canada. 2008-03-19. Retrieved 2010-04-14.
  5. ^ Human Resources and Social Development Canada. "Employment Equity Act Review". Archived from the original on 17 March 2012. Retrieved 24 February 2012.
  6. ^ Federal Contractors' Program. Human Resources and Skills Development Canada. 2003-05-07. ISBN 0-662-55427-2. Archived from the original on 2009-04-11. Retrieved 2009-08-07.
  7. ^ Tribunal, Human Rights. "Human Rights Tribunal". www.bchrt.bc.ca. Retrieved 2019-07-17.
  8. ^ Neal, Christopher (1982-09-02). "Major Firms Told to Draft Hiring Plans for Disabled". The Gazette (Montreal). Southam Inc. pp. D12.
  9. ^ Burke, R. J.; Black, S. (1997). "Save the males: Backlash in organizations". Journal of Business Ethics. 16 (9): 933–942. doi:10.1023/A:1017991421416. ISSN 0167-4544. S2CID 189901173.
  10. ^ Echevarria, Cristina; Mobinul Huq (2001). "Redesigning Employment Equity in Canada: The Need to Include Men". Canadian Public Policy. 27 (1): 53–64. doi:10.2307/3552373. JSTOR 3552373.
  11. ^ Agocs, Carol (2002). "Canada's employment equity legislation and policy, 1987-2000: The gap between policy and practice". International Journal of Manpower. 23 (3): 256–276. doi:10.1108/01437720210432220. ISSN 0143-7720.
  12. ^ Jain, H. C.; Lawler, J. J. (2004). "Visible minorities under the Canadian Employment Equity Act, 1987-1999". Relations Industrielles. 59 (3): 585–611. doi:10.7202/010926ar. ISSN 0034-379X.
  13. ^ Hum, D.; Simpson, W. (1 September 1999). "Wage opportunities for visible minorities in Canada". Canadian Public Policy. 25 (3): 379–394. doi:10.2307/3551526. ISSN 0317-0861. JSTOR 3551526.
  14. ^ Mentzer, M. S.; Fizel, J. L. (1992). "Affirmative action and ethnic inequality in Canada: The impact of the Employment Equity Act of 1986". Ethnic Groups. 9 (4): 203–217. ISSN 0308-6860.
  15. ^ Swidinsky, R.; Swidinsky, M. (2002). "The relative earnings of visible minorities in Canada: New evidence from the 1996 census". Relations Industrielles / Industrial Relations. 57: 630–659. doi:10.7202/006904ar. ISSN 0034-379X.
  16. ^ Mentzer, M. S. (2002). "The Canadian experience with employment equity legislation". International Journal of Value-Based Management. 15 (1): 35–50. doi:10.1023/A:1013021402597. ISSN 1572-8528. S2CID 141942497.
  17. ^ Grundy, John; Miriam Smith (September 2010). "Evidence and equity: Struggles over federal employment equity policy in Canada, 1984–95". Canadian Public Administration. 54 (3): 335–57. doi:10.1111/j.1754-7121.2011.00179.x. ISSN 0008-4840.
  18. ^ Falkenberg, L. E.; L. Boland (1997). "Eliminating the barriers to employment equity in the Canadian workplace". Journal of Business Ethics. 16 (9): 963–75. doi:10.1023/A:1017995522325. ISSN 0167-4544. JSTOR 25072962. S2CID 189899544.
  19. ^ "Frequently Asked Questions About the Canadian Human Rights Act". Canadian Human Rights Commission. 2008-07-25. Archived from the original on 2010-05-10. Retrieved 2017-10-07.
  20. ^ Friesen, Joe (2010-07-22). "Tories take aim at employment equity". The Globe and Mail (Toronto). CTVglobemedia Publishing Inc. Retrieved 2010-08-04.
  21. ^ "Frequently Asked Questions About the Canadian Human Rights Act". Canadian Human Rights Commission. 2008-07-25. Archived from the original on 2010-05-10. Retrieved 2010-04-14.
  22. ^ "Overview: Resolving Disputes: Pay Equity". Canadian Human Rights Commission. 2008-04-08. Archived from the original on 2010-05-10. Retrieved 2010-04-11.
  23. ^ "About Pay Equity". Ontario Pay Equity Commission / Queen's Printer for Ontario. 2005-01-06. Archived from the original on 2009-07-03. Retrieved 2010-04-11.
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